Opinion
No. 6-219 / 05-0271
Filed April 12, 2006
Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.
Miguel Sumba appeals from his conviction and sentence following a jury verdict finding him guilty of fourth-degree criminal mischief. REVERSED AND REMANDED WITH DIRECTIONS.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, John P. Sarcone, County Attorney, and Jaki L. Livingston, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
Miguel Sumba appeals from his conviction and sentence following a jury verdict finding him guilty of fourth-degree criminal mischief. He challenges the sufficiency of the evidence supporting his conviction. He further contends his trial counsel was ineffective in failing to challenge the court's jury instructions on degrees of criminal mischief higher than fifth-degree.
Sumba was charged with several offenses, including criminal mischief in the second degree. Following the close of the State's evidence at trial, Sumba made a motion for judgment of acquittal on the criminal mischief charge, or in the alternative sought its submission as a simple misdemeanor. The district court denied the motion, and the jury was instructed on criminal mischief in the second, third, fourth and fifth degrees. Sumba contends this was in error because there was no evidence to support the claim that the criminal mischief resulted in damage in excess of $200, as required for criminal mischief charges greater than the fifth degree. Iowa Code § 716.6 (2003).
Because the issue is dispositive, we need only consider whether there was sufficient evidence presented at trial to establish the cost of replacing, repairing or restoring the victim's damaged property. We review challenges to the sufficiency of the evidence to support a conviction for corrections of errors at law. State v. Williams, 695 N.W.2d 23, 27 (Iowa 2005). We uphold a verdict if substantial evidence supports it. Id.
The State must prove every element of the crime charged beyond a reasonable doubt. State v. Williams, 674 N.W.2d 69, 71 (Iowa 2004). Criminal mischief is defined as the intentional damage, defacing, alteration, or destruction of property by one who has no right to so act. Iowa Code § 716.1. To be guilty of second-degree criminal mischief, the State must prove the damage exceeds $1000 but does not exceed $10,000. Iowa Code § 716.4. To be guilty of third-degree criminal mischief, the State must prove damage between $500 and $1000. Iowa Code § 716.5. Fourth-degree criminal mischief requires proof of damages between $200 and $500. Iowa Code § 716.6. Criminal mischief in the fifth degree is defined as, "All criminal mischief which is not criminal mischief in the first degree, second degree, third degree, or fourth degree." Id.
We conclude there is not substantial evidence by which a rational jury could determine the amount of damage to the victim's vehicle. At trial, Officer Natale Chiodo, III, testified he had come to a conclusion about the amount of damage done to the victim's motor vehicle. Sumba objected, and the prosecutor was instructed to lay further foundation for Officer Chiodo's opinion. After the foundation was established, the question of Officer Chiodo's assessment of damage was never revisited. He simply testified that Sumba was charged with second-degree criminal mischief. Although evidence shows the victim replaced his damaged 1985 Toyota Camry with a 1997 Buick Skylark valued at $5000, he did not obtain any estimate for the damage to the vehicle. This does not prove the damage done to the property.
Because there was not substantial evidence presented to support Sumba's conviction for fourth-degree criminal mischief, the district court erred in denying Sumba's motion for judgment of acquittal. Accordingly, we reverse Sumba's conviction for fourth-degree criminal mischief and remand with directions to enter a conviction for fifth-degree criminal mischief.