State v. Wilson

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 48825
STATE OF IDAHO, )
)
Plaintiff-Respondent, ) Boise, November 2021 Term
)
v. ) Opinion Filed: May 11, 2022
)
MARK CHARLES WILSON, ) Melanie Gagnepain, Clerk
)
Defendant-Appellant. )
Appeal from the District Court of the Seventh Judicial District, State of Idaho, Custer
County. Joel E. Tingey, District Judge.
The judgment of the district court is affirmed.
Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant Mark
Charles Wilson. Kimberly A. Coster argued.
Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent State of
Idaho. Andrew V. Wake argued.
_____________________
STEGNER, Justice.
Mark Wilson was charged in Custer County with unlawful possession of a firearm in
violation of Idaho Code section 18-3316. The charge also carried with it a persistent violator
sentencing enhancement. In a bifurcated trial, a jury first found Wilson guilty of unlawful
possession of a firearm. The jury then found Wilson subject to an enhanced sentence due to his
status as a persistent violator. Wilson appealed to the Idaho Court of Appeals, arguing that the
State had failed to present sufficient evidence that he had been convicted of at least one previous
felony at the time he possessed a firearm. Wilson also argued that the State failed to present
sufficient evidence that he had been convicted of two prior felonies, an essential prerequisite of
the persistent violator enhancement. The Court of Appeals affirmed Wilson’s convictions. Wilson
petitioned this Court for review, which we granted. For the reasons set forth below, we affirm
Wilson’s convictions.
1
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2019, Mark Wilson was convicted of first degree murder for shooting his housemate,
Patricia Brown, in Challis, Idaho, with a firearm he had borrowed from a neighbor. In a separate
case, Wilson was also charged with unlawful possession of a firearm in violation of Idaho Code
section 18-3316, alleging he had previously been convicted of a felony. The firearm in question
was the same firearm used in the murder of Brown. Wilson waived a preliminary hearing and was
bound over to district court. An Information was filed charging Wilson with unlawful possession
of a firearm in violation of Idaho Code section 18-3316. Wilson pleaded not guilty. The case was
set for trial.
Wilson moved for a change of venue in the unlawful possession of a firearm case, arguing
that “[i]t would be hard to find a potential juror in Custer County who has not heard about the
death of Patricia Brown and the arrest of Mark Wilson, and talked to someone about the case, and
formed an opinion about what happened.” Wilson noted that a motion to change venue had been
granted in the first degree murder case, and would be appropriate in this case for similar reasons.
The district court denied Wilson’s motion.
In response to the guilty verdict in the murder case, the State filed an Amended
Information in the unlawful possession of a firearm case, this time including a persistent violator
sentencing enhancement. The State alleged Wilson had committed a new felony (felon in
possession of a firearm), as a result of his possession of a firearm and having been convicted of
two prior felonies: (1) battery with intent to commit a serious felony in Custer County in 2006 and
(2) first degree murder (of Patricia Brown) in Custer County in 2019. Wilson filed another motion
to change venue in the unlawful possession case, or in the alternative a motion to continue the trial,
this time arguing that it would be difficult to find an impartial jury in Custer County due to the
recent guilty verdict in the murder case. Wilson also noted that he was set to be sentenced on the
murder conviction on August 8, 2019, and his trial for the unlawful possession charge was set for
August 21, 2019. The district court granted the motion to change venue, ordering that the trial take
place in Bonneville County. The district court also continued the unlawful possession trial until
September 18, 2019, to allow media attention to abate.
Wilson filed a motion to dismiss the persistent violator sentencing enhancement, arguing
that the newly charged felony (unlawful possession of a firearm) and one of the prior two felonies
(first degree murder) had both arisen out of the same incident. Wilson contended that because these
2
two alleged crimes had occurred as part of the same event, the State should have charged both
simultaneously.
