 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Harper10/14/2003
per argues that because the jury received and answered a general verdict form after being instructed that criminal mischief could consist of either acting "intentionally" or acting "recklessly," the district court could not properly grade his criminal mischief offense for purposes of sentencing. As noted, both the State and Harper objected to the court's jury instructions. Harper further objected to the verdict forms, but the court overruled all objections.
Neb. Rev. Stat. § 28-519(1)(a) (Cum. Supp. 2002) defines criminal mischief as damaging the property of another "intentionally or recklessly." As written, the district court's instructions to the jury were not an incorrect statement of the law. However, we agree with Harper's assertion on appeal that the jury would have been justified in finding that Harper's attempts to exit the patrol vehicle caused reckless, rather than intentional, damage to the patrol vehicle. The inherent difficulty in the present case is that the jury was given a general verdict form after being instructed in the language of the statute.
Section 28-519 grades criminal mischief offenses according to the amount of pecuniary loss caused and the mental state of the defendant when causing the pecuniary loss. Section 28-519(2) indicates that criminal mischief is a Class IV felony offense "if the actor intentionally or maliciously causes pecuniary loss of one thousand five hundred dollars or more." (Emphasis supplied.) Section 28-519(3) indicates that criminal mischief is a Class I misdemeanor offense "if the actor intentionally or maliciously causes pecuniary loss of five hundred dollars or more but less than one thousand five hundred dollars." (Emphasis supplied.) Section 28-519(4) indicates that criminal mischief is a Class II misdemeanor offense "if the actor intentionally or maliciously causes pecuniary loss of two hundred dollars or more but less than five hundred dollars." (Emphasis supplied.)
The only gradation of criminal mischief which includes "recklessly" causing damage is found in § 28-519(5). That section indicates that criminal mischief is a Class III misdemeanor offense "if the actor intentionally, maliciously, or recklessly causes pecuniary loss in an amount of less than two hundred dollars." (Emphasis supplied.)
In the present case, the jury was instructed that Harper could be found guilty of criminal mischief if the jury found that he had damaged property either "intentionally or recklessly." The jury returned the general verdict form, finding Harper "guilty." The jury also found the pecuniary loss to be $1,397.05. However, without an indication as to whether the jury found Harper's criminal mischief to be intentional or reckless, the amount of the pecuniary loss is irrelevant in the gradation of the offense. If the jury had found that Harper acted "recklessly," the only gradation of criminal mischief available to the district court, pursuant to the Legislature's construction of § 28-519, would have been a Class III misdemeanor.
We note that the State concedes on appeal that the district court could not properly grade Harper's offense as a Class I misdemeanor, with the general verdict form as returned by the jury. The State likewise concedes that this case must be reversed, and remanded for a new trial. We agree.
V. CONCLUSION
We agree with both Harper and the State that this case must be reversed, and remanded for a new trial. Because the jury was provided with a general verdict form, which when returned did not indicate whether the jury had found Harper's criminal mischief to be intentional or reckless, the district court could not properly grade Harper's offense as a Class I misdemeanor.
Page 1 2 3 Nebraska DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|