Criminal mischief prohibits damaging or destroying property, tampering with property, or deception or threat that leads to a loss of property. Although criminal mischief may be a felony in many jurisdictions, it is generally a less serious felony than arson, either because the defendant inflicts damage to property in a safer manner or because the criminal intent is less heinous. The criminal act element required for criminal mischief is damaging, 1 destroying, interfering with, 2 or tampering with 3 property. The criminal intent element required for criminal mischief varies, depending on the jurisdiction and the degree of the offense. The criminal intent could be specific intent or purposely, genera lintent or knowingly, reckless, or negligent. 4 The attendant circumstances required for criminal mischief are typically committing the criminal act against the property of another (or property that is government owned) without victim consent or with no right or authorization. 5 The harm element required for criminal mischief is damage, destruction, or interference to property by fire, explosive, flood, or some other method, or interference with electricity, water, oil or gas, 6 or loss of property or money by deception such as causing the victim to purchase a worthless product. 7 As stated previously, criminal mischief is often a less serious felony than arson and could also be graded as a gross misdemeanor or misdemeanor. 8 Factors that could elevate grading of criminal mischief are the extent of the property damage and the severity of the defendant’s criminal intent. 9 The Model Penal Code criminalizes criminal mischief when the defendant purposely, recklessly, or negligently damages tangible property of another by fire, explosives, or other dangerous means, purposely or recklessly tampers with tangible property of another so as to endanger person or property, or purposely or recklessly causes another to suffer pecuniary loss by deception or threat. The Model Penal Code grades criminal mischief as a felony of the third degree, misdemeanor, petty misdemeanor, or violation, depending on the extent of the damage or the criminal intent (Model Penal Code § 220.3).
KEY TAKEAWAYS
- The criminal act element required for burglary is breaking and entering, just entering, or remaining.
- The criminal intent element required for burglary is typically the general intent or knowingly to commit the criminal act and the specific intent or purposely to commit a felony, any crime, or a felony, petty, or grand theft once inside the burglarized area.
- Burglary generally includes the attendant circumstances that the area entered is a structure, building, or vehicle belonging to another, or an occupied building or structure, or a dwelling. Modern jurisdictions have eliminated the requirement that the property belong to another and prohibit the defendant from burglarizing his or her own property. Some jurisdictions require a vehicle to be locked, and a few jurisdictions require the burglary to take place at nighttime.
- Burglary is typically graded as a felony that is divided into degrees. First-degree burglary is often a strike in jurisdictions that have three strikes statutes and a predicate felony for first-degree felony murder.
- Typically, criminal trespass is an unauthorized (attendant circumstance) entry or remaining (criminal act) into a building, occupied structure, or place as to which notice against trespassing is given, owned by another (attendant circumstance) with general intent or knowingly that the entry was unauthorized (criminal intent). Criminal trespass is generally graded as a felony, albeit a less serious felony than burglary, or a misdemeanor if the area trespassed is a place rather than an occupied building or structure.
- The criminal act element required for arson is starting a fire, burning, or damaging with fire or explosives specified real or personal property.
- The criminal intent element required for arson is the general intent or knowingly to commit the criminal act in many jurisdictions.
- Arson statutes can specify the attendant circumstance that the defendant burns a specific type of property, such as a dwelling or other real o r personal property. In most jurisdictions, i f the defendant burns his or her own property, the defendant must act with the specific intent o r purposely to defraud, typically an insurance carrier.
- The harm element required for arson is burning, charring, damage, or, in the most extreme cases, smoke damage.
- Arson is typically graded as a felony that is divided into degrees. First-degree arson is often a strike in jurisdictions that have three strikes statutes and a predicate felony for first-degree felony murder. Arson could also carry a registration requirement like serious sex offenses.
- The elements of criminal mischief are damaging or destroying property, tampering with property, or deception or threat that leads to a loss of property (criminal act and harm) with specific intent or purposely, general intent or knowingly, recklessly, or negligently. Although criminal mischief may be a felony in many jurisdictions, it is generally a less serious felony than arson and in some jurisdictions it is graded as a gross misdemeanour or misdemeanor.
Exercises
Answer the following questions. Check your answers using the answer key at the end of the chapter.
1. Why is burglary of a dwelling at nighttime generally graded higher than other burglaries?
2. Read Butlerv.Florida, No. 1D08-0958 (Fla: Dist. Court of Appeals, 2009). InButler, the defendant appealed his convictions for trespass and criminal mischief, based on the trial court’s failure to instruct the jury on the defense of necessity. The defendant claimed he broke into a residence because he was being chased and feared for his safety. Did the Court of Appeal of Florida reverse the defendant’s convictions? Why or why not? The case is available at this link: http://scholar.google.com/scholar_case?case=1710354491441564352&q=burglary+%22necessity+defense%22&hl=en&as_sdt=2,5&as_ylo=2000.
3. Read In theMatterof V.V.C., No. 04-07-00166 CV (Tex.: Court of Appeals, 2008). In V.V.C., the Court of Appeals of Texas dismissed a minor’s adjudication for arson when he started a fire in the boy’s restroom of a middle school. What was the b asis for the court’s dismissal? The case is available at this link: http://scholar.google.com/scholar_case?case=1784800980619654964&q=arson+%22smoke+damage%22&hl=en&as_sdt=2,5&as_ylo=2000.
Law and Ethics
WikiLeaks: Should Exposure of Information Be Criminal?
Julian Assange, famous for his computer hacking skills, is the editor in chief of WikiLeaks, a whistle blower website. WikiLeaks has exposed documents and videos detailing the corruption in Kenya, Guantanamo Bay procedures, and the American involvement in the Afghan and Iraq wars, portions of which were classified confidential and secret. 10 The New York Times published some of this information. 11 Although WikiLeaks did not actually “leak” classified material (some of it was allegedly passed to WikiLeaks by a low-level US Army intelligence analyst), the US Department of Justice has launched a criminal investigation regarding the release, and US prosecutors are reportedly considering charges against Assange. 12
1. Do you think it is ethical to expose or publish “leaked” confidential and secret government information?
2. What is the difficulty in prosecuting a defendant for this type of publication?
Check your answers using the answer key at the end of the chapter.
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