At the hearing, the district court declined to rule on Wilson’s motion to dismiss without
further briefing. The parties discussed the propriety of including the persistent violator
enhancement in the Information for an action that occurred as part of the same factual
circumstances as the murder. The State then moved to file a Second Amended Information, which
the district court permitted. The State’s Second Amended Information removed the murder of
Patricia Brown as a prior felony as a basis for seeking the sentencing enhancement, and instead
alleged that Wilson’s two prior felony convictions were (1) Battery with Intent to Commit a
Serious Felony in Custer County (2006) and (2) Criminal Sexual Conduct, Second Degree in
Jackson County, Michigan (1990).
In a motion in limine, Wilson admitted to “all of the material elements relating to the charge
of Unlawful[] Possession of a Firearm with the exception of the element that he previously had
been convicted of a felony.” Wilson moved to exclude any evidence not related to his alleged prior
felony convictions. The district court accepted the admission and granted Wilson’s motion. Thus,
the only issue for trial on the charge of felon in possession of a firearm was whether Wilson had
been previously convicted of a felony. The case proceeded to a bifurcated trial. During phase one,
the jury would decide whether Wilson had been convicted of one prior felony and was therefore
guilty of unlawful possession of a firearm. If the jury found Wilson guilty, then the trial would
proceed to its second phase, in which the jury would decide whether Wilson had been convicted
of two prior felonies and would, therefore, be subject to an enhanced sentence because he would
be a persistent violator under Idaho Code section 19-2514.
During the first phase of trial, the State called Custer County Sheriff’s Deputy Levi
Maydole as its first and only witness; Maydole testified that Wilson was charged with “attempted
strangulation” in Custer County in 2006. The State then sought to admit a judgment of conviction
for a “Mark Charles Wilson” for Battery with Intent to Commit a Serious Felony in Custer County
in 2006. The district court admitted the exhibit as a certified public record over Wilson’s objections
asserting hearsay and lack of foundation. The State next sought to admit another “Judgment of
Sentence” evidencing a 1990 conviction of “Mark Charles Wilson” of Criminal Sexual Conduct,
2nd Degree, from Jackson County, Michigan. The district court admitted the exhibit over the same
objections by Wilson.
3
Finally, the State sought to admit an excerpt of the Michigan Penal Code, specifically
Section 750.520c, Criminal Sexual Conduct in the Second Degree. Wilson objected, arguing that
the copy produced by the State represented the current state of Michigan law, but that the statute
had been amended multiple times since Wilson’s conviction in 1990. The district court admitted
the exhibit, stating
I think the [c]ourt’s entitled to take judicial notice of state statutes, including Penal
Code. I recognize that there’s an issue as to weight if it doesn’t cover the time period
in question, but I’ll let that be part of the argument that is going to the jury about
the weight of the document. And [there] does not appear to be any genuine dispute
that that’s the current code section.
After cross-examination and re-direct examination of Maydole, the State rested. Wilson
orally moved for a judgment of acquittal, arguing that the State had “failed to show sufficient
evidence to carry its burden of proof beyond a reasonable doubt, [1] that Wilson was the same
Mark Wilson convicted in 1990 in Michigan, and [2], that it was a felony.” The district court
denied Wilson’s motion. The district court then concluded that whether the Michigan statute was
a felony was a question of law for the district court to decide. Wilson’s counsel asked the district
court if he would be allowed to “argue to the jury that there hasn’t been evidence put in that it is a
felony.” The district court responded, “no, you can’t because I’ve made that finding . . . that the
Michigan statute is a felony and can be the basis for finding unlawful possession of a firearm by a
felon.” The district court further concluded that criminal sexual conduct in the second degree “was
a felony at the time of the conviction.”
Wilson did not present any evidence and the case proceeded to closing arguments. The first
verdict form the jury was given asked only whether Wilson was guilty of unlawful possession of
a firearm; the jury found Wilson guilty on that charge. Because the jury found Wilson guilty of
unlawful possession of a firearm, the trial proceeded to its second phase regarding the persistent
violator sentencing enhancement. Neither the State nor Wilson presented any additional evidence
during this second phase. The jury returned a verdict finding that Wilson had been convicted of
(1) Criminal Sexual Conduct, 2nd Degree, and (2) Battery with Intent to Commit a Serious Felony.
