Does an appellate court violate Double Jeopardy when it remands a case for the trial court to enter alternative findings of fact and conclusions of law under another subsection of the statute after a defendant challenges the sufficiency of the evidence under the subsection of conviction?

QUESTION PRESENTED FOR REVIEW After a defendant on appeal challenges the sufficiency of the evidence under the subsection of the criminal statute under which he was convicted, and, in the trial court, the trier of fact had a full opportunity to convict based on another subsection of the statute but did not reach this subsection, does an appellate court violate Double Jeopardy when it remands a case for the trial court to enter alternative findings of fact and conclusions of law under the other subsection of the statute? In this case, over the defendant’s objection, the Court of Appeals for the District of Columbia ordered such aremand, and ruled that its remand did not violate Double Jeopardy. This ruling conflicts with Terry v. Potter, 111 F.3d 454, 458 (6" Cir. 1997) (Double Jeopardy bars further prosecution for an offense when the trier of fact had a full opportunity to convict under one statutory subsection but failed to do so, because the verdict was an implicit acquittal of the alternative offense); State v. Hescock, 989 P.2d 1251, 1257 (Wash. App. 1999) (after bench trial, Double Jeopardy bars remand for trial on an alternative subsection, after evidence is found insufficient under the subsection of conviction) (citing Terry).! ' Hescock was decided in 1999 by the Court of Appeals of Washington, not by the Supreme Court of Washington, and therefore is not a decision by a “state court of last resort.” See Sup. Ct. Rule 10(b). However, Hescock is settled law in Washington State. See State v. Ervin, 147 P.38d567, 570 (Wash. 2006) (Supreme Court of Washington cites Hescock as one of a series of Washington State cases on the doctrine of “implied acquittal,” and describes Hescock as “finding implied acquittal where the finder of fact was a judge who was silent as to the alternative means of committing the offense.”); Brief of Appellant in State v. Wright, 2005 WL 5408570 *12-18 (on appeal to the Supreme Court of Washington, the State argues that Hescock bars retrial only when a conviction “was reversed specifically due to insufficient evidence.”). i INTERESTED PARTIES There are no