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Date: 01-12-2018

Case Style:


K-9 OK after after drunken man rams parked squad car, police say

Case Number: 16-1350

Judge: Mary Tabor


Plaintiff's Attorney: Thomas J. Miller
Attorney General

Kelli A. Huser
Assistant Attorney

Defendant's Attorney: James S. Nelsen

Description: Des Moines Police Sergeant Ronald Kouski had just stepped into QuikTrip
for a hot dog when he “heard a loud screeching noise and then a loud collision.”
Kouski worked as a canine officer and his German Shepard partner was waiting in
the 2009 Crown Victoria. The officer looked out the store’s front window and
discovered a red pickup had struck his patrol car, pushing it across several parking
spots into another customer’s vehicle.
Sergeant Kouski confronted the pickup driver, later identified as Nino
Hernandez, who “had some blood on his face and immediately put his hands up
like in a boxing position” and started yelling and coming at the officer. Nino
Hernandez pushed Sergeant Kouski. The officer “deployed [his] pepper spray”
when Nino Hernandez ignored his commands to get on the ground. Kouski’s
canine was shaken up and had a noticeable limp for a few weeks after the crash.
The State filed a five-count trial information, charging Nino Hernandez with
(1) criminal mischief in the first degree, a class “C” felony, for damage to the police
car, and (2) criminal mischief in the third degree, an aggravated misdemeanor, for
damage to a second car, as well as (3) assault on a peace officer, (4) interference
with a police service dog, and (5) operating while intoxicated; the last three counts
are serious misdemeanors. At trial, the district court entered judgment of acquittal
on the third-degree criminal mischief count, finding the State failed to prove Nino
Hernandez had specific intent to cause damage to the second vehicle. The jury
found Nino Hernandez not guilty of interference with a police dog but returned
guilty verdicts on first-degree criminal mischief, assault on a peace officer, and
operating while intoxicated.
Nino Hernandez appeals only the felony conviction. At issue is the following
statutory language: “Criminal mischief is criminal mischief in the first degree if . . .
[t]he cost of replacing, repairing, or restoring the property that is damaged,
defaced, altered, or destroyed is more than ten thousand dollars.” Iowa Code §

II. Preservation of Error
Nino Hernandez packs several concepts into his issue statement:

To the extent he is arguing Iowa Code section 716.3 is vague as applied to his
situation, he did not preserve that claim in the district court. “[C]hallenges to the
validity of a statute must be raised at the earliest opportunity in the progress of the
case.” State v. Munz, 355 N.W.2d 576, 584 (Iowa 1984) (noting issue should have
been raised by pretrial motion). The minutes of testimony informed Nino
Hernandez that the State expected to call Dave Palmer, a body shop technician
for the city of Des Moines, to “explain his estimate to repair the police car, which
exceeded $20,000.” In addition, nine months before trial, the city of Des Moines
submitted a victim’s pecuniary damage statement, alleging the “value to replace or
fix” the patrol car was $5025. But Nino Hernandez did not file a pretrial motion to
dismiss to contend, as a matter of law, such a repair estimate could not support
first-degree criminal mischief if the replacement value of the police car was less
than $10,000. See Iowa R. Crim. P. 2.11(6)(a). Nor did he file a motion to
adjudicate law points to obtain an interpretation of the statutory definition of “cost”
in section 716.3. See State v. Wilt, 333 N.W.2d 457, 460-61 (Iowa 1983).
The defense did preview its statutory theory during Palmer’s cross
examination. Palmer—who has more than thirty years of experience in auto body
work—described the extensive damage to the police car rammed by Nino
Hernandez. “It was hit really hard on the left side, both doors; buckled the roof; hit
hard enough to buckle the quarter panel on the right rear side; dash was damaged;
seat was damaged; hood was damaged; [and] fenders damaged.” Palmer
estimated the costs to repair the police car would have totaled more than $29,000.
During cross-examination, Palmer acknowledged the damaged “09 Crown
Vic” had an odometer reading of 103,000 miles. Palmer testified he did not have
information about the cost to replace the car, but he did not think it would be as
high as $29,000. Defense counsel had the following exchange with Palmer:
Q. But without knowing the actual value of the vehicle, and if it would be more expensive to replace the vehicle or repair the vehicle, we can’t say that the damage to the vehicle was over $10,000; correct? A. Correct.