Thus, the jury found that Wilson was a persistent violator and, therefore, subject to a sentencing
enhancement.
Wilson moved for a judgment of acquittal regarding the persistent violator sentencing
enhancement pursuant to Idaho Criminal Rule 29. Wilson argued that (1) the jury should have
made the determination whether the Michigan conviction was a felony, and (2) that the State failed
4
to meet its burden of proving the Michigan conviction was a felony. At the hearing, the district
court denied the motion for a judgment of acquittal, but sua sponte considered Wilson’s motion as
an alternative motion for a new trial, conceding that
I think that was reversible error on my part when I made the decision as a matter of
law that the violation of the Michigan statute was a felony. . . . The case law I’ve
seen indicates that is part of the burden of proof on the State and something that the
trier of fact needs to determine.
The district court then vacated Wilson’s conviction on the persistent violator enhancement and
ordered a new trial.
Wilson declined to proceed with a new trial, and instead entered a conditional guilty plea
to the persistent violator enhancement, reserving his right to appeal. The case proceeded to
sentencing. The district court sentenced Wilson to three years fixed, followed by twelve years
indeterminate, for a total of fifteen years. The district court ordered this sentence to run
consecutively to Wilson’s sentence on the murder conviction. Wilson timely appealed his
convictions to the Idaho Court of Appeals, which affirmed. See State v. Wilson, No. 47553, 2021
WL 668012 (Idaho Ct. App. Feb. 22, 2021). This Court granted review.
II. STANDARD OF REVIEW
“When reviewing a case on petition for review from the Court of Appeals this Court gives
due consideration to the decision reached by the Court of Appeals, but directly reviews the decision
of the trial court.” State v. Hoskins, 165 Idaho 217, 220, 443 P.3d 231, 234 (2019) (quoting State
v. Daly, 161 Idaho 925, 927, 393 P.3d 585, 587 (2017)). “Appellate review of the sufficiency of
the evidence is limited in scope.” State v. Clark, 168 Idaho 503, 506, 484 P.3d 187, 190 (2021)
(quoting State v. Gomez-Alas, 167 Idaho 857, 861, 477 P.3d 911, 915 (2020)).
On a complaint of insufficiency of evidence, the appropriate standard of
review is whether there is substantial and competent evidence to support the jury’s
verdict. State v. Aragon, 107 Idaho 358, 366, 690 P.2d 293, 301 (1984). Further,
the function of the appellate court is to examine the supporting evidence, not to
reweigh the significance of the evidence as it relates to specific elements. Id. All
facts and inferences are to be construed in favor of upholding the lower court’s
decision. Id. See also State v. Filson, 101 Idaho 381, 386, 613 P.2d 938, 943 (1980)
(where there is competent evidence to sustain a verdict, the reviewing court will
not reweigh that evidence).
State v. Bush, 131 Idaho 22, 32–33, 951 P.2d 1249, 1259–60 (1997).
“[T]he standard of review for a motion for judgment of acquittal under I.C.R. 29(c) is
whether there was substantial evidence upon which a trier of fact could have found the essential
5
elements of the crime beyond a reasonable doubt.” State v. Hoyle, 140 Idaho 679, 684, 99 P.3d
1069, 1074 (2004). 1
III. ANALYSIS
A. The State presented sufficient evidence that Wilson had previously been convicted of
at least one felony to support the unlawful possession of a firearm charge.
Because Wilson admitted that he was in possession of a firearm, the only issue for trial was
whether Wilson had previously been convicted of a felony. In the first stage of the bifurcated trial,
the jury convicted Wilson of unlawful possession of a firearm in violation of Idaho Code section
18-3316, concluding that he had been convicted of at least one prior felony when he possessed the
firearm.
