dissenting. Because I believe that the trial judge’s instructions improperly removed one of the essential elements of the crime charged from the jury’s determination, I respectfully dissent.
Defendant was charged with violating § 674(b) of Title 23, which reads as follows:
A person whose license or privilege to operate a motor vehicle has been suspended or revoked for a violation of section 1201 of this title . . . and who operates or attempts to operate a motor vehicle upon a public highway before reinstatement of the license shall be imprisoned not more than two years or fined not more than $5,000.00, or both. . . .
23 V.S.A. § 674(b).
The statutory sections at play in this case are as follows. Section 1201 makes it a crime to operate a motor vehicle under the influence of intoxicating liquor. Section 674 also provides, in subsection (f), that the suspension period for a violation of § 1201 “shall not be deemed to expire until the person has complied with section 1209a of this title and the person’s license has been reinstated.” Section 1209a of Title 23 sets forth certain conditions for reinstatement of suspended or revoked licenses. Thus, § 674(b) requires the State to prove, as an essential element of its case, that the operator’s license was suspended for a violation of § 1201 of Title 23, and, if the imposed period of suspension has run, the State must make out a prima facie case of failure to comply with § 1209a as required by § 674(f).
The State’s criminal information charged defendant with the following:
*44That [defendant] did then and there operate a motor vehicle on and over a public highway,. . . when this person’s right to operate a motor vehicle was under active suspension by the Commissioner of Motor Vehicles for Title 23 VSA § 1209a and the same not having been reinstated, in violation of Title 23 VSA § 674(b).
Notwithstanding the fact that the information misstates the violation found in § 674(b), I do not dispute that it was sufficient to put defendant on notice of the charge he faced, in accordance with our holding in State v. Williams, 160 Vt. 615, 627 A.2d 1254 (1993) (mem.). Because § 674(b) makes specific reference to § 1201 (as well as § 1205), defendant was on notice the State was charging him with operating while his license had been suspended for DUI and not reinstated pursuant to § 1209a. And, I will concede that the basis for the underlying suspension was highlighted for defendant by the reference in the information to § 1209a. Thus, it was fair to require defendant to defend on the basis of the charge as stated in the particular information. See id. at 617, 627 A.2d at 1255.
Notice aside, however, defendant was denied his constitutional right to have a jury determine if he was guilty beyond a reasonable doubt as to every element of the crime charged when the trial judge decided, as a matter of law, that defendant’s underlying license suspension was for a violation of § 1201. When the court instructed the jury that it need not be concerned about the “actual language of ... § 1209a or § 1201,” that “[i]t [was] sufficient if the State has shown beyond a reasonable doubt that defendant was under suspension at the time of operation,” it took determination of an essential element of the State’s case away from the finder of fact. If one follows the events at trial, it becomes apparent how the State and the court, with a little help from defense counsel, worked their way into, what I consider, reversible error.1
The question of whether mention would be made of the underlying predicate for suspension, conviction of DUI, was first raised by the State on the morning of trial. The prosecuting attorney told the court, *45“I’m trying to get around the jury knowing that [defendant] was convicted of a previous DWI. I can’t see an easy way to do that or any way to do that because of the way the legislature has crafted the statute.” He further noted, “[i]t is an important element of the offense.” At which point defense simply stated “we will object to any mention of DUI. . . and move for a mistrial,” but offered no further legal argument on the point. The court was reluctant to tell the State how to present its case and told the state’s attorney he was on his own.
At trial, defense counsel expressed concern that the suspension letter issued to defendant, an exhibit offered by the State, stated that the suspension was for “.08 percent or more alcohol concentration first offense criminal.” The State argued that the Legislature recognized § 674(b) would require mention of the underlying reason for the suspension and that it was “within what’s a necessary element that the jury needs to hear that far outweighs any prejudicial effect that it might have on the jury. . . .” The court disagreed and opined that it could decide at the conclusion of the evidence if the State had met its burden by introducing sufficient evidence to show that defendant at the time of the operation in question was under active suspension and had not been reinstated. The court stated: “There doesn’t seem to be any requirement for showing the reason for the suspension.” It then struck the language of the exhibit regarding alcohol concentration and criminal offense because of the “possibility that it could be prejudicial” to defendant. In another exhibit offered by the State, defense counsel requested the code designation indicating DUI be deleted and the State agreed to do so.
