{"id":1317,"date":"2017-09-27T17:44:14","date_gmt":"2017-09-27T17:44:14","guid":{"rendered":"https:\/\/courses.lumenlearning.com\/suny-fmcc-criminallaw\/?post_type=chapter&p=1317"},"modified":"2019-07-05T17:52:59","modified_gmt":"2019-07-05T17:52:59","slug":"11-3-crimes-that-invade-or-damage-property","status":"publish","type":"chapter","link":"https:\/\/courses.lumenlearning.com\/suny-criminallaw\/chapter\/11-3-crimes-that-invade-or-damage-property\/","title":{"raw":"11.3 Crimes That Invade or Damage Property","rendered":"11.3 Crimes That Invade or Damage Property"},"content":{"raw":"
\r\n

Learning Objectives<\/h3>\r\n
    \r\n \t
  1. Define the criminal act element required for burglary.<\/li>\r\n \t
  2. Define the criminal intent element required for burglary.<\/li>\r\n \t
  3. Define the attendant circumstances required for burglary.<\/li>\r\n \t
  4. Analyze burglary grading.<\/li>\r\n \t
  5. Define the elements of criminal trespass, and analyze criminal trespass grading.<\/li>\r\n \t
  6. Define the criminal act element required for arson.<\/li>\r\n \t
  7. Define the criminal intent element required for arson.<\/li>\r\n \t
  8. Define the attendant circumstances required for arson.<\/li>\r\n \t
  9. Define the harm element required for arson.<\/li>\r\n \t
  10. Analyze arson grading.<\/li>\r\n \t
  11. Define the elements of criminal mischief, and analyze criminal mischief grading.<\/li>\r\n<\/ol>\r\n<\/div>\r\n
    \r\n

    Burglary<\/h3>\r\n

    Although burglary<\/a><\/span> is often associated with theft, it is actually an enhanced form of trespassing. At early common law, burglary was the invasion of a man\u2019s castle at nighttime, with a sinister purpose. Modern jurisdictions have done away with the common-law attendant circumstances and criminalize the unlawful entry<\/strong> into almost any structure<\/em> or vehicle<\/em>, at any time<\/em> of day. Burglary has the elements of criminal act, criminal intent, and attendant circumstances, as is explored in Section 11.3.1 \"Burglary\"<\/a>.<\/p>\r\n\r\n

    \r\n

    Burglary Act<\/h3>\r\n

    The criminal act<\/strong> 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 \u00a7 14, 2011). Some jurisdictions and the Model Penal Code only require entering (Model Penal Code \u00a7\u00a0221.1). Other jurisdictions include remaining<\/strong> in the criminal act element (Fla. Stat. Ann. \u00a7 810.02(b)).<\/p>\r\n

    When criminal breaking is required, generally any<\/em> physical force used to enter the burglarized area is sufficient\u2014even pushing open a closed door (Commonwealth v. Hallums, 2011). Entry<\/strong> is generally partial or complete intrusion of either the defendant, the defendant\u2019s body part, or a tool or instrument (People v. Nible, 2011). In some jurisdictions, the entry must be unauthorized<\/em> (State v. Hall, 2011), while in others, it could be lawful<\/em> (People v. Nunley, 2011). The Model Penal Code makes an exception for \u201cpremises\u2026open to the public\u201d or when the defendant is \u201clicensed or privileged to enter\u201d (Model Penal Code \u00a7\u00a0221.1(1)). Remaining<\/strong> means that the defendant lingers in the burglarized area after an initial lawful or unlawful entry (State v. Allen, 2011).<\/p>\r\n\r\n

    \r\n

    Example of Burglary Act<\/h3>\r\n

    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\u2019s 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<\/strong>. When Jed placed his hands on the windowsill, his fingers intruded into the residence, which satisfies the entry<\/strong> requirement. Thus Jed may be subject to a prosecution for burglary rather than attempted<\/em> burglary, even though he never actually damaged or broke the barrier of the residence or managed to gain complete access to the interior.<\/p>\r\n\r\n<\/div>\r\n<\/div>\r\n

    \r\n

    Burglary Intent<\/h3>\r\n

    Depending on the jurisdiction, the criminal intent element required for burglary is typically the general intent<\/strong> or knowingly<\/strong> to commit the criminal act, with the specific intent<\/strong> or purposely<\/strong> to commit a felony (Mass. Gen. Laws ch. 266 \u00a7 14, 2011), any crime (Connecticut Criminal Jury Instructions \u00a753a-102, 2011), or a felony, grand, or petty theft once inside the burglarized area (Cal. Penal Code \u00a7 459, 2011). The Model Penal Code describes the criminal intent element as \u201cpurpose to commit a crime therein\u201d (Model Penal Code \u00a7\u00a0221.1(1)).<\/p>\r\n\r\n

