One act is legal by statute, and the other illegal by statute. The later statute in this factual situation only, is unconstitutionally overbroad. State v. Beine, 162 S.W.3d 483 (Mo. banc 2005).
Defendant is found not guilty. Costs to Polk County. Case and record ordered closed.
The State appealed directly to this Court.3
Standard of Review
This Court is a court of limited jurisdiction. Mo. Const. art. V, sec. 3. Jurisdiction must be decided at the outset. Lane v. Lensmeyer, 158 S.W.3d 218, 222 (Mo. banc 2005). When this court lacks jurisdiction to entertain an appeal, the appeal must be dismissed. Id.
Analysis
The threshold question presented in this case is whether double jeopardy precludes the State from appealing the circuit court's judgment. If so, this Court lacks jurisdiction to consider the appeal. Ward filed a motion to dismiss this appeal, asserting this Court lacks jurisdiction because the circuit court expressly found him to be "not guilty," suggesting the circuit court acquitted Ward; therefore, this appeal is barred because there is no statutory authority to appeal when the possible outcome of the appeal would result in double jeopardy for the defendant. The State asserts this Court has jurisdiction to hear its appeal because Ward was not acquitted of the offense in that the circuit court's judgment is akin to a dismissal of the indictment following a guilty verdict.
The State cannot appeal a judgment for the accused unless there is an unequivocal statutory right to appeal. State v. Craig , 223 Mo. 201, 122 S.W. 1006 (1909). "The state, in any criminal prosecution, shall be allowed an appeal ... in all other criminal cases except in those where the possible outcome of such an appeal would result in double jeopardy for the defendant." § 547.200.2. The State, therefore, has the right to appeal this action pursuant § 547.200.2 unless the outcome of the appeal would subject Ward to double jeopardy. To determine if the outcome of the appeal might result in double jeopardy, the dispositive question in this case is the nature of the circuit court's ruling.4
*891Looking to the form and substance of the ruling, the first possibility is the circuit court's judgment is a dismissal on constitutional grounds. When reading the circuit court's judgment in its entirety, the judgment focuses primarily on its legal conclusion that § 566.083 is unconstitutionally overbroad as applied to Ward because the exposure of his genitals to MKB was otherwise legal conduct. But in concluding the statute was unconstitutionally overbroad as applied to Ward, the circuit court necessarily made findings as to some of the factual elements of the offense. Even though the circuit court made findings on some of the factual elements of the offense to support its ruling, double jeopardy does not necessarily bar the State's appeal. "[W]here an indictment is dismissed after a guilty verdict is rendered, the Double Jeopardy clause [does] not bar an appeal since the verdict could simply be reinstated without a new trial if the [State] were successful." Sanabria v. United States , 437 U.S. 54, 63, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978) (internal citations omitted). If the circuit court dismissed the case because the statute was unconstitutionally overbroad as applied to Ward, and the circuit court never weighed the evidence as to the factual elements of the offense to determine or resolve Ward's guilt or innocence, then the judgment is one of dismissal that may not be barred by double jeopardy.
The second possibility is the judgment finding Ward "not guilty" was an acquittal of the charge for sexual misconduct involving a child. An acquittal is "a resolution, correct or not, of some or all of the factual elements of the offense charged." Sanabria , 437 U.S. at 71, 98 S.Ct. 2170. Pursuant to Rule 27.07, once either the prosecution or defense has closed its case, a circuit court must acquit, rather than dismiss, a criminal count when the evidence is insufficient to sustain a conviction. In concluding § 566.083 is unconstitutionally overbroad as applied to Ward, the circuit court made findings as to some of the factual elements of the offense. Section 566.083.1(2) provides: "A person commits the offense of sexual misconduct involving a child if such person ... [k]knowingly exposes his or her genitals to a child less than fifteen years of age for the purpose of arousing or gratifying the sexual desire of any person, including the child." Here, the circuit court stated MKB was 14 at the time Ward exposed his penis to MKB for the purpose of fellatio. While the circuit court's judgment does not specifically conclude that one or any of the factual elements of the offense was not present, warranting acquittal, it does include findings with respect to some of the factual elements of the charged offense. If the circuit court weighed the evidence stipulated to at trial and found Ward not guilty because the evidence was not sufficient to prove Ward guilty of the crime charged, correct or not, then the circuit court's ruling was a judgment of acquittal. Any appeal by the State in that instance would be contrary to the statute setting out the State's right to appeal because a successful appeal would subject Ward to double jeopardy.
Conclusion
Based on the record in this case, the Court is unable to ascertain the precise *892nature of the circuit court's ruling. Accordingly, the circuit court's judgment is vacated and the case is remanded to the circuit court with instructions to enter a new judgment, based on the record previously submitted, clearly delineating whether the case is dismissed because § 566.083 is unconstitutionally overbroad as applied to Ward or whether he is acquitted based on the evidence submitted.5
All concur.