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IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 33055/33056
STATE OF IDAHO,                                                                                                                 )
                                                                                                                                )   2007 Opinion No. 62
                                                                                                        Plaintiff-Respondent,   )
                                                                                                                                )   Filed: September 26, 2007
v.                                                                                                                              )
                                                                                                                                )   Stephen W. Kenyon, Clerk
DAVID DARWIN DONK,                                                                                                              )
)
Defendant-Appellant.                                                                                    )
)
Appeal from the District Court of the First Judicial District, State of Idaho,
Kootenai County.  Hon. John T. Mitchell, District Judge.
Sentence enhancement for use of a deadly weapon in commission of aggravated
assault, vacated, and case remanded.
Molly J. Huskey, State Appellate Public Defender; Justin M. Curtis, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Thomas Tharp, Deputy Attorney
General, Boise, for respondent.
LANSING, Judge
David Darwin Donk appeals from his judgment of conviction for aggravated assault with
a sentence enhancement for using a deadly weapon during the crime.   He asserts that the district
court erred by imposing a sentence enhancement when the enhancement issue had not been
submitted to the jury.   We agree that error occurred and therefore vacate the sentence and
remand for resentencing.
I.
BACKGROUND
On August 28, 2005, Donk and his girlfriend, Sheila Anderson, had a dispute.   At one
point during the fight, Donk told her that she had thirty minutes to live.  Several other individuals
who were in the house convinced Anderson that it would be prudent to leave.   As they were
getting into their vehicles, Donk came to the front door holding a shotgun in one hand.   Because
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of this incident he was arrested and charged with aggravated assault, Idaho Code §§ 18-901,
-905.   The information alleged that the offense was aggravated assault, a felony, rather than
simple assault, a misdemeanor, because it was committed with a deadly weapon.   See I.C. § 18-
905(a).   The information also alleged that Donk was subject to an enhancement of his sentence
for using a deadly weapon during the assault pursuant to I.C. § 19-2520.
A jury trial was conducted, and the jury returned a verdict finding Donk guilty of
aggravated assault.1   Before the jury was released, the attorneys had a conversation with the
court about the deadly weapon enhancement, which had not been submitted to the jury.   The
prosecutor argued that it was unnecessary to obtain a separate verdict on the deadly weapon
enhancement because the jury had already found that Donk used a deadly weapon in the
commission of the aggravated assault.   The prosecutor urged the court to find as a matter of law
that the aggravating factor had been proven and found by the jury.   The prosecutor also said that
he was willing to “rise or fall” on this argument and therefore would consent to excusing the
jury.   After giving the parties an opportunity to brief the issue, the district court ultimately
accepted the State’s position, ruling that the requisite elements of the sentence enhancement had
been found by the jury.
Because of this sentence enhancement, the maximum term of imprisonment to which
Donk could be subject was increased from five years, I.C. § 18-906, to twenty years, I.C. § 19-
2520.    Donk received a unified sentence of ten years with one year determinate.   He now
appeals,  arguing  that  the  enhancement  of  his  sentence  for  use  of  a  deadly  weapon  is
impermissible because the jury did not find the facts necessary to sustain the enhancement.
II.
ANALYSIS
Donk argues that his constitutional rights to due process and to a jury trial were violated
because the jury did not find beyond a reasonable doubt the facts necessary to support the
weapons enhancement.   The imposition of this sentence enhancement, he asserts, thus runs afoul
of Apprendi v. New Jersey, 530 U.S. 466 (2000).   In Apprendi, the United States Supreme Court
1                                                                                                    He  was  also  charged  with  and  convicted  of  possession  of  a  controlled  substance,
possession of drug paraphernalia, and obstructing an officer.   Those convictions are not at issue
in this appeal.
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held that the Sixth Amendment right to a jury trial and the Fourteenth Amendment guarantee of
due process require that any fact, other than a prior conviction, that increases the penalty for a
crime beyond an otherwise-applicable maximum, must be submitted to a jury and proved beyond
a reasonable doubt.    Id. at                                                                        490.    Additionally, the Idaho statute authorizing the weapons
enhancement provides that it is to be found “by the trier of fact at the trial of the substantive
crime.”   I.C. § 19-2520.   Donk argues that although the jury found him guilty of aggravated
assault which had, as one element, the use of a firearm, this finding did not substitute for a
finding on the weapons enhancement because there are conflicting statutory definitions of what
constitutes a firearm.
