                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 39920

STATE OF IDAHO,                                   )      2013 Unpublished Opinion No. 662
                                                  )
       Plaintiff-Respondent,                      )      Filed: September 6, 2013
                                                  )
v.                                                )      Stephen W. Kenyon, 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CHAD STUART RITCHIE,                              )      THIS IS AN UNPUBLISHED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. Thomas F. Neville, District Judge.

       Judgment of conviction and sentences for two counts of aggravated assault on law
       enforcement personnel, being a persistent violator, and driving without obtaining
       a     driver’s   license,    affirmed     in     part,     vacated    in     part,
       and remanded for resentencing.

       Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy
       Appellate Public Defender, Boise, for appellant. Spencer J. Hahn argued.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent. John C. McKinney argued.
                 ________________________________________________
SCHWARTZMAN, Judge Pro Tem
       Chad Stuart Ritchie appeals from his judgment of conviction and sentences for two
counts of aggravated assault on law enforcement personnel, being a persistent violator, and
driving without obtaining a driver’s license. For the reasons set forth below, we affirm in part,
vacate in part, and remand to the district court for resentencing.
                                                 I.
                                  FACTS AND PROCEDURE
       In 2011, two officers observed an individual parked after hours in the parking lot of a
donation center. Based on the officers’ training and experience, they suspected the individual
was stealing items from the donation center’s drop-off location. The officers, each on bicycle
patrol, shone flashlights on the individual who, at that time, was in the driver’s seat of the



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vehicle. The officers identified themselves and ordered the individual to stop. Despite these
commands, the individual accelerated his vehicle directly at the officers, forcing them to take
evasive action. The driver of the vehicle made contact with one officer’s bicycle, but that officer
was not injured. The driver of the vehicle fled the scene and escaped capture, but was later
identified as Ritchie.
       Ritchie was charged with two counts of aggravated assault on law enforcement
personnel, I.C. §§ 18-915(1) and 18-905(a); use of a deadly weapon in the commission of a
crime, I.C. § 19-2520; and driving without obtaining a driver’s license, I.C. § 49-301. The state
subsequently alleged Ritchie was a persistent violator of the law, I.C. § 19-2514, and elected not
to pursue the deadly weapon enhancement. At trial, a jury found Ritchie guilty of the two counts
of aggravated assault on law enforcement personnel and driving without obtaining a driver’s
license. Ritchie waived a jury trial on the persistent violator allegation, and the trial judge found
Ritchie to be a persistent violator of the law. The district court imposed concurrent, unified
sentences of fifteen years, with minimum periods of confinement of three years, for each of the
aggravated assault on law enforcement personnel convictions and retained jurisdiction. 1 The
district court also ordered Ritchie to serve ninety days concurrent for driving without obtaining a
driver’s license. Ritchie appeals, challenging his conviction for driving without obtaining a
driver’s license and the finding he is a persistent violator.
                                                  II.
                                    STANDARD OF REVIEW
       Appellate review of the sufficiency of the evidence is limited in scope. A finding of guilt
will not be overturned on appeal where there is substantial evidence upon which a reasonable
trier of fact could have found that the prosecution sustained its burden of proving the essential
elements of a crime beyond a reasonable doubt. State v. Herrera-Brito, 131 Idaho 383, 385, 957
P.2d 1099, 1101 (Ct. App. 1998); State v. Knutson, 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct.
App. 1991). We will not substitute our view for that of the trier of fact as to the credibility of the
witnesses, the weight to be given to the testimony, and the reasonable inferences to be drawn
from the evidence. Knutson, 121 Idaho at 104, 822 P.2d at 1001; State v. Decker, 108 Idaho 683,
684, 701 P.2d 303, 304 (Ct. App. 1985). Moreover, we will consider the evidence in the light

1
       The maximum sentence for aggravated assault on a police officer is ten years. I.C. §§ 18-
906, 18-915(1)(b).

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most favorable to the prosecution. Herrera-Brito, 131 Idaho at 385, 957 P.2d at 1101; Knutson,
121 Idaho at 104, 822 P.2d at 1001.
                                                 III.
                                            ANALYSIS
        Ritchie argues there is insufficient evidence for the finding he is a persistent violator
because the district court improperly relied on the information, a document not admitted into
evidence. 2 The state argues that there is sufficient evidence to support the district court’s finding
that Ritchie is a persistent violator. 3
        The persistent violator statute, I.C. § 19-2514, provides:
               Any person convicted for the third time of the commission of a felony,
        whether the previous convictions were had within the state of Idaho or were had
        outside the state of Idaho, shall be considered a persistent violator of law, and on
        such third conviction shall be sentenced to a term in the custody of the state board
        of correction which term shall be for not less than five (5) years and said term
        may extend to life.

