11.4: Criminal Mischief

Criminal mischief, frequently referred to as vandalism, prohibits damaging or destroying property of another. As you will see, in some cases, criminal mischief can be classified as terrorism – i.e., the use of force to intimidate others for social or political reasons. Criminal mischief is divided into five degrees, ranging from first-degree criminal mischief (a class A felony) to fifth-degree criminal mischief (a class B misdemeanor).

In most cases, criminal mischief is a specific intent crime. The defendant must intend to damage, destroy, or interfere with property of another. But the statutory scheme also requires the government to prove that the defendant did not have the right or any reasonable ground to believe they had a right to damage, destroy, or interfere with the property. See AS 11.46.475-486. This absolves the defendant of criminal liability in those situations where the defendant reasonably believed they were entitled to destroy or damage the property.

Criminal Mischief in the First Degree is the most serious form of criminal mischief and covers three forms of destructive conduct. AS 11.46.475. First, if a person intentionally damages an oil or gas pipeline or supporting facility, the person is guilty of first-degree criminal mischief. The law does not require the damage to exceed a certain amount. Any intentional damage to a pipeline or supporting facility is covered. Thus, intentional, but minor, damage to the pipeline and acts of terror that disrupt the nation’s oil production capacity, are covered.

One Guy, One Rifle and an Oil Pipeline, LA Times, October 21, 2001

Although prosecutions of intentionally damaging an oil pipeline are rare, they do occur. In October of 2001, Daniel Lewis shot a hole in the Trans-Alaska Pipeline. The shot punctured the pipeline and caused oil to spill onto the ground. Lewis was convicted of several offenses for his conduct (both in state and federal court), including first-degree criminal mischief, oil pollution, fourth-degree weapons misconduct (for recklessly discharging a firearm), and felon-in-possession. For a complete factual description of the case and the surrounding legal issues, see Lewis v. State, 2007 WL 293079 (Alaska App. 2007).

First-degree criminal mischief also includes a person intentionally causing a substantial interruption of a utility service and a person intentionally damaging property of another by the use of “widely dangerous means,” causing over $100,000 in damages. AS 11.46.475(a)(2)-(a)(3). There is no requirement that the defendant intend to cause over $100,000 in damages, only that they intend to damage property of another. Widely dangerous means is defined to mean any difficult-to-confine force such as an avalanche, radioactive material, bacteria, or flood used to cause substantial property damage. AS 11.46.495(8). For example, if an eco-terrorism group disables a dam to interfere with a commercial development, the group members would be guilty of first-degree criminal mischief even if they thought their actions would only cause a minor disruption (assuming that the actual damage exceeded $100,000). First-degree criminal mischief is punishable by up to 20 years imprisonment.

Criminal Mischief in the Second Degree criminalizes specific forms of tampering with property of another. AS 11.46.482. First, a person is liable if they tamper with an oil or gas pipeline, an airplane, or a helicopter with reckless disregard for the risk of harm to, or loss of, property. The statute does not require that the pipeline, airplane, or helicopter be damaged. The defendant need only tamper with the property. Tamper is defined as interfering with something improperly, meddling with it, or making unwarranted alternations to its existing condition. AS 11.46.495(5). Second, the crime is committed if a person tampers with food, air, water, or drugs with the intent to harm any person. Second-degree criminal mischief is punishable by up to 10 years imprisonment.

Criminal Mischief in the Third Degree can be recognized as the code’s general felony vandalism statute. AS 11.46.482. A defendant who intentionally damages property of another in excess of $750, is guilty of third-degree criminal mischief, a class C felony offense. The statute also criminalizes some less known conduct. The statute also punishes a person who recklessly creates a risk of damage exceeding $100,000 to property of another by the use of widely dangerous means. This is similar to first-degree criminal mischief, but does not require that the defendant actually cause the damage. The reckless creation of the risk of damage in excess of $100,000 is sufficient to create criminal liability. The statute also criminalizes the knowing desecration of a tomb, grave, or cemetery.

