dissenting:
The State, in an effort to buttress an already formidable case against Shade, sought to introduce res gestae evidence pertaining to other alleged acts of the respondent. The res gestae doctrine has never been a favorite of the law. As Lord Blackburn once said, “If you wish to tender inadmissible evidence, say it is a part of the res gestae.” John Bevan Coulson Tregarthen, The Law of Hearsay Evidence 21 (1915).
I respectfully submit that the State, in its zeal to gild the evidentiary lily with res gestae evidence against Shade, erred when it refused to proceed with the prosecution.
*896In another case involving the respondent, State v. Shade, 110 Nev. 57, 63, 867 P.2d 393, 396 (1994), we concluded that a district court’s decision to exclude evidence was not subject to direct appeal. We noted, however, that we may consider the issue of the exclusion of the evidence on appeal from an order of the district court granting a motion to dismiss. Id. at 63, 867 P.2d at 397. However, I do not believe that we implied that the State may obtain appellate review of such an issue any time it pleases simply by refusing to prosecute its case.
The State’s appeal rights are created by statute. See id. The State may waive this statutory right by voluntary acts or conduct, such as causing judgment to be entered against it. See 4 Am. Jur. 2d Appeal and Error §§ 235, 242-43 (1962); Deason v. Lewis, 706 P.2d 1283, 1286 (Colo. Ct. App. 1985) (noting that consent to dismissal prevented plaintiff from appealing); State v. Harmon, 243 S.W.2d 326, 328 (Mo. 1951) (holding that a criminal defendant may waive his right to appeal); Trees v. Lewis, 738 P.2d 612, 613 (Utah 1987) (citing the general rule that one who acquiesces in judgment cannot later appeal the judgment). As a general rule, “[a] party who abandons an action thereby waives his right to appellate review of the judgment rendered therein.” 4 Am. Jur. 2d Appeal and Error § 235 (1962).
The State did nothing less than abandon its case by refusing to proceed. When asked if it would prosecute, the State responded that it was “standing mute.” Manifestly, the district court could not force the State to proceed. In a high profile murder trial started earlier this year in Los Angeles, would the State have stood mute if the trial court had rejected some of its evidentiary offerings? I cannot seriously entertain the notion that this would have occurred. However, were the State so inclined, defense attorneys, who on occasion had exhibited some discordance, would have sung out for dismissal in spontaneous, four-part harmony. The trial court could not have been faulted if it had found their strains to be persuasive.
Moreover, the district court was obligated to protect Shade’s right to a speedy trial. See NRS 178.556 (outlining circumstances in which the district court may dismiss an action for the State’s delay); Creps v. State, 94 Nev. 351, 355, 581 P.2d 842, 845, cert. denied, 439 U.S. 981 (1978) (noting that the State must show good cause for trial delay). I submit respectfully that the district court had no other choice. When the State refused to proceed and present any evidence, dismissal was inevitable.
I am not suggesting that the State may never consent to a dismissal. Indeed, in some circumstances, the State is ethically obligated to do so. See SCR 179(1) (forbidding the State from pursuing a charge that the State knows is not supported by *897probable cause). This appeal presents none of these circumstances. First, the State apparently did not intend to end this case when, by its conduct, it invited the district court to enter an order of dismissal. The State was not concerned that it was prosecuting an innocent man. Second, no one, not even the State, can blame the district court for dismissing a case that the State refused to prosecute. In fact, when asked if the State wanted to put the court in the position of dismissing the case, the State answered that dismissing the case would be “the proper thing to do.” Yet, the State is, by its conduct, now saying quite the opposite by appealing a dismissal that the State itself instigated. The State is really only concerned with the district court’s evidentiary rulings. We have already stated that these rulings are not subject to direct appeal.
Despite the evidentiary rulings by the trial court, there remained in this case a wealth of evidence which, if believed, would have supported a conviction. To find Shade guilty of possessing cocaine or methamphetamine, the State was obligated to show that Shade knowingly or intentionally possessed the substances without excuse. See NRS 453.336(1). The State was not prevented from showing that Shade possessed a marked $100 bill returned to Shade by Kenneson when Kenneson failed to procure the proper amount of methamphetamine. Officers Terrell, Lodge, Dyer, and Leal could have testified, as they did before the grand jury, that after Shade, the driver of the Kenneson car, was stopped, they saw a plastic sandwich-type baggie containing two smaller baggies of cocaine and methamphetamine on the driver’s side floorboard. Arresting officers could also have testified that the drug was in plain view. Kenneson could have been called to testify that although Shade was driving Kenneson’s car, the drugs were on the driver’s side floorboard (these were the drugs Shade was charged with possessing) and the drugs did not belong to Kenneson. The officers could have testified that they had seen no one else in the car. In addition, the State was prepared to call a number of witnesses to rebut Shade if he denied that he knew the baggies contained drugs.
In the parlance of the poker table, instead of playing out this formidable evidentiary hand, the State folded. I submit that this court should not now give the State another chance by stacking the deck and redealing the cards. Shade cannot be blamed for the State’s decision to gamble that by standing mute and appealing, it might, under a res gestae theory, have additional evidence against Shade.
Based on the foregoing, I cannot conclude that the State acted reasonably and in good faith when it refused to proceed. No statute of which I am aware permits the State to delay timely *898prosecution because it thinks that through some appellate legerdemain, it might be able to present additional evidence. This practice would allow the State at any time to initiate an interlocutory appeal of a decision to exclude evidence by, in effect, forcing the trial court to dismiss the case. If we allow the State to do this, it will render Shade II meaningless.
Our task on appeal is to consider where the district court erred. It may well be that there was error committed during the proceedings below, but not by the district judge. Accordingly, I dissent.