                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 38980

STATE OF IDAHO,                                   )
                                                  )      2012 Opinion No. 48
       Plaintiff-Respondent,                      )
                                                  )      Filed: September 13, 2012
v.                                                )
                                                  )      Stephen W. Kenyon, Clerk
DANIEL DALE PARSONS, JR.,                         )
                                                  )
       Defendant-Appellant.                       )
                                                  )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Cheri C. Copsey, District Judge.

       Judgment of conviction for aiding and abetting robbery and eluding a peace
       officer, affirmed.

       Greg S. Silvey, Star, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jason M. Gray, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________
LANSING, Judge
       Daniel Dale Parsons, Jr., appeals from his convictions of aiding and abetting robbery and
eluding a peace officer with a persistent violator enhancement. Parsons asserts that the district
court gave an erroneous jury instruction during the persistent violator phase of trial that partially
relieved the State of its burden of proving two prior felony convictions. We affirm.
                                                 I.
                                        BACKGROUND
       Parsons was charged with aiding and abetting robbery, Idaho Code §§ 18-6501, 18-204,
and eluding a peace officer, I.C. § 49-1404, and was found guilty of both charges by a jury. The
State also sought a persistent violator sentence enhancement, I.C. § 19-2514, 1 based on Parsons’




1
       Idaho Code § 19-2514 states:

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four alleged previous felony convictions in the state of Nevada: one from 1981 and three from
1987. The three 1987 convictions stemmed from three separate cases, but all three judgments
were entered the same day. At the beginning of the persistent violator enhancement phase of
trial, the district court instructed the jury as follows:
        Having found the defendant guilty of aiding and abetting robbery and eluding,
        you must next consider whether the defendant has been convicted on at least two
        prior occasions of felony offenses. The state alleges the defendant has prior
        convictions as follows: Count One, [1981 felony conviction for sale of a
        controlled substance] . . . and Count Two, [1987 felony conviction for conspiracy
        to commit robbery] . . . and/or Count Three [1987 felony conviction for
        burglary] . . . and/or Count Four, [1987 felony conviction for burglary]. The
        existence of a prior conviction must be proved beyond a reasonable doubt and
        your decision must be unanimous.

(emphasis added). The State then introduced into evidence certified copies of the judgments of
conviction as well as several other documents to show that Parsons had previously been
convicted of each of the four felonies as alleged. At the conclusion of the evidence, the district
court read the remainder of the instructions to the jury, beginning with an instruction that the
State must prove, beyond a reasonable doubt, that Parsons had previously been convicted of at
least two felonies. After reading that instruction, the court orally added, “Now, for the purposes
of this instruction, you must find that Count One has been proven beyond a reasonable doubt.”
Parsons did not object to this extemporaneous oral instruction, which did not appear in the
written instructions given to the jury. The court then read the remainder of the jury instructions.
After the jury was excused, the court stated to the parties:
                I want to make it really clear for the record that they had to find that the
        first count was, in fact, proven because I think that’s what the intent was of the
        way in which we’ve written it. And even though it’s not in the written
        instructions, the law is very clear that the oral instructions are actually what
        control.




               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.

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              I’m not going to rewrite that because I think that the point--the point here
       is we want to make sure that it cannot be later argued that they didn’t find him on
       the one, they just found him on these other three. I want to make it clear they
       have to find the one before they find the rest of them.

       The jury ultimately found Parsons to be a persistent violator of the law. Parsons was
sentenced to a fixed life term of imprisonment for aiding and abetting robbery and a consecutive
fixed life term for eluding a peace officer, inclusive of the persistent violator enhancement.
Parsons appeals, challenging the extemporaneous oral instruction given by the court in the
persistent violator segment of the trial.
                                                II.
                                            ANALYSIS
       Parsons asserts that the court’s oral instruction, “Now, for the purposes of this instruction,
you must find that Count One has been proven beyond a reasonable doubt,” constitutes
reversible error because it relieved the State of its burden of proving one of the two requisite
prior felonies for a persistent violator sentence enhancement. Recognizing that he did not object
to the instruction at trial, Parsons asserts that instruction constitutes fundamental error
reviewable on appeal despite the lack of objection below.
       Idaho appellate courts generally will not consider an assertion of error on appeal unless
the issue was preserved in the trial court proceedings. State v. Perry, 150 Idaho 209, 224, 245
P.3d 961, 976 (2010); State v. Johnson, 126 Idaho 892, 896, 894 P.2d 125, 129 (1995).
Nevertheless, an alleged trial error in a criminal case that was not followed by a
contemporaneous objection may be reviewed on appeal if it amounts to fundamental error. To
establish reversible fundamental error:
       (1) the defendant must demonstrate that one or more of the defendant’s unwaived
       constitutional rights were violated; (2) the error must be clear or obvious, without
       the need for any additional information not contained in the appellate record,
       including information as to whether the failure to object was a tactical decision;
       and (3) the defendant must demonstrate that the error affected the defendant’s
       substantial rights, meaning (in most instances) that it must have affected the
       outcome of the trial proceedings.

