11.3 Crimes That Invade or Damage Property

Learning Objectives

  1. Define the criminal act element required for burglary.
  2. Define the criminal intent element required for burglary.
  3. Define the attendant circumstances required for burglary.
  4. Analyze burglary grading.
  5. Define the elements of criminal trespass, and analyze criminal trespass grading.
  6. Define the criminal act element required for arson.
  7. Define the criminal intent element required for arson.
  8. Define the attendant circumstances required for arson.
  9. Define the harm element required for arson.
  10. Analyze arson grading.
  11. Define the elements of criminal mischief, and analyze criminal mischief grading.

Burglary

Although burglary is often associated with theft, it is actually an enhanced form of trespassing. At early common law, burglary was the invasion of a man’s castle at nighttime, with a sinister purpose. Modern jurisdictions have done away with the common-law attendant circumstances and criminalize the unlawful entry into almost any structure or vehicle, at any time of day. Burglary has the elements of criminal act, criminal intent, and attendant circumstances, as is explored in Section 11.3.1 “Burglary”.

Burglary Act

The criminal act element required for burglary varies, depending on the jurisdiction. Many jurisdictions require breaking and entering into the area described in the burglary statute (Mass. Gen. Laws ch. 266 § 14, 2011). Some jurisdictions and the Model Penal Code only require entering (Model Penal Code § 221.1). Other jurisdictions include remaining in the criminal act element (Fla. Stat. Ann. § 810.02(b)).

When criminal breaking is required, generally any physical force used to enter the burglarized area is sufficient—even pushing open a closed door (Commonwealth v. Hallums, 2011). Entry is generally partial or complete intrusion of either the defendant, the defendant’s body part, or a tool or instrument (People v. Nible, 2011). In some jurisdictions, the entry must be unauthorized (State v. Hall, 2011), while in others, it could be lawful (People v. Nunley, 2011). The Model Penal Code makes an exception for “premises…open to the public” or when the defendant is “licensed or privileged to enter” (Model Penal Code § 221.1(1)). Remaining means that the defendant lingers in the burglarized area after an initial lawful or unlawful entry (State v. Allen, 2011).

Example of Burglary Act

Jed uses a burglar tool to remove the window screen of a residence. The window is open, so once Jed removes the screen, he places both hands on the sill, and begins to launch himself upward. The occupant of the residence, who was watching Jed from inside, slams the window down on Jed’s hands. Jed has probably committed the criminal act element required for burglary in many jurisdictions. When Jed removed the window screen, he committed a breaking. When Jed placed his hands on the windowsill, his fingers intruded into the residence, which satisfies the entry requirement. Thus Jed may be subject to a prosecution for burglary rather than attempted burglary, even though he never actually damaged or broke the barrier of the residence or managed to gain complete access to the interior.

Burglary Intent

Depending on the jurisdiction, the criminal intent element required for burglary is typically the general intent or knowingly to commit the criminal act, with the specific intent or purposely to commit a felony (Mass. Gen. Laws ch. 266 § 14, 2011), any crime (Connecticut Criminal Jury Instructions §53a-102, 2011), or a felony, grand, or petty theft once inside the burglarized area (Cal. Penal Code § 459, 2011). The Model Penal Code describes the criminal intent element as “purpose to commit a crime therein” (Model Penal Code § 221.1(1)).

Example of a Case Lacking Burglary Intent

Hans dares Christian to break into a house in their neighborhood that is reputed to be “haunted.” Christian goes up to the front door of the house, shoves it open, steps inside the front hallway, and then hurriedly dashes back outside. Christian probably does not have the criminal intent element required for burglary in this scenario. Although Christian committed the criminal act of breaking and entering, Christian did not have the intent to commit a crime once inside. Christian’s conduct is probably criminal, but it is most likely a criminal trespass, not burglary. Criminal trespass is discussed in Section 11.3.2 “Criminal Trespass”.

Burglary Attendant Circumstances

Depending on the jurisdiction, burglary often includes the attendant circumstance that the area entered is a structure, building, or vehicle belonging to another (Oklahoma Uniform Jury Instructions No. CR 5-13, 2011). However, modern jurisdictions have eliminated the requirement that the property belong to another (Cal. Penal Code § 459, 2011) and prohibit burglarizing property owned by the defendant, such as a landlord burglarizing a tenant’s apartment. Some jurisdictions require a structure or building to be occupied (Iowa Code § 713.1, 2011), or require it to be a dwelling (Connecticut Criminal Jury Instructions §53a-102, 2011), and require a vehicle to be locked (Cal. Penal Code § 459, 2011). A few jurisdictions also retain the common-law attendant circumstance that the burglary take place at nighttime (Mass. Gen. Laws ch. 266 § 15, 2011).

