                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1350
                             Filed January 10, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

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.

AFFIRMED.



      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.
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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
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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).
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       II.    Preservation of Error

       Nino Hernandez packs several concepts into his issue statement:

       THE DISTRICT COURT ERRED IN DENYING DEFENDANT’S
       MOTION FOR MOTION FOR JUDGMENT OF ACQUITTAL AND
       MOTION IN ARREST OF JUDGMENT AND FAILING TO APPLY
       THE RULE OF LENITY WHERE THE STATUTE AS APPLIED IN
       THIS MATTER WAS VAGUE AND INSUFFICIENT PROOF WAS
       PRESENTED TO SUPPORT A CONVICTION IN VIOLATION OF
       NINO HERNANDEZ’S DUE PROCESS RIGHTS UNDER THE
       FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE
       UNITED STATES CONSTITUTION AND ARTICLE I SECTIONS 9
       AND 10 OF THE IOWA CONSTITUTION

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).
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       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
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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

attention.”

       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
                                              7

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.
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       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
                                            9


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).
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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.

       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.

       AFFIRMED.
