from the Iowa District Court for Polk County, Paul D. Scott,
Judge. A defendant appeals his conviction for criminal
mischief in the first degree.
S. Nelsen of James Nelsen P.L.C., West Des Moines, for
J. Miller, Attorney General, and Kelli A. Huser, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Tabor and McDonald, JJ.
hearing testimony that Juan Carlos Nino Hernandez rammed his
red Chevy Silverado truck into a police Crown Victoria parked
at a convenience store, a jury convicted him of criminal
mischief in the first degree, in violation of Iowa Code
sections 716.1 and 716.3 (2016). On appeal, Nino Hernandez
challenges the sufficiency of the State's proof that the
cost of replacing, repairing, or restoring the patrol car
exceeded $10, 000. He also contends his conviction violated
due process because the language in section 716.3 is
ambiguous and the rule of lenity requires the statute be
construed in his favor.
Nino Hernandez did not assert a due process violation at the
earliest opportunity or secure a district court ruling, the
constitutional claim is not preserved for our review. Because
the State presented substantial evidence to prove the cost of
repairing the patrol car would have been more than $29, 000,
we affirm his conviction for criminal mischief in the first
Facts and Prior Proceedings
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.
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.
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.
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 § 716.3(1)(a).