                  IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                          Docket No. 45175

STATE OF IDAHO,                                   )
                                                  )
          Plaintiff-Respondent,                   )    Filed: August 17, 2018
                                                  )
v.                                                )    Karel A. Lehrman, Clerk
                                                  )
CHAD STUART RITCHIE,                              )    THIS IS AN UNPUBLISHED
                                                  )    OPINION AND SHALL NOT
          Defendant-Appellant.                    )    BE CITED AS AUTHORITY
                                                  )

          Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
          County. Hon. Michael Reardon, District Judge.

          Judgment of conviction and unified sentence of twenty years, with a minimum
          period of confinement of five years, for grand theft by possession of stolen
          property and being a persistent violator, affirmed.

          Eric D. Fredericksen, State Appellate Public Defender; Maya P. Waldron, Deputy
          Appellate Public Defender, Boise, for appellant.

          Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
          Attorney General, Boise, for respondent.
                    ________________________________________________

LORELLO, Judge
          Chad Stuart Ritchie appeals from his judgment of conviction for grand theft by
possession of stolen property with a persistent violator enhancement. Ritchie asserts that a fatal
variance existed between the information and the jury instructions and that the district court
abused its discretion by imposing an excessive sentence. For the reasons set forth below, we
affirm.
                                                  I.
                       FACTUAL AND PROCEDURAL BACKGROUND
          The State charged Ritchie with grand theft by possession of stolen property with a
persistent violator enhancement. I.C. §§ 18-2403(4), 18-2407(1), 18-2409, and 19-2514. A jury


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found Ritchie guilty of the grand theft charge. Ritchie waived his right to a jury trial on the
persistent violator enhancement, which the district court found following a court trial. The
district court sentenced Ritchie to a unified term of twenty years, with a minimum period of
confinement of five years. Ritchie appeals.
                                                 II.
                                   STANDARD OF REVIEW
       Whether there was a variance between a charging instrument and the jury instructions is a
question of law over which we exercise free review. State v. Sherrod, 131 Idaho 56, 57, 951
P.2d 1283, 1284 (Ct. App. 1998). Appellate review of a sentence is based on an abuse of
discretion standard. State v. Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000).
                                                III.
                                            ANALYSIS
A.     Fatal Variance
       For the first time on appeal, Ritchie asserts that there was a fatal variance between the
charging document, the elements instruction, and the prosecutor’s closing argument. Because
Ritchie did not preserve this claim in district court, he must show the alleged error is
fundamental. Ritchie has failed to do so.
       Generally, issues not raised below may not be considered for the first time on appeal.
State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). Idaho decisional law, however,
has long allowed appellate courts to consider a claim of error to which no objection was made
below if the issue presented rises to the level of fundamental error. See State v. Field, 144 Idaho
559, 571, 165 P.3d 273, 285 (2007); State v. Haggard, 94 Idaho 249, 251, 486 P.2d 260, 262
(1971). In State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), the Idaho Supreme Court
abandoned the definitions it had previously utilized to describe what may constitute fundamental
error. The Court in Perry held that an appellate court should reverse an unobjected-to error
when the defendant persuades the court that the alleged error: (1) violates one or more of the
defendant’s unwaived constitutional rights; (2) is clear or obvious without the need for reference
to any additional information not contained in the appellate record; and (3) affected the outcome
of the trial proceedings. Id. at 226, 245 P.3d at 978.