    \r\n

    Example of a Case Lacking Burglary Intent<\/h3>\r\n

    Hans dares Christian to break into a house in their neighborhood that is reputed to be \u201chaunted.\u201d 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\u2019s conduct is probably criminal, but it is most likely a criminal trespass<\/strong>, not<\/em> burglary<\/strong>. Criminal trespass is discussed in Section 11.3.2 \"Criminal Trespass\"<\/a>.<\/p>\r\n\r\n<\/div>\r\n<\/div>\r\n

    \r\n

    Burglary Attendant Circumstances<\/h3>\r\n

    Depending on the jurisdiction, burglary often includes the attendant circumstance<\/strong> 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 \u00a7 459, 2011) and prohibit burglarizing property owned by the defendant<\/em>, such as a landlord burglarizing a tenant\u2019s apartment. Some jurisdictions require a structure or building to be occupied (Iowa Code \u00a7 713.1, 2011), or require it to be a dwelling (Connecticut Criminal Jury Instructions \u00a753a-102, 2011), and require a vehicle to be locked<\/em> (Cal. Penal Code \u00a7 459, 2011). A few jurisdictions also retain the common-law attendant circumstance that the burglary take place at nighttime (Mass. Gen. Laws ch. 266 \u00a7 15, 2011).<\/p>\r\n

    Structure or building generally includes a house, room, apartment, shop, barn, or even a tent (Cal. Penal Code \u00a7 459, 2011). The Model Penal Code expressly excludes abandoned<\/em> structures or buildings (Model Penal Code \u00a7\u00a0221.1(1)). A dwelling is a building used for lodging at night (Connecticut Criminal Jury Instructions \u00a7 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 \u00a7 702.12). Nighttime means the time after sunset and before sunrise when it is too dark to clearly see a defendant\u2019s face (State v. Reavis, 2011).<\/p>\r\n\r\n

    \r\n

    Example of Burglary Attendant Circumstances<\/h3>\r\n

    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\u2019s tiny plastic playhouse, the attendant circumstance that the structure be occupied<\/strong> or a dwelling<\/strong> is lacking. If it is twelve noon, the attendant circumstance that the criminal act takes place at nighttime<\/strong> is lacking. If it is pitch black outside and 10 p.m. and the building is Susan\u2019s ex-boyfriend\u2019s residence, then Susan has most likely committed burglary and may be subject to prosecution for and conviction of this offense.<\/p>\r\n\r\n

    \r\n\r\n[caption id=\"\" align=\"aligncenter\" width=\"1817\"]\"Diagram Figure 11.8<\/strong> Diagram of Defenses to Burglary[\/caption]\r\n\r\n<\/div>\r\n<\/div>\r\n<\/div>\r\n
    \r\n

    Burglary Grading<\/h3>\r\n

    Burglary is typically divided into degrees (Iowa Code \u00a7\u00a7 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 \u00a7 189, 2011) and a strike in states that have three strikes statutes (Cal. Penal Code \u00a7 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 \u00a7 14, 2011). Second- and third-degree burglary generally are still felonies, although less serious than first-degree burglary (Ala. Code \u00a7 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 \u00a7\u00a0221.1(2)).<\/p>\r\n

    Keep in mind that a defendant can be prosecuted for burglary even if the felony or crime intended after entry never takes place<\/em>. In addition, if the defendant actually commits the felony or crime after entry, the defendant can be prosecuted for both<\/em> 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 \u201cperson may not be convicted both for burglary and for the offense which it was his purpose to commit after the burglarious entry\u2026unless the additional offense constitutes a felony of the first or second degree\u201d (Model Penal Code \u00a7\u00a0221.1(3)).<\/p>\r\n\r\n<\/div>\r\n<\/div>\r\n

