State v. Barrett ( 2023 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 49652
STATE OF IDAHO, )
) Filed: December 21, 2023
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
SETSU LILLARD BARRETT, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)
Appeal from the District Court of the Sixth Judicial District, State of Idaho,
Bannock County. Hon. Robert C. Naftz, District Judge.
Judgment of conviction and unified sentence of fifteen years, with a minimum
period of confinement of five years, for trafficking in heroin and being a persistent
violator of the law, affirmed.
Erik R. Lehtinen, Interim State Appellate Public Defender; Kimberly A. Coster,
Deputy Appellate Public Defender, Boise, for appellant.
Hon. Raúl R. Labrador, Attorney General; Kenneth K. Jorgensen, Deputy Attorney
General, Boise, for respondent.
________________________________________________
LORELLO, Chief Judge
Setsu Lillard Barrett appeals from his judgment of conviction and unified sentence of
fifteen years, with a minimum period of confinement of five years, for trafficking in heroin,
enhanced for being a persistent violator. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2020, Barrett was arrested on an outstanding warrant. During a search of
Barrett’s clothing incident to his arrest, officers removed a baggie containing heroin. Barrett was
charged with trafficking in heroin, I.C. § 37-2732B(a)(6)(A), and the State filed a persistent
violator enhancement, I.C. § 19-2514. Barrett pled not guilty and the case proceeded to trial. To
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prove that Barrett had previously been convicted of two felonies for purposes of the persistent
violator enhancement, the State introduced two certified judgments of conviction (Exhibits 4 and
5). The State also presented testimony from an officer who investigated whether Barrett and the
individual named in both judgments of conviction were the same person. Ultimately, the jury
found Barrett guilty of trafficking in heroin and found that he is a persistent violator.
Barrett declined to participate in the court-ordered presentence investigation and mental
health evaluations. Although in custody, Barrett also refused to attend his sentencing hearing.
After being advised by Barrett’s counsel of the reasons for Barrett’s refusal to attend sentencing
and the jail staff’s concerns regarding transporting Barrett against his will, the district court
proceeded with the sentencing hearing in Barrett’s absence. The district court sentenced Barrett
to a unified term of fifteen years, with a minimum period of confinement of five years, and ordered
the sentence to run consecutively to other unrelated sentences. Barrett appeals.
II.
ANALYSIS
Barrett argues the evidence at trial was insufficient to sustain the jury’s finding that he is a
persistent violator. Barrett further contends that the district court’s decision to impose sentence in
his absence constitutes reversible error. The State responds that the evidence was sufficient to
support the jury’s verdict on the persistent violator enhancement and that Barrett failed to preserve
his sentencing argument for appeal. The State further responds that, even if Barrett’s sentencing
argument is preserved, Barrett has failed to show the district court abused its discretion in
proceeding with the sentencing hearing in light of Barrett’s voluntary absence. We hold that the
evidence was sufficient to support the jury’s persistent violator verdict and that the district court
did not err in sentencing Barrett in absentia.
A. Persistent Violator Enhancement
Appellate review of the sufficiency of the evidence is limited in scope. A finding that a
defendant is a persistent violator 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 the enhancement beyond a reasonable doubt. State v.
McClain, 154 Idaho 742, 748, 302 P.3d 367, 373 (Ct. App. 2012). Evidence is substantial if a
reasonable jury could have relied on it in determining the allegation was proven beyond a
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reasonable doubt. State v. Parton, 154 Idaho 558, 569, 300 P.3d 1046, 1057 (2013). 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. State v.
Knutson, 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct. App. 1991); 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. State v. Herrera-Brito, 131 Idaho 383, 385, 957 P.2d 1099, 1101
(Ct. App. 1998); Knutson, 121 Idaho at 104, 822 P.2d at 1001.
Idaho Code Section 19-2514 establishes enhanced penalties for individuals convicted of a
felony for the third time. To sustain a persistent violator conviction under I.C. § 19-2514, the State
must allege the prior convictions relied upon in a charging document and prove their existence
beyond a reasonable doubt. State v. Harris, 160 Idaho 729, 730, 378 P.3d 519, 520 (Ct. App.