Donk is correct that significantly different definitions are in play here.   The aggravated
assault statute, I.C.                                                                                §  18-905, which includes within that offense an assault with a deadly
weapon, defines “deadly weapon” to include, “any firearm, though . . . so defective that it can
not be fired.”   I.C. § 18-905(d) (emphasis added).   In contrast, the deadly weapon sentence
enhancement statute, I.C. § 19-2520, which mandates an extended sentence for the use of a
firearm or other deadly weapon in certain crimes, defines “firearm” as “any deadly weapon
capable of ejecting or propelling one or more projectiles by the action of any explosive or
combustible propellant, and includes unloaded firearms and firearms which are inoperable but
which can readily be rendered operable.”                                                             (Emphasis added.)   Thus, one can be convicted of
aggravated assault for the use of a firearm that is so defective that it cannot be fired, but a
sentence enhancement is permitted only if the firearm was operable or could have readily been
rendered operable.    In Donk’s trial, the jurors were instructed on the definition of deadly
weapons for commission of aggravated assault, but, because the enhancement issue was not
presented to them, they were not asked to consider whether the State had met its burden to prove
that the firearm that Donk used was operable or could have been readily rendered operable.
It is not always necessary to submit a sentencing enhancement to the jury, for a jury’s
determination on the underlying charge sometimes encompasses the elements necessary for the
enhancement.   For example, in State v. Hernandez, 120 Idaho 653, 818 P.2d 768 (Ct. App.
1991), the deadly weapon enhancement was applied by the trial court after the defendant had
been found guilty of aggravated battery by stabbing the victim with a knife.   The enhancement
was not specifically submitted to the jury, but the jury had been instructed that one of the
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requirements of aggravated battery was that the battery was committed with a deadly weapon.
We said:
[W]here the use of a firearm or deadly weapon is an essential element of the
crime for which a defendant is charged and he is found guilty, the jury has already
made its factual determination as to whether the particular weapon has been used,
and the judge need not submit the issue to the jury for a special finding to
determine whether a firearm or deadly weapon was used.
Id. at 659, 818 P.2d at 774.   In Hernandez, the definition of firearm found in the enhancement
statute was not a factor, however, because the crime there was committed with a knife.
In State v. McLeskey, 138 Idaho 691, 69 P.3d 111 (2003), the Idaho Supreme Court
examined the interaction of the aggravated assault and deadly weapon enhancement statutes.   In
that case, a jury had found the defendant guilty of aggravated assault for shooting at the victim
during a burglary and also found the deadly weapon sentence enhancement applicable.   The
Supreme Court vacated the defendant’s conviction because of trial errors but also discussed the
instruction  which  should  be  given  in  a  new  trial  on  remand  with  respect  to  the  firearm
enhancement.   In McLeskey’s trial, the district court had instructed the jury on only the I.C.
§ 18-905(d) definition of deadly weapon applicable to the offense of aggravated assault and did
not include the I.C. § 19-2520 definition for the firearm enhancement.  The Supreme Court noted
that “[t]hese two statutes are obviously not identical.”   McLeskey, 138 Idaho at 698, 69 P.3d at
118.    While acknowledging that the failure to instruct on the definition under the firearm
enhancement statute “may have been harmless in this case,” the Court directed that on remand,
the jury should be instructed on the definition found in the enhancement statute.
Prior to the Supreme Court’s decision in McLeskey, we addressed a similar issue in State
v. Tucker, 138 Idaho 296, 62 P.3d 644 (Ct. App. 2003).  In that case the jury found the defendant
guilty of aggravated assault involving the discharge of a firearm, and the district court then
imposed a sentence that was enhanced for use of a deadly weapon in commission of that crime,
reasoning that the jury had found the essential elements of the enhancement although the
enhancement issue was not submitted to the jury.    The defendant argued that this violated
Apprendi.   We determined there was no Apprendi violation because the jury had found the
essential elements of the weapons enhancement.   We acknowledged the distinction in the two
statutory definitions of firearm but noted that in Tucker’s trial, where the gun was fired during
the assault, the operability of the gun was not at issue.   Tucker, 138 Idaho at 301 n.4, 62 P.3d at
649 n.4.   See also State v. LePage, 138 Idaho 803, 811-12, 69 P.3d 1064, 1072-73 (Ct. App.
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2003) (firearm enhancement did not need to be submitted to jury when jury was instructed that
an essential element of the crime of first degree murder was that the defendant intentionally,
willfully, deliberately and premeditatedly killed the victim by shooting him with a firearm).   In
light of the Supreme Court’s subsequent opinion in McLeskey, it may have been more accurate
for this Court to have held in Tucker that the failure to submit the firearm enhancement to the
jury was harmless error rather than no error, a distinction which would have made no difference
in the outcome of that appeal.
In this case, unlike in Tucker and McLeskey, there was no evidence that Donk actually
discharged the firearm during the course of the assault and no other direct evidence that the
weapon was operable at that time.  In light of this state of the evidence and the distinctions in the
statutory definitions, the jury’s finding that Donk committed aggravated battery using a firearm
was not the equivalent of a finding that he used a firearm for purposes of the deadly weapon
sentence enhancement.
