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State v. Hernandez

Court of Appeals of Iowa

January 10, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
JUAN CARLOS NINO HERNANDEZ, Defendant-Appellant.

         Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge. A defendant appeals his conviction for criminal mischief in the first degree.

          James S. Nelsen of James Nelsen P.L.C., West Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney General, for appellee.

          Considered by Danilson, C.J., and Tabor and McDonald, JJ.

          TABOR, JUDGE.

         After 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.

         Because 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 degree.

         I. Facts and Prior Proceedings

         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 § 716.3(1)(a).

         II. ...


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