State v. Sellers
| Decision Date | 01 September 2016 |
| Docket Number | Docket No. 42716 |
| Citation | 387 P.3d 137,161 Idaho 469 |
| Court | Idaho Court of Appeals |
| Parties | STATE of Idaho, Plaintiff–Respondent, v. Cody SELLERS, Defendant–Appellant. |
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.
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.
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 seizure-like 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:
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.
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 , 282 A.D.2d 474, 722...
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