On appeal, Wilson argues that the State failed to meet its burden because it failed to
produce legally sufficient evidence that Wilson was a convicted felon at the time he possessed the
firearm. Wilson contends that Maydole—the State’s only witness—did not have any independent
knowledge that Wilson was the same Mark Charles Wilson that had been convicted of battery in
Custer County in 2006 or of criminal sexual conduct in Michigan in 1990. Wilson asserts that the
State did not present evidence of Wilson’s identity other than his name. Although Maydole
testified to Wilson’s purported birthdate, he had “no personal knowledge” of Wilson’s birthdate
and admitted that he only knew the date because he had just read it from the State’s exhibit. Wilson
argues that Maydole’s testimony did not connect him to either judgment of conviction presented
by the State.
In response, the State argues that, looking only at the Idaho conviction, the evidence was
sufficient to prove that Wilson had previously been convicted of a felony. The State points to the
certified copy of the Judgment of Conviction from Custer County and argues that it introduced
“considerably more” evidence than just Wilson’s name. The State relies solely on the testimony
1
Wilson aptly points out a typographical error in this Court’s enunciation of the standard of review on a judgment of
acquittal. This Court’s opinion in State v. Clark, 161 Idaho 372, 374, 386 P.3d 895, 897 (2016), incorrectly describes
the standard of review as follows: “In reviewing the denial of a motion for judgment of acquittal, the appellate court
must independently consider the evidence in the record and determine whether a reasonable mind could conclude that
the defendant’s guilt as to such material evidence of the offense was proven beyond a reasonable doubt.” Id. (Italics
added.) Clark quotes the Court’s opinion in State v. Mercer, 143 Idaho 108, 109, 138 P.3d 308, 309 (2006), which
quotes our opinion in State v. Grube, 126 Idaho 377, 386, 883 P.2d 1069, 1078 (1994). Grube cites to the Idaho Court
of Appeals opinion State v. Printz, which correctly sets forth the standard of review: “Review of a denial of a motion
for judgment of acquittal requires the appellate court to independently consider the evidence in the record and
determine whether a reasonable mind would conclude that the defendant’s guilt as to each material element of the
offense was proven beyond a reasonable doubt.” 115 Idaho 566, 567, 768 P.2d 829, 830 (Ct. App. 1989) (italics
added).
6
of Maydole, who worked at the Custer County Sheriff’s Department in 2005 and 2006, contending
that Maydole personally knew Wilson and that he had been convicted of a felony. The State refutes
Wilson’s claim that Maydole had no personal knowledge of Wilson’s birth date, asserting that
Maydole merely did not know his birth date “off the top of his head,” but had reviewed Wilson’s
booking information prior to testifying and relied on that memory. The State concludes that the
evidence, taken together, “was more than sufficient for a reasonable jury to conclude—as this one
did—that Wilson was the convicted defendant in the 2006 Idaho case.”
Idaho Code section 18-3316 provides:
A person who previously has been convicted of a felony who purchases,
owns, possesses, or has under his custody or control any firearm shall be guilty of
a felony and shall be imprisoned in the state prison for a period of time not to exceed
five (5) years and by a fine not to exceed five thousand dollars ($5,000).
I.C. § 18-3316(1). As noted, Wilson admitted that he was in possession of the firearm, leaving
only one remaining issue for trial: whether Wilson had previously been convicted of a felony.
This Court has not previously had occasion to discuss the type of proof required to show
that a defendant has previously been convicted of a felony; however, the Idaho Court of Appeals
has addressed this issue on several occasions. See, e.g., State v. Harris, 160 Idaho 729, 378 P.3d
519 (Ct. App. 2016); State v. Medrain, 143 Idaho 329, 144 P.3d 34 (Ct. App. 2006). The Court of
Appeals has held, in the analogous context of a persistent violator enhancement, that the State has
the burden of proving “the identity of the defendant as the person formerly convicted [of a felony]
beyond a reasonable doubt.” Medrain, 143 Idaho at 332, 144 P.3d at 37. “The [S]tate also has the
burden of identifying the prior crimes as felonies.” Harris, 160 Idaho at 730, 378 P.3d at 520. To
prove that the prior crimes were felonies, the State may produce “copies of judgments specifically
identifying the crimes as felonies or, if the judgments were not so specific, by offering admissible
copies of the felony statutes applicable to the crimes recited in the judgments.” Id.