    \r\n

    Criminal Trespass<\/h3>\r\n

    As stated previously, criminal trespass<\/a><\/span> 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<\/strong>) entry or remaining (criminal act<\/strong>) into a building, occupied structure, or place as to which notice against trespassing is given, owned by another (attendant circumstance<\/strong>), with general intent<\/strong> or knowingly<\/strong> that the entry was unauthorized (criminal intent) (18 Pa. C.S. \u00a7 3503, 2011). The Model Penal Code states that it is criminal trespass when the defendant \u201cknowing that he is not licensed or privileged to do so\u2026enters or surreptitiously remains in any building or occupied structure\u2026or any place as to which notice against trespass is given\u201d (Model Penal Code \u00a7\u00a0221.2). Criminal trespass is generally graded<\/strong> 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. \u00a7 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 \u00a7\u00a0221.2).<\/p>\r\n\r\n<\/div>\r\n

    \r\n

    Arson<\/h3>\r\n

    Arson<\/a><\/span> 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 \u00a7 10, 2011).<\/p>\r\n

    At early common law, arson was primarily a crime against habitation<\/strong>, 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<\/em>, including the defendant\u2019s own property in many instances.<\/p>\r\n

    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\"<\/a>.<\/p>\r\n\r\n

    \r\n

    Arson Act<\/h3>\r\n

    The criminal act<\/strong> element required for arson is typically setting fire to or burning real or personal property specified in the arson statute (Cal. Penal Code \u00a7 451, 2011). This could include buildings, structures, land, and vehicles (Tex. Penal Code \u00a7 28.02, 2011). Some states define the criminal act element as \u201cdamaging\u201d the specified property by fire or explosives (Ga. Code tit. 16 \u00a7 16-7-60, 2011). The Model Penal Code describes the criminal act element as starting a fire or causing an explosion (Model Penal Code \u00a7\u00a0220.1(1). The type<\/strong> or value<\/strong> of the property the defendant burns or damages can enhance grading. Grading is discussed shortly.<\/p>\r\n\r\n

    \r\n

    Example of Arson Act<\/h3>\r\n

    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.<\/p>\r\n\r\n<\/div>\r\n<\/div>\r\n

    \r\n

    Arson Intent<\/h3>\r\n

    The criminal intent element required for arson in many jurisdictions is the general intent<\/strong> or knowingly<\/strong> to commit the criminal act (Ga. Code tit. 16 \u00a7 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<\/em> 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 \u201cwith the purpose of destroying a building or occupied structure of another; or destroying or damaging any property\u2026to collect insurance for such loss\u201d (Model Penal Code \u00a7\u00a0220.1(1)).<\/p>\r\n\r\n

    \r\n

    Example of Arson Intent<\/h3>\r\n

    Review the example with Clark and Manny in Section 11 \"Example of Arson Act\"<\/a>. 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<\/em> to burn thousands of acres of forest land, they did intentionally<\/strong> or knowingly<\/strong> 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.<\/p>\r\n\r\n<\/div>\r\n<\/div>\r\n

    \r\n

    Arson Attendant Circumstances<\/h3>\r\n

    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<\/strong>. Thus first-degree arson may focus on arson of a dwelling (Vt. Stat. Ann. tit. 13 \u00a7 502, 2011), while second-degree arson focuses on arson of other property (Vt. Stat. Ann. tit 13 \u00a7 503, 2011). Many jurisdictions do not<\/em> require the attendant circumstance that property \u201cbelongs to another,\u201d 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<\/strong> or purposely<\/strong> to defraud<\/em> for the burning to constitute arson (Ga. Code tit. 16 \u00a7 16-7-62, 2011). The Model Penal Code requires \u201cdestroying or damaging any property, whether his own or another\u2019s, to collect insurance for such loss\u201d (Model Penal Code \u00a7\u00a0220.1(b)).<\/p>\r\n\r\n

    \r\n

    Example of a Case Lacking Arson Intent for Burning the Defendant\u2019s Property<\/h3>\r\n

    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<\/em> have the criminal intent element required for arson in most jurisdictions. Although Tim burned or damaged property, the property belongs to Tim<\/em>, not another. Thus Tim must burn the property with the specific intent<\/strong> or purposely<\/strong> to defraud\u2014most likely an insurance carrier. Tim burned his own property with only general intent<\/strong> or knowingly<\/strong>, so Tim may not be charged with and convicted of arson in most jurisdictions.<\/p>\r\n\r\n<\/div>\r\n<\/div>\r\n

    \r\n

    Arson Causation<\/h3>\r\n

    The criminal act must be the factual<\/strong> and legal cause<\/strong> of arson harm, which Section 11 \"Example of Arson Causation\"<\/a> defines. As stated previously, the defendant does not have to intend<\/em> 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<\/strong> must be reasonably foreseeable<\/em> at the time the defendant commits the criminal act with the accompanying criminal intent.<\/p>\r\n\r\n

