FOR PUBLICATION

JERALD J. WOMACK        )

                             )
Appellant-Defendant,         )
                             )
vs.                          )    No. 43A03-0001-CR-27
                             )
STATE OF INDIANA,            )
                             )
Appellee-Plaintiff.          )

    To convict the Defendant of a Class D felony, the State must have proved the following additional element:

    The Defendant

1.    has been previously convicted of an offense involving marijuana, hash oil or hashish.

        If the State failed to prove each of these elements beyond a reasonable doubt, you should find the Defendant guilty of possession of marijuana, a Class A misdemeanor.

        If the State did prove each of these elements beyond a reasonable doubt, you should find the Defendant guilty of possession of marijuana, a Class D felony.

        If the State did prove each of these elements beyond a reasonable doubt, you may, but are not required to find the Defendant guilty of possession of marijuana, a Class D felony.

(R. 107, emphasis added.) Womack reasons that since this instruction advised the jury that it “should” find Womack guilty of class D felony Possession if the jury found that he had a prior marijuana conviction, it ran afoul of Article I, section 19 of the Indiana Constitution.
Article I, section 19 of the Indiana Constitution provides that “[i]n all criminal cases whatever, the jury shall have the right to determine the law and the facts.” This provision’s application to the instruction of juries in criminal trials has been a source of some confusion. See footnote Nevertheless, it has long been the law that a trial court may not instruct a jury that it “shall” enter a particular verdict upon the finding of certain facts, because binding, specific and mandatory instructions invade the constitutional province of the jury under Article I, section 19. Pritchard v. State, 248 Ind. 566, 230 N.E.2d 416, 421 (1967). Instructions that a jury “should” reach a decision, however, have not been strictly prohibited. In Loftis v. State, 256 Ind. 417, 269 N.E.2d 746, 747 (1971), our supreme court explained that a trial court may properly instruct a jury that it “should” reach a certain verdict, so long as the court either specifically delineates in the instruction the material allegations to be proved, or instructs the jury that they are the judges of the law and the facts. Id. See also Mitchem v. State, 503 N.E.2d 889, 891 (Ind. 1987) (following Loftis).
The Indiana Supreme Court recently confirmed and clarified the rule regarding instructions that a jury “should” reach a particular verdict in two cases involving habitual offender determinations. See Parker v. State, 698 N.E.2d 737 (Ind. 1998) and Seay v. State, 698 N.E.2d 732 (Ind. 1998). In Seay, the court held that a jury in a habitual offender proceeding has the discretion as arbiter of the law and facts to determine whether a defendant is a habitual offender “irrespective of the uncontroverted proof of prior felonies.” 698 N.E.2d at 737. Thus, according to the supreme court’s reasoning, although the legislature has expressly provided that “[a] person is a habitual offender if the jury . . . finds that the state has proved beyond a reasonable doubt that the person had accumulated two (2) unrelated prior felony convictions,” I.C. § 35-50-2-8(d), a jury may nevertheless, in the exercise of its constitutionally-granted nullification power, refuse to find a defendant to be a habitual offender despite finding that the defendant has accumulated the requisite three unrelated felonies. See Seay, 698 N.E.2d at 736-737 and n.9. The supreme court accordingly held in both Parker and Seay that it is erroneous to instruct a jury that it “should” determine a defendant to be a habitual offender upon a finding of the requisite number of prior felonies, because to do so would lead a jury to believe that it did not have the discretion under Article I, section 19 to find that the defendant was not a habitual offender despite the requisite prior unrelated felonies. Parker, 698 N.E.2d at 741-743; Seay, 698 N.E.2d at 734-737. See also Johnson v. State, 717 N.E.2d 887, 891 (Ind. Ct. App. 1999) (applying Parker and Seay and holding instruction that jury “should” find defendant a habitual offender improper). The supreme court in Parker confirmed, however, that a timely instruction advising the jury of its discretion to determine the law and the facts would be sufficient to cure any error resulting from the “should” language. 698 N.E.2d at 742-743. See also, Johnson, 717 N.E.2d at 891.
Womack contends that even though this is not a habitual offender case, the rule from Seay and Parker applies here because the enhancement of his charge from a class A misdemeanor to a class D felony on the basis of his prior marijuana conviction was analogous to a habitual offender determination. The State appears to agree without discussion that this case should be governed by the standard announced in Seay and Parker. In Seay, the supreme court explained that Article I, section 19 applies to habitual offender determinations primarily because a defendant’s status as a habitual offender is a question to be determined by a jury. See footnote Seay, 698 N.E.2d at n.8. Womack, of course, was entitled to a jury trial on the issue of his guilt of the Possession charge, including whether he was guilty of class A misdemeanor or class D felony Possession. See Ind. Const. Art. I, § 13 (providing right to jury trial in all criminal prosecutions). The jury accordingly had the discretion to determine the law and facts regarding these matters, and Article I, section 19 applied to the second phase of Womack’s trial. In particular, under the rationale in Seay, Article I, section 19 vested the jury here with the power to find that although Womack had a prior marijuana conviction, he was only guilty of Class A misdemeanor Possession.
During the second phase of the trial, the jury was instructed that it “should” find Womack guilty of class D felony possession if it concluded that Womack had a prior marijuana conviction. Such an instruction, standing alone, would violate the dictates of Article I, section 19 as explicated in Parker and Seay, because it would have suggested that the jury did not have the discretion to find that Womack was guilty only of class A misdemeanor Possession, despite his prior marijuana conviction. The final paragraph of the court’s instruction, however, specifically stated that the jury could decline to convict Womack of class D felony Possession even if the jury found that he had a prior marijuana conviction. (R. 107). Since the jury was instructed as to this option, we cannot say that the court’s instruction invaded the province of the jury and improperly led the jury to believe that it did not have the discretion to decide the law and the facts afforded under Article I, section 19. Moreover, even if the instruction did not contain this option, it would not require reversal. Here, the trial court specifically advised the jury in its final instructions that “under the Constitution you are the judges of the law and the facts; . . .” (R. 108.) As explained in Parker, the trial court’s timely final instruction here was sufficient to cure any error resulting from the term “should” in the Possession instruction.

