MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Apr 14 2015, 9:46 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ryan P. Dillon Gregory F. Zoeller Franklin, Indiana Attorney General of Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Joshua Donica, April 14, 2015
Appellant-Defendant, Court of Appeals Cause No. 55A01-1408-CR-346 v. Appeal from the Morgan Superior Court. State of Indiana, The Honorable Christopher L. Burnham, Judge. Appellee-Plaintiff Cause No. 55D02-1210-CM-1346
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision | 55A01-1408-CR-346 | April 14, 2015 Page 1 of 6 STATEMENT OF THE CASE [1] Appellant-Defendant, Joshua Donica (Donica), appeals his conviction for
criminal mischief, as a Class A misdemeanor, Ind. Code § 35-43-1-2(a)(1)
(2013).
[2] We affirm.
ISSUE
[3] Donica raises one issue on appeal, which we restate as: Whether the State
presented sufficient evidence beyond a reasonable doubt to sustain Donica’s
conviction.
FACTS AND PROCEDURAL HISTORY
[4] The facts most favorable to the judgment are as follows. On November 5, 2013,
Devin Noel (Devin), his wife Cynthia (Cynthia), and step-daughter
(collectively, the Noels) were driving on Grizzly Lane in Morgan County,
Indiana. They planned on returning a weed wacker they had previously
borrowed from Cynthia’s sister-in-law. However, finding no one at home, the
Noels turned around and returned home. When driving to their residence, they
passed the house of Donica and Devin’s sister, Jessica Noel.
[5] While stopped at a stop sign at the intersection of Ballinger and Wilbur Road,
Donica’s truck approached them from behind at very high speed and pulled up
Court of Appeals of Indiana | Memorandum Decision | 55A01-1408-CR-346 | April 14, 2015 Page 2 of 6 to the left side of the Noels’ vehicle. Donica exited his truck and started yelling
at the Noels that they were not allowed to be on his road. Donica carried a
wooden axe handle in his hand and began to approach the Noels’ car. Devin
turned right and continued to drive to the Noels’ residence. Donica returned to
his vehicle and followed them. Afraid that Donica would run them off the
road, Cynthia made Devin pull over on the side of the street. Donica again
exited his car and, this time, swung the wooden handle, hitting the Noels’ car
two to three times.
[6] After the altercation ended, the Noels filed a police report with the Morgan
County Sheriff’s Department. Morgan County Sheriff’s Deputy Jeremy Long
(Deputy Long) spoke with Cynthia, took photos of the damage, and requested
her to get a cost estimate to fix the damage to the vehicle. Cynthia provided
Deputy Long with a document from Weida’s Collision in Martinsville, which
estimated the damages at $971.43.
[7] On October 10, 2013, the State filed an Information, charging Donica with a
Class A misdemeanor criminal mischief. On July 14, 2014, the trial court
conducted a bench trial, at the close of which the trial court found Donica
guilty as charged. On the same day, the trial court imposed a 180-day executed
sentence. On October 21, 2014, pursuant to a sentence modification, Donica
was sentenced to 365 days with ninety days executed and 275 days suspended.
Additionally, Donica was placed on probation for 300 days.
[8] Donica now appeals. Additional facts will be provided as necessary.
Court of Appeals of Indiana | Memorandum Decision | 55A01-1408-CR-346 | April 14, 2015 Page 3 of 6 DISCUSSION AND DECISION
[9] Donica contends that the State failed to present sufficient evidence beyond a
reasonable doubt to support his conviction for criminal mischief, a Class A
misdemeanor. Generally, in addressing a claim of insufficient evidence, an
appellate court must consider only the probative evidence and reasonable
inferences supporting the judgment, without weighing evidence or assessing
witness credibility, and determine therefrom whether a reasonable trier of fact
could have found the defendant guilty beyond a reasonable doubt. Glenn v.
State, 884 N.E.2d 347, 355 (Ind. Ct. App. 2008), trans. denied.
[10] To convict Donica of criminal mischief as a Class A misdemeanor, the State
was required to establish that Donica “recklessly, knowingly, or intentionally
damage[d], or defaced[d] property of another person without the other person’s
consent” and “the pecuniary loss is at least two hundred fifty dollars ($250) but
less than two thousand five hundred dollars ($2,500).” I.C. § 35-43-1-2(a)(1)
(2013). In his appellate brief, Donica solely focuses on whether the State
sufficiently established the statutory damage element. Specifically, Donica
maintains that because the written estimate was never admitted into evidence,
the actual value of the damages remains unclear. “Reliance upon a non-
itemized ‘estimate’ alone when the damage was not actually repaired in
accordance with said estimate does not equate to a ‘pecuniary loss’ under the
statute.” (Appellant’s Br. p. 5). We disagree.