At the close of the State’s case, defense moved for judgment of acquittal because the State failed to show that defendant was under suspension for the reason that makes driving with a suspended license a criminal matter under § 674(b). The court denied the motion, finding that the State had introduced sufficient evidence to demonstrate that the underlying suspension made the matter criminal, without identifying what evidence it was relying on in reaching that conclusion.
Then, during the jury charge conference, the State expressed concern that the jury was going to wonder why the State never told them what § 1209a was. At this point defense argued that the information did not properly charge a criminal violation of § 674 and moved for dismissal of the charge. Defense counsel pointed out that he never objected to a specific mention of § 1201, nor had the court *46ruled that mention of the statute was forbidden. The State asserted that it deliberately left any mention of § 1201 out of the information and argued that “the Legislature must have contemplated the prejudicial effect of a DWI introduction into this type of proceeding and therefore enacted § 674(f) which allows 1209 to act as surrogate for 1201.” Following this reasoning, the court denied defense’s motion to dismiss.
Defendant then asked the court to instruct the jury that it must find defendant’s license had been suspended pursuant to § 1201. The State protested and argued to reopen its case to introduce the stricken evidence that would have supported such a finding:
[I]t’s the State’s contention that the only way for this jury, barring the court’s adoption of the surrogate of 1209a, to find the defendant guilty is for the State to introduce evidence that he was in fact convicted of 1201 for drunk driving and that he was given notice of that suspension for having a blood alcohol content of .08 or more. That was the only way. That was the State’s contention from the beginning.
The court ruled that the issue was a matter of law for the court to decide and found that defendant’s license had been suspended based on his conviction for DUI. In effect, the court granted the State a directed verdict on one element of the offense charged.
It has long been recognized that a trial judge “may not direct a verdict of guilty no matter how conclusive the evidence.” United Brotherhood of Carpenters & Joiners of America v. United States, 330 U.S. 395, 408 (1947); see also Connecticut v. Johnson, 460 U.S. 73, 84 (1983); Sparf & Hansen v. United States, 156 U.S. 51, 105 (1895). The prohibition against directed verdicts includes “situations in which the judge’s instructions fall short of directing a guilty verdict but which nevertheless have the effect of so doing by eliminating other relevant considerations if the jury finds one fact to be true.” United States v. Hayward, 420 F.2d 142, 144 (D.C. Cir. 1969). As one panel of the Fifth Circuit has stated, “ [N]o fact, not even an undisputed fact, may be determined by the Judge.” Roe v. United States, 287 F.2d 435, 440 (5th Cir.), cert. denied, 368 U.S. 824 (1961); accord United States v. Musgrave, 444 F.2d 755, 762 (5th Cir. 1971).
The rule prohibiting verdicts directed against an accused emanates from the guarantee of due process and the right to a jury trial found in the Fifth and Sixth Amendments to the United States Constitution. *47These provisions require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt. See United States v. Gaudin, 515 U.S. 506, 510 (1995); see also In re Winship, 397 U.S. 358, 364 (1970) (due process “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”) (emphasis added); Sullivan v. Louisiana, 508 U.S. 275, 277-78 (1993).
Conviction under § 674(b) requires proof that the suspension at issue results from a prior DUI conviction. Thus, defendant had a right to demand that a jury decide whether the State proved the required basis of his alleged suspension. By taking this determination away from the jury, the court deprived defendant of this right.
In State v. Williams, 581 A.2d 78 (N.H. 1990), the defendant was charged with fraud in connection with the sale of securities. The trial court instructed the jury that certain limited partnership interests were “securities.” See id. at 79. In a per curiam decision citing In re Winship, 397 U.S. at 363, the New Hampshire Supreme Court wrote: “The fourteenth amendment [to the United States Constitution] and part I, article 15 [of the New Hampshire Constitution] have been interpreted as entitling a criminal defendant to a jury determination on all factual elements of the crime charged.” Id. at 80. The court held that whether the limited partnership interests were securities was a question of fact for the jury and that it was error for the judge to decide this question as a matter of law. See id.
In People v. Tice, 558 N.W.2d 245 (Mich. Ct. App. 1996), the defendant was charged with being a felon in possession of a firearm. The trial court instructed the jury that the defendant was a convicted felon. The appellate court reversed, holding that the trial court had impermissibly undermined the essential fact-finding function of the jury and freed the prosecution from its duty to prove each element of the crime charged beyond a reasonable doubt. “When a trial court instructs that an essential element of a criminal offense exists as a matter of law, error requiring reversal will be found.” Id. at 248. See also Andrews v. State, 652 S.W.2d 370, 374 (Tex. Ct. App. 1983) (trial court’s instruction held reversible error as “jury [could not] perform its function of being the exclusive judge of facts.”); State v. Rodriguez, 509 A.2d 72, 75 (Conn. App. Ct. 1986) (trial court’s charge to the jury regarding elements of murder “preempted the jury’s function and in effect directed a verdict as to an essential element of the crime” which *48was “clearly unconstitutional and deprives a criminal defendant of his right to due process of law.”).