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       Ritchie asserts that Jury Instruction 17 (the elements instruction) and the State’s closing
argument regarding the ways in which Ritchie committed grand theft by possession of stolen
property created a fatal variance with the information in violation of his due process rights. In
the information, the State alleged Ritchie committed grand theft by possession of stolen property,
citing I.C. §§ 18-2403(4), 18-2407(1), and 18-2409.        The State further alleged that Ritchie
committed the charged offense by knowingly possessing a Ford Taurus, which belonged to
another, “knowing the property to have been stolen or under circumstances as would reasonably
induce [Ritchie] to believe that the property was stolen, and with the intent to deprive the owner
permanently of the use or benefit of the property.”
       Jury Instruction 17 advised the jury:
              In order for the defendant to be guilty of Grand Theft by Possession of
       Stolen Property as charged in Count I, the state must prove:
              1.      On or about August 5, 2016;
              2.      in the state of Idaho;
              3.      the defendant CHAD STUART RITCHIE, knowingly possessed a
       Ford Taurus valued in excess of One Thousand Dollars ($1,000.00);
              4.      either knowing the property was stolen by another or under such
       circumstances as would reasonably induce the defendant to believe the property
       was stolen;
              5.      such property was in fact stolen; and
              6.      any of the following occurred:
                              (a)      the defendant had the intent to deprive the owner
                      permanently of the use or benefit of the property, or
                              (b)      the defendant knowingly used, concealed or
                      abandoned the property in such manner as to deprive the owner
                      permanently of the use or benefit of the property, or
                              (c)      the defendant used, concealed, or abandoned the
                      property knowing that such use, concealment or abandonment
                      would have probably deprived the owner permanently of the use or
                      benefit of the property.
              If any of the above has not been proven beyond a reasonable doubt, you
       must find the defendant not guilty. If each of the above has been proven beyond a
       reasonable doubt, then you must find the defendant guilty.
In closing argument, the prosecutor asserted that the “evidence supports either a conclusion
under subsection A or a conclusion under subsection B” of Jury Instruction 17.
       The basis of Ritchie’s argument is that the information only specifically alleged the type
of intent set forth in subsection (a) of Jury Instruction 17, but Jury Instruction 17 allowed the jury



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to find him guilty under subsections (b) and (c), and the prosecutor argued Ritchie could be
found guilty under the unalleged intent set forth in subsection (b). 1 According to Ritchie, the
claimed variance was fatal because it deprived him of “notice and thus due process” thereby
satisfying the first prong of the fundamental error analysis under Perry. The State contends that
there was no variance because subsections (a), (b), and (c) of I.C. § 18-2403 provide alternative
definitions of the intent to deprive element, not three different crimes.            The State further
contends that, even if there was a variance, any variance was not fatal because it did not alter the
information to an extent Ritchie was tried for a crime of a greater degree or different nature. We
conclude there was no variance in this case.
        Our task in resolving a variance claim is two-fold. State v. Brazil, 136 Idaho 327, 329, 33
P.3d 218, 220 (Ct. App. 2001). First, we must determine whether there was a variance between
the information used to charge Ritchie with grand theft by possession of stolen property and the
instructions presented to the jury. See id. Second, if a variance exists, we must examine whether
the variance is fatal, i.e., whether it rises to the level of prejudicial error requiring reversal of the
conviction. Id. A variance is fatal if it amounts to a constructive amendment. State v. Jones,
140 Idaho 41, 49, 89 P.3d 881, 889 (Ct. App. 2003). A constructive amendment, as opposed to a
mere variance, occurs if a variance alters the charging document to the extent the defendant is
tried for a crime of a greater degree or a different nature. Id.; State v. Colwell, 124 Idaho 560,
566, 861 P.2d 1225, 1231 (Ct. App. 1993). In other words, a variance between a charging
document and a jury instruction requires reversal only when it deprives the defendant of fair
notice of the charge against which the defendant must defend or leaves him or her open to the




1
        Although Ritchie claims that the instruction “combined with the prosecutor’s assertion at
closing” resulted in a fatal variance, Ritchie cites no authority for the proposition that a variance
can be based on the prosecutor’s closing argument. A variance occurs when there is a difference
between the allegations in the charging instrument and the proof adduced at trial or where there
is a disparity between the allegations in the charging instrument and the jury instructions. State
v. Montoya, 140 Idaho 160, 165, 90 P.3d 910, 915 (Ct. App. 2004). Regardless, because the
prosecutor’s argument was based on Jury Instruction 17, resolution of whether there was a fatal
variance based on the jury instruction encompasses the closing argument aspect of Ritchie’s
variance claim.


