State v. Haar
| Decision Date | 26 June 1990 |
| Docket Number | No. 10833,10833 |
| Citation | 1990 NMCA 76,797 P.2d 306,110 N.M. 517 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Steve HAAR, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
This court filed an opinion April 3, 1990, affirming defendant's conviction. Defendant filed a motion for rehearing, urging this court to reconsider our decision in light of State v. Wilson, 109 N.M. 541, 787 P.2d 821 (1990). We have done so, and, because we find Wilson distinguishable, we affirm. We withdraw our earlier opinion and substitute this opinion in its place.
Defendant appeals his jury conviction of criminal damage to property over $1,000. He raises five issues on appeal: (1) whether there was substantial evidence that the value of property damaged was at least $1,000; (2) whether there was substantial evidence that defendant had the requisite intent under the subject statute; (3) whether pre-indictment delay or time lapse before trial warranted dismissal with prejudice; (4) whether the trial court's communication with a juror, outside defendant's presence, and juror's subsequent excusal, constituted reversible error; and (5) whether the results of a warrantless test firing of a weapon, lawfully in police custody, should have been suppressed. Other issues listed in the docketing statement but not briefed are deemed abandoned. State v. Fish, 102 N.M. 775, 701 P.2d 374 (Ct.App.1985). We decide all issues against defendant and therefore affirm his conviction.
On December 10, 1986, police investigated a report that shots had been fired at a vehicle and residence owned by Marcy Sandoval, a police officer. Shell casings and projectiles were found at the scene of the shooting. Three days later, defendant was arrested on a felony bench warrant and misdemeanor charges, both unrelated to the shooting incident. A search incident to the arrest resulted in the seizure of two handguns, which were tagged as evidence. The arresting officer informed Sandoval of defendant's arrest and the seizure of the weapons. Sandoval reported to police that she considered defendant a possible suspect in the shooting at her house. She explained she had taken a felony assault report concerning defendant at his ex-girlfriend's house, located two blocks from Sandoval's residence. She also stated that her conspicuously marked patrol car was often parked in her driveway.
An investigator ordered a test to be performed to compare one of the guns taken from defendant with the evidence recovered at Sandoval's residence. The test established that defendant's gun had discharged four casings and one projectile found at the crime scene. The bullets were full jacketed with a metal alloy, which enabled them to penetrate further and faster than other bullets. Over defendant's objections, evidence of the test results was later admitted at trial.
During the next five months preceding defendant's trial, plea bargaining discussions took place on the charges leading to defendant's arrest, as well as the incident at Sandoval's house. In May 1987, a plea bargain disposed of the previous charges only, and in July 1987, defendant was indicted on three counts of aggravated assault in connection with the shooting incident. The July indictment did not include a criminal damage charge. In February 1988, the state nolle prosequid the assault charges and indicted defendant on the criminal damage charge. Trial on this charge commenced in May 1988.
At trial, Sandoval offered the following testimony on damages: car interior, $368.37; car exterior including gas tank, $465.84; wall repairs, $65.33; and dishwasher replacement, $100, for total damages of $1,009.54. She testified that the amount for wall repairs represented materials she purchased to repair the walls herself, but did not include her labor. She stated that shots had rendered the dishwasher unusable and that she had purchased it from a private party for $110. Written estimates for repairs of the vehicle were introduced into evidence to support Sandoval's testimony.
Sometime before jury deliberations began, a juror was approached during a five-day trial recess by a woman who may have been trying to influence the juror by claiming defendant was being "railroaded for shooting up the policeman's car." The juror promptly reported this contact to the trial judge before trial resumed. The judge met with both counsel in chambers, reported the communication and recommended that the juror be excused. Counsel for the state did not object. Defendant's counsel took no position but noted defendant's absence. The excused juror was replaced with an alternate. We discuss each issue separately.
The statutory minimum for criminal damage to property is $1,000. NMSA 1978, Sec. 30-15-1 (Repl.Pamp.1984). Relying on State v. Seward, 104 N.M. 548, 724 P.2d 756 (Ct.App.1986), defendant contends Sandoval's testimony with respect to the dishwasher damage was speculative and thus did not support an inference that it amounted to $110. The dishwasher's value is critical since Sandoval's testimony on damage was only $9.54 above the minimum of $1,000.