The former convictions relied upon to invoke the persistent violator enhancement must be
alleged in the indictment or information and proved at trial. State v. Cheatham, 139 Idaho 413,
416, 80 P.3d 349, 352 (Ct. App. 2003); State v. Martinez, 102 Idaho 875, 880, 643 P.2d 555, 560
(Ct. App. 1982). Thus, the state is required to establish the identity of the defendant as the
person formerly convicted beyond a reasonable doubt. Cheatham, 139 Idaho at 416, 80 P.3d at
352; Martinez, 102 Idaho at 880, 643 P.2d at 560.             A certified judgment of conviction
accompanied by mug shots, fingerprint cards and testimony regarding the similarity of those
fingerprints, constitutes sufficient evidence to establish identity for purposes of the persistent
violator enhancement. State v. Medrain, 143 Idaho 329, 332, 144 P.3d 34, 37 (Ct. App. 2006);
Martinez, 102 Idaho at 880, 643 P.2d at 560. However, a certified copy of a judgment of
conviction bearing the same name as the defendant, with nothing more, is insufficient to
establish the identity of the person formerly convicted beyond a reasonable doubt. Medrain, 143

2
        Ritchie also argues that there was insufficient evidence to support his conviction for
driving without obtaining a driver’s license. The state concedes this issue on appeal, and we
vacate this judgment of conviction.
3
       The state also contended that Ritchie’s argument was actually an evidentiary challenge,
which was not preserved by objection below and which is not subject to review for fundamental
error. However, the state withdrew this issue at oral argument. Therefore, we do not address it.

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Idaho at 332-33, 144 P.3d at 37-38. Where a defendant is not sufficiently identified as the same
individual who was previously convicted, the judgment of conviction finding him or her to be a
persistent violator must be vacated. State v. Polson, 92 Idaho 615, 622, 448 P.2d 229, 236
(1968); Medrain, 143 Idaho at 332, 144 P.3d at 37.
       In this case, the state admitted into evidence two prior judgments of conviction without
objection from Ritchie. The state offered no further evidence and made no closing argument. In
finding Ritchie to be a persistent violator, it appears the district court attempted to take judicial
notice of several facts. Specifically, the district court stated as follows:
                It appears the Court--this Court, in--about April 25, 1995, imposed a
       judgment of conviction, sent [Ritchie] on a rider, he came back at the end of the
       rider. The Court placed him on probation. And then found [Ritchie] to be in
       violation of his pro--probation, apparently, a total of three times after that.
                The first two times, this Court reinstated Mr. Ritchie back on probation,
       after finding him to be in violation. And the third time [Ritchie] was in violation,
       which--which represented to--to this Court, in that case, the fifth sentencing
       decision the Court had to make here, this Court finally pulled the trigger and
       imposed the sentence, with credit for time served.
                So, I’m convinced beyond a reasonable doubt, based on recognizing my
       own documents, my own file, my own signature, that [Ritchie], who the Court
       does have some recollection of, albeit it’s been some years, has the same Social
       Security number, and the same date of birth that is contained in the--the--not only
       the information, but the Information Part II.[ 4]
                With respect to the documents contained in State’s Exhibit No. 19, from
       my--which was handled by my former colleague, Judge Joel Horton, I recognize
       his handwriting. I’ve reviewed all the documents.
                I am convinced by the date of birth, and by the Social Security number,[ 5]
       and the fact that the name is an exact match, that that is--that it has also been
       proven beyond a reasonable doubt that [Ritchie] has a second prior felony
       conviction.


4
        The information part II does not contain Ritchie’s date of birth nor does it contain his
social security number.
5
        The only reference to Ritchie’s social security number and date of birth appear in the
amended information, within the caption of the case. Further, only four digits of Ritchie’s social
security number are set forth. This part of the caption appears as follows:

                                         AMENDED
                                       INFORMATION
                                       Defendant’s DOB: 5/3/1976
                                       Defendant’s SSN: xxx-xx-6826



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               In other words, this Court had adjudicated the first one, the first prior
       felony; my former colleague, Judge Horton, did the second one, or adjudicated the
       second one. And I am persuaded, therefore that the State has proven beyond a
       reasonable doubt that [Ritchie] has the two prior felonies that are alleged and that
       are the subject of the Information Part II.

