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State v. Sellers

Court of Appeals of Idaho

September 1, 2016

STATE OF IDAHO, Plaintiff-Respondent,
v.
CODY SELLERS, Defendant-Appellant.

         2016 Opinion No. 57

         Appeal from the District Court of the Sixth Judicial District, State of Idaho, Power County. Hon. Stephen S. Dunn, District Judge.

         Judgment of conviction and sentences, affirmed.

          Overson & Sheen, PLLC; Darwin Overson, Salt Lake City, Utah, for appellant. Darwin Overson argued.

          Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

          GUTIERREZ, Judge

         Cody Sellers appeals from his judgment of conviction and sentences for four counts of felony injury to a child and one count of misdemeanor injury to a child. He raises six issues on appeal. First, Sellers argues the district court erred by reinstructing the jury to consider and return a separate verdict on an omitted element of the charged felony offense. Second, he argues the court erred in entering a misdemeanor conviction on Count III after the jury found him not guilty of the previously omitted felony element on that charge. Third, Sellers contends the State's charges on Counts IV and V violate his right against double jeopardy because they are charges for the same criminal offense. Fourth, he argues the district court erred in denying his motion to strike a biased juror for cause. Fifth, Sellers contends the district court erred by imposing excessive and illegal sentences. Finally, Sellers contends the cumulative error doctrine mandates reversal of his convictions. For the reasons set forth below, we affirm.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Sellers was in a relationship and lived with a woman, A.B., who had a young daughter, N.T. Beginning in February 2012, N.T. began exhibiting behavioral changes and had bruises on her body. Over the course of approximately six weeks, N.T. had several unexplainable seizurelike episodes for which she received medical treatment. The nature of N.T.'s injuries prompted an investigation by the police department into whether her injuries were the result of abuse. Following the investigation, Sellers was charged with five counts of felony injury to a child, Idaho Code § 18-1501(1), with a great bodily injury enhancement on Count V, Idaho Code § 19-2520B.

         Prior to trial, Sellers filed a motion to dismiss Count IV or V on double jeopardy grounds, which the court denied. Also before trial, the district court proffered jury instructions and heard objections. Neither party objected to the court's proposed instruction regarding the elements of the felony injury to a child charges. At the close of trial, the court gave the jury instructions for

         Counts I through V, charged as felony injury to a child, based upon the language in Idaho Criminal Jury Instruction 1243. The jury instructions for each count generally read as follows:

         In order for the defendant to be guilty of . . . Injury to Child, the state must prove each of the following:

1. On or about [date];
2. in the State of Idaho;
3. the Defendant, Cody Sellers;
4. wilfully inflicted unjustifiable physical pain or mental suffering on N.T.;[1] and
5. N.T. was under 18 years of age.
If any of the above elements has not been proven beyond a reasonable doubt, you must find the Defendant not guilty. If each of the above elements has been proven beyond a reasonable doubt, then you must find the Defendant guilty.

         The jury returned guilty verdicts on Counts I through V using this instruction and then proceeded to deliberate a supplemental verdict to determine whether Sellers was guilty of the enhancement of inflicting great bodily injury upon N.T. based on Count V.

         While the jury was deliberating the supplemental verdict, defense counsel brought to the court's attention that the original injury to a child instructions lacked the element "under circumstances or conditions likely to produce great bodily harm or death, " as required for a felony conviction under I.C. § 18-1501(1).[2] The district court acknowledged the significance of the omission, electing to halt the jury's consideration of the supplemental verdict and instead instruct the jury to consider a separate instruction containing only the omitted element of the crime. This instruction read:

Now that you have found the Defendant guilty of Injury to Child in Counts I through V, you must next consider whether the state has proven that such offense occurred under circumstances likely to produce great bodily harm or death to the child. You must indicate on the verdict form whether or not this has been proven beyond a reasonable doubt.

         The court provided the jury with a second verdict form for Counts I through V. After deliberating, the jury returned guilty verdicts on Counts I, II, IV, and V, finding Sellers not guilty of the felony element on Count III. The court then returned the supplemental verdict form to the jury along with a modified instruction as to whether Sellers inflicted great bodily injury upon N.T. with regard to Count V. The jury found Sellers guilty of that enhancement.

