The Nebraska Court of Appeals says Trent Esch should get a retrial because of errors in instructing his jury.
Investigators say that on March 18, 2012 Esch went to Custer County Sheriff's Deputy Dan Spanel's home and shot his patrol vehicle with a rifle. The Dodge Durango had bullet holes in the side, a hole in the gas tank, and a flat tire. The department's insurance company says the vehicle was a total loss.
A jury found Esch guilty of felony criminal mischief and use of a weapon to commit a felony. He was sentenced to 5-7 years in jail for the weapon conviction, and 20-35 months for criminal mischief, and ordered to pay $7,500 in restitution.
In his appeal, Esch says the court refused to give a separate instruction to the jury explaining that if they found Esch guilty of criminal mischief, they also needed to determine beyond a reasonable doubt there was financial loss. The Appeals Court says that type of loss isn't necessary for a criminal mischief conviction, but the prosecution still has to prove there was loss caused by the criminal mischief.
The Appeals Court vacated Esch's conviction and sentence for use of a weapon to commit a felony because criminal mischief is only a felony if the loss sustained is over $1,500.
Esch did not appeal the criminal mischief conviction, but he will get a new trial for the amount of loss suffered and, and if it's determined to be more than $1,500, will be retried for the weapon charge.
The Custer County District Court Clerk says they haven't received the Court of Appeals mandate yet, so a date for a new trial hasn't been set.