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Wynn v. State

Court of Appeals of Georgia, Fourth Division

February 13, 2018

WYNN
v.
THE STATE.

          DILLARD, C. J., RAY and SELF, JJ.

          DILLARD, CHIEF JUDGE.

         Brian Wynn appeals his convictions for ten counts of second-degree damage to property. His sole argument on appeal is that the evidence was insufficient to prove that the fair market value of the property damage exceeded $500, which is required to support his convictions. For the reasons set forth infra, we vacate Wynn's convictions and remand for further proceedings consistent with this opinion.

         Viewed in the light most favorable to the jury's verdict, [1] the evidence shows that, on December 21, 2011, ten air-conditioning units outside of a vacant medical center were vandalized, and the perpetrator stole copper pipes from inside each unit. The owner of the medical center reported the vandalism to police, and during the investigation that ensued, a police investigator, who was in charge of metal-theft investigations, retrieved a surveillance video taken at the time of the crime. Upon viewing the video, the investigator immediately identified the suspect as Wynn from previous encounters with him, including during compliance checks at a recycling center, as well as during two of Wynn's prior arrests.

         Subsequently, Wynn was charged, via indictment, with ten counts of second-degree criminal damage to property-one count for each air-conditioning unit. And following a jury trial, Wynn was convicted on all counts.[2] Wynn then filed a motion for a new trial, which was denied following a hearing. This appeal follows.

         In his sole enumeration of error, Wynn argues that the State failed to prove that the fair market value of the damage to the property exceeded $500, which is an essential element of second-degree damage to property.[3] We agree.

         At the outset, we note that when a criminal conviction is appealed, the evidence must be viewed "in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence."[4] And in evaluating the sufficiency of the evidence, we do not "weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt."[5] We will, then, uphold a jury's verdict so long as there is "some competent evidence, even though contradicted, to support each fact necessary to make out the State's case."[6] Bearing these guiding principles in mind, we turn now to Wynn's specific challenge to the sufficiency of the evidence to support his convictions.

         OCGA § 16-7-23 (a) (1) provides that "[a] person commits the offense of criminal damage to property in the second degree when he . . . [i]ntentionally damages any property of another person without his consent and the damage thereto exceeds $500.00." Furthermore, the value of the damage to property (for which the defendant is responsible) is an essential element of the indicted crimes.[7] And under OCGA § 16-7-23, the value of damage to the property of another "may be established by several means."[8] For example, a lay witness may give opinion testimony as to such value, "subject to stating the factual predicate on which the opinion is based or otherwise showing that he or she had the opportunity to form a reliable opinion."[9]Alternatively, the cost of an item may be "sufficient to show the value of damage to everyday items if supported by other evidence showing the before and after condition of the item."[10] Additionally, evidence of the "cost to repair an item may also suffice."[11] Significantly, numerous Georgia cases on the subject of value of the damage "focus on the tangible damaged property itself."[12] This makes perfect sense because "the crime in its essence is 'criminal damage to property, ' not total expenses of the owner in connection with property damage."[13]

         At trial, the owner of the damaged air-conditioning units testified that he received an estimate that the repairs to his property would cost between $39, 000 and $42, 000. But he further testified that, because the air-conditioning units were "fairly old, " the replacement of those units might require him to replace the inside units too. The owner also testified that, while the repairs were covered by an insurance policy, his insurance company had paid him only about 70 percent of the estimated repair costs. The owner had not, however, actually repaired the units by the time of trial because there were no tenants in the building, and he did not want to risk having the units vandalized again.

         Another witness testified that, in March of 2009, someone stole the copper pipes out of the outdoor air-conditioning unit in his backyard, and it cost him about $700 or $800 to repair the unit. And a second homeowner testified that, in June of 2008, when his rental house was vacant for about a month between tenants, the house's outdoor air-conditioning unit was stolen. On a surveillance video of the incident, the owner observed the individuals who stole the unit rip out the copper coil inside of the unit, throw it over the fence, and put it into the back of their car. This witness ultimately had to replace the air-conditioning unit, which cost him $3, 300.

         Initially, we note that the two witnesses who testified as to what it cost them to repair or replace their own air-conditioning units provided no basis for the cost of the damage to each of the air-conditioning units vandalized by Wynn. Indeed, there was no testimony regarding the age or condition of those witnesses' air-conditioning units or whether they were at all similar to the ones vandalized by Wynn at the medical center. Thus, the only relevant testimony that the State presented in its effort to prove the value of the damage to the property in this case was the testimony of the property owner. But the owner provided no testimony as to the original price of the ten air-conditioning units, their exact ages, or the condition of each individual unit at the time when they were vandalized. And even if he had testified as to the cost of the damage, there was no evidence, through his testimony or otherwise, of the condition of the damaged property both before and after the crime.[14]

         Here, to prove the fair market value of the damage to property, the owner testified only to an estimated range for the repair costs that he had been given by an undisclosed source. And although evidence of the cost to repair an item may suffice, [15]the owner testified that no repairs had actually been performed, and we have repeatedly held that an estimate of repair costs alone is inadmissible hearsay that is insufficient to prove the fair market value of damage to property.[16]

         In its somewhat cursory brief, the State concedes that the property owner's testimony regarding the estimate he received for the repair costs was inadmissible hearsay, but it nevertheless argues that his testimony that his insurance company paid him 70 percent of those costs was strong circumstantial evidence that the repair costs would be at least $27, 300 (i.e., 70 percent of $39, 000, which is the low end of the estimate that the owner claimed to have received for the repair costs). In support, the State cites only two cases, which set forth the general legal principles that the value of an item may be established by opinion testimony and that "[p]roof of the value of the property damage may be shown in a number of ways." But the State presents no legal authority to support its apparent position that hearsay, which is otherwise inadmissible, may be considered when it is supported by other admissible circumstantial evidence, and we have found none.

         Additionally, the State presented no evidence of the exact amount that the victim's insurance paid in connection with the damage to his property, any terms or conditions of his policy, or the basis upon which this undisclosed insurance company determined the amount it paid for the property damage. Thus, it is impossible to know whether the amount that the insurance company paid the victim, which was not confirmed by any documentary evidence, was in any way related to the fair-market value of the damage to the air-conditioning units. Perhaps most importantly, each of the ten counts in Wynn's indictment alleged property damage of at least $500 to a single air-conditioning unit identified specifically by its serial number. Thus, proof of the value of the damage to support each conviction corresponding to each of those counts must be established by evidence that the damage to each of the ten units individually exceeded $500, not by the total cost of repairs to or value of all ten air- conditioning units combined. And as we have previously explained "[d]etermination of the amount of damages must be based upon fair market value, which must be determined exactly."[17] But the State presented no evidence as to the amount of property damage described in each indicted offense, much less evidence sufficient for ...


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