In order to prove a defendant’s identity, the Court of Appeals has characterized certain
types of evidence as either sufficient or insufficient to prove a defendant’s identity:
A certified judgment of conviction accompanied by mug shots, fingerprint cards
and testimony that those fingerprints are similar to the defendant’s fingerprints,
constitutes sufficient evidence to establish identity for purposes of the persistent
violator enhancement. [State v. Martinez, 102 Idaho 875, 880, 643 P.2d 555, 560
(1982)]. However, a certified copy of a judgment of conviction bearing the same
name as the defendant, with nothing more, is insufficient to establish the identity
of the person formerly convicted beyond a reasonable doubt. Id. Where a defendant
is not sufficiently identified as the same individual who was previously convicted,
7
the judgment of conviction finding him or her to be a [convicted felon] must be
vacated. State v. Polson, 92 Idaho 615, 622, 448 P.2d 229, 236 (1968).
Id.A survey of the facts underlying this line of decisions is instructive. First, in Medrain, the
State introduced two judgments of conviction listing “McGavin O. Medrain” as the defendant. Id.
at 331, 144 P.3d at 36. The “only evidence connecting Medrain to the ‘McGavin O. Medrain’ listed
in the judgments of conviction was the similarity between the two names.” Id. at 332, 144 P.3d at
37. The Court of Appeals held that because the State produced no evidence of Medrain’s date of
birth or social security number, it had “failed to produce substantial evidence upon which a
reasonable jury could have found that the [S]tate sustained its burden of proving Medrain” had
been convicted of a felony. Id. at 333, 144 P.3d at 38.
Next, in Harris, the defendant was charged with attempted arson. The State also sought a
persistent violator sentencing enhancement. 160 Idaho at 730, 378 P.3d at 520. To prove the
persistent violator enhancement, the State introduced two judgments of conviction, but neither
document indicated that the underlying crime was a felony. Id. The Court of Appeals was not
persuaded that the State had met its burden in proving that Harris had been convicted of two prior
felonies, holding a reasonable juror could not conclude as much based on the content of the two
judgments of conviction alone, especially considering that neither judgment listed the underlying
crime as a felony. Id. at 521, 378 P.3d at 731.
The Court of Appeals has also held that correlating evidence of a defendant’s date of birth,
social security number, or other identifying data is required to prove a prior felony conviction
when the State merely presents evidence of a defendant’s first and last name and geographical and
age range data. State v. Ish, 161 Idaho 823, 826, 392 P.3d 1, 4 (Ct. App. 2014). In Ish, the State
presented evidence of Ish’s name and date of birth in order to establish that he had been convicted
of a prior felony. Id. at 824, 392 P.3d at 2. The documents admitted into evidence were court
minute entries; the first showed the name “Martin Edmo Ish” with a date of birth and the second
identified a “Martin Ish,” but contained no other identifying information. Id. The Court of Appeals
held that the second minute entry was insufficient to meet the State’s burden of proving that Ish
had been convicted of a prior felony because it contained only a first and last name and no other
personally identifying information. Id.
In another relevant case, the Court of Appeals held that evidence of a prior conviction
bearing the same name, date of birth, offense, and county as the defendant in the present case was
8
sufficient to establish a defendant’s previous conviction beyond a reasonable doubt. State v.
Lawyer, 150 Idaho 170, 174, 244 P.3d 1256, 1260 (Ct. App. 2010). In Lawyer, the State sought to
prove a felony DUI enhancement by presenting evidence of a judgment of conviction and an
attached criminal complaint bearing the name “Daniel J. Lawyer” and a birth date. Id. at 169, 244
P.3d at 1259. The State also presented testimony from the arresting officer that the identifying data
in the judgment of conviction matched the data on Lawyer’s driver’s license, which he viewed
prior to arresting Lawyer for the instant offense. Id. The Court of Appeals noted that “a
combination of personal and nonpersonally [sic] identifying evidence, when considered together,
may at some point be sufficient to establish identity [of a defendant] beyond a reasonable doubt.”
