dissenting.
¶ 25 I respectfully dissent. My disagreement with my colleagues is legal as well as philosophical. Here, the legislature has defined the elements of the offenses for which defendant is charged. Under the more serious charge, the elements are driving under the influence with two previous DUI convictions within sixty months preceding the arrest. The essence of the majority opinion is that the legislature has unfairly prejudiced defendant by providing that defendant’s pri- or misdemeanor convictions are an element of the crime of aggravated DUI. Consequently, according to the majority, these prior convictions must be withheld from the jury.
¶ 26 It seems to me that in reaching this conclusion the majority has strayed from what are commonly accepted as two fundamental precepts of appellate judging — one rooted in the separation of powers and the other in the doctrine of stare decisis. As to the first, we are constrained as appellate judges to acknowledge the line of demarcation that separates our function from that of the legislature. This proposition has a corol*448lary — the rule, often cited, that absent a constitutional question, our role is to apply the statutes as written by our elected officials. It is not our function to determine the wisdom or even the fairness of any legislative enactment. It seems to me that the majority has crossed the line and made that legislative determination. The opinion rewrites the statute to accord with what the majority thinks is fair to defendant. In concluding that the statute is unfairly prejudicial to defendant, the majority has failed to give the legislature its due.
¶ 27 As to the second precept, our judicial tradition acknowledges the role of precedent in our system of justice. As a general principle, good reasons exist for this policy. Most important is the consistency and predictability that stare decisis provides to the law. In our case — we are after all an intermediate court of appeals — we are constrained to follow decisions of our supreme court. Applying that principle here, this outcome should have been controlled by the opinion of our supreme court in Geschwind, 136 Ariz. 360, 666 P.2d 460. There, the court clearly stated that evidence of the underlying crime or conduct included by the legislature as an element of the crime “cannot be precluded as irrelevant or unfairly prejudicial.” Id. at 363, 666 P.2d at 463. Nevertheless, directly contrary to Geschwind, the majority holds that an element of the crime cannot be proven because the only purpose of doing so would be to prejudice defendant.
¶ 28 Except for this case, we have consistently followed the principles in Geschwind since the legislature enacted the present aggravated DUI statute. Most recently, in State v. Galati (Petersen), 193 Ariz. 437, 973 P.2d 1198 (Ct.App.1998), a panel of this court rejected the reasoning applied by the majority here and instead followed Geschwind. In Galati, on facts similar to these, we concluded that the trial court erred in keeping prior DUI convictions from the jury. We noted that under Rule 19.1(b), Arizona Rules of Criminal Procedure, if the prior conviction alleged is an element of the crime, a defendant is not entitled to a bifurcated trial. Id. at ¶ 8.
1129 Our decision in Galati was foreshadowed by other decisions of this court in which we have consistently held that a stipulation as to an element of a crime must be presented to the jury. See State v. Brito, 183 Ariz. 535, 537-38, 905 P.2d 544, 546-47 (App.1995); State v. Superior Court (Walker), 176 Ariz. 614, 616, 863 P.2d 906, 908 (App.1993); Rebollosa, 177 Ariz. at 402, 868 P.2d at 985; see also Virgo, 190 Ariz. at 353, 947 P.2d at 927. The rationale of these cases is persuasive. The legislature has wide latitude in defining crimes. See Brito, 183 Ariz. at 537, 905 P.2d at 546. When the legislature prescribes the elements of a crime, the state must prove every element beyond a reasonable doubt. See Rebollosa, 177 Ariz. at 402, 868 P.2d at 985. Even if the state and the defendant stipulate to an element of the crime, the stipulation is not binding on the jury. See Virgo, 190 Ariz. at 353, 947 P.2d at 927. If the jury verdict does not include an element of the offense, any stipulated facts related to the element may not be considered proven. See id.
1130 Old Chief, relied on by the majority, does not require us to overturn Geschwind and the cases decided by this court. In Old Chief the defendant was charged with violating a federal statute that prohibits a convicted felon from possessing a firearm. 519 U.S. at 174, 117 S.Ct. 644. The defendant had previously been convicted of assault resulting in serious bodily injury. See id. at 175, 117 S.Ct. 644. The defendant moved to prohibit the government from mentioning the exact nature of his previous conviction. He offered to stipulate that he had previously been convicted of a felony. He argued that informing the jury of the precise nature of his prior felony conviction would unfairly prejudice him, and the evidence was therefore inadmissible under Rule 403 of the Federal Rules of Evidence. See id.
¶31 The trial court denied his motion and the government introduced the order of judgment and his prior conviction. See id. at 177, 117 S.Ct. 644. On appeal, the Supreme Court reversed. See id. at 178, 117 S.Ct. 644. The Court reasoned that, to convict the defendant under the statute, the jury needed to know only that he was a convicted felon *449and that he had been in possession of a firearm. See id. at 190-91, 117 S.Ct. 644. Because he was willing to stipulate concerning his status as a convicted felon, the government had no legitimate purpose in going into the details of his conviction. See id.
¶ 32 Old Chief simply does not apply here. In this case, to convict defendant of aggravated DUI the jury was required to find, among other things, that he had been convicted of DUI on at least two occasions in the preceding sixty months. Arizona Revised Statutes Annotated section 28-697(A) requires specific proof of prior DUI convictions. The existence of prior DUI convictions is an element of the offense with which defendant was charged. In Old Chief, the federal statute required proof only of a felony conviction.
¶33 Furthermore, in Old Chief, the defendant was willing to stipulate to the fact that he was a convicted felon — an element of the offense with which he was charged. 519 U.S. at 175, 117 S.Ct. 644. Here, defendant was willing to stipulate only to the prior DUI convictions if this information was kept from the jury. Old Chief does not require a trial court to accept such a stipulation. Thus, even under the analysis in Old Chief, the trial court erred in precluding evidence of the prior DUI convictions.
¶ 34 But even if Old Chief were directly on point, we are not bound to accept that decision in the face of Geschwind. Old Chief is not a decision of the United States Supreme Court on a constitutional question. It is essentially a decision on the federal rules of evidence, and not one that we need follow. See State v. Bible, 175 Ariz. 549, 580, 858 P.2d 1152, 1183 (1993). Geschwind is still controlling authority in Arizona on this point, and we are bound to follow it.
¶ 35 I would affirm.