    \r\n

    Example of Arson Causation<\/h3>\r\n

    Review the example with Clark and Manny in Section 11 \"Example of Arson Intent\"<\/a>. 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<\/strong> and legal cause<\/strong> 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\u2019s act accompanied by the general intent or knowingly to burn caused<\/strong> significant harm, and Clark and Manny may be subject to prosecution for arson in this case.<\/p>\r\n\r\n<\/div>\r\n<\/div>\r\n

    \r\n

    Arson Harm<\/h3>\r\n

    The harm<\/strong> 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 \u00a7\u00a0220.1(1)). Some states follow the Model Penal Code approach (Tex. Penal Code \u00a7 28.02, 2011).<\/p>\r\n\r\n

    \r\n

    Example of Arson Harm<\/h3>\r\n

    Review the example with Clark and Manny in Section 11 \"Example of Arson Act\"<\/a>. In this example, Clark and Manny started a fire in the woods that burned a small circle of dead grass. This damage<\/strong> is probably sufficient to constitute the harm for arson in most jurisdictions. Although the value of the damaged forest land is not excessive<\/em>, excessive damage is not typically a requirement under modern arson statutes\u2014any<\/em> damage is enough. Thus Clark and Manny may be subject to a prosecution for and conviction of this offense in most jurisdictions.<\/p>\r\n\r\n

    \r\n
    \r\n\r\n[caption id=\"\" align=\"aligncenter\" width=\"1254\"]\"Diagram Figure 11.9<\/strong> Diagram of Defenses to Arson[\/caption]\r\n\r\n<\/div>\r\n<\/div>\r\n<\/div>\r\n<\/div>\r\n
    \r\n

    Arson Grading<\/h3>\r\n

    Arson is typically divided into degrees (Ga. Code tit. 16 \u00a7 16-7-60, 2011), or simple and aggravated (Cal. Penal Code \u00a7 451.5, 2011). Factors that can elevate grading<\/strong> are the burning or damage of another\u2019s dwelling (Ga. Code tit. 16 \u00a7 16-7-60, 2011), bodily injury or death (Connecticut Criminal Jury Instructions \u00a7 53a-111, 2011), extensive property damage, or damage to property of high value (Cal. Penal Code \u00a7 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 \u00a7 10, 2011). Arson is also generally a strike in states that have three strikes statutes (Cal. Penal Code \u00a7 1192.7, 2011) and a predicate felony for first-degree felony murder (Cal. Penal Code \u00a7 189, 2010). Many jurisdictions grade even simple arson or second or third-degree arson as a felony (Cal. Penal Code \u00a7 451, 2011). The Model Penal Code grades arson as a felony of the second degree (Model Penal Code \u00a7\u00a0220.1).<\/p>\r\n\r\n<\/div>\r\n<\/div>\r\n

    \r\n

    Criminal Mischief<\/h3>\r\n

    Criminal mischief<\/a><\/span> 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<\/strong> element required for criminal mischief is damaging (Ala. Code \u00a7 13A-7-21, 2011), destroying, interfering with (Or. Rev. Stat. \u00a7 164.365, 2011), or tampering with (Alaska Stat. \u00a7 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<\/strong> or purposely<\/strong>, general intent<\/strong> or knowingly<\/strong>, reckless<\/strong>, or negligent<\/strong> (18 Pa.C.S.\u00a0\u00a7 3304, 2011). The attendant circumstances<\/strong> 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. \u00a7 11.46.475, 2011). The harm<\/strong> 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. \u00a7 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. \u00a7 3304, 2011). As stated previously, criminal mischief is often a less serious<\/em> felony than arson and could also be graded as a gross misdemeanor or misdemeanor (18 Pa.C.S. \u00a7 3304, 2011). Factors that could elevate grading<\/strong> of criminal mischief are the extent of the property damage and the severity of the defendant\u2019s criminal intent (18 Pa.C.S. \u00a7 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 \u00a7\u00a0220.3).<\/p>\r\n\r\n

    \r\n
    \r\n\r\n[caption id=\"\" align=\"aligncenter\" width=\"3500\"]\"Diagram Figure 11.10<\/strong> Diagram of Crimes That Invade or Damage Property[\/caption]\r\n\r\n<\/div>\r\n<\/div>\r\n
    \r\n

    Key Takeaways<\/h3>\r\n