Structure or building generally includes a house, room, apartment, shop, barn, or even a tent (Cal. Penal Code § 459, 2011). The Model Penal Code expressly excludes abandoned structures or buildings (Model Penal Code § 221.1(1)). A dwelling is a building used for lodging at night (Connecticut Criminal Jury Instructions § 53a-102, 2011). Occupied means that the structure or building can be used for business or for lodging at night and does not necessarily require the actual presence of a person or victim when the criminal act takes place (Iowa Code § 702.12). Nighttime means the time after sunset and before sunrise when it is too dark to clearly see a defendant’s face (State v. Reavis, 2011).

Example of Burglary Attendant Circumstances

Susan breaks down a door and steps inside a building with the intent to commit arson, a felony, once inside. If the building is an empty child’s tiny plastic playhouse, the attendant circumstance that the structure be occupied or a dwelling is lacking. If it is twelve noon, the attendant circumstance that the criminal act takes place at nighttime is lacking. If it is pitch black outside and 10 p.m. and the building is Susan’s ex-boyfriend’s residence, then Susan has most likely committed burglary and may be subject to prosecution for and conviction of this offense.

Diagram of Defenses to Burglary

Figure 11.8 Diagram of Defenses to Burglary

Burglary Grading

Burglary is typically divided into degrees (Iowa Code §§ 713.3, 713.5, 713.6A, 2011). First-degree burglary is generally a serious felony that can serve as the predicate felony for first-degree felony murder (Cal. Penal Code § 189, 2011) and a strike in states that have three strikes statutes (Cal. Penal Code § 1192.7, 2011). Factors that can elevate burglary grading are the use or possession of a weapon, the entry into a residence, dwelling, or building where people are present, the commission of burglary at nighttime, or the infliction of injury or death (Mass. Gen. Laws ch. 266 § 14, 2011). Second- and third-degree burglary generally are still felonies, although less serious than first-degree burglary (Ala. Code § 13A-7-7, 2011). The Model Penal Code grades burglary as a felony of the second degree if perpetrated in the dwelling of another at night, or if the actor purposely, knowingly, or recklessly inflicts or attempts to inflict bodily injury or is armed with explosives or a deadly weapon. Otherwise, the Model Penal Code grades burglary as a felony of the third degree (Model Penal Code § 221.1(2)).

Keep in mind that a defendant can be prosecuted for burglary even if the felony or crime intended after entry never takes place. In addition, if the defendant actually commits the felony or crime after entry, the defendant can be prosecuted for both burglary and the completed crime without violating the protection against double jeopardy in the Fifth Amendment to the federal Constitution. The Model Penal Code states that a “person may not be convicted both for burglary and for the offense which it was his purpose to commit after the burglarious entry…unless the additional offense constitutes a felony of the first or second degree” (Model Penal Code § 221.1(3)).

Criminal Trespass

As stated previously, criminal trespass is generally charged when one or more of the attendant circumstances of burglary are lacking or when the criminal intent is less heinous. 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) (18 Pa. C.S. § 3503, 2011). The Model Penal Code states that it is criminal trespass when the defendant “knowing that he is not licensed or privileged to do so…enters or surreptitiously remains in any building or occupied structure…or any place as to which notice against trespass is given” (Model Penal Code § 221.2). Criminal trespass is generally graded as a less serious felony than burglary or is graded as a misdemeanor if the trespass is into a place, rather than a building or occupied structure (18 Pa. C.S. § 3503, 2011). The Model Penal Code grades criminal trespass as a misdemeanor if it is committed in a dwelling at night; otherwise, it is graded as a petty misdemeanor or a violation (Model Penal Code § 221.2).

Arson

Arson is one of the most destructive crimes in the United States, costing billions of dollars per year in lost or damaged homes, businesses, and real property. Many jurisdictions punish arson as a high-level felony that could merit a punishment of life in prison and mandatory registration requirements similar to serious sex offenses (730 ILCS 148 § 10, 2011).

At early common law, arson was primarily a crime against habitation, rather than a crime against property. The elements of arson at common law were the malicious or intentional burning of a dwelling owned by another. Modern statutes criminalize burning almost anything, including the defendant’s own property in many instances.