________     GUILTY of the crime of Possession of Marijuana, a CLASS A MISDEMEANOR, having NOT BEEN CONVICTED of a previous offense involving marijuana, hash oil or hashish.

________     GUILTY of the crime of Possession of Marijuana, a CLASS D FELONY, having BEEN CONVICTED of a previous offense involving marijuana, hash oil or hashish,

as charged in COUNT I of the information.

(R. 114, emphasis in original.) Womack contends that the verdict form violated Article I, section 19 of the Indiana Constitution because the form did not provide a third option advising the jury that it could find Womack guilty of class A misdemeanor Possession, and not class D felony Possession, even though Womack had prior marijuana convictions.
As noted above, under the rationale of Seay, the jury in Womack’s case had the discretion under Article I, section 19 to find that Womack had a prior marijuana conviction, and yet find him guilty of Possession only as a class A misdemeanor. The verdict form used here specifically stated that there were only “two (2) possible verdicts”: Womack was either guilty of class A misdemeanor Possession, “having not been convicted” of a prior marijuana offense, or he was guilty of class D felony Possession, “having been convicted” of a previous marijuana offense. (R. 114.) The verdict form therefore placed an absolute limitation on the jury’s Article I, section 19 discretion, effectively precluding a conclusion that Womack was guilty of class A misdemeanor Possession despite his prior marijuana convictions. In Seay, our supreme court specifically proscribed precisely this kind of a verdict form in habitual offender proceedings, stating
[w]e . . . overrule or disapprove of . . . cases to the extent that they permitted special verdict forms in habitual offender proceedings which did not allow the jury to find that the defendant was not a habitual offender even though there was a finding that the State had proven beyond a reasonable doubt that defendant had accumulated two prior unrelated felony convictions.

698 N.E.2d at 735, n. 7. The verdict form used in this case was accordingly erroneous.
The State argues that, as with the Possession instruction, the court’s timely final instruction advising the jury of its responsibility to determine the law and facts cured any error in the verdict form. We cannot agree. While the Possession instruction merely advised the jury that it “should” convict Womack of class D felony Possession if it found that he had a prior marijuana conviction, the verdict form effectively mandated a conviction of class D felony Possession upon the finding of a prior marijuana conviction. This distinction is crucial. As discussed in the previous section, our courts have long held that while an instruction that a jury “should” reach a particular verdict may suggest to the jury that its discretion under Article I, section 19 is limited, a timely instruction advising the jury of its authority to determine the law and the facts will offset any misunderstanding created by the instruction. See Parker, 698 N.E.2d at 742-743; Mitchem, 503 N.E.2d at 891; Loftis, 269 N.E.2d at 747. Our courts, however, have never sanctioned binding, specific and mandatory instructions, because they invade the constitutional province of the jury under Article I, section 19. See Pritchard, 230 N.E.2d at 421. Implicit in the distinction is the notion that binding and mandatory instructions and verdict forms, by their very nature, cannot be cured by supplemental reminders of the jury’s proper responsibility to decide the law and the facts. The verdict form here gave the jury no discretion to do anything but convict Womack of class D felony Possession if the jury found that Womack had a prior marijuana conviction. This improper limitation upon the jury’s discretion under Article I, section 19 could not have been cured by reminding the jury that it had the power to decide the law and the facts. We therefore reverse Womack’s conviction of class D felony Possession and remand for a new trial to determine whether Womack is guilty of Possession as a class A misdemeanor or a class D felony.
Our conclusion that the verdict form was erroneous should not be taken to mean that we agree with Womack that the trial court was obligated to include a third option specifically advising the jury that it had the power to ignore the legislature’s pronouncement regarding Possession of Marijuana by convicting him of only class A misdemeanor Possession despite Womack’s prior marijuana conviction. See footnote In this case, we believe that, since the jury instructions adequately explained the difference between class A misdemeanor Possession and class D felony Possession, and advised the jury of its responsibility to decide the law and facts, the verdict form would have been acceptable if it simply gave the jury the option of convicting Womack of Possession as a class A Misdemeanor or as a class D felony, without specific reference to whether Womack had a prior marijuana conviction. That way, the jury would retain the option of finding Womack guilty of class A misdemeanor possession despite his prior marijuana conviction, without being specifically instructed of its power to reject standing law.
    Reversed and remanded.
RILEY, J., and BARNES, J., concur.