Id. at 170, 244 P.3d at 1258. When viewing the totality of the evidence the State presented against
Lawyer, including the fact that the prior conviction was for the same crime and in the same county
as the present crime, the Court of Appeals held that the State had met its burden in proving that
Lawyer had previously been convicted of felony DUI. Id.
In reaching its conclusion in Lawyer, the Court of Appeals summarized the conclusions
reached by other jurisdictions when determining “what type of evidence is sufficient to allow a
reasonable trier of fact to identify a defendant beyond a reasonable doubt.” Id. at 173, 244 P.3d at
1259. First, the Court of Appeals noted a distinction between personally identifying data (name,
birth date, social security number, photographs) and non-personally identifying data (offense type,
geographical location), indicating that “proof of personally identifying facts is required.” Id. The
court noted that this could include fingerprints, booking photographs, testimony from law
enforcement, as well as a defendant’s sex, race, date of birth, and driver’s license number. Id. at
173–174, 244 P.3d at 1259–60.
The approach taken by the Court of Appeals indicates that whether evidence is sufficient
to prove that a defendant has been previously convicted of a felony is a factual determination to
be made on a case-by-case basis. In this case, the State bore the burden of proving that Wilson had
previously been convicted of a felony beyond a reasonable doubt in order to convict him of
unlawful possession of a firearm. To do so, the State presented the testimony of Deputy Maydole.
First, Maydole testified that he was “familiar” with Mark Charles Wilson because of both his
employment at the Custer County Sheriff’s Department and generally from the small community
of Challis. Maydole testified that he was aware that Wilson had pleaded guilty to battery with
9
intent to commit a serious felony in 2006, even though he had no personal involvement in that
case.
The evidence submitted by the State also included the Custer County judgment of
conviction, which identified “Mark Charles Wilson,” with a date of birth of 07/30/1964 and a
social security number. The Michigan “Judgment of Sentence” was admitted as well, which
showed that a “Mark Charles Wilson,” with a birth date of 07/30/1964, was convicted of “Criminal
Sexual Conduct, 2nd Degree.” The State did not present any independent evidence of Wilson’s
social security number, nor did it admit any photographs of Wilson; however, Maydole testified
to Wilson’s birthdate and that it matched that birthdate shown on both judgments admitted by the
State.
While the State certainly could have presented more evidence establishing Wilson’s
identity, we conclude that the testimony of Maydole and the Custer County judgment of conviction
were sufficient to support the jury’s finding that Wilson had been convicted of at least one prior
felony, and therefore, unlawfully possessed a firearm. As a preliminary matter, the State did not
meet its burden with respect to the Michigan conviction because the “Judgment of Sentence” did
not independently confirm that it pertained to the same Mark Charles Wilson in the present case.
More importantly, it did not identify that crime as a felony. Additionally, the State acknowledges
that it did not present sufficient evidence of the Michigan conviction by only discussing the Custer
County conviction in its Respondent’s Brief. Accordingly, the State presented insufficient
evidence that Wilson had previously been convicted of a felony in Michigan.
The Custer County conviction, on the other hand, identified Wilson’s full name and birth
date. The judgment also clearly listed that the underlying crime was a felony. As noted by the
Court of Appeals, some combination of both personally and non-personally identifying
information can be sufficient to prove a defendant’s identity for purposes of a prior felony
conviction. Lawyer, 150 Idaho at 174, 244 P.3d at 1260. Here, the personally identifying evidence
included a full name and birth date that matched Wilson’s. Maydole also testified that he knew
Wilson from the community and that he had previously been convicted of a felony in Custer
County in 2006. The non-personally identifying evidence included the fact that the prior conviction
occurred in the same county as the present offense. This evidence was sufficient for a jury to
conclude that Wilson had been convicted of at least one prior felony. Consequently, we affirm
Wilson’s conviction for unlawful possession of a firearm.
