[¶ 7] The State has the burden of proving every element of a crime beyond a reasonable doubt. City of Dickinson v. Kraft, 472 N.W.2d 441, 443 (N.D. 1991) (citing State v. Vogel, 467 N.W.2d 86, 89 (N.D. 1991)). If the State fails to do so, the defendant must be acquitted of the charge. Id. "There can be no appeal from a true judgment of acquittal."

[¶ 17] The district court's oral statements at trial and its written “judgment of acquittal,” holding there was insufficient evidence to sustain a conviction, resolved the factual elements of the offense charged. It was a true acquittal, rather than an order quashing the information, and the State is not permitted to appeal. See City of Dickinson v. Kraft, 472 N.W.2d 441, 443 (N.D.1991) ( “There can be no appeal from a true judgment of acquittal.”); see also State v. Flohr, 259 N.W.2d 293, 295–96 (N.D.1977). V

The City has the same right to appeal as the State if the complaint charges a defendant with an act prohibited by city ordinance that is also prohibited by a state statute. City of Dickinson v. Kraft, 472 N.W.2d 441, 442 (N.D.1991). The right to appeal must be expressly granted by statute.

The City has the same right to appeal as the State if the complaint charges a defendant with an act prohibited by city ordinance that is also prohibited by a state statute. City of Dickinson v. Kraft, 472 N.W.2d 441, 442 (N.D. 1991). The right to appeal must be expressly granted by statute.

The dismissal resolved no factual element of the offense charged. Cf. State v. Flohr, 259 N.W.2d 293, 295-96 (N.D. 1977) (concluding the judgment constituted an acquittal because it represented a resolution of some of the factual elements of the offense charged); City of Dickinson v. Kraft, 472 N.W.2d 441, 444 (N.D. 1991). At the time of dismissal, the defendant had already pleaded guilty, and the district court had already found the factual basis sufficient to sustain the charge and guilty plea. Also, the district court did not make any reference to the sufficiency of the evidence, indicating a resolution of the factual elements of the charge. See, e.g., Deutscher, at ¶ 12 ("The written order of dismissal and the trial court's oral statements at sentencing, together, prove the order of dismissal resolved factual elements of the offense charged.").

[¶ 16] There is no question that the juvenile court judge's decision constitutes an acquittal because it clearly "`represents a resolution of a factual element of the charged offense.'" City of Bismarck v. Uhden, 513 N.W.2d 373, 380 (N.D. 1994) (quoting City of Dickinson v. Kraft 472 N.W.2d 441, 444 (N.D. 1991)). Unlike the judicial referee, the juvenile court judge did not view B.F.'s conduct as amounting to "a gross deviation from acceptable standards of conduct," which is a factual element required to establish the crime of negligent homicide under N.D.C.C. §§ 12.1-16-03 and 12.1-02-02(1)(d).

If Dvorak were found not guilty by the jury, the State could not appeal. See City of Bismarck v. Uhden, 513 N.W.2d 373, 379 (N.D. 1994); City of Dickinson v. Kraft, 472 N.W.2d 441, 443 (N.D. 1991); State v. Bettenhausen, 460 N.W.2d 394, 395 (N.D. 1990); State v. Flohr, 259 N.W.2d 293, 296 (N.D. 1977). If Dvorak were found guilty by the jury, he obviously would not raise the issue in a direct appeal. Although it might be possible for the State to raise the issue if Dvorak appealed and challenged the sufficiency of the evidence,see State v. Sabinash, 1998 ND 32, ¶ 19, 574 N.W.2d 827, that possibility is remote at best.

Thus, we assess the substance of the trial court's ruling to determine whether it actually represents a resolution of a factual element of the charged offense." City of Dickinson v. Kraft, 472 N.W.2d 441, 442-44 (N.D. 1991). See also, State v. Hammond, 498 N.W.2d 126 (N.D. 1993) [discussing our determinations of when jeopardy attaches].

A city has "the same right to appeal that the State has `when the complaint charges the defendant with an act proscribed by city ordinance which is also proscribed by a state statute.'" City of Dickinson v. Kraft, 472 N.W.2d 441, 442 (N.D. 1991) [quoting City of Bismarck v. Hoopman, 421 N.W.2d 466, 468 (N.D. 1988)]. Cossette was charged with driving under the influence in violation of Fargo Municipal Code § 8-0310, which is the same offense proscribed by N.D.C.C. § 39-08-01 and specifically incorporates all "relevant and applicable" state statutes relating to driving under the influence.

Sampson v. State, 478 N.W.2d 566 (N.D. 1991). In our cases analyzing whether an appeal was from an "acquittal," rather than from an order expressly made appealable under section 29-28-07, NDCC, the claimed acquittal was ordered either after a jury had been empanelled and sworn, State v. Meyer, 494 N.W.2d 364 (N.D. 1992); City of Dickinson v. Kraft, 472 N.W.2d 441 (N.D. 1991); State v. Hogie, 424 N.W.2d 630 (N.D. 1988); see also State v. Thill, 468 N.W.2d 643 (N.D. 1991); City of Mandan v. Mertz, 399 N.W.2d 298 (N.D. 1987); or after evidence was heard by the judge acting as factfinder during trial, State v. Bettenhausen, 460 N.W.2d 394 (N.D. 1990); City of Wahpeton v. Desjarlais, 458 N.W.2d 330 (N.D. 1990); State v. Melin, 428 N.W.2d 227 (N.D. 1988); State v. Flohr, 259 N.W.2d 293 (N.D. 1977); see also State v. Knittel, 308 N.W.2d 379 (N.D. 1981). The order here was not an acquittal because jeopardy did not attach. If this were to be a jury-tried case, no jury was empanelled and sworn before the order was issued. If this were to be a judge-tried case, no evidence was offered and received before the order was issued.