When Does Double Jeopardy Apply? Does an Acquittal for Larceny Bar a Retrial for Burglary?

In State v. Henley, the SC Court of Appeals found that the defendant’s acquittal for larceny did not prevent his retrial for burglary when there was a hung jury on the burglary count at his first trial.

If the jurors at the first trial heard the evidence and found that he was not guilty of larceny (stealing a laptop from the home during the alleged burglary), can the state retry him on the burglary charge? What is the alleged crime he intended to commit in the home? Not larceny…

When does double jeopardy apply and why should the state be permitted to try someone a second time when the first jury said not guilty?

When Does Double Jeopardy Apply?

It’s a basic rule of criminal law in the United States that no person can be tried twice for the same crime – it’s in the Constitution and most people have heard it or at least seen it on television.

But is that the rule?

Technically, yes, that’s the rule. Except it’s subject to interpretation, of course. For example, under the Dual Sovereign theory, double jeopardy does not apply when the federal government wants to try someone a second time for a crime that they were either acquitted or convicted of in the state court.

Absent a state law or constitutional provision, states can similarly prosecute a person who has been acquitted or convicted of the same conduct in the federal court.

What about when both prosecutions are the state court? When does double jeopardy apply?

Blockburger’s Same Elements Test

In general, courts will apply the “same elements test,” as outlined in Blockburger v. US, to decide whether a subsequent offense for the same crime is barred by double jeopardy.

If it’s the exact same alleged crime, the state cannot prosecute you again after an acquittal or a conviction. If it’s a lesser included offense of the same crime – offense two contains the same elements as offense one, the state cannot prosecute you again after an acquittal or conviction.

But what if it is a different charge based on the same facts? What happens if a jury acquits a defendant of larceny where the alleged offense was stealing a laptop computer during an alleged burglary, but the jury is deadlocked as to the burglary charge and a mistrial is declared?

Can the state call the burglary for trial again?

Does an Acquittal for Larceny Bar a Retrial for Burglary?

The elements of burglary in SC include: 1) entering a dwelling or building; 2) without consent; and 3) with the intent to commit a crime.

The elements of larceny in SC include: 1) taking someone else’s property; 2) without consent; and 3) with the intent to permanently deprive the owner of its possession. Not the same as burglary. End of story?


In the Henley case, the alleged crime that satisfied the “intent to commit a crime” element of burglary was stealing the laptop. No other property was reported missing from the home… If the jurors unanimously found that Henley was not guilty of stealing the laptop, what is the alleged crime he had the intent to commit?

Issue Preclusion or Collateral Estoppel

Larceny is not a lesser-included offense of burglary in SC, and the comparison fails the “same elements test.”

But, issue preclusion, or collateral estoppel, also prevents the state from relitigating an issue that has been previously decided:

The doctrine of issue preclusion is embodied in the Fifth Amendment’s Double Jeopardy Clause. Ashe v. Swenson, 397 U.S. 436, 445–46 (1970). Issue preclusion means that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Id. at 443.

If an issue that has been decided by a jury (whether Henley committed larceny) is a necessary element of the burglary charge, can the state retry the burglary case and relitigate the question of whether he stole the laptop or intended to steal the laptop?

The Court of Appeals says yes, they can.

Although the first jury determined that Henley did not steal the laptop, Henley’s theft of that specific laptop is not a necessary element of the burglary charge.

Henley conflates the intent to commit a crime with the successful commission of the crime. Although the jury in Henley’s first trial found the State failed to prove the larceny charge, there was no requirement that the State actually prove he successfully committed a separate crime within Victim’s home to prove the burglary charge… Because Henley’s acquittal for larceny did not settle the critical issue of ultimate fact as to whether he entered Victim’s home without consent with the intent to commit a crime, the State was not precluded from retrying him for first degree burglary.

The Court speculates that Henley could have:

  • Had the intent to steal the laptop but didn’t; or
  • Had the intent to commit some other, unspecified and unproven crime.

It’s a whole lot of speculation – in the first trial, the jurors agreed that there was insufficient evidence that Henley took the laptop, and some of them agreed that there was insufficient evidence that he committed burglary.

The Court’s point is that the first jury did not decide conclusively that Henley did not enter the home with the intent to commit a crime inside. They only decided that he did not take the laptop – which is fine because the state does not have to prove that a crime was completed to prove a burglary happened. They don’t even have to prove a specific crime that the defendant intended to commit…

The result feels unfair and it feels like a violation of the most basic principles of criminal justice in our country. The prosecutor should have dismissed the burglary charge after the result of the first trial. But the courts are not going to force them to because, technically, it is not double jeopardy.

Criminal Defense Lawyer in Charleston, SC

If you are charged with a crime in the Charleston, Myrtle Beach, or Georgetown areas, or if you believe you are under investigation, call Charleston, SC criminal defense attorney Grant B. Smaldone now at (843) 808-2100 or send us a message to speak with a SC criminal defense lawyer today.