10
B. Assuming without deciding that the district court erred by removing a material
element from the jury’s consideration, the district court corrected its presumed error
by sua sponte granting Wilson a new trial; however, because Wilson declined a new
trial by pleading guilty, we conclude he was appropriately subjected to the persistent
violator sentencing enhancement.
The bifurcated trial moved into its second phase after the jury convicted Wilson of unlawful
possession of a firearm. The next question for the jury was whether Wilson had been previously
convicted of two prior felonies in order to impose the persistent violator sentencing enhancement.
Prior to submitting the case to the jury, the district court incorrectly ruled that whether the
Michigan crime was a felony was a question of law to be decided by the district court, rather than
the jury. The district court further concluded that the Michigan crime was a felony in 1990 based
on its own research. Neither party submitted additional evidence. The jury answered “yes” when
asked whether Wilson had been convicted of (1) Criminal Sexual Conduct, 2nd Degree and (2)
Battery with Intent to Commit a Serious Felony.
Wilson moved for a judgment of acquittal on the persistent violator sentencing
enhancement, which the district court denied. 2 The district court did, however, grant a new trial
because it determined that the jury should have made the determination of whether the Michigan
conviction was a felony based on the evidence presented by the State. No new trial took place
because Wilson pleaded guilty to the persistent violator enhancement, reserving his right to appeal.
On appeal, Wilson again asserts that the State failed to meet its burden of proving beyond
a reasonable doubt that Wilson had been convicted of two prior felonies. Even if the evidence was
sufficient to show that Wilson had been convicted of two prior crimes, Wilson contends that the
State failed to prove that both prior convictions, particularly the Michigan conviction, were
felonies. Wilson points out that the State’s copy of the Michigan Penal Code reflected the crime
of criminal sexual conduct in the second degree as it appeared in 2019, as opposed to in 1990 when
Wilson was purportedly convicted. Wilson also notes that the copy admitted by the State showed
that the statute had been amended five times since 1990, and as such, the State should have
presented the version of the statute that was in effect in 1990.
2
We note that a judgment of acquittal is not the appropriate way to describe the relief sought by Wilson. A sentencing
enhancement is not a separate charge. State v. Passons, 163 Idaho 643, 646, 417 P.3d 240, 243 (2018). Rather, it
simply increases the potential sentence that may be imposed if the defendant has committed two felonies prior to being
convicted of a third. See id.11
In response, the State first asserts that Wilson has failed to preserve his argument that the
State presented insufficient evidence that (1) he was the Mark Charles Wilson that committed
criminal sexual conduct in Michigan in 1990 and (2) that the Michigan conviction was a felony.
The State next argues that it presented sufficient evidence to support the jury’s conclusion that
Wilson had been convicted of both the Custer County offense and the Michigan offense. The State
primarily relies on the same arguments it did in arguing that it presented sufficient evidence of the
unlawful possession charge, pointing to the judgments of conviction admitted at trial, and
contending that the jury could “infer” that Wilson was the same defendant listed in the Michigan
conviction because the Custer County conviction had the same name and birthdate.
Next, the State argues that Wilson’s argument should have focused on the jury instructions
and verdict forms, which Wilson did not object to, rather than the sufficiency of the evidence. The
State again attacks Wilson for “failing to preserve” this issue because he did not object to the
instructions given during either phase of the bifurcated trial. The State continues its argument by
alleging that the evidence the Michigan conviction was a felony was sufficient. The State argues
that the jury “knew” that Wilson had been convicted by a Michigan jury, was sentenced to one
year of incarceration, that the sentence had been suspended and he was only given two months’
probation, and that “the criminal statute reflected in the judgment against Wilson criminalized very
serious criminal conduct and made that conduct a felony.” The State concludes its argument by
asserting that there “is no reason at all to believe that the [Michigan] offense was a misdemeanor
when Wilson was convicted of it.”