Perry, 150 Idaho at 226, 245 P.3d at 978 (footnote omitted).
       An erroneous instruction that relieves the State of its burden to prove an element of a
charged crime can be characterized as either a violation of due process, State v. Draper, 151



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Idaho 576, 588, 261 P.3d 853, 865 (2011); State v. Anderson, 144 Idaho 743, 749, 170 P.3d 886,
892 (2007); see also Sullivan v. Louisiana, 508 U.S. 275, 278 (1993); or as a violation of the
Sixth Amendment’s jury trial guarantee. Neder v. United States, 527 U.S. 1, 12 (1999); Sullivan,
508 U.S. at 277-78. Elements of a crime and sentencing factors that must be determined by a
jury are treated the same for Sixth Amendment purposes. Washington v. Recuenco, 548 U.S.
212, 220 (2006). Literal application of the challenged instruction in Parsons’ trial would relieve
the State of its burden of proving one element of the persistent violator allegation. Therefore, a
constitutional issue is presented.
       The State concedes that Parsons’ “claim is constitutional in nature,” but asserts that the
alleged error in this case was not clear because “there is no reasonable likelihood that a rational
jury would have applied the challenged instruction in a way that violated Parsons’ constitutional
rights.” The State asserts that the challenged instruction is ambiguous, but that when the
instructions are read as a whole, the jury would have understood that the State was required to
prove two prior felony convictions, one from 1981 and at least one from 1987.
       When reviewing jury instructions, we ask whether the instructions as a whole, and not
individually, fairly and accurately reflect applicable law. State v. Bowman, 124 Idaho 936, 942,
866 P.2d 193, 199 (Ct. App. 1993).        We review jury instructions as a whole because an
ambiguity in one instruction may be made clear by other instructions, and an instruction that
appears incomplete when viewed in isolation may fairly and accurately reflect the law when read
together with the remaining instructions. See State v. Adamcik, 152 Idaho 445, 472, 272 P.3d
417, 444 (2012); State v. Enno, 119 Idaho 392, 405, 807 P.2d 610, 623 (1991); State v.
Ranstrom, 94 Idaho 348, 352, 487 P.2d 942, 946 (1971).
       We are not persuaded, however, that the instruction here was ambiguous. We well
understand the district court’s intent. It was attempting to instruct that the jury could not find
Parsons to be a persistent violator unless it found that he committed the 1981 felony, together
with at least one of the 1987 felonies; i.e., that the jury could not base a persistent violator
finding solely on a combination of 1987 felonies. 2 Unfortunately, however, the oral instruction



2
       The court apparently gave the challenged instruction based on an understanding that
Parsons could not be found to be a persistent violator if all the prior convictions were entered on
the same day. Generally, “convictions entered the same day or charged in the same information
should count as a single conviction for purposes of establishing habitual offender status.” State

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actually given was phrased as a direction that the jury “must” find that Parsons’ 1981 conviction
had been established, thereby relieving the State of the burden of proving one of the two
requisite prior felonies for a persistent violator enhancement. Even looking at the instructions as
a whole, we conclude that a reasonable juror could have understood the challenged instruction as
relieving the State of its burden to prove two prior convictions beyond a reasonable doubt. A
general instruction on the State’s burden of proof does not correct an instruction expressly
relieving the State of that burden on a specific element. We are constrained to hold that the
challenged instruction was clear constitutional error.
       We next consider whether the error affected Parsons’ substantial rights. This third prong
is equivalent to harmless error analysis for objected-to errors except that the burden of
persuasion is on the defendant. Perry, 150 Idaho at 225, 245 P.3d at 977. In Perry, our Supreme
Court set forth the following standard:
       [I]n the limited instance where the jury received proper instruction on all but one
       element of an offense, and “[w]here a reviewing court concludes beyond a




