                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 43044

STATE OF IDAHO,                                  ) 2016 Opinion No. 49
                                                 )
       Plaintiff-Respondent,                     ) Filed: July 15, 2016
                                                 )
v.                                               ) Stephen W. Kenyon, Clerk
                                                 )
JEROME NATHANIEL HARRIS,                         )
                                                 )
       Defendant-Appellant.                      )
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Jason D. Scott, District Judge.

       Judgment of conviction for attempted first degree arson and being a persistent
       violator of the law, affirmed in part, vacated in part, and remanded for
       resentencing.

       Eric D. Fredericksen, Interim State Appellate Public Defender; Erik R. Lehtinen,
       Deputy Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

MELANSON, Chief Judge
       Jerome Nathaniel Harris appeals from his judgment of conviction for attempted first
degree arson and being a persistent violator of the law. Specifically, Harris alleges that the state
did not provide sufficient evidence for the jury to find Harris was a persistent violator of the law.
For the reasons set forth below, we affirm in part, vacate in part, and remand for resentencing.
       Harris was charged with attempted first degree arson and being a persistent violator.
Harris proceeded to trial and was found guilty by a jury of attempted first degree arson.
I.C. §§ 18-802 and 18-306. The jury also found that Harris was a persistent violator. I.C. § 19-
2514. The district court sentenced Harris to a unified term of seventeen years, with a minimum




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period of confinement of five years.      Harris appeals, challenging the finding that he is a
persistent violator of the law.
       Following the jury’s finding that Harris was guilty of attempted first degree arson, the
jury was then asked to determine whether Harris was a persistent violator of the law pursuant to
I.C. § 19-2514. That section provides:
              Any person convicted for the third time of the commission of a felony,
       whether the previous convictions were had within the state of Idaho or were had
       outside the state of Idaho, shall be considered a persistent violator of law, and on
       such third conviction shall be sentenced to a term in the custody of the state board
       of correction which term shall be for not less than five (5) years and said term
       may extend to life.
The state presented evidence, through the introduction of three documents, that Harris was
previously convicted of possession of a controlled substance, trafficking in methamphetamine,
and delivery of methamphetamine.         The documents showed that Harris’s conviction for
possession of a controlled substance was a felony. However, nothing in the documents indicated
that the trafficking in methamphetamine or delivery of methamphetamine convictions were
felonies.
       Harris concedes the state provided evidence he committed one prior felony. However,
Harris argues that the state failed to present evidence that he committed a second prior felony.
Thus, Harris alleges there was not sufficient evidence for the jury to find he was a persistent
violator of the law. Appellate review of the sufficiency of the evidence is limited in scope. A
finding of guilt will not be overturned on appeal where there is substantial evidence upon which
a reasonable trier of fact could have found that the prosecution sustained its burden of proving
the essential elements of a crime beyond a reasonable doubt. State v. Herrera-Brito, 131 Idaho
383, 385, 957 P.2d 1099, 1101 (Ct. App. 1998); State v. Knutson, 121 Idaho 101, 104, 822 P.2d
998, 1001 (Ct. App. 1991). We will not substitute our view for that of the trier of fact as to the
credibility of the witnesses, the weight to be given to the testimony, and the reasonable
inferences to be drawn from the evidence. Knutson, 121 Idaho at 104, 822 P.2d at 1001; State v.
Decker, 108 Idaho 683, 684, 701 P.2d 303, 304 (Ct. App. 1985). Moreover, we will consider the
evidence in the light most favorable to the prosecution. Herrera-Brito, 131 Idaho at 385, 957
P.2d at 1101; Knutson, 121 Idaho at 104, 822 P.2d at 1001.



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          The former convictions relied upon to invoke the persistent violator enhancement must be
alleged in the indictment or information and be proved at trial beyond a reasonable doubt. State
v. Miller, 151 Idaho 828, 832-33, 264 P.3d 935, 939-40 (2011); State v. Medrain, 143 Idaho 329,
332, 144 P.3d 34, 37 (Ct. App. 2006); State v. Cheatham, 139 Idaho 413, 416, 80 P.3d 349, 352
(Ct. App. 2003); State v. Martinez, 102 Idaho 875, 880, 643 P.2d 555, 560 (Ct. App. 1982). The
state bears the burden of identifying the defendant as the same individual identified in the prior
convictions. State v. Lovejoy, 60 Idaho 632, 637, 95 P.2d 132, 134 (1939); Medrain, 143 Idaho
at 332, 144 P.3d at 37. The state also has the burden of identifying the prior crimes as felonies.
State v. Pacheco, 134 Idaho 367, 372, 2 P.3d 752, 757 (Ct. App. 2000); State v. Smith, 116 Idaho
553, 560, 777 P.2d 1226, 1233 (Ct. App. 1989). The state may satisfy the latter burden by
producing copies of judgments specifically identifying the crimes as felonies or, if the judgments
were not so specific, by offering admissible copies of the felony statutes applicable to the crimes
recited in the judgments. Smith, 116 Idaho at 560, 777 P.2d at 1233.
          Harris’s   judgments     of   conviction       did   not   specify   whether   trafficking   in
methamphetamine or delivery of methamphetamine were felonies, and no other evidence in the
record answers that question. The state did not introduce copies of the applicable statutes which
could have identified the offenses as felonies.
          The state argues that, despite its failure to provide explicit evidence that trafficking in
methamphetamine and delivery of methamphetamine were felonies, it provided sufficient
evidence for the jury to make a reasonable inference that the crimes were felonies. The state
argues:
          The exhibits show that Harris was committed to the “custody of the Idaho State
          Board of Correction” and was sentenced to 5 years for each count. . . . A rational
          juror having even a de minimus understanding of the criminal justice system would
          know that 5-year prison sentences are reserved for felonies. Thus, the evidence
          showing that Harris was sentenced to 5 years on both the trafficking and delivery
          counts is evidence from which a jury could determine that trafficking and delivery of
          methamphetamine are felonies. Further, the jury was specifically informed that mere
          possession of controlled substance was a felony . . . and therefore a reasonable juror
          could logically conclude that delivery and/or trafficking of a controlled substance
          would also be felonies.
This Court is not persuaded by the state’s argument. We do not agree that a jury could reasonably
conclude, based upon the duration of Harris’s sentences, that he was convicted of felonies. Nor do



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we agree that a jury could reasonably rank various controlled substance-related convictions and
conclude that because one was a felony the others were also felonies. Accordingly, in this case no
reasonable inferences about whether Harris’s prior convictions were felonies could be drawn from
the evidence presented to the jury.
       We hold that the state did not meet its burden of proving to the jury that Harris had been
convicted of two prior felonies. Even when considering the evidence in the light most favorable
to the prosecution, the evidence was insufficient to support a finding, beyond a reasonable doubt,
that Harris was a persistent violator of the law. Accordingly, Harris’s judgment of conviction for
attempted first degree arson and being a persistent violator of the law is affirmed in part, vacated
in part, and remanded for resentencing without consideration of the persistent violator
enhancement.
       Judge GRATTON and Judge HUSKEY, CONCUR.




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