2014 Unpublished Opinion No. 377
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. Randy J. Stoker, District Judge.
Judgment of conviction for grand theft by possession of stolen property, unlawful possession of a firearm, solicitation of grand theft by disposing of stolen property, and being a persistent violator, affirmed in part, vacated in part, and remanded for resentencing.
Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy Attorney General, Boise, for respondent.
Nicholas James Longee appeals from his judgment of conviction for grand theft by possession of stolen property, unlawful possession of a firearm, solicitation of grand theft by disposing of stolen property, and being a persistent violator. For the reasons set forth below, we affirm in part, vacate in part, and remand for resentencing.
I. FACTS AND PROCEDURE
A few days after five handguns were stolen from a rural home, O.P. and his girlfriend informed a police officer that they were in possession of five handguns they believed to be stolen. O.P. told police that he had been given the guns by an acquaintance named "Nick, " later identified as Nicholas James Longee. Longee was subsequently charged with grand theft by possession of stolen property, unlawful possession of a firearm, solicitation of grand theft by disposing of stolen property, and being a persistent violator. At trial, Longee's roommate testified that Longee had initially asked him to help sell some guns that Longee had stashed in a pillowcase out in the country. The roommate declined but agreed to give Longee a ride to O.P.'s girlfriend's home. O.P. and his girlfriend testified that Longee offered to sell O.P. "thumpers, " which O.P. believed referred to speakers. Longee led them out to a section of deserted rural road where he retrieved a pillowcase containing one or more boxes from a ditch on the side of the road. O.P. testified that Longee eventually opened the pillowcase to show him the guns and asked O.P. to sell them for him; in exchange, Longee told O.P. he could keep one of the guns. O.P. testified that he had no interest in possessing or selling the guns because he was a convicted felon; nevertheless, he agreed to sell the guns, fearing Longee's reaction if he refused. O.P. and his girlfriend then turned the guns over to the police.
Longee chose to represent himself at trial and testified on his own behalf, disputing the accounts of the other three witnesses. Jury Instruction 11, which was based upon I.C.J.I. 202, informed the jury that the statements and arguments of the attorneys--including Longee--who were not witnesses should not be considered as evidence. Longee did not object to this instruction. Longee was also charged with being a persistent violator based upon two previous burglary convictions. The only evidence the state introduced regarding the two prior convictions were two judgments of conviction, which were entered the same day. Longee was found guilty of grand theft by possession of stolen property, I.C. §§ 18-2403(4) and 18-2407(1)(b)(1); unlawful possession of a firearm, I.C. § 18-3316; solicitation of grand theft by disposing of stolen property, I.C. §§ 18-2001, 18-2403(4), and 18-2407; and being a persistent violator of the law, I.C. § 19-2514. The district court sentenced Longee to a unified term of twenty years, with a minimum period of confinement of five years, for grand theft by possession of stolen property; a five-year determinate term for unlawful possession of a firearm; and a five-year determinate term for solicitation of grand theft by disposing of stolen property, all to run concurrently. Longee appeals.
Longee alleges that the district court committed fundamental error through an erroneous jury instruction (Instruction 11) that violated his Fifth, Sixth, and Fourteenth Amendment right to testify. Longee also asserts that there was insufficient ...