Palmer testified: “I know the damage is more than what the car is worth.” Palmer
also acknowledged the police department did not have the car fixed.
Outside the presence of the jury, the prosecutor made this record:
During the cross-examination of one of our witnesses, David Palmer, [defense counsel] seems to be setting up an argument that the State has an obligation to prove both the repair cost and the replacement cost of the vehicle in order to establish the level of criminal mischief that this defendant’s guilty of.

The prosecutor advised he had offered “to stipulate to the blue book value of the
vehicle, which would be between $1,000 and $10,000, if the jury found that that is
the number that they want to use, then it would end up being criminal mischief
second instead of first.” But Nino Hernandez declined to stipulate. The prosecutor
further asserted he had a witness ready to testify to the amount the police
department spent to replace the car, but the prosecutor had not planned to call him
because the statute allowed the State to prove either “the cost to repair or replace.”
The prosecutor complained: “This issue has only just now been brought to my
Defense counsel responded: “[O]ur position is that they either have to prove
that $29,000 was spent to repair this vehicle, and its actual damage, or the amount
of the value of the vehicle which was destroyed.” Counsel continued:
My argument is, essentially, due process requires when it says replace, repair, or restore—and we are talking about levels of an offense—they have to prove beyond a reasonable doubt the lowest amount is above the level; otherwise, you are just talking about a nebulous number that they could pull out of the sky and have somebody testify it’s $85,000 to repair this $300 vehicle.

The State rejected the notion that it had “the burden to prove both numbers
in any criminal mischief case, so that the jury can pick the lowest one.” The district
court viewed the defense argument as addressing the sufficiency of the evidence
and deferred resolution until the motion for judgment of acquittal. The district court
did not rule on the constitutionality of the statute as applied to Nino Hernadez.
Accordingly, that issue is not preserved for appellate review. See State v.
Webster, 865 N.W.2d 223, 232 (Iowa 2015) (finding waiver when the district court
did not rule on particular claim raised on appeal).
In his appellant’s brief, Nino Hernandez claims he “preserved error by filing
Post Trial Motions raising the issues and arguing on behalf of same.” But
contesting the constitutionality of section 716.3 as applied to him in posttrial
motions did not preserve error.1 See id. at 242; see also State v. Ritchison, 223
N.W.2d 207, 214 (Iowa 1974) (“It does not seem logical that a party can sit idly by
for such a period, permit the State to introduce all its evidence and then for the first
time at the conclusion of the evidence challenge the statute as constitutionally
defective. It cannot be said that this point was the earliest available opportunity in
the progress of the case to make the challenge.”). Accordingly, we will not address
the constitutional threads of the defense argument.
III. Standard of Review
The only issue properly before us is Nino Hernandez’s challenge to the
sufficiency of the evidence. We review that claim for correction of legal error. See
State v. Tipton, 897 N.W.2d 653, 692 (Iowa 2017). We will uphold the jury’s verdict
if it is supported by substantial evidence. Id. “Evidence is substantial when a
rational trier of fact would be convinced the defendant is guilty beyond a
reasonable doubt.” Id. We view the evidence in the light most favorable to the
State, “including legitimate inferences and presumptions that may fairly and
reasonably be deduced from the record evidence.” Id. (citation omitted).

