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State v. Harper10/14/2003
(Not designated for permanent publication)
I. INTRODUCTION
In consolidated cases, Aaron W. Harper appeals his conviction and sentence for criminal mischief, and the revocation of his work release. On appeal, Harper asserts, inter alia, that using the general verdict form provided, the jury failed to indicate whether the jury found his criminal mischief to be intentional or reckless and that the Hall County District Court erred in thereby concluding he should be convicted of a Class I misdemeanor. Because we agree that the district court could not properly grade Harper's offense under the verdict returned, we reverse, and remand for a new trial.
II. BACKGROUND
On March 21, 2002, Harper was charged by information with, inter alia, criminal mischief. The information alleged that Harper, on January 27, 2002, intentionally damaged a Hall County Sheriff's Department patrol vehicle. A jury trial was conducted on July 31.
The evidence at trial indicated that on January 27, 2002, officers from the Hall County Sheriff's Department conducted a traffic stop in which Harper was the passenger of the vehicle. The driver was arrested for driving under the influence , and Harper was initially cited only for possessing an open alcoholic beverage container in the vehicle. One of the officers testified that Harper became irate, argumentative, and uncooperative when he learned that the stopped vehicle was going to be towed away. Harper eventually had to be physically restrained by the officers.
At one point when Harper was handcuffed and seated in the patrol vehicle, Harper asked one of the officers "what would happen if he broke [the patrol vehicle's] window." Harper requested permission to remove items from the stopped vehicle before it was towed, and he was instructed to remain in the patrol vehicle. He then attempted to exit the patrol vehicle and was physically placed back by the officers. As the officers turned away from Harper, there was a loud noise. The officers observed that the door of the patrol vehicle had been kicked and that the window and its frame had popped out of the door. Hall County's insurer later paid $1,397.05 for repairs to the patrol vehicle.
At the conclusion of the trial, the district court conducted a jury instruction conference. Both the State and Harper objected to the court's proposed instruction which would instruct the jury that one of the elements of criminal mischief is that "the defendant [damaged property] intentionally or recklessly." The State argued that "or recklessly" should be removed altogether from the instruction, while Harper argued that the jury should be separately instructed on "intentionally" and "recklessly" causing damage. Harper further objected to the verdict forms, because they did not include separate forms for "intentionally" and "recklessly" causing damage. The court overruled all of these objections.
The jury returned a verdict finding Harper guilty of criminal mischief and finding the pecuniary loss to be $1,397.05. At the time of sentencing, the district court determined Harper to be guilty of criminal mischief as a Class I misdemeanor, and it sentenced him to 9 months' imprisonment and ordered him to pay restitution. Harper appealed that order as well as the court's order which revoked his work release privileges. This consolidated appeal followed.
III. ASSIGNMENTS OF ERROR
Harper assigns three errors on appeal, but the only one necessary to our resolution of this appeal, restated, is that the district court erred in finding Harper guilty of criminal mischief as a Class I misdemeanor offense.
IV. ANALYSIS
Har
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