Seward is distinguishable, however. There, this court was concerned not by valuations furnished by the victim, but rather with the lack of testimony on value. The victim in Seward testified that four items were missing, that the value of two of those items was $2,075 and that the value of all items damaged and taken was $4,000. The jury had to guess that the value of the items taken, in addition to the two identified, was sufficient to make up the $425 needed to support a conviction for larceny over $2,500. Here, Sandoval specifically stated the value of the dishwasher. Such evidence did not require an inference based on conjecture or speculation.
Nor are we concerned that Sandoval, as owner of the damaged dishwasher, testified as to its value. We have held that an owner of personal property may testify concerning the value of his property and that such testimony is sufficient to support a jury's determination of value. See State v. Dominguez, 91 N.M. 296, 573 P.2d 230 (Ct.App.1977). An "owner necessarily knows something about the quality, cost, and condition of his or her property and consequently knows approximately what it is worth." State v. Hughes, 108 N.M. 143, 146, 767 P.2d 382, 385 (Ct.App.1988).
Defendant suggests Sandoval may have misstated the amount of damages in order to meet the statutory minimum. However, the jury was free to draw other inferences from the victim's testimony. State v. Vigil, 87 N.M. 345, 533 P.2d 578 (1975). For example, Sandoval did not testify on the value of her labor in repairing holes caused by the shots, nor did she claim the replacement value of a new dishwasher. She also did not assign any value to the damage done to the garage doors. From this evidence, the jury could have inferred that Sandoval's testimony on value was truthful and not an overestimate. As a general rule the market value of property damaged by another is a question of fact for the jury. See Tunnell v. State, 99 N.M. 446, 659 P.2d 898 (1983). We conclude the evidence was sufficient to support an inference that damages were at least $1,000.
Under this issue, defendant compares the pertinent statute with those of other states. He argues that those states proscribing reckless or negligent damage differentiate those crimes by requiring malice or intent to cause damage to property as a basis for establishing culpability when "intentionally" damaging property is prohibited. To the extent that defendant is suggesting more is required than an intention to do the act causing damage, we disagree. Since the subject statute describes a particular act, without regard to intent to do anything further, all that is required is a general intent to do the proscribed act. See State v. Beach, 102 N.M. 642, 699 P.2d 115 (1985).
Defendant also relies on State v. Vogenthaler, 89 N.M. 150, 548 P.2d 112 (Ct.App.1976), to argue that the subject statute here requires a specific intent. In Vogenthaler, this court discussed the difference between NMSA 1953, Repl.Vol. 2 (1972), Section 40A-15-1 (Supp.1975) (the predecessor to NMSA 1978, Section 30-15-1 (Repl.Pamp.1987)) and NMSA 1953, Repl.Vol. 2 (1972), Section 40A-15-3 (Supp.1975) (predecessor to NMSA 1978, Section 30-15-4 (Repl.Pamp.1987)). Defendant there argued that Section 40A-15-3, proscribing the desecration of a church, violated equal protection of the law. The basis for this contention was that, under the statute, damage to a church under $1,000 was a misdemeanor, while criminal damage to other, non-church property of the same amount was only a petty misdemeanor. Vogenthaler noted that the elements of the offenses differed. Violation of Section 40A-15-1 required only intentional damage, while Section 40A-15-3 required that the defacement be willful, malicious, and intentional. We conclude that Section 30-15-1 requires general intent to do the act causing the damage and no more.
We next address the sufficiency of the evidence on what we have determined is the requisite intent. Defendant was not placed at the scene by an eyewitness. Nonetheless, his intent to commit the crime can be proved by reasonable inferences and sufficient direct or circumstantial facts, in which case we will not reweigh the jury's determination. State v. Jennings, 102 N.M. 89, 691 P.2d 882 (Ct.App.1984). We believe the circumstantial evidence of defendant's intent was substantial. Several days after an unidentified person fired five shots from a 9mm semiautomatic gun into the victim's home and a vehicle parked there, defendant was arrested. A 9mm semiautomatic pistol was...
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