v. Brandt, 110 Idaho 341, 344, 715 P.2d 1011, 1014 (Ct. App. 1986). This rule allows a
defendant a chance to rehabilitate himself between convictions and assures that a first-time
offender, committing multiple felonies in one course of conduct, is not unfairly sentenced as a
persistent violator. State v. Harrington, 133 Idaho 563, 565, 990 P.2d 144, 146 (Ct. App. 1999).
“However, the nature of the convictions in any given situation must be examined to make certain
that the general rule is appropriate.” Brandt, 110 Idaho at 344, 715 P.2d at 1014 (prior felonies
were treated as multiple felonies when convictions were separately charged and committed
during a two-month period). See also State v. Self, 139 Idaho 718, 725, 85 P.3d 1117, 1124 (Ct.
App. 2003) (prior felonies treated as multiple felonies when “[a]ll four of the felonies involved
four different victims and were charged in separate informations as separate criminal actions”);
State v. Mace, 133 Idaho 903, 907, 994 P.2d 1066, 1070 (Ct. App. 2000) (prior felonies treated
as multiple felonies when they “were unrelated crimes, grand theft and felony DUI, committed
on different dates in different counties”); Harrington, 133 Idaho at 566, 990 P.2d at 147 (prior
felonies treated as single felony despite having “separate case numbers and separate
informations” because “convictions were basically separate parts of a common plan or scheme
and obviously could have been charged in one information”); State v. Clark, 132 Idaho 337, 340,
971 P.2d 1161, 1164 (Ct. App. 1998) (prior felonies treated as single felony when they were
charged in the same information and there was no evidence that the crimes were committed at
different times or locations); State v. Smith, 116 Idaho 553, 560, 777 P.2d 1226, 1233 (Ct. App.
1989) (prior felonies treated as multiple felonies they “perpetrated on separate victims” and
“were for distinguishable incidents of criminal conduct”). We express no opinion on whether the
1987 felonies should have been treated as a single or as multiple convictions in this case.


                                                 5
         reasonable doubt that the omitted element was uncontested and supported by
         overwhelming evidence, such that the jury verdict would have been the same
         absent the error, the erroneous instruction is properly found to be harmless.”
         State v. Lovelace, 140 Idaho 73, 79, 90 P.3d 298, 304 (2004). If a rational jury
         could have found that the state failed to prove the omitted element then the
         appellate court shall vacate and remand.

Perry, 150 Idaho at 228, 245 P.3d at 980.
         Despite the standards articulated in Perry, Parsons asserts that harmless error review is
inapplicable and “the error is per se reversible” because an instruction directing the jury to find
that Parsons was convicted of a felony in 1981 was equivalent to a directed verdict on the
persistent violator enhancement.      A jury instruction directing a verdict in a criminal case
deprives the accused of the right to a jury trial and constitutes structural error that ipso facto calls
for reversal. See Rose v. Clark, 478 U.S. 570, 578 (1986). In that circumstance, the error “is that
the wrong entity judge[s] the defendant guilty.” Id. Parsons asks this Court to recognize a
distinction between an instruction that omits an element from jury instructions, as discussed in
Perry, and an instruction that requires the jury to make a particular finding on one element. He
argues that we should treat the latter as a directed verdict for the State, and hence a structural
error.
         Another decision of the United States Supreme Court, however, negates Parsons’
argument.     In Neder, the district court erroneously determined that materiality, one of the
elements of the fraud statutes under which a defendant was charged, was a question for the court
instead of the jury. Id. at 4, 6. The district court determined that the materiality element had
been satisfied and instructed the jury not to consider it. Id. at 6. The United States Supreme
Court held that the district court erred by not submitting the issue of materiality to the jury. Id. at
8, 20. Although the judge in Neder not only omitted the materiality instruction from the jury
instructions, but also decided the materiality element himself, the Supreme Court declined to
presume error under a structural-error review, and instead held that the error was subject to
harmless-error analysis. Id. at 8-15. The majority in Neder noted:
                Justice SCALIA, in his opinion concurring in part and dissenting in part,
         also suggests that if a failure to charge on an uncontested element of the offense
         may be harmless error, the next step will be to allow a directed verdict against a
         defendant in a criminal case contrary to Rose v. Clark, 478 U.S. 570, 578, 106
         S.Ct. 3101, 92 L.Ed.2d 460 (1986). Happily, our course of constitutional
         adjudication has not been characterized by this “in for a penny, in for a pound”


                                                   6
       approach. We have no hesitation reaffirming Rose at the same time that we
       subject the narrow class of cases like the present one to harmless-error review.