2016); State v. Meridian, 143 Idaho 329, 332, 144 P.3d 34, 37 (Ct. App. 2006). The State must
also prove the defendant is the same individual identified in the prior judgments of conviction and
that the crimes were felonies. Harris, 160 Idaho at 730, 378 P.3d at 520. In the absence of
contradictory evidence, the State’s submission of a judgment of conviction bearing the defendant’s
full name and date of birth is sufficient evidence for a jury to rely upon to find that the defendant
is the convicted person. State v. Wilson, 172 Idaho 495, 501, 534 P.3d 547, 553 (2023); Parton,
154 Idaho at 569, 300 P.3d at 1057. However, a certified copy of a judgment of conviction bearing
the same name as the defendant, with nothing more, is not sufficient to establish the identity of the
person formerly convicted beyond a reasonable doubt. Meridian, 143 Idaho at 332, 144 P.3d at
37. Where a defendant is not sufficiently identified as the same individual who was previously
convicted, the judgment of conviction finding him to be a persistent violator must be vacated. Id.
The State alleged that Barrett had two prior felony convictions for possession of a
controlled substance. At trial, the State introduced two certified judgments of conviction as
evidence--Exhibit 4, showing “SETSU LILLARD BARRETT” pled guilty to possession of
methamphetamine on August 6, 2018, and Exhibit 5, showing “SETSU LILLARD BARRETT”
pled guilty to possession of heroin on November 20, 2017. These exhibits were introduced through
the testimony of an officer. The officer testified that he investigated whether the individual named
in both exhibits matched Barrett’s identity. Specifically, the officer ran an inquiry of Barrett’s
driver’s license information, which provided Barrett’s date of birth, social security number,
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address on the license, and other traffic violation information. The officer also searched Barrett’s
name in iCourts, which provided him Barrett’s birth year and case numbers corresponding to
Barrett’s prior cases. The officer then matched the birth year and name from his iCourts search to
the birth year and name obtained from Barrett’s driver’s license record. Thereafter, the officer
conducted a criminal history check through the Federal Bureau of Investigation (FBI), revealing a
2018 offense that correlated with the offense described in Exhibit 4. The FBI’s criminal history
search also provided Barrett’s date of birth, which the officer matched with Barrett’s birth year
from both his iCourts search and driver’s license search. Based on this evidence, the jury
determined that Barrett had been convicted of two felonies and found him guilty of being a
persistent violator.
On appeal, Barrett contends the evidence was insufficient to support the jury’s finding that
he is a persistent violator because, while both certified judgments of conviction bore the same
name as his, the State failed to present the requisite “personal identifying information.”
Specifically, Barrett argues that evidence of matching birth year, without evidence of the day or
month, is insufficient to establish his identity beyond a reasonable doubt. We disagree. While
evidence of the same name and date of birth has been deemed legally sufficient for purposes of
determining that a defendant is the subject of a prior conviction, such evidence is not the exclusive
means of proof beyond a reasonable doubt. Rather, the question is whether there is substantial
evidence a reasonable jury could have relied on in determining the allegation was proven beyond
a reasonable doubt. Parton, 154 Idaho at 569, 300 P.3d at 1057. Such evidence existed in this
case.
The judgments of conviction admitted as State’s Exhibits 4 and 5 pertained to an individual
who shared the same first, middle, and last names, as well as the same birth year as Barrett.
Moreover, both judgments originated from Bannock County--the same county as the present
offense. In addition, an officer testified that, based on his investigation, Barrett and the individual
named in both judgments of conviction were the same person. This uncontradicted evidence was
sufficient for the jury to conclude that Barrett had been convicted of two prior felonies. Barrett
has therefore failed to show that the evidence was insufficient to support the jury’s verdict finding
him guilty of the persistent violator enhancement.
B. Sentencing in Absentia
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Barrett contends the district court violated his constitutional rights when it imposed
sentence in his absence. Barrett specifically argues that the three-step standard articulated in State
v. Kropp, 168 Idaho 948, 489 P.3d 859 (Ct. App. 2021), applies to his absence at the sentencing
hearing. Pursuant to Kropp, when a defendant becomes absent after trial has begun, the trial court
must: (1) make a sufficient inquiry into the circumstances of the defendant’s disappearance to
justify a finding whether the absence was voluntary; (2) make a preliminary finding of
voluntariness, when justified; and (3) afford the defendant an adequate opportunity to explain the
absence when the defendant is returned to custody and before sentence is imposed. Id. at 950-51,
489 P.3d at 861-62. Barrett contends the district court did not comply with Kropp because the
district court failed to make a finding of voluntariness and failed to afford Barrett the opportunity
to explain his absence. The State responds that Barrett has failed to preserve this argument for
appeal. In the alternative, the State asserts that the standard articulated in Kropp is inapplicable to
the facts of this case and, even if applicable, the district court did not abuse its discretion because
the record shows Barrett’s absence was voluntary. We address each argument in turn.