Wilson responds, first arguing that his conditional guilty plea, which “reserve[ed] his right
to appeal any and all decisions that the [district] court has made to this point,” properly preserved
his arguments on appeal. Specifically, Wilson contends that his motion for a judgment of acquittal,
which the district court denied both orally and by written order, argued that the State failed to
present sufficient evidence that both of Wilson’s prior convictions were felonies.
Wilson next asserts that neither the jury instructions nor the verdict forms were
objectionable; in fact, Wilson argues the State invited any error by arguing at trial that it did not
need to present evidence that the Michigan conviction was a felony. Wilson clarifies that the
appropriate remedy on appeal is a judgment of acquittal on the persistent violator charge.
Idaho Code section 19-2514 governs sentence enhancements for defendants who have been
convicted of three felonies:
12
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.
I.C. § 19-2514.
At the outset, we conclude that Wilson has properly preserved the issues he raised on
appeal. Wilson objected to the evidence admitted at trial and urged the district court to allow the
jury to make the finding of whether the prior convictions were felonies. Further, Wilson moved
for a judgment of acquittal (1) after the State rested in the first phase of the bifurcated trial, and (2)
after the jury convicted Wilson of the persistent violator sentencing enhancement, both times
alleging that the State failed to present sufficient evidence that the Michigan conviction was a
felony. The record clearly reflects that Wilson properly preserved the issues on appeal.
Assuming without deciding that the district court erred in removing a factual determination
from the jury’s consideration—whether the Michigan crime was a felony in 1990—we
nevertheless conclude that the district court acknowledged this presumed error and corrected it by
vacating Wilson’s persistent violator conviction and ordering a new trial. We need not determine
whether the district court erred because Wilson was offered the opportunity for a new trial.
However, Wilson specifically declined the remedy afforded him by the district court for its error
by pleading guilty and reserving his right to appeal.
We also reject Wilson’s invited error argument. The presumed error in Wilson’s trial was
generated by the district court, not the State. Although the State may have acquiesced in the error,
it cannot be said that the State invited it. See State v. Barr, 166 Idaho 783, 786, 463 P.3d 1286,
1289 (2020) (“The invited error doctrine precludes a [party] from ‘consciously’ inviting district
court action and then successfully claiming those actions are erroneous on appeal. . . . Simply
acquiescing in the district court’s stated conclusion [] is not enough to preclude [a party] from
asserting his challenge to the sentence based on invited error.”) (quoting State v. Hall, 163 Idaho
744, 771, 419 P.3d 1042, 1069 (2018)). Furthermore, the State is not now claiming on appeal that
the district court erred in removing a factual determination from the province of the jury and is,
13
therefore, not seeking to benefit from this error; rather, the State was prepared to move forward
with a new trial 3 until Wilson pleaded guilty.
Because Wilson declined the remedy granted by the district court, we decline to order a
new trial as a result of his appeal. To do so would only afford him a remedy that was previously
offered and rejected by Wilson. We also decline to reverse the judgment of the district court by
granting Wilson an acquittal; the presumed error in the case was due to the trial judge withdrawing
a necessary element of the State’s proof from the jury. See State v. Sherrod, 131 Idaho 56, 60, 951
P.2d 1283, 1287 (Ct. App. 1998). The district court remedied its mistake sua sponte by affording
Wilson a new trial. A new trial was the sole remedy available to Wilson. Id. Accordingly, we hold
Wilson was appropriately subjected to the persistent violator sentencing enhancement.
IV. CONCLUSION
For the reasons discussed above, we affirm the judgment of the district court.
Chief Justice BEVAN, Justices BRODY, MOELLER and ZAHN CONCUR.
3
After the district court ordered a new trial, but before Wilson pleaded guilty, the State disclosed to Wilson in
discovery several documents it intended to offer at the new trial, including a copy of the 1989 Michigan statute along
with several booking photos from both Wilson’s Idaho crimes and his Michigan crime.
14