In Jones v. State, 707 So. 2d 773, 774 (Fla. Dist. Ct. App. 1998), the trial court had instructed the jury that “arresting the Defendant for possession of cocaine and/or drug paraphernalia constitutes lawful execution of a legal duty.” The reviewing court held that this was reversible error: “By stating that [defendant’s] arrest constituted the lawful execution of a legal duty, the trial court, in effect, took the issue of the lawfulness of his arrest from the jury and directed a verdict for the State.” Id. at 774.
In the present case, the court below held that the basis for defendant’s suspension was a question of law for the court to decide. This holding is contrary to our decision in Williams, 160 Vt. at 617, 627 A.2d at 1225, where we held the statute “makes the reason for the underlying suspension an essential element of a § 674 violation,” and misunderstands the distinction between questions of law and questions of fact.
In Gaudin, 515 U.S. at 511-15, the United States Supreme Court held that in a perjury prosecution where criminal liability depended on the materiality of the alleged falsehood, due process required that the issue of materiality be submitted to the jury. The Court held that the materiality of a falsehood turned on a “mixed question of law and fact [which] has typically been resolved by juries.” Id. at 512. The element in this case, by contrast — the reason for defendant’s license suspension — involved purely historical fact. The trier of fact should therefore have resolved it.
Nor was the error harmless. In Chapman v. California, 386 U.S. 18, 21-22 (1967), the Court held that errors of constitutional dimension do not automatically require reversal of criminal convictions. Only such constitutional errors as “necessarily render a trial fundamentally unfair” require reversal without regard to the evidence in the particular case. Rose v. Clark, 478 U.S. 570, 577 (1986). These errors include the introduction of a coerced confession, the complete denial of a defendant’s right to counsel, adjudication by a biased judge, and the direction of a verdict for the prosecution in a criminal jury trial. See id. at 577-78. The harmless error doctrine does not apply to such errors. Because the error committed in this case is akin to the direction of a verdict for the prosecution on an element of the offense charged, it is a constitutional error requiring reversal without regard to the weight of the evidence. See Johnson, 460 U.S. at 84.
The majority relies in part on the United States Supreme Court’s decision in Old Chief v. United States, 519 U.S. 172 (1997), for the *49proposition that § 1209a properly served as a surrogate for § 1201. In Old Chief, the defendant was charged with a violation of 18 U.S.C. § 922(g)(1), which makes it unlawful for anyone who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year to possess a firearm. A crime punishable by imprisonment for a term exceeding one year is defined in 18 U.S.C. § 921(a)(20).2 The Court held that the district court abused its discretion when it spurned the defendant’s offer to admit the fact of the prior conviction element of the offense charged and instead admitted the full record of prior judgment of conviction when name or nature of prior offense created a risk of a verdict tainted by improper consideration. See Old Chief, 519 U.S. at 178-92.
The difference between Old Chief and the case at bar is obvious. In Old Chief the defendant offered to stipulate to an instruction to the jury that he had been convicted of a crime punishable by imprisonment exceeding one year. In the present ease defendant did not offer to stipulate that his suspension had been for violation of § 1201. There are other distinctions as well. In Old Chief the defendant moved for an order prohibiting the government from offering evidence or soliciting testimony regarding the prior criminal convictions, arguing that evidence of the name and nature of the prior assault conviction would unfairly tax the jury’s capacity to hold the government to its burden of proof beyond a reasonable doubt on current charges. See id. at 175. In other words, the defendant argued that by offering to stipulate, evidence of the name and nature of the predicate offense would be inadmissible under Rule 403 of the Federal Rules of Evidence, the danger being that unfair prejudice from that evidence would substantially outweigh its probative value.
Missing from the case at bar are any legal arguments on whether mention of either “DUI” or § 1201 was admissible. Missing too is any balancing by the court of competing interests under Vermont Rule of Evidence 403. During trial, defense objected to two documents without actually stating a basis for the objection other than noting that the documents mentioned DUI. This resulted in the court agreeing that there was a “possibility” that such evidence of DUI *50“could be prejudicial” and ordering evidence of the reason for defendant’s suspension struck from the documents.