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risk of double jeopardy. 2 State v. Wolfrum, 145 Idaho 44, 47, 175 P.3d 206, 209 (Ct. App.
2007).    The notice element requires courts to determine whether the record suggests the
possibility that the defendant was misled or embarrassed in the preparation or presentation of his
or her defense. State v. Windsor, 110 Idaho 410, 418, 716 P.2d 1182, 1190 (1985).
         Turning to the first step in the analysis, we consider the allegations in the information as
compared to the relevant jury instruction, Jury Instruction 17. The information alleged, in
relevant part, that Ritchie violated I.C. § 18-2403(4). Section 18-2403(4) provides:
         (4) A person commits theft when he knowingly receives, retains, conceals,
         obtains control over, possesses, or disposes of stolen property, knowing the
         property to have been stolen or under such circumstances as would reasonably
         induce him to believe that the property was stolen, and
                 (a) Intends to deprive the owner permanently of the use or benefit of the
         property; or
                 (b) Knowingly uses, conceals or abandons the property in such manner as
         to deprive the owner permanently of such use or benefit; or
                 (c) Uses, conceals, or abandons the property knowing such use,
         concealment or abandonment probably will deprive the owner permanently of
         such use or benefit.
         The statutory language set forth in subsections (a)-(c) above mirrors the language in
paragraph six of Jury Instruction 17. The specific allegation regarding intent included in the
information uses the language “intent to deprive the owner permanently of the use or benefit of
the property.” Ritchie’s variance argument is premised on the assertion that this language is
based on subsection (a) of I.C. § 18-2403(4), even though the information expresses no such
limitation in its citation to the applicable code section. Ritchie’s argument fails because all three
subsections included in I.C. § 18-2403(4) include, in some fashion, the intent to permanently
deprive the owner of the use or benefit of the stolen property. Indeed, the words “deprive,”
“owner,” “permanent,” “benefit” and “use,” or some variation thereof, appear in all three
subsections of I.C. § 18-2403(4). The State’s reference to I.C. § 18-2403(4) and the intent
language used in the information was adequate to provide Ritchie notice that he was being
charged with grand theft as defined in I.C. § 18-2403(4), including the alternative definitions of
intent in subsections (a)-(c). Cf. Jones, 140 Idaho at 758-59, 101 P.3d at 702-03 (holding that, in


2
       On appeal, Ritchie does not argue that the claimed variance left him open to the risk of
double jeopardy. Ritchie only contends that the alleged variance deprived him of notice.

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considering unpreserved due process challenges to a charging document, the reviewing court has
considerable leeway to imply the necessary allegations from the language of the information).
Because Jury Instruction 17 was consistent with the charged offense, there was no variance. As
such, we need not consider whether the alleged variance was fatal.
       Ritchie has failed to meet his burden of showing a constitutional violation under the first
prong of the Perry analysis. Ritchie has, therefore, failed to meet his burden of showing
fundamental error. 3
B.     Excessive Sentence
       Ritchie argues that his sentence is excessive in light of the mitigating evidence, including
his upbringing, past sexual abuse, mental health concerns, addictions, acceptance of
responsibility, and remorse. Where a sentence is not illegal, the appellant has the burden to show
that it is unreasonable and, thus, a clear abuse of discretion. State v. Brown, 121 Idaho 385, 393,
825 P.2d 482, 490 (1992). A sentence may represent such an abuse of discretion if it is shown to
be unreasonable upon the facts of the case. State v. Nice, 103 Idaho 89, 90, 645 P.2d 323, 324
(1982). A sentence of confinement is reasonable if it appears at the time of sentencing that
confinement is necessary to accomplish the primary objective of protecting society and to
achieve any or all of the related goals of deterrence, rehabilitation, or retribution applicable to a
given case. State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982). Where an
appellant contends that the sentencing court imposed an excessively harsh sentence, we conduct
an independent review of the record, having regard for the nature of the offense, the character of
the offender, and the protection of the public interest. State v. Reinke, 103 Idaho 771, 772, 653
P.2d 1183, 1184 (Ct. App. 1982). When reviewing the length of a sentence, we consider the
defendant’s entire sentence. State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007).
       In sentencing Ritchie, the district court considered the objectives of sentencing, including
the protection of society and rehabilitation.      Applying the standards governing sentencing




3
       With respect to the second prong of Perry, Ritchie asserts that he satisfies this prong
because “it was surely not a tactical decision” for him not to object because he was pro se.
Assuming, without deciding, that a pro se litigant can ever seek fundamental error review for his
own failure to object, a claim of lack of legal knowledge is insufficient.

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decisions, and having reviewed the record in this case, we cannot say that the district court
abused its discretion.
                                            III.
                                      CONCLUSION
       We conclude that Ritchie has failed to show fundamental error due to any alleged
variance between the information and the elements jury instruction. Further, Ritchie has not
shown that his sentence is excessive.    Accordingly, Ritchie’s judgment of conviction and
sentence for grand theft by possession of stolen property and being a persistent violator is
affirmed.
       Chief Judge GRATTON and Judge GUTIERREZ, CONCUR.




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