IV. Substantial Evidence Analysis
1 The district court denied the “motion for new trial based on the plain language of the statute, which as both parties agree, it is read in the disjunctive.” The court explained section 716.3 allowed the State “to either prove up the cost of replacing, repairing, or restoring the vehicle” but does not require the State “to prove all three,” nor does it require the State to “research each one of the alternatives [of] repairing, replacing, or restoring and determine which is the lesser value and charge that.” The court noted “the car never was actually repaired because the cost of repair was greater than the value of the vehicle” but decided it was “within the purview of the jury to determine” whether Palmer’s estimate of the cost of repairs satisfied the State’s burden of proof.
To elevate the degree of the criminal mischief, the State had the burden to
establish the cost of replacing, repairing, or restoring the Crown Victoria
intentionally damaged by Nino Hernandez. See State v. Williams, 674 N.W.2d 69,
71 (Iowa 2004) (reaffirming “the State must prove every element of the crime
charged beyond a reasonable doubt”). The State opted to prove the cost of
repairing the patrol car and did so by offering Palmer’s testimony. He was an
experienced mechanic and based his replacement costs on a resource called the
Mitchell Collision Estimating Reference Guide, which he advised “probably every
shop in the city uses.” The defense did not question his credentials or the validity
of his reference guide. The jury was entitled to rely on Palmer’s expertise to
conclude the cost of repairing the damaged patrol car exceeded the statutory
threshold of $10,000.
In closing argument, defense counsel told the jury Palmer’s estimate of the
cost of repairing the patrol car did not satisfy the State’s burden to prove “value.”
Counsel emphasized the city did not actually expend the amount estimated for the
repairs. In rebuttal, the prosecutor asserted the criminal mischief was completed
when Nino Hernandez crashed into the patrol car. The prosecutor argued
subsequent actions by the victim would not change the amount of damage done
on impact. “The crime was done. We don’t look at the rest of it. The victim may
later on, they may fix it or they may not fix it. That’s up to them.”
When deciding if the State presented substantial evidence to satisfy the
$10,000 threshold, we do not interpret Iowa Code section 716.3 as requiring the
damaged property actually be repaired.2 The plain language of the statute does
not require that “the cost of replacing, repairing or restoring the property” represent
an amount already paid. Instead the statute uses the present tense term “is” rather
than the past tense term “was” to signal an estimate of the cost is sufficient. Other
jurisdictions have reached similar conclusions when construing their own criminal
mischief statutes. See, e.g., Crain v. Commonwealth, 257 S.W.3d 924, 927 (Ky.
2008) (explaining Kentucky statute does not require actual repair by the victim nor
does it depend on the actual cost borne by the victim); People v. Fancher, 984
N.Y.S.2d 174, 179 (N.Y. App. Div. 2014) (holding auto body shop owner’s estimate
of the cost of repairing a vandalized pickup truck was legally sufficient evidence
the damage exceeded $250, even though the repairs were never performed);
Elomary v. State, 796 S.W.2d 191, 193 (Tex. Crim. App. 1990) (noting “criminal
mischief statute does not require that damaged property that can be repaired be
actually repaired in order to establish the cost of the repair work”).
On appeal, Nino Hernandez complains the State did not call a witness who
testified to the actual cost of the replacement of the patrol car being greater than
$10,000. He cites State v. Urbanek, 177 N.W.2d 14, 16 (Iowa 1970), for the
proposition that Iowa’s general rule for compensating for repairs or replacement is
“the fair and reasonable cost of replacement or repair, but not to exceed the value
of the property immediately prior to the loss or damage.” Urbanek involved
damages in a civil suit, not a prosecution for criminal mischief. Under the
2 Because we perceive no “grievous ambiguity” in this criminal statute, we need not invoke the rule of lenity. See State v. Velez, 829 N.W.2d 572, 585 (Iowa 2013).

disjunctive construction of section 716.3, once the State offered substantial
evidence of the cost of repairing the car, it was not required to offer a second option
for establishing the level of offense.

Outcome: Viewing the evidence in the light most favorable to the jury’s verdict, we find
substantial evidence to support the cost-to-repair element of criminal mischief in the first degree.


Plaintiff's Experts:

Defendant's Experts:


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