No. 27246-6-IIThe Court of Appeals of Washington, Division Two.
Filed: November 8, 2002 UNPUBLISHED OPINION
Appeal from Superior Court of Grays Harbor County, No. 008004441, Hon. David Hatch, March 15, 2001, Judgment or order under review.
Counsel for Appellant(s), Harold Karlsvik, Attorney At Law, P.O. Box 631, Raymond, WA 98577.
Counsel for Respondent(s), Neil K. Stephenson, Grays Harbor Co. Deputy Pros. Atty., Rm 102, 102 W Broadway, Montesano, WA 98563.
BRIDGEWATER, J.
Glenn Livermore, a juvenile, appeals his adjudication for third degree malicious mischief.[1] We reverse the conviction for a gross misdemeanor because there is no evidence of damage greater than $50; and we remand for sentencing for the misdemeanor.
Facts
On July 8, 2000, when McDonald’s restaurant manager Tuan Tai Martin arrived at work he received a customer complaint that five or six juveniles were sitting in the restaurant picnic area with skateboards and hanging onto a metal umbrella. Martin went outside to confront the group, which included Glenn Livermore. He saw that some of the juveniles, but not Livermore, were hanging onto the umbrella and that two or three slats on the umbrella were bent.
When Martin told the group to leave, the juveniles “got all riled up,” and “started using foul language.” Report of Proceedings at 5. After he repeated the request several times, the group left and as Livermore was walking away, he punched a “Do Not Feed the Seagulls” sign. Report of Proceedings at 3.
Shortly thereafter, Sergeant Paul Luck, responding to the malicious mischief report, confronted the juveniles. Livermore told Luck that “he had swung the umbrella and that he had become angry and hit the sign” but did not cause any damage. Report of Proceedings at 3. Luck then went to the restaurant to investigate the damage and saw that two or three slats on the umbrella were bent and the sign was bent in a couple of places.
The State charged Livermore with third degree malicious mischief, alleging that he “did knowingly and maliciously cause physical damage in excess of $50.00 to an umbrella located at Ocean Shores, the property of McDonald’s[.]” Clerk’s Papers at 1. At the fact-finding hearing held February 8, 2001, Martin and Luck testified to the facts set out above.
The trial court found Livermore guilty but did not state on the record any findings of fact, as required by JuCR 7.11(c).[2]
On March 15, 2001, a court commissioner entered a disposition order, which stated that Livermore was guilty of third degree malicious mischief as charged.
Livermore then filed a timely notice appealing the judgment. Pursuant to an order of this court, the trial court submitted the following pertinent findings and conclusions:
Findings of fact II.
On [July 8, 2000,] an employee of McDonald’s, Tuan Tai, confronted Respondent and the other juveniles following a report of one or more of them damaging an umbrella. Damage to the umbrella was observed both by Mr. Tai and Sergeant Luck of the Ocean Shores Police Department.
CONCLUSIONS OF LAW
II.
Respondent’s swinging the umbrella was a proximate cause of the damage to it.
III.
Respondent is guilty of the offense of Malicious Mischief in the Third Degree.
Analysis
To convict on the gross misdemeanor offense of third degree malicious mischief, the State had to prove beyond a reasonable doubt that Livermore knowingly and maliciously caused physical damage to the property of another under circumstances not amounting to malicious mischief in the first or second degree. If the damage exceeds $50, the crime is a gross misdemeanor, if not, it is a misdemeanor. RCW 9A.48.090(1), (2)(a); JuCR 7.11(a) (“The prosecution must prove the allegations in the information beyond a reasonable doubt.”). “Physical damage” includes “any diminution in the value” of the property. RCW 9A.48.100(1).
Livermore claims that the evidence was insufficient to prove the element of damage over $50. The State acknowledges that it did not present any evidence of the “exact monetary damage to the umbrella” caused by Livermore. Br. of Resp’t at 2. But it argues that because the evidence showed several slats of the umbrella were bent, the trial court could “conclude that monetary damage above zero had been incurred[.]” Br. of Resp’t at 3.
As shown above, the trial court made no findings regarding the monetary damage incurred. Furthermore, the record does not support a finding that Livermore’s conduct caused physical damage in an amount exceeding $50. But there is evidence of damage. Because there is some damage, there is sufficient evidence to support the trial court’s finding that Livermore committed the crime of third degree malicious mischief, a misdemeanor.
We reverse the conviction for the gross misdemeanor and remand for sentencing for the misdemeanor. See State v. Jones, 22 Wn. App. 447, 591 P.2d 796 (1979); see also State v. Meyer, 26 Wn. App. 119, 613 P.2d 132 (1980).
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT and QUINN-BRINTNALL, JJ., concur.