Court of Appeals of Indiana | Memorandum Decision | 55A01-1408-CR-346 | April 14, 2015 Page 4 of 6 [11] Without proof of the amount of damages, criminal mischief cannot be elevated
to a greater offense. Pepper v. State, 558 N.E.2d 899, 900 (Ind. Ct. App. 1990).
However, “[o]nce it is established that the amount of damages is over [the
threshold amount set forth in the statute], the exact amount is irrelevant in
completing that element of the crime.” Mitchell v. State, 559 N.E.2d 313, 314
(Ind. Ct. App. 1990), trans. denied.
[12] At trial, Deputy Long testified that Cynthia submitted an estimate for the
damage to the vehicle a couple of days after filing the report. He affirmed that
he “actually received that document” and “wrote” down the estimate of
$971.43. (Transcript p. 42). Deputy Long clarified that he then sent the
estimate “to the prosecutor’s office with the rest of the report.” (Tr. p. 42). In
addition, Devin testified that he had obtained an estimate from Weida’s
Collision in Martinsville for “[n]ine hundred and some dollars.” (Tr. p. 24).
[13] In support of his argument that the damage element was insufficiently
established, Donica references a statement from the trial court, in which the
court declared:
As far as restitution is concerned, I would direct that the victims bring a civil action. They can obtain up to three times their action, prove damages, and attorney fees. So they can prove their case that way and receive their damages that way as well. I don’t want to get into a squabble as to what is an appropriate amount of damages here because it’s pretty . . . obviously there may be some other questions as to what else was getting fixed that might not be related to this. So I’ll let the civil process deal with that.
Court of Appeals of Indiana | Memorandum Decision | 55A01-1408-CR-346 | April 14, 2015 Page 5 of 6 (Tr. p. 70).
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Apr 14 2015, 9:46 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ryan P. Dillon Gregory F. Zoeller Franklin, Indiana Attorney General of Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Joshua Donica, April 14, 2015
Appellant-Defendant, Court of Appeals Cause No. 55A01-1408-CR-346 v. Appeal from the Morgan Superior Court. State of Indiana, The Honorable Christopher L. Burnham, Judge. Appellee-Plaintiff Cause No. 55D02-1210-CM-1346
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision | 55A01-1408-CR-346 | April 14, 2015 Page 1 of 6 STATEMENT OF THE CASE [1] Appellant-Defendant, Joshua Donica (Donica), appeals his conviction for
criminal mischief, as a Class A misdemeanor, Ind. Code § 35-43-1-2(a)(1)
(2013).
[2] We affirm.
ISSUE
[3] Donica raises one issue on appeal, which we restate as: Whether the State
presented sufficient evidence beyond a reasonable doubt to sustain Donica’s
conviction.
FACTS AND PROCEDURAL HISTORY
[4] The facts most favorable to the judgment are as follows. On November 5, 2013,
Devin Noel (Devin), his wife Cynthia (Cynthia), and step-daughter
(collectively, the Noels) were driving on Grizzly Lane in Morgan County,
Indiana. They planned on returning a weed wacker they had previously
borrowed from Cynthia’s sister-in-law. However, finding no one at home, the
Noels turned around and returned home. When driving to their residence, they
passed the house of Donica and Devin’s sister, Jessica Noel.
[5] While stopped at a stop sign at the intersection of Ballinger and Wilbur Road,
Donica’s truck approached them from behind at very high speed and pulled up
Court of Appeals of Indiana | Memorandum Decision | 55A01-1408-CR-346 | April 14, 2015 Page 2 of 6 to the left side of the Noels’ vehicle. Donica exited his truck and started yelling
at the Noels that they were not allowed to be on his road. Donica carried a
wooden axe handle in his hand and began to approach the Noels’ car. Devin
turned right and continued to drive to the Noels’ residence. Donica returned to
his vehicle and followed them. Afraid that Donica would run them off the
road, Cynthia made Devin pull over on the side of the street. Donica again
exited his car and, this time, swung the wooden handle, hitting the Noels’ car
two to three times.
[6] After the altercation ended, the Noels filed a police report with the Morgan
County Sheriff’s Department. Morgan County Sheriff’s Deputy Jeremy Long
(Deputy Long) spoke with Cynthia, took photos of the damage, and requested
her to get a cost estimate to fix the damage to the vehicle. Cynthia provided
Deputy Long with a document from Weida’s Collision in Martinsville, which
estimated the damages at $971.43.
[7] On October 10, 2013, the State filed an Information, charging Donica with a
Class A misdemeanor criminal mischief. On July 14, 2014, the trial court
conducted a bench trial, at the close of which the trial court found Donica
guilty as charged. On the same day, the trial court imposed a 180-day executed
sentence. On October 21, 2014, pursuant to a sentence modification, Donica
was sentenced to 365 days with ninety days executed and 275 days suspended.