Arson is a crime that has the elements of criminal act, criminal intent, attendant circumstances, causation, and harm, as is explored in Section 11.3.3 “Arson”.

Arson Act

The criminal act element required for arson is typically setting fire to or burning real or personal property specified in the arson statute (Cal. Penal Code § 451, 2011). This could include buildings, structures, land, and vehicles (Tex. Penal Code § 28.02, 2011). Some states define the criminal act element as “damaging” the specified property by fire or explosives (Ga. Code tit. 16 § 16-7-60, 2011). The Model Penal Code describes the criminal act element as starting a fire or causing an explosion (Model Penal Code § 220.1(1). The type or value of the property the defendant burns or damages can enhance grading. Grading is discussed shortly.

Example of Arson Act

Clark and Manny are bored and decide to light a fire in the woods near their houses. The grass is damp from a recent rain, so the fire does not spread and burns only a small circle of grass. Clark and Manny give up and walk home. Clark and Manny have probably committed the criminal act element required for arson in most jurisdictions. Although a large destructive fire was not set by Clark and Manny, the two did burn or damage real property and start a fire, which satisfies the criminal act requirement in most jurisdictions and under the Model Penal Code.

Arson Intent

The criminal intent element required for arson in many jurisdictions is the general intent or knowingly to commit the criminal act (Ga. Code tit. 16 § 16-7-60). Thus the defendant only needs the intent to burn or damage property specified in the arson statute; the defendant does not have to intend to burn a specific structure or personal property, even if that is the end result (People v. Atkins, 2011). The Model Penal Code requires starting a fire or causing an explosion “with the purpose of destroying a building or occupied structure of another; or destroying or damaging any property…to collect insurance for such loss” (Model Penal Code § 220.1(1)).

Example of Arson Intent

Review the example with Clark and Manny in Section 11 “Example of Arson Act”. Change this example so that Clark and Manny leave the area and a tiny spark from the fire they set begins to ignite. After a few hours, a large and powerful fire starts and burns thousands of acres in the forest. Clark and Manny most likely have the criminal intent element required for arson in many jurisdictions. Although Clark and Manny did not necessarily want to burn thousands of acres of forest land, they did intentionally or knowingly start a fire in the forest, which is all that many modern arson statutes require. Thus even though Clark and Manny did not intend the end result, Clark and Manny are probably subject to prosecution for and conviction of arson for their conduct.

Arson Attendant Circumstances

In most jurisdictions, arson must burn a specific type of property. Although this can be interpreted as an attendant circumstance, it is also a function of grading. Thus first-degree arson may focus on arson of a dwelling (Vt. Stat. Ann. tit. 13 § 502, 2011), while second-degree arson focuses on arson of other property (Vt. Stat. Ann. tit 13 § 503, 2011). Many jurisdictions do not require the attendant circumstance that property “belongs to another,” and therefore the defendant can burn his or her own property and still be guilty of arson. However, the defendant must generally burn his or her property with the specific intent or purposely to defraud for the burning to constitute arson (Ga. Code tit. 16 § 16-7-62, 2011). The Model Penal Code requires “destroying or damaging any property, whether his own or another’s, to collect insurance for such loss” (Model Penal Code § 220.1(b)).

Example of a Case Lacking Arson Intent for Burning the Defendant’s Property

Tim decides he wants to get rid of all the reminders of his ex-girlfriend. Tim piles all the photographs, gifts, and clothing items that are connected to his relationship with his ex into his fireplace and burns them. In this scenario, Tim probably does not have the criminal intent element required for arson in most jurisdictions. Although Tim burned or damaged property, the property belongs to Tim, not another. Thus Tim must burn the property with the specific intent or purposely to defraud—most likely an insurance carrier. Tim burned his own property with only general intent or knowingly, so Tim may not be charged with and convicted of arson in most jurisdictions.

Arson Causation

The criminal act must be the factual and legal cause of arson harm, which Section 11 “Example of Arson Causation” defines. As stated previously, the defendant does not have to intend to burn a specific structure or personal property, even if that is the end result in many jurisdictions. However, there must be a causation analysis in every arson case because arson is a crime that requires a bad result or harm. Thus the arson harm must be reasonably foreseeable at the time the defendant commits the criminal act with the accompanying criminal intent.