Criminal Mischief in the Fourth Degree is a misdemeanor and covers significant, but less serious destructive conduct. First, if a person intentionally damages property of another in excess of $250 but less than $750, the person is guilty of fourth-degree criminal mischief. This covers serious but not extensive vandalism. The statute also criminalizes tampering with a fire protection device in a public building, knowingly shooting at a traffic sign, and knowingly accessing a computer, computer system, or computer network without authorization. AS 11.46.484(a).

The least serious criminal mischief is Criminal Mischief in the Fifth Degree. AS 11.46.486. The statute covers low value vandalism (under $250) and tampering with any property of another with reckless disregard for the risk of harm to the property or with the intent to cause a substantial inconvenience to another. For example, letting the air out of a person’s tires would be covered under this statute if the prosecution could establish that the defendant intended to cause a substantial inconvenience to the owner.

Bergman v. State, 366 P.3d 542 (Alaska App. 2016)

Damage is an essential element of most theories of criminal mischief – if a person intentionally damages property of another, they are guilty of criminal mischief. The value or type of property will determine the degree of criminal mischief. Damage, however, is an undefined term under Alaska law. How is the jury supposed to determine if property was damaged as opposed to improved? The following case answers that question for us.

366 P.3d 542
Court of Appeals of Alaska.
Kevin M. BERGMAN, Appellant,
v.
STATE of Alaska, Appellee.
Jan. 29, 2016.

OPINION
Judge MANNHEIMER.

Kevin M. Bergman was convicted of two counts of third-degree criminal mischief—one count for vandalizing mining equipment belonging to another man, and one count for bulldozing three miles of a wilderness trail located on state and borough land near Fairbanks, widening it into a road that was accessible to motor vehicles.

In this appeal, Bergman contends that the evidence presented at his trial was not legally sufficient to support these two convictions.

[…]

With respect to the count involving the bulldozing of the wilderness trail to widen it and facilitate vehicle access, Bergman argues that the evidence failed to establish that he acted with the culpable mental state required by the statute defining the offense.

Bergman was charged under AS 11.46.482(a)(1). At the time of Bergman’s offense, this statute declared that a person commits the crime of third-degree criminal mischief if, (1) acting with the intent to damage property of another, and (2) having no right to do so, nor any reasonable ground to believe that they have the right to do so, the person (3) damages the property of another in an amount of $500 or more.

Bergman argues that the evidence at his trial was legally insufficient to establish the first of these elements—i.e., to prove that he acted with the intent to “damage property of another”. Bergman asserts that the evidence unequivocally established that his intention in bulldozing the trail was not to damage it, but rather to improve it.

We reject Bergman’s claim because we conclude that the word “damage” in our criminal mischief statute must be interpreted so as to protect an owner’s interest in using or enjoying the property as the owner sees fit—free from alterations that other people might wish to perform to make the property “better”.

One analogous case we found is People v. Misevis, 155 A.D.2d 729, 547 N.Y.S.2d 439 (1989), where a defendant was convicted of criminal mischief for hiring a contractor to widen a public road without consulting the town government. The contractor removed trees and fences along the roadway and pushed them (as well as other debris) onto adjoining private property.

The defendant was prosecuted under a New York statute that required the government to prove that he acted “with intent to damage property of another person”. The New York appeals court concluded that the jury could reasonably find that this element was proved because the defendant knew that the road belonged to the town, and knew that he had no authority to alter the road.

Similarly, in People v. Suarez, unreported, 32 Misc.3d 132(A), 2011 WL 3249266 (N.Y.App.2011), a New York appeals court upheld the conviction of a defendant who, without permission, decided to beautify his neighbor’s Belgian block wall by spray-painting it to alter its color.

[…]

Bergman’s case is analogous to these decisions. Even under Bergman’s version of events, he intentionally altered the trail without the landowners’ permission, and this alteration significantly impaired the landowners’ interests. (According to the testimony at Bergman’s trial, the two landowners—the state and the borough—spent more than $18,000 to restore the trