The Supreme Court has stated that an acquittal based on "a 'misconstruction of the statute' defining the requirements to convict" is a substantive acquittal that precludes retrial. Evans v. Michigan, 568 U.S. , 133 S.Ct. 1069, 1074 (2013) (quoting Arizona v. Rumsey, 467 U.S. 203, 211 (1984)). In this case, the district court's interpretation of NRS 205.274 required the State to prove that the vehicle was damaged without the consent of the owner. The district court dismissed the count because the State did not satisfy this requirement. Moreover, when arguing against the dismissal, the State asserted that the proper procedure would be to issue an advisory jury instruction to acquit, which would function as a substantive acquittal. This argument demonstrates that the State recognized that the district court was acquitting Walker for substantive reasons. Accordingly, we conclude that the district court dismissed the count on substantive grounds.

In Combs, we held that, under the Double Jeopardy Clause, even the erroneous granting of a midtrial motion to dismiss a count in a criminal case barred retrial for the same count. 116 Nev. at 1180-81, 14 P.3d at 520-21. This court "note[d] that respondent's motion to dismiss the charges at the close of the State's case-in-chief was not properly made, and should not have been granted by the district judge. Instead, respondent should have moved for an advisory instruction to acquit pursuant to NRS 175.381(1)." Id. at 1180, 14 P.3d at 521. Yet, Idlespite the obvious error of the district court in granting respondent's motion to dismiss," we held that the Double Jeopardy Clause barred retrial. Id. at 1181, 14 P.3d at 521.

SUPREME COURT OF NEVADA (0) 1947A std.

The State argues that we should overrule Combs because it has been undermined by recent United States Supreme Court precedent.

We are not convinced that it has. Nevada has not provided for "the availability of reconsideration [of a midtrial dismissal of a count] by pre- existing rule or case authority," Smith u. Massachusetts, 543 U.S. 462, 473 (2005), which would provide a defendant with fair notice that any such acquittal is not final and subject to reconsideration. NRS 175.381(1) has not been amended since the Combs decision. And since Combs, neither the Legislature nor this court has created a ruleS providing for reconsideration in the case of a midtrial acquittal.

Thus, the application of Combs straightforwardly settles this appeal. The Double Jeopardy Clause bars retrial even for erroneous dismissals. Accordingly, we ORDER the judgment of the district court AFFIRMED.

k--Lt J.

Hardesty

J.

Douglas

Cherry

cc: Chief Judge, the Eighth Judicial District Court Lee A. Gates, Senior Judge Attorney General/Carson City Attorney General/Las Vegas Clark County Public Defender Eighth District Court Clerk SUPREME COURT OF NEVADA (0) 1947A oieto