The question, then, is whether the error in failing to submit the weapons enhancement
issue to the jury was harmless.   In Neder v. United States, 527 U.S. 1 (1999), the United States
Supreme Court held that jury instructions’ omission of an element of the charged crime can be
harmless.   The Court applied the traditional test for determining whether constitutional error is
harmless--whether it appears beyond a reasonable doubt that the error did not contribute to the
jury’s verdict.   Id. at 15.   Otherwise stated, the query is whether “the reviewing court may
confidently say, on the whole record, that the constitutional error was harmless beyond a
reasonable doubt.”   Id. at 16.   The Neder court concluded that this standard is met where “a
reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested
and supported by overwhelming evidence.”   Id. at 17.   In further explanation of the standard on
review, the Neder Court continued:
[A] court, in typical appellate-court fashion, asks whether the record contains
evidence that could rationally lead to a contrary finding with respect to the
omitted element.                                                                                        If the answer to that question is   “no,” holding the error
harmless does not “reflec[t] a denigration of the constitutional rights involved.”
On the contrary, it “serve[s] a very useful purpose insofar as [it] block[s] setting
aside convictions for small errors or defects that have little, if any, likelihood of
having changed the result of the trial.”
Neder, 527 U.S. at 19 (internal quotation marks and citations omitted).
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Many courts have found the Neder harmless error standard applicable to claims of
Apprendi violations in the imposition of sentence enhancements.   See State v. Gordon,  663
N.W.2d 765, 776-77 (Wis. 2003) (noting nearly universal application of the Neder harmless
error analysis to Apprendi-type errors); United States v. Matthews, 312 F.3d 652 (5th Cir. 2002)
(although enhancement for committing a gang crime was not found by the jury, the error was
harmless because the evidence was extensive, overwhelming, and essentially uncontradicted on
the elements necessary to prove the enhancement); People v. Coleman, 806 N.E.2d 1113 (Ill.
App.  Ct.                                                                                              2004)   (finding  by  judge  of  sentencing  enhancement  for  brutal  murder  violated
Apprendi, but the error was harmless because, given the significant evidence of a particularly
heinous murder, the jury also would have found this enhancement); State v. Wright, 800 A.2d
1218 (Conn. App. Ct. 2002) (failure to submit firearm sentencing enhancement to jury violated
Apprendi, but was harmless because the record established the elements of the enhancement with
overwhelming evidence).
We therefore examine the evidence presented in Donk’s case to determine whether a jury
rationally could have found that the State failed to prove the omitted element for the sentence
enhancement--that Donk’s firearm was capable of firing or, if inoperable, could have readily
been rendered operable.   Donk’s trial included no direct evidence that the weapon was operable.
That is, there was neither evidence that Donk fired the weapon during the incident nor evidence
that law enforcement officers tested it for operability after the weapon was seized as evidence.
The trial testimony indicated that Donk came to the front door holding a shotgun.   Earlier that
day, he had been overheard muttering that he could “pull the trigger” and said “I just don’t know
who is gonna be at the end.”   A few minutes before the incident, he told the victim that she had
thirty minutes to live.   Witnesses who lived with Donk testified that he kept a shotgun in the
house, and that sometimes he would “play” with the gun by repeatedly loading and unloading the
weapon.   Approximately eighteen hours after the incident, the police arrested Donk and found a
loaded shotgun beside the bed where he had been sleeping.   They also found spare ammunition.
This is circumstantial evidence from which it could be inferred that at the time of the incident the
shotgun was operable or easily could have been rendered so.   It is not, however, conclusive or
overwhelming evidence that would compel such a finding.   On this record, a correctly instructed
jury rationally could have found that the State failed to meet its burden of proving beyond a
reasonable doubt that Donk’s firearm was operable or could be readily rendered operable.
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Consequently, the error was not harmless when the district court incorrectly concluded that the
jury’s finding that Donk used a firearm in committing an assault was the equivalent of the factual
finding needed for a deadly weapon sentence enhancement.   It follows that the enhancement
portion of Donk’s sentence must be vacated.
Here, the district court failed to specify at sentencing what portion of the sentence was for
the underlying charge and what portion constituted the enhancement under I.C.  §  19-2520.
When a sentence is enhanced under I.C. § 19-2520, the sentence for the underlying crime and the
enhancement are “one continuous sentence with two distinct segments,” State v. Kaiser, 106
Idaho 501, 503, 681 P.2d 595, 596 (Ct. App. 1984), and each segment should be separately
pronounced so the propriety of either component of the sentence can be determined in the event
of any judicial review of the sentence.   State v. Storey, 109 Idaho 993, 997, 712 P.2d 694, 698
(Ct. App. 1985).   In this case, if the district court had segmented the sentence appropriately, we
could simply vacate the enhancement portion, but because of the lack of segmentation, we must
remand to the district court for resentencing.
Donk’s  sentence  is  vacated,  and  the  case  is  remanded  for  resentencing  without  a
section 19-2520 enhancement.
Chief Judge PERRY and Judge GUTIERREZ CONCUR.
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