The fact that defendant’s suspension was for violation of § 1201 was not itself an ultimate fact because the statute did not specifically require proof of DUI. But its demonstration was a step on the evidentiary route to the ultimate fact, since it served to place defendant within a particular subclass of offenders for whom driving while their license suspended is a crime outlawed by § 674(b).3 What matters is that the suspension was for a DUI conviction, not merely that defendant operated a vehicle while his license was under suspension.
The State was concerned that charging the offense using the language of the statute and introducing evidence from which a jury could find, beyond a reasonable doubt, that defendant’s suspension was based on a violation of § 1201 might be prejudicial. As a threshold matter, evidence is excludable only if it is “unfairly” prejudicial, in that it has “an undue tendency to suggest decision on an improper basis.” Fed. R. Evid. 403 advisory committee’s note. “‘[Ujnfair prejudice’ as used in Rule 403 is not to be equated with testimony simply adverse to the opposing party. Virtually all evidence is prejudicial or it isn’t material. The prejudice must be ‘unfair.’” Dollar v. Long Mfg., 561 F.2d 613, 618 (5th Cir. 1977).
The structure of § 674 itself shows that the Legislature envisioned jurors learning the basic nature for the suspension of defendant’s license. Section 674(b) governs operating while one’s license is suspended for violation of § 1201. It does not govern operating while one’s license is suspended for attempting to elude a police officer, see 23 V.S.A. § 1133, or for leaving the scene of an accident, see 23 V.S.A. § 1128 — those are covered in § 674(a). Nor does it govern operating while one’s license is suspended or prior to reinstatement pursuant to § 676. The State must prove that defendant’s license had been suspended for violation of § 1201, DUI. In short, under § 674(b), a defendant’s prior suspension connotes not only that he has no license, but also that he has engaged in DUI. Thus, the name and basic nature of defendant’s crime that resulted in suspension of his license is not unfairly prejudicial and is admissible to prove his guilt of the crime charged.
*51The State argues that it was up to defendant to rebut the State’s evidence that he was suspended pursuant to § 1209a. However, it is for the State to prove the essential elements of a criminal charge; the defendant can stand silent until it does so. Then, as here, the defendant can move for judgment of acquittal at the close of the State’s case if he believes the State has failed to produce evidence of an essential element.
As the United States Supreme Court has noted, “ [t]he definition of the elements of a criminal offense is entrusted to the legislature.” Liparota v. United States, 471 U.S. 419, 424 (1985). Within broad constitutional bounds, legislatures have flexibility in defining the elements of a criminal offense. See Patterson v. New York, 432 U.S. 197, 210 (1977). State legislatures may reallocate burdens of proof by labeling elements as affirmative defenses, or they may convert elements into “sentencing factors” for consideration by the sentencing court. See McMillan v. Pennsylvania, 477 U.S. 79, 85-86 (1986). If the Legislature did not intend suspension pursuant to § 1201 to be an essential element of the crime described in § 674(b), it could have made the reason for the suspension merely a sentencing factor for the court to consider. This it did not do.
It is not a crime to fail to get your driver’s license reinstated after suspension for DUI. It is a crime, however, to drive if your license has not been reinstated after suspension for DUI. Because the State failed to introduce any evidence to support the jury’s verdict that defendant was operating while under suspension for violating § 1201, the conviction should be reversed.
I am authorized to state that Justice Johnson joins in this dissent.
The invited error doctrine holds that an action induced by an appellant cannot ordinarily be a ground of error. See State v. Ross, 454 A.2d 266, 269 (Conn. 1983); see also State v. Massey, 169 Vt. 180, 185-86, 730 A.2d 623, 627 (1999), citing State v. Crabtree, 482 S.E.2d 605, 612 (W. Va. 1996) (invited error doctrine prevents a party from inducing an erroneous response and then seeking to profit from that error). Beyond introducing the specter of a mistrial, defense counsel’s minimal contribution to the actions of the court does not call for analysis under the doctrine of invited error.
A crime punishable by imprisonment for a term exceeding one year is defined to exclude “any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices” and “any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.” 18 U.S.C.A. § 921(a)(20).
Section 676 of Title 23 makes it a civil traffic violation to operate a motor vehicle after the license to operate has been suspended, revoked or refused for reasons other than violations of certain statutes, including § 1201.