Example of Arson Causation

Review the example with Clark and Manny in Section 11 “Example of Arson Intent”. In this example, Clark and Manny try to light a fire in the forest, but the grass is too damp, so they give up and leave the area. Hours later, a spark from their fire ignites, burning thousands of acres. Clark and Manny could be the factual and legal cause of this harm in many jurisdictions. Even though the grass was damp and difficult to burn, a trier of fact could find that it is reasonably foreseeable when lighting a fire in the forest that the fire could turn into a massive and destructive blaze. Thus Clark and Manny’s act accompanied by the general intent or knowingly to burn caused significant harm, and Clark and Manny may be subject to prosecution for arson in this case.

Arson Harm

The harm element required for arson is burning, charring, or damage to the property specified in the arson statute. Damage could be damage to even a small part (California Criminal Jury Instructions No. 1515, 2011), and in the most extreme cases, even smoke damage without burning or charring is sufficient (Ursulita v. State, 2011). The Model Penal Code only requires starting a fire or causing an explosion with the appropriate criminal intent, regardless of whether damage to real or personal property ensues (Model Penal Code § 220.1(1)). Some states follow the Model Penal Code approach (Tex. Penal Code § 28.02, 2011).

Example of Arson Harm

Review the example with Clark and Manny in Section 11 “Example of Arson Act”. In this example, Clark and Manny started a fire in the woods that burned a small circle of dead grass. This damage is probably sufficient to constitute the harm for arson in most jurisdictions. Although the value of the damaged forest land is not excessive, excessive damage is not typically a requirement under modern arson statutes—any damage is enough. Thus Clark and Manny may be subject to a prosecution for and conviction of this offense in most jurisdictions.

Diagram of Defenses to Arson

Figure 11.9 Diagram of Defenses to Arson

Arson Grading

Arson is typically divided into degrees (Ga. Code tit. 16 § 16-7-60, 2011), or simple and aggravated (Cal. Penal Code § 451.5, 2011). Factors that can elevate grading are the burning or damage of another’s dwelling (Ga. Code tit. 16 § 16-7-60, 2011), bodily injury or death (Connecticut Criminal Jury Instructions § 53a-111, 2011), extensive property damage, or damage to property of high value (Cal. Penal Code § 451.5, 2011). As stated previously, arson is a serious felony that can result in a sentence of life in prison and mandatory registration requirements similar to serious sex offenses (730 ILCS § 10, 2011). Arson is also generally a strike in states that have three strikes statutes (Cal. Penal Code § 1192.7, 2011) and a predicate felony for first-degree felony murder (Cal. Penal Code § 189, 2010). Many jurisdictions grade even simple arson or second or third-degree arson as a felony (Cal. Penal Code § 451, 2011). The Model Penal Code grades arson as a felony of the second degree (Model Penal Code § 220.1).

Criminal Mischief

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 (Ala. Code § 13A-7-21, 2011), destroying, interfering with (Or. Rev. Stat. § 164.365, 2011), or tampering with (Alaska Stat. § 11.46.480, 2011) 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, general intent or knowingly, reckless, or negligent (18 Pa.C.S. § 3304, 2011). 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 (Alaska Stat. § 11.46.475, 2011). 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 (Alaska Stat. § 11.46.475, 2011), or loss of property or money by deception such as causing the victim to purchase a worthless product (18 Pa.C.S. § 3304, 2011). As stated previously, criminal mischief is often a less serious felony than arson and could also be graded as a gross misdemeanor or misdemeanor (18 Pa.C.S. § 3304, 2011). Factors that could elevate grading of criminal mischief are the extent of the property damage and the severity of the defendant’s criminal intent (18 Pa.C.S. § 3304, 2011). 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).

Diagram of Crimes That Invade or Damage Property, including burglary, criminal trespass, arson, and criminal mischief

Figure 11.10 Diagram of Crimes That Invade or Damage Property

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 or personal property. In most jurisdictions, if the defendant burns his or her own property, the defendant must act with the specific intent or 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 misdemeanor 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 Butler v. Florida, No. 1D08-0958 (Fla: Dist. Court of Appeals, 2009). In Butler, 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 the Matter of 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 basis 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 whistleblower 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 (Khatchadourian, R., 2011). The New York Times published some of this information (Savage, C., 2011). 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 (Savage, C., 2011).

  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.

WikiLeaks Video

60 Minutes Interviews Julian Assange

Julian Assange’s interview with 60 Minutes is shown in the following video:

(click to see video)

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