This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1527

 

State of Minnesota,
Respondent,

vs.

Carol Stephens,
Appellant.

 

Filed December 12, 2006

Reversed

Stoneburner, Judge

 

Ramsey County District Court

File No. K6042652

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, Ramsey County Government Center West, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

 

John M. Stuart, Minnesota Public Defender, Roy G. Spurbeck, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Shumaker, Presiding Judge; Stoneburner, Judge; and Worke, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant challenges her conviction of gross misdemeanor criminal damage to property, arguing that the evidence is insufficient to support the conviction.  Because the evidence is insufficient to sustain the conviction, we reverse.

FACTS

 

            Appellant Carol Stephens was charged with felony first-degree criminal damage to property under Minn. Stat. § 609.595, subd. 1 (2002) based on allegations that on or about June 21, 2004, she damaged a recreational vehicle (RV) that was parked next to her home in the driveway of her neighbors, David Brodie and Lori Halbur.  The RV belongs to Leonard Halbur, Lori Halbur’s father.  Leonard Halbur had parked the RV in Brodie-Halbur’s driveway for a number of days in the summers of 2002 and 2003.  The RV is thirty-six feet long, and although Stephens did not object to its presence in the summer of 2002, she had complained to the police about it in the summer of 2003.  Stephens was upset when Brodie told her that the RV would again be parked in the driveway during the summer of 2004 and indicated to Brodie that she did not think that was going to happen.  Leonard Halbur parked the RV in the driveway on June 16, 2004.

            That night, stones were thrown at the RV.  The following night someone again threw stones and also threw eggs at the RV.  Leonard Halbur saw streaks of egg on the top and running down the sides of the RV.  He was able to clean off the eggs except for a streak on one window.  On June 18, Leonard Halbur took the RV to Duluth.  He returned it to the driveway on June 20.  That night he heard someone throw something at the RV, and on the morning of June 21, he found paint or stain on the back of the RV and parts of a balloon, indicating that a balloon filled with paint or stain had been thrown at the RV.  Lori Halibur contacted the police on the morning of June 21.  That night Leonard Halbur and Brodie positioned themselves to watch the RV.

            Leonard Halbur saw Stephens open the second floor window of her house and throw things at the RV two times.  Brodie heard two items hit the RV and called the police.  As Brodie and Leonard Halbur waited for the police, they heard a third object hit the RV.  Brodie shined a flashlight toward Stephens’s upstairs window and saw her near the window.  Red, blue, and black stains were observed on the RV, and the Brodie-Halbur house was also splattered with the red and blue substances.

            Stephens waived her right to a jury trial on the charge against her.  At trial, the service manager of Imperial Camper Sales, Steven Leyman, testified for the state that the RV has a rubber roof and that petroleum-based products can cause such roofs to rot within one year.  He estimated that the cost of replacing the roof would be approximately $4,094.23.  Leyman also testified that he had never seen Leonard Halbur’s RV, but seeing the RV would not change his estimate for replacing the rubber roof.  But Leyman agreed that it was possible that he could conclude by looking at the roof that it does not need replacing.  There is no evidence in the record that the liquid thrown at the RV was petroleum-based or that the rubber roof needs to be replaced due to any residue from that liquid. 

            Leonard Halbur testified that he spent approximately 12-14 hours cleaning the RV, but was not able to remove all of the stain from the roof.  The time estimate included cleaning the RV after the June 17 and 20 incidents as well as the June 21 incident.  The state did not produce any evidence of the value of Leonard Halbur’s labor or his opinion on whether, or in what amount, the remaining stain on the roof has reduced the value of the RV.  Photographs of the stains on the RV and the Brodie-Halbur house, and a $350 written estimate for the cost of removing the stain from the house were introduced into evidence without objection.

            The district court found that the state proved beyond a reasonable doubt that Stephens damaged Leonard Halbur’s property but that the state failed to prove beyond a reasonable doubt that the amount of damage rose to the level of a felony.  Nonetheless, the district court found that the state proved beyond a reasonable doubt that Stephens caused damage to the Brodie-Halbur home and to the RV “in an amount more than $250 as measured by the cost of repair and/or replacement.”  Although Stephens was not charged with damaging the house, the district court convicted Stephens of criminal damage to property as a gross misdemeanor. 

            The district court sentenced Stephens to 365 days in jail, execution stayed for two years with conditions, including that she undergo a psychological evaluation.  The district court also ordered Stephens to pay restitution as requested by the state of over $4,000 to Leonard Halbur and $350.00 to Brodie and Lori Halbur.  This appeal followed.

D E C I S I O N

 

            Conviction of first-degree criminal damage to Leonard Halbur’s property, a felony, requires proof beyond a reasonable doubt that Stephens intentionally caused damage to physical property owned by Leonard Halbur without his consent and that the amount of the damage was more than $500 as measured by the cost of repair and replacement.  Minn. Stat. § 609.595, subd. 1 (2002).  Damage to property in the amount of $250 but not more than $500 constitutes third-degree criminal damage to property, a gross misdemeanor.  Minn. Stat. § 609.595, subd. 2 (2002). 

            A district court has the discretion to consider and convict a defendant of a lesser-included offense when a rational basis exists to convict of the lesser-included offense and acquit of the greater offense.  See State v. Slaughter, 691 N.W.2d 70, 76-77 (Minn. 2005) (stating application, in a bench trial, of requirement that court must instruct jury on a lesser-included offense when the offense in question is an included offense and a rational basis exists for jury to convict defendant of the lesser-included offense and acquit of the greater crime applies).  It is not disputed that gross-misdemeanor criminal damage to property is a lesser-included offense of felony criminal damage to property.[1]

            Stephens contends that the district court committed fundamental error by considering damage to the house when the complaint only alleged damage to the RV.  See State v. Gisege, 561 N.W.2d 152, 158 (Minn. 1997) (stating that “[t]ypically, the failure of an indictment or complaint to include the crime with which the defendant was convicted is an error of fundamental law”).  The state argues that the evidence was sufficient to prove that Stephens caused more than $500 worth of damage to the RV and that the district court “exercised the fact-finder[’s] power of lenity to find [Stephens] guilty only of the lesser charge.”  The state’s argument is without merit because it ignores the district court’s specific finding that the state failed to prove damages to Leonard Halbur’s property of $500 beyond a reasonable doubt.  The district court’s finding is supported by the record, which is devoid of any evidence of the amount of damage to the RV caused by Stephens.

            The state also argues that evidence that Halbur “worked for many hours” but was unable to completely remove the stains supports the conviction.  When the victim of criminal damage to property performs the work necessary to repair the property, the value of the victim’s labor can be considered in calculating the reduced value of the damaged property.  See State v. DeYoung, 672 N.W.2d 208, 213 (Minn. App. 2003) (holding that evidence was sufficient to support conviction of first-degree criminal damage to property where the victim, who repaired damaged automobiles herself, proved the value of her labor such that the damage to her automobile exceeded $500).  In this case, there is no evidence of the value of Leonard Halbur’s labor, which would have to be valued at $20 per hour or more to support the conviction.  Although Halbur scrubbed the RV, there is no evidence that this labor should be valued at more than the minimum wage, and there is no evidence that the remaining stain has any effect on the value of the RV.  And Stephens was not charged with damaging the house.  Based on the record, we conclude that the evidence is insufficient to support a finding that Stephens damaged the RV in an amount of $250.  Because the damages amount is an element of the offense for which Stephens was convicted, the evidence does not support the conviction.  Because we are reversing based on the insufficiency of evidence, we need not address the other issues raised by Stephens.

            Reversed.