(Emphasis added).
       Idaho Rule of Evidence 201(c) provides that, “when a court takes judicial notice of
records, exhibits, or transcripts from the court file in the same or a separate case, the court shall
identify the specific documents or items that were so noticed.” Rule 201(b) also limits the scope
of facts which may be judicially noticed to those “not subject to reasonable dispute in that [they
are] either (1) generally known within the territorial jurisdiction of the trial court or (2) capable
of accurate and ready determination by resort to sources whose accuracy cannot be reasonably
questioned.” The district court did not indicate the circumstances surrounding the alleged prior
convictions of Ritchie are generally known in the territorial jurisdiction of the court. Facts may
not be judicially noticed simply because they are within the personal recollected knowledge of
the judge, if those facts are not also generally known in the jurisdiction. Matthews v. State, 122
Idaho 801, 807, 839 P.2d 1215, 1221 (1992). Additionally, whether Ritchie was the person
convicted in the prior judgments of conviction is not capable of accurate and ready
determination. Therefore, the district court’s recollected facts cannot be considered in reviewing
the sufficiency of the evidence. 6
       At oral argument, the state acknowledged that its sufficiency argument was not based on
the information in the charging document and did not include any recollections of the district
court. Rather, the state asserted that its position rested solely on three pieces of identifying
information. First, the state points to an evidentiary stipulation at trial as to Ritchie’s full name

6
        In its briefing, the state contended there is no authority to support Ritchie’s assertion that
the identity of the person being tried as a persistent violator must be established by evidence
independent of the identifying information set forth in the charging document. This argument
assumes that the information itself is evidence that can be considered when reviewing the
sufficiency of the evidence on appeal. However, Idaho Criminal Jury Instruction 102 provides,
“The [Information] [Indictment] [Complaint] is simply a description of the charge; it is not
evidence.” We agree with this characterization of the information--it is not evidence. The state
did not seek to admit the information into evidence as proof of Ritchie’s date of birth or social
security number. Nor did the state present any evidence at trial as to Ritchie’s date of birth or
social security number.


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(Chad Stuart Ritchie) and that it matched those on the prior judgments of conviction. Second,
the state emphasizes that the prior judgments of conviction were from Ada County, as was the
underlying charge in this case. Third, the state argues that, based on the prior judgments of
conviction, Ritchie would have been thirty-five years old at the time of trial and that the district
court would have noticed if Ritchie’s appearance was not consistent with that of a thirty-five-
year-old.
       Despite the state’s emphasis on the unique name of Chad Stuart Ritchie, one of the prior
judgments of conviction contained a different spelling of the middle name (Stewart instead of
Stuart). Furthermore, there is no evidence in the record to suggest the district court considered
Ritchie’s age or appearance in any way. Consequently, the date of birth on the prior judgments
of conviction could not have aided in proving identity. Thus, this Court is left with the following
evidence: a matching first and last name; a matching, but alternate spelling, of the middle name;
and judgments of conviction from the same county.
       While the Idaho Supreme Court recently held in Parton v. State, 154 Idaho 558, 569, 300
P.3d 1046, 1057 (2013), that the same name and date of birth is sufficient to withstand a
sufficiency of the evidence challenge to a persistent violator charge, a date of birth is a much
more accurate indication of identity than simply having convictions from the same county.
Moreover, in Parton, the judgment of conviction bore the same identical full name as that of the
defendant. Id. In this case, there is a discrepancy in the spelling of the defendant’s middle name.
Therefore, we hold that Ritchie’s first and last name, coupled only with the same, yet misspelled
middle name; convictions from the same county; and no independent evidence of his date of
birth, social security number, and/or other identifying data is insufficient to establish identity
beyond a reasonable doubt. See Medrain, 143 Idaho at 332-33, 144 P.3d at 37-38.
                                                IV.
                                         CONCLUSION
       The state failed to present evidence sufficient to sustain Ritchie’s judgment of conviction
for driving without obtaining a driver’s license or the finding Ritchie is a persistent violator.
Therefore, we affirm the judgment of conviction for assault on law enforcement personnel,
vacate the judgment of conviction for driving without obtaining a driver’s license, and vacate the
persistent violator finding. Hence, this case is remanded to the district court for resentencing.
       Chief Judge GUTIERREZ and Judge GRATTON, CONCUR.


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