Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Cheri C. Copsey, District Judge.
The opinion of the court was delivered by: Lansing, Judge
Judgment of conviction for aiding and abetting robbery and eluding a peace officer, affirmed.
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.
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,*fn1 based on Parsons' 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.
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 ...