Id. at 17 n.2. In that footnote, the United States Supreme Court rejected the argument that the
omission of an element is equivalent to a directed verdict. The Court held that harmless-error
review is appropriate because the error does not “vitiat[e] all the jury’s findings.” Id. at 11
(quoting Sullivan, 508 U.S. at 281) (alteration and emphasis in original). Therefore, we conclude
that a distinction between the erroneous omission of an element of a crime or enhancement from
jury instructions and an erroneous instruction that a particular element has been satisfied is not
warranted under Neder.
       Our Supreme Court has followed the reasoning in Neder as a standard of review in Idaho:
               Taking Sullivan and Neder together, in instances where erroneous jury
       instructions were provided at trial, an appellate court must first determine whether
       an improper jury instruction affected the entire deliberative process. If it did, then
       a reversal is necessary as the jury’s deliberations were fundamentally flawed, and
       any attempted harmless error inquiry would essentially result in the appellate
       court itself acting in the role of jury. However, where the jury instructions were
       only partially erroneous, such as where the jury instructions improperly omitted
       one element of a charged offense, the appellate court may apply the harmless
       error test, and where the evidence supporting a finding on the omitted element is
       overwhelming and uncontroverted, so that no rational jury could have found that
       the state failed to prove that element, the constitutional violation may be deemed
       harmless.

Perry, 150 Idaho at 224, 245 P.3d at 976.
       Thus, where a reviewing court concludes beyond a reasonable doubt that the element was
uncontested or uncontroverted and supported by overwhelming evidence, such that the jury
verdict would have been the same absent the error, an instruction erroneously directing a finding
on one element is properly found to be harmless. 3 Draper, 151 Idaho at 591-92, 261 P.3d at



3
        We express no opinion on whether prejudice may be presumed under fundamental error
review of true “structural” error. Neither the Idaho Supreme Court nor the United States
Supreme Court has addressed the issue and we need not do so here. Compare Puckett v. United
States, 556 U.S. 129, 140 (2009) (“This Court has several times declined to resolve whether
‘structural’ errors--those that affect ‘the framework within which the trial proceeds,’--
automatically satisfy the third prong of the plain-error test.”) (emphasis added) and Perry, 150
Idaho at 222, 245 P.3d at 974, with United States v. Recio, 371 F.3d 1093, 1101 (9th Cir. 2004)
(“We now join [the Third and Fourth Circuits] and hold that a finding of structural error satisfies
the third prong” of the plain-error test.).

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868-69; Perry, 150 Idaho at 223, 245 P.3d at 975; State v. Rolon, 146 Idaho 684, 689-90, 201
P.3d 657, 662-63 (Ct. App. 2008); State v. Lilly, 142 Idaho 70, 73, 122 P.3d 1170, 1173 (Ct.
App. 2005); accord Neder, 527 U.S. at 17. However, if a rational jury could have found that the
State failed to prove the element, then the appellate court must vacate the verdict and remand for
a new trial. Perry, 150 Idaho at 228, 245 P.3d at 980.
       We are convinced that the outcome of the sentence enhancement proceedings in this case
would have been the same absent the court’s erroneous instruction. The evidence that Parsons
was convicted of a felony in 1981, in addition to the 1987 felonies, was overwhelming and
uncontested. The State introduced certified copies of records from the Nevada Department of
Corrections, including judgments of conviction for each of the four felonies, an order revoking
probation, fingerprint cards, and a mug shot from the Nevada Department of Prisons. The
sentence for each conviction far exceeded one year. The identifying information found on the
various records matched Parsons’ name, date of birth, and social security number. Parsons did
not challenge any of the evidence introduced by the State.         Therefore, the district court’s
erroneous instruction was harmless.
                                                III.
                                         CONCLUSION
       The district court erred by instructing the jury that it must find that Parsons was convicted
of a felony in 1981, thereby partially relieving the State of its burden of proving two prior felony
convictions for purposes of a persistent violator sentence enhancement. However, because the
evidence of the prior conviction was overwhelming and uncontested, the error was harmless.
       Judge GUTIERREZ CONCURS.
       Chief Judge GRATTON CONCURS IN THE RESULT.




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