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.