We first address the State’s preservation argument. Generally, issues not raised below may
not be considered for the first time on appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123,
126 (1992). The State contends that Barrett’s sentencing argument is unpreserved because neither
Barrett nor his trial counsel claimed that Barrett’s absence from the sentencing hearing was
anything other than voluntary. We agree.
At the sentencing hearing, a sheriff’s deputy advised the district court that the jail transport
team indicated Barrett was refusing transport for the sentencing hearing. When Barrett was offered
to appear at the hearing remotely via Zoom, he refused that as well. In short, the deputy advised
that Barrett “refused in any form to be in th[e] Court for his sentencing.” The district court then
described its concerns, particularly with respect to Barrett’s behavior:
I think that if we force Mr. Barrett to come over here, we would put the
health and safety of the jail staff and the court marshals, the attorneys, and court
personnel at risk because--and Mr. Barrett--because he could hurt himself or hurt
someone else, because he doesn’t want to be here. And he’s been very--I don’t
know if I would call it “confrontational,” but he has not really been very cooperative
in this process, even through trial. And so those are my concerns with forcing him
to be here, because I think he would be disruptive, but that’s something we would
deal with, but I just don’t want to have him hurt, or anyone else hurt, because of his
behavior.
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After articulating its concerns with forcing Barrett to be transported, the district court
offered some alternatives, including a recess, a continuance, or proceeding in Barrett’s absence.1
In response, defense counsel explained that Barrett recently sent counsel a letter stating Barrett
“no way, won’t accept the judgment, won’t accept the jurisdiction of the Court.” Barrett expressed
the same sentiment to counsel in a second letter and orally. Barrett’s counsel also expressly stated
it would be “unsafe” for Barrett to be transported because “he’s only comfortable in that jail cell”
and he said “he wouldn’t participate again.” Barrett’s counsel also expressly stated: “I’m not
objecting to him not being here, Judge. I don’t see any other choices.” The record, therefore,
shows that there was no request for a finding of voluntariness but, to the contrary, counsel
represented that Barrett was voluntarily absent from the sentencing hearing. That representation
was corroborated by the sheriff’s deputy. Barrett’s complaint about the absence of such a finding
is not preserved. If anything, Barrett invited the error. As such, he cannot complain about the
district court’s failure on appeal. The doctrine of invited error applies to estop a party from
asserting an error when that party’s conduct induces the commission of the error. See State v.
Atkinson, 124 Idaho 816, 819, 864 P.2d 654, 657 (Ct. App. 1993). The purpose of the doctrine is
to prevent a party who caused or played an important role in prompting the trial court to take action
from later challenging that decision on appeal. State v. Barr, 166 Idaho 783, 786, 463 P.3d 1286,
1289 (2020). In short, invited errors are not reversible. State v. Gittins, 129 Idaho 54, 58, 921
P.2d 754, 758 (Ct. App. 1996). Barrett’s challenge to the sentencing proceeding is not preserved.
Even if Barrett’s challenge to the sentencing hearing is preserved for appeal, and even if
the three-part standard from Kropp applies, Barrett has failed to show error in the district court’s
decision to proceed with sentencing. As noted, there was an inquiry into the reasons for Barrett’s
absence and there was nothing from which to conclude that Barrett’s absence was anything but
voluntary. Barrett had the opportunity to explain, through counsel (and the sheriff’s deputy), his
reasons for not appearing. Barrett had the ability to forego his right to be present at sentencing
(I.C. § 19-2503) and did so in this case. The district court did not err in proceeding to sentence
Barrett in absentia in light of his voluntary decision not to appear. See I.C.R. 43(c)(2) (providing
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There was also a discussion of having everyone go to the jail and sentence Barrett there;
however, there was no indication such an option could or would be accommodated by the jail or
that Barrett would participate in that scenario either.
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that, when a defendant waives the right to be present, a sentencing proceeding may continue to
completion in the defendant’s absence). Barrett has failed to show otherwise.
III.
CONCLUSION
There was sufficient evidence from which the jury could conclude, beyond a reasonable
doubt, that Barrett is a persistent violator based on two prior judgments of conviction. Barrett
failed to preserve his sentencing argument for appeal but, even if preserved, Barrett has failed to
show the district court erred in sentencing him in absentia after he voluntarily chose to be absent
from the sentencing hearing. Accordingly, Barrett’s judgment of conviction and sentence for
trafficking in heroin and being a persistent violator are affirmed.
Judge GRATTON and Judge HUSKEY, CONCUR.
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