         Upon conclusion of the trial, Sellers moved for a new trial pursuant to Idaho Criminal Rule 34, arguing the court's instruction to the jury on the omitted felony element violated Sellers' constitutional protection against double jeopardy. The court denied Sellers' motion.

         At sentencing, the Court imposed the following concurrent sentences: one year for Count III, entered as a misdemeanor; unified sentences of ten years, with five years determinate, for Counts I, II, and IV, entered as felonies; and a unified sentence of twenty-five years, with ten years determinate, for Count V, entered as an enhanced felony. Sellers filed a motion for reconsideration of his sentences under I.C.R. 35, arguing his sentences were excessive. The court denied his motion. Sellers timely appeals.

         II.

         ANALYSIS

         A. Jury Instructions

         We first address Sellers' contention that it was error for the court to further instruct the jury to consider the omitted element of "under circumstances or conditions likely to produce great bodily harm or death, " a necessary element of felony injury to a child under I.C. § 18-1501(1), after the jury had already returned guilty verdicts based upon the original instruction omitting that element. At trial, Sellers did not object to the challenged jury instructions before the jury retired to deliberate. Rather, he brought up the deficiency after the jury returned guilty verdicts on all five counts. The parties agreed that the original instructions, based on Idaho Criminal Jury Instruction 1243, were insufficient for felony convictions, as the instructions did not include the requirement that the conduct occurred "under circumstances or conditions likely to produce great bodily harm or death." However, the parties disagreed as to the appropriate judicial remedy. Defense counsel argued that, as decided, the jury had convicted Sellers of five misdemeanor counts of injury to a child and jeopardy had attached. Over Sellers' objection, the court followed the State's recommendation to submit the omitted element to the jury via a supplemental instruction and request that the jury complete a second verdict form deciding whether each of the five counts of injury to a child occurred "under circumstances or conditions likely to produce great bodily harm or death." After considering the supplemental instruction, the jury returned felony guilty verdicts on Counts I, II, IV, and V.

         As a preliminary matter, the State argues that because Sellers did not object to the jury instructions on the basis of the "acquittal-first" rule or the specific language used in the proposed instruction, those issues are not preserved for appellate consideration. Just as with original jury instructions, parties must make precise objections to supplemental instructions to preserve the issue for appellate consideration. I.C.R. 30(b), (c). It is clear from the record that Sellers took issue with the appropriateness of the court's instruction of the jury, both through his opposition to the proffered method of giving a supplemental instruction and through his motion for mistrial after the trial concluded. Therefore, we proceed in addressing Sellers' jury instruction argument as preserved for our consideration.

         Sellers' first contention is that the court violated his right to due process when it initially omitted a required element of the felony offense from the jury instructions and then remedied the erroneous instruction by instructing the jury on the omitted element. Where a defendant claims that his or her right to due process was violated, we defer to the trial court's findings of fact, if supported by substantial evidence. State v. Smith, 135 Idaho 712, 720, 23 P.3d 786, 794 (Ct. App. 2001). However, we freely review the application of constitutional principles to those facts found. Id.

         A trial court has broad discretion to supervise, control, and determine the issues the jury is to decide and the manner in which it is to do so. United States v. Moore, 376 F.3d 570, 577 (6th Cir. 2004); United States v. Duvall, 846 F.2d 966, 977 (5th Cir. 1988). However, a jury instruction violates due process if it fails to give effect to the requirement that the State prove every element of an offense. State v. Anderson, 144 Idaho 743, 749, 170 P.3d 886, 892 (2007). A verdict must be definite, certain, and specific as to the identity of the crime to which the defendant has been convicted. State v. Doolittle, 58 Idaho 1, 6-7, 68 P.2d 904, 906 (1937). As long as the jury has not been discharged, a court has authority to require additional deliberation where there is uncertainty, contingency, or ambiguity regarding the jury's verdict. United States v. Rastelli, 870 F.2d 822, 835 (2d Cir. 1989). In fact, where there is a defect, ambiguity, or gap in the instructions, the trial court has a duty to give such additional instructions on the law as are reasonably necessary to cure the defect. I.C. § 19-2132. The court also has authority to further instruct a jury that has returned a defective verdict. See, i.e., People v. Jolly, 722 N.Y.S.2d 583, 584 (N.Y.App.Div. 2001). This authority exists even when the source of the ambiguity or defect arises from a court's previous instruction. See United States v. Hiland, 909 F.2d 1114, 1137 (8th Cir. 1990) (holding court had authority to resubmit misbranding counts to the jury where the court had originally failed to ensure the first verdict on those counts was unanimous); United States v. Jerry, 487 F.2d 600, 604 (3d Cir. 1973) (holding a court has power "to correct mistakes made in its handling of a case so long as the court's jurisdiction continues").

