Returning to the circumstances before us, defendant highlights that the State’s proofs at trial consisted of testimony only that defendant was convicted of third-degree offenses. Defendant adds that when the trial court instructed the jury as to the elements of the certain persons charge, the court told the jury that it had to find defendant had been convicted of a third-degree offense, not an enumerated offense in the statute. The jury thus found defendant guilty on the strength of his prior conviction of a third-degree offense.
Many third-degree offenses are not among the predicate offenses for a certain persons conviction. An essential element of the certain persons offense — prior conviction of an enumerated predicate offense — could not be and was not found by the jury beyond a reasonable doubt.
All parties involved — defendant, defense counsel, the prosecutor, and the trial court — knew that the predicate conviction on which the State sought to rely was for a crime sufficient to trigger criminal liability under the certain persons statute. The jury did not. For that reason, the jury could not have made a finding on that issue.
A major strand of the right to a jury trial resides in the “nondelegable and nonremovable responsibility of the jury to decide the facts.” When the jury is not given an opportunity to decide a relevant factual question, it is not sufficient ‘to urge that the record contains evidence that would support a finding of guilt even under a correct view of the law.'” In this case, the jury could not satisfy that obligation.
Given the underlying facts, the State almost certainly would have argued on appeal that any error in the instructions was “harmless” and the conviction should therefore stand. However, our courts rarely intrude upon the sacred province of the jury. Moreover, jurors are free to disregard even correct instructions if to convict would be against the collective consciousness of the community that the jury represents.
