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 Austin N. Relph for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, McCORMACK, MILLER-LERMAN, and CASSEL, JJ.
[290 Neb. 89] Miller-Lerman, J.
NATURE OF CASE
This appeal was brought by Trent R. Esch in connection with his convictions and sentences in the district court for Custer County for felony criminal mischief and use of a weapon to commit a felony. In a previous appeal, Esch obtained certain relief which lead to a new trial from which this appeal is taken. See State v. Esch, No. A-13-241, 2013 WL 6623142 (Neb.App. Dec. 17, 2013) (selected for posting to court Web site). He claims that there was insufficient evidence to support his conviction for use of a weapon to commit a felony and to support an order to pay $7,500 as restitution for criminal mischief. Esch stands convicted of criminal mischief, but we reverse Esch's conviction for use of a weapon to commit a felony and order the charge to be dismissed. Regarding the sentence for felony criminal mischief, we affirm the term of imprisonment and the amount of restitution ordered, but we remand the [290 Neb. 90] cause for resentencing with respect to the manner of payment of restitution.
STATEMENT OF FACTS
Esch was originally tried before a jury on charges of criminal mischief and use of a weapon to commit a felony. Evidence at the jury trial indicated that on March 18, 2012, Esch went to the home of the chief deputy of the Custer County Sheriff's Department and repeatedly fired his rifle at the chief deputy's patrol car which was parked outside the home. Damage to the patrol car included several bullet holes to the side of it, a punctured gas tank, and a flat tire. The company which insured the patrol car determined that it was a total loss. The jury found Esch guilty of both counts and determined that the value of pecuniary loss sustained as a result of the criminal mischief was $7,500. The court sentenced Esch to imprisonment for 20 to 36 months for felony criminal mischief and to a consecutive sentence of imprisonment for 5 to 7 years for use of a weapon. The court also ordered Esch to pay restitution in the amount of $7,500.
Esch appealed his convictions and sentences to the Nebraska Court of Appeals. He claimed, inter alia, that the district court erred when it refused his proposed jury instruction which stated that the jury must determine beyond a reasonable doubt the pecuniary loss sustained as a result of Esch's criminal mischief. The court had refused Esch's proposed separate instruction and instead had combined the pecuniary loss instruction with the instruction setting forth the elements of criminal mischief. The instruction given by the court stated in part, " If you find the State has proven the elements of Criminal Mischief beyond a reasonable doubt, you must also determine what, if any, pecuniary loss was suffered."
The Court of Appeals rejected most of Esch's assignments of error, which related to evidentiary rulings and sufficiency of the evidence. However, the Court of Appeals concluded that the district court erred when it failed to instruct the jury more particularly that it must determine pecuniary loss beyond a reasonable doubt. The Court of Appeals noted that pecuniary loss is not an element of criminal mischief, which [290 Neb. 91] is described in Neb. Rev. Stat. § 28-519 (Reissue 2008), but the amount of pecuniary loss determines whether the offense is a felony or a misdemeanor. Under § 28-519, if pecuniary loss is $1,500 or
more, then the offense is a Class IV felony; if pecuniary loss is less than $1,500, the offense is a misdemeanor. The Court of Appeals concluded that the court's failure to instruct the jury more particularly that the State must prove the amount of pecuniary loss beyond a reasonable doubt was erroneous and prejudicial to Esch.
Because pecuniary loss is not an element of criminal mischief, and because it rejected Esch's other assignments of error, the Court of Appeals affirmed Esch's conviction for criminal mischief. However, as a result of its conclusion that the court erred when it failed to properly instruct the jury that the amount of pecuniary loss due to the ...