State v. Zachary Tyler Johnstone

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 37439

STATE OF IDAHO, ) 2012 Unpublished Opinion No. 368
)
Plaintiff-Respondent, ) Filed: February 23, 2012
)
v. ) Stephen W. Kenyon, Clerk
)
ZACHARY TYLER JOHNSTONE, ) THIS IS AN UNPUBLISHED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 E. Wetherell, District Judge.

Judgment of conviction and unified sentence of fifteen years, with a minimum
period of confinement of five years, for battery on a law enforcement officer
enhanced for being a persistent violator, affirmed.

Sara B. Thomas, State Appellate Public Defender; Justin M. Curtis, Deputy
Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Elizabeth A. Koeckeritz, Deputy
Attorney General, Boise, for respondent.
________________________________________________
WALTERS, Judge Pro Tem
Zachary Tyler Johnstone appeals from his judgment of conviction and unified sentence of
fifteen years, with a minimum period of confinement of five years, for battery on a law
enforcement officer enhanced for being a persistent violator, Idaho Code § 19-2514. On appeal,
he challenges only the admission of testimonial evidence relating to his social security number
and his birthdate which the State introduced to prove his identity as a persistent violator. We
affirm.
I.
FACTS AND PROCEDURE
Johnstone, an inmate in the custody of the Idaho Department of Correction (IDOC), was
charged with battery upon a law enforcement officer for hitting a correctional officer in the head
with his fist. Part II of the Information alleged that Johnstone was a persistent violator. After a

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jury found Johnstone guilty of the battery charge, the case proceeded to trial on the persistent
violator enhancement issue. The State called one witness, Officer Higgins. In response to
questioning by the prosecutor, Higgins stated that he was employed by the IDOC and was
familiar with Johnstone, whom he identified as being present in the courtroom. Higgins was
then asked “Are you also familiar with his social security number?” and he replied “I am.” The
prosecutor then started to ask: “Is it 519-25 - -” but was interrupted by Johnstone’s counsel, who
objected on the grounds of hearsay. The district court overruled the objection and the prosecutor
then reiterated his question, stating the full social security number, and Higgins replied: “It is.”
The prosecutor next asked Higgins to confirm Johnstone’s date of birth, which he did. The
prosecutor then moved to admit State’s Exhibit No. 10, which was an authenticated copy of a
“penitentiary packet” containing records relating to Johnstone. Johnstone’s counsel objected on
the ground that a foundation had not been laid for admissibility of the packet. The district court
overruled that objection and State’s Exhibit No. 10 was admitted. Officer Higgins then
identified documents in the packet as certified copies of four judgments of conviction containing
Johnstone’s full name as the defendant in each case, a recitation of an offender profile for
Johnstone reflecting the four judgments, mug shots, and a fingerprint card for Johnstone. All of
these documents contained Johnstone’s assigned IDOC number and all of the documents, except
one of the judgments, contained the social security number and birthdate for Johnstone. At the
conclusion of the evidence, the jury found Johnstone to be a persistent violator of the law.
II.
ANALYSIS
On appeal, Johnstone raises a single issue. He asserts that the district court erred in
overruling his objection when Officer Higgins was asked to confirm Johnstone’s social security
number because Higgins’ answer was hearsay. He argues that the issue also extends to Higgins’
answer with respect to Johnstone’s birthdate, even though Johnstone did not specifically object
to that question and answer. Johnstone does not raise any challenge to the district court’s
determination that State’s Exhibit No. 10, the penitentiary packet, was admissible over
Johnstone’s lack of foundation objection, nor does he otherwise argue that the evidence was
insufficient to support the jury’s verdict.
We believe that application of Idaho Rule of Evidence 103 resolves the issue in this
appeal. Rule 103 provides, in pertinent part, that “Error may not be predicated upon a ruling

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which admits or excludes evidence unless a substantial right of the party is affected, and . . . [i]n
case the ruling is one admitting evidence, a timely objection or motion to strike appears of
record, stating the specific ground of objection, if the specific ground was not apparent from the
context . . . .” Here, because the information concerning Johnstone’s social security number, to
which his objection was directed, was subsequently provided to the jury as part of State’s Exhibit
No. 10 (the penitentiary packet) and the admissibility of that exhibit is not challenged on this
appeal, the alleged error did not affect a substantial right of Johnstone. The packet included
mugshots of the subject inmate, named Johnstone, for the jury to compare to Johnstone’s face.
The admissibility of penitentiary packets in persistent violator enhancement prosecutions
recently was upheld by this Court in State v. Marsh, ___ Idaho ___, ___ P.3d ___(Ct. App.
Dec. 22, 2011), where, as in this case, the judgments of conviction are duly certified copies and
the packet is authenticated as a public record. It has been held that even if hearsay evidence is
improperly admitted, the error is harmless when other non-hearsay evidence amply proves the
fact related by the objectionable testimony. State v. Gomez, 126 Idaho 700, 889 P.2d 729 (Ct.
App. 1995). The State ties the evidence together in this case by pointing out that in the first
phase of the trial over the battery charge, a handwritten letter from Johnstone to the assaulted
officer was admitted in evidence. In this letter, Johnstone apologized to the officer for the
incident. The letter was signed by Johnstone, and his assigned IDOC number appeared with his
signature. It was the same IDOC number that appeared in State’s Exhibit No. 10 on all but the
first of the four judgments of conviction, on the mug shots, on his offender profile, and on the
fingerprint card located in the penitentiary packet.
We conclude that the alleged error complained of, even if true, was harmless beyond a
reasonable doubt in light of this record. State v. Perry, 150 Idaho 209, 222, 245 P.3d 961, 974
(2010).
III.
CONCLUSION
The judgment of conviction and enhanced sentence for battery on a law enforcement
officer is affirmed.
Judge LANSING and Judge GUTIERREZ CONCUR.

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