Additionally, Donica was placed on probation for 300 days.
[8] Donica now appeals. Additional facts will be provided as necessary.
Court of Appeals of Indiana | Memorandum Decision | 55A01-1408-CR-346 | April 14, 2015 Page 3 of 6 DISCUSSION AND DECISION
[9] Donica contends that the State failed to present sufficient evidence beyond a
reasonable doubt to support his conviction for criminal mischief, a Class A
misdemeanor. Generally, in addressing a claim of insufficient evidence, an
appellate court must consider only the probative evidence and reasonable
inferences supporting the judgment, without weighing evidence or assessing
witness credibility, and determine therefrom whether a reasonable trier of fact
could have found the defendant guilty beyond a reasonable doubt. Glenn v.
State, 884 N.E.2d 347, 355 (Ind. Ct. App. 2008), trans. denied.
[10] To convict Donica of criminal mischief as a Class A misdemeanor, the State
was required to establish that Donica “recklessly, knowingly, or intentionally
damage[d], or defaced[d] property of another person without the other person’s
consent” and “the pecuniary loss is at least two hundred fifty dollars ($250) but
less than two thousand five hundred dollars ($2,500).” I.C. § 35-43-1-2(a)(1)
(2013). In his appellate brief, Donica solely focuses on whether the State
sufficiently established the statutory damage element. Specifically, Donica
maintains that because the written estimate was never admitted into evidence,
the actual value of the damages remains unclear. “Reliance upon a non-
itemized ‘estimate’ alone when the damage was not actually repaired in
accordance with said estimate does not equate to a ‘pecuniary loss’ under the
statute.” (Appellant’s Br. p. 5). We disagree.
Court of Appeals of Indiana | Memorandum Decision | 55A01-1408-CR-346 | April 14, 2015 Page 4 of 6 [11] Without proof of the amount of damages, criminal mischief cannot be elevated
to a greater offense. Pepper v. State, 558 N.E.2d 899, 900 (Ind. Ct. App. 1990).
However, “[o]nce it is established that the amount of damages is over [the
threshold amount set forth in the statute], the exact amount is irrelevant in
completing that element of the crime.” Mitchell v. State, 559 N.E.2d 313, 314
(Ind. Ct. App. 1990), trans. denied.
[12] At trial, Deputy Long testified that Cynthia submitted an estimate for the
damage to the vehicle a couple of days after filing the report. He affirmed that
he “actually received that document” and “wrote” down the estimate of
$971.43. (Transcript p. 42). Deputy Long clarified that he then sent the
estimate “to the prosecutor’s office with the rest of the report.” (Tr. p. 42). In
addition, Devin testified that he had obtained an estimate from Weida’s
Collision in Martinsville for “[n]ine hundred and some dollars.” (Tr. p. 24).
[13] In support of his argument that the damage element was insufficiently
established, Donica references a statement from the trial court, in which the
court declared:
As far as restitution is concerned, I would direct that the victims bring a civil action. They can obtain up to three times their action, prove damages, and attorney fees. So they can prove their case that way and receive their damages that way as well. I don’t want to get into a squabble as to what is an appropriate amount of damages here because it’s pretty . . . obviously there may be some other questions as to what else was getting fixed that might not be related to this. So I’ll let the civil process deal with that.
Court of Appeals of Indiana | Memorandum Decision | 55A01-1408-CR-346 | April 14, 2015 Page 5 of 6 (Tr. p. 70). Donica asserts that this statement expresses a concern about the
correctness of the estimate. However, the trial court’s advice was rendered after
Donica was found guilty of the crime and during the restitution phase of the
sentencing. See I.C. § 35-50-5-3 (a trial court can impose restitution after
finding the defendant guilty). Accordingly, the trial court’s statement was not a
reflection on the amount of the damage to elevate the charge to a Class A
misdemeanor—which was clearly over the threshold for the Class A
misdemeanor charge—but rather on the value of the damages as it pertained to
restitution.
[14] In sum, Donica did not present any contrary evidence and does not claim that
the witnesses were unqualified to render testimony as to the damage element of
the Class A misdemeanor criminal mischief statute. See Womack v. State, 738
N.E.2d 320, 325 (Ind. Ct. App. 2000), trans. denied. In essence, Donica simply
asks us to reweigh the evidence presented at the bench trial, which we will not
do. Accordingly, we affirm the trial court’s conviction.
CONCLUSION
[15] Based on the foregoing, we hold that the State established Donica’s conviction
for criminal mischief as a Class A misdemeanor beyond a reasonable doubt.
[16] Affirmed.
[17] Bailey, J. and Barnes, J. concur
Court of Appeals of Indiana | Memorandum Decision | 55A01-1408-CR-346 | April 14, 2015 Page 6 of 6