specially concurring:
I.
The appellant contends that the trial court gave an instruction which unconstitutionally shifted the burden of proof, on the *677issue of former convictions, to the defense. I agree. As a standard of review for this Court, an identity of names on conviction documents, in the absence of rebutting testimony does support a finding of prior convictions. However, despite the fact that the test is the correct standard for review, it is not a proper jury instruction.
Under the instruction given, the jury may have assumed that they were required to find the appellant guilty on the AFCF count, unless he submitted rebutting testimony. Such an instruction shifts the burden of proof to the appellant to demonstrate why an element of the crime should not be presumed. The constitutional question is not whether such a presumption is reasonable, but whether it improperly relieves the prosecution of the burden to prove every element of the crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). Therefore, since the instruction could have been interpreted by the jury as creating a mandatory rebuttable presumption, it was unconstitutional. Francis v. Franklin, — U.S. -, 105 S.Ct. 1965, 1972-73, 85 L.Ed.2d 344 (1985); Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). As the Supreme Court stated in Franklin:
An irrebuttable or conclusive presumption relieves the State of its burden of persuasion by removing the presumed element from the case entirely if the State proves the predicate facts. A mandatory rebuttable presumption does not remove the presumed element from the case if the State proves the predicate facts, but it nonetheless relieves the State of the affirmative burden of persuasion on the presumed element by instructing the jury that it must find the presumed element unless the defendant persuades the jury not to make such a finding. A mandatory rebuttable presumption is perhaps less onerous from the defendant’s perspective, but it is no less unconstitutional.
The determination of an element of the crime must be left to the jury. The instruction in this case went well beyond the language of a permissive inference. Cf. Davis v. State, 665 P.2d 1186 (Okl.Cr.1983). Here, the jury was not told that they could reject the presumption. Title 12 O.S.1981, § 2304(C).
However, in the unusual circumstances of this case, I do not believe the appellant was prejudiced by the error. The accuracy of the documents detailing the appellant’s former convictions was never made an issue at trial. In addition, even though appellant’s testimony was not incorporated into the sentencing stage, he freely admitted the prior crimes during both direct and cross examination. The appellant never questioned the sufficiency of the conviction documents, nor objected to their admission. He did not object to the trial court’s instructions or submit any instructions of his own. Finally, the appellant’s attorney repeatedly referred to appellant’s guilt stage admissions during his sentencing stage argument to the jury. Therefore, in these limited circumstances, I believe that the appellant has failed to demonstrate that he was prejudiced by the trial court’s erroneous instruction.
II.
Appellant also contends that the introduction of copies of prior judgments and sentences bearing his name were insufficient proof of the prior convictions. He cites Gravatt v. United States, 260 F.2d 498 (10th Cir.1958), which holds that identity of names alone does not establish prior convictions. The majority opinion indicates ■ that the rule in Oklahoma is inconsistent with Gravatt, supra at 10. I disagree.
Gravatt states that merely introducing the indictment or information and the judgment and sentence are insufficient to take the case to the jury, especially if the names are not identical. Id. at 499. Except for the slightly misleading statement, in Wilson v. State, 568 P.2d 1323 (Okl.Cr.1977), cited by the majority, this Court has never held that identity of name alone is suffi*678cient evidence of former conviction. Both Williams v. State, 364 P.2d 702, 703 (Okl.Cr.1961), and Holt v. State, 551 P.2d 285, 288 (Okl.Cr.1976), which are cited as authority by Wilson, state:
In regard to proof of former conviction under the Habitual Criminal Act, 21 O.S. (1951) § 51, the identity of name of the defendant and the person previously convicted is prima facie evidence of identity of person, and, in the absence of rebutting testimony, supports a finding of such identity. This will leave the question of identity to be determined by the jury, after a proper instruction has been given, upon a consideration of all surrounding facts and circumstances, such as commonness or unusualness of the name, the character of the former crime or crimes, and the place of its commission.
Thus, both Williams and Holt clearly indicate that there must be other “facts and circumstances for the jury to consider in reaching their verdict. In this context, it should be noted that the correct rule is that name identity “supports a finding of such identity,” id. (emphasis added), not, as stated in Wilson, that name identity is “sufficient in the absence of rebutting testimony,” 568 P.2d at 1327 (emphasis added). The “facts and circumstances” may simply be that the defendant has an unusual name. Identity of common names, without more, however, is not “sufficient.” Smith v. State, 695 P.2d 1360 (Okl.Cr.1985); Brown v. State, 578 P.2d 364 (Okl.Cr.1978).
In this case, there were other “facts and circumstances” for the jury to consider. Therefore, the appellant’s allegation of error is without merit.
III.
Finally, I believe the majority misinterprets the appellant’s identification complaint. The majority says the appellant is complaining about the failure of the trial court to suppress the victim’s in-court identification. Supra at 675. I am of the opinion that the appellant is objecting to the admission of testimony relating to the tainted photographic identification.
The majority agrees that the pre-trial photographic identification procedure was impermissibly suggestive. Supra at 675. Despite this fact, the victim was allowed to testify as to his photographic identification of the appellant. It was error to allow that testimony. Cf. United States v. Wade, 388 U.S. 218, 87 S.Ct.1926, 18 L.Ed.2d 1149 (1967).
However, since the in-court identification was based upon a relatively strong independent identification and since the photographic identification was mentioned only briefly and was not used to bolster a weak in-court identification, I would hold that the tainted evidence was merely cumulative and did not result in a miscarriage of justice. See 20 O.S.1981, § 3001.1. The appellant has, therefore, failed to show that he was prejudiced by the error.