NOT DESIGNATED FOR PERMANENT PUBLICATION
Appeal from the District Court for Custer County: Karin L. Noakes, Judge.
David W. Jorgensen, of Nye, Hervert, Jorgensen & Watson, P.C., for appellant.
Jon Bruning, Attorney General, and J. Kirk Brown for appellee.
Inbody, Chief Judge, and Moore and Riedmann, Judges.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
Trent R. Esch appeals from his convictions in the district court for Custer County for criminal mischief and use of a weapon to commit a felony. Because we find that the trial court erred in instructing the jury, we affirm Esch's conviction for criminal mischief but remand the cause for a new trial on the issue of pecuniary loss. We also vacate his conviction for use of a weapon to commit a felony but conclude that double jeopardy would not prohibit a retrial.
Esch was charged with criminal mischief and use of a weapon to commit a felony as a result of events that occurred on March 18, 2012. On that evening, Esch went to the home of the chief deputy of the Custer County Sheriff's Department, Dan Spanel, and fired his rifle at Spanel's patrol car which was parked outside the home. The damage to the vehicle, a 2007 Dodge Durango, included several bullet holes to the side, a punctured gas tank, and a flat tire. The insurance company determined that the vehicle was a total loss.
Much of the evidence presented at trial focused on establishing the amount of pecuniary loss sustained as a result of Esch's actions. Daniel Osmond, the Custer County sheriff, testified regarding the value of Spanel's patrol car. Osmond's testimony will be discussed in more detail in our analysis section below. However, in general, Osmond was permitted to testify, over Esch's foundational objections, that he valued the vehicle at $11, 000 to $13, 000 before it was damaged. Osmond also stated, over objection, that based on estimates obtained from two local repair shops, he estimated the salvage value of the vehicle to be approximately $3, 000. Finally, Osmond testified, over Esch's objection, that the replacement cost for the vehicle was $11, 000 to $13, 000 as that was the amount needed to replace the damaged vehicle because "[i]n no way did [he] want that vehicle back" after it was damaged.
Osmond admitted that he had no training or certification in valuing vehicles and has never done so as part of his employment. Esch repeatedly objected to Osmond's testimony on the basis of foundation, but the trial court overruled the objections. At the conclusion of the State's evidence, Esch moved to dismiss all of the charges or, in the alternative, for a directed verdict. The trial court overruled Esch's motions, and Esch presented evidence in his defense.
At the close of the presentation of all evidence, Esch renewed his motion to dismiss or for a directed verdict, arguing that the State failed to present sufficient evidence of pecuniary loss to submit that issue to the jury. The trial court overruled Esch's motions. During the jury instruction conference, Esch objected to the court's proposed instruction on the elements of the charged offenses. He requested that a separate instruction be given, informing the jury that if it finds Esch guilty of criminal mischief, it must "then determine beyond a reasonable doubt, from the evidence presented, the pecuniary loss sustained." The court declined to give Esch's requested instruction.
The jury ultimately found Esch guilty of both offenses and determined that the value of the pecuniary loss sustained as a result of the criminal mischief was $7, 500. Esch was sentenced to 5 to 7 years' imprisonment for the use of a weapon conviction and a consecutive sentence of 20 to 35 months' imprisonment for the criminal mischief conviction. He was ...