         Here, Sellers revealed the defect in the original instruction after the jury returned its verdict, but while the jury was still empaneled. Thus, it became the trial court's duty to instruct the jury as to the matters of law necessary for its determination of whether Sellers was guilty of the charged crimes of felony injury to a child. Moreover, it was a question for the jury whether the charged offenses were committed under circumstances or conditions likely to produce great bodily harm or death. See, i.e., People v. Sargent, 970 P.2d 409, 419 (Cal. 1999). The court's initial instructions were the source of the uncertainty as to whether the jury's verdict was sufficient to convict Sellers of the charged felonies. The court acted in conformance with the mandate to inform the jury of the applicable law. It properly issued a supplemental instruction on the missing element and utilized a special verdict form to require the still empaneled jury to decide the elevating fact that would resolve the defect in the original verdict. Therefore, Sellers has not shown a violation of his right to due process on this issue.

         Sellers next contends that the court erred when it instructed the jury as to the lesser-included offense of misdemeanor injury to a child before having the jury acquit Sellers of the felony offense. We first acknowledge that Sellers is correct in pointing out that Idaho follows the "acquittal first" rule when it comes to instructing the jury on lesser-included offenses. However, his argument misconstrues the nature of the instructions that were given to the jury. Idaho Code § 19-2132(c) requires that, where a court gives an instruction for a lesser-included offense pursuant to I.C. § 19-2132(b), the court must direct the jury to consider the lesser-included offense only after unanimously finding a defendant not guilty of the greater charge. State v. Raudebaugh, 124 Idaho 758, 763, 864 P.2d 596, 601 (1993).

         Misdemeanor injury to a child, I.C. § 18-1501(2), is properly considered a lesser-included offense of felony injury to a child, I.C. § 18-1501(1). See State v. Young, 138 Idaho 370, 373, 64 P.3d 296, 299 (2002). However, neither party requested nor intended the court to give an instruction as to the lesser-included misdemeanor offense pursuant to I.C. § 19-2132. Nor did the court intend to sua sponte instruct the jury as to the lesser-included offense based on the evidence presented. The court gave an erroneous felony instruction--one which both parties acquiesced to being given. Because the erroneous instruction was not given as a lesser-included instruction, the court's further instruction of the jury on the missing element did not conflict with the statutory mandate of I.C. § 19-2132.

         Moreover, Sellers does not provide the Court with any authority to support his contention that instructing the jury as to a lesser-included offense before a greater offense violates due process. It is apparent from the record that the case, in all other respects, was prosecuted and presented to the jury as a felony case. Thus, we cannot say it was error for the court to further instruct the jury to continue deliberating and decide the felony element in these circumstances.

         Finally, Sellers argues the misstatements in the original instructions, combined with the procedure of instructing the jury further, were apt to confuse the jury. He does not argue the instructions, as a whole, misstate the applicable law. To be reversible error, instructions must have misled the jury or prejudiced the complaining party. State v. Row, 131 Idaho 303, 310, 955 P.2d 1082, 1089 (1998). We presume the jury followed the district court's instructions. State v. Iverson, 155 Idaho 766, 776, 316 P.3d 682, 692 (Ct. App. 2014).

         The relevant inquiry is whether the court's subsequent instructions confused the jury such that they caused reversible error. As evidence of the jury's confusion, Sellers points to the jury's question during its consideration of the supplemental instruction. This instruction read:

Now that you have found the Defendant guilty of Injury to Child in Counts I through V, you must next consider whether the state has proven that such offense occurred under circumstances or conditions likely to produce great bodily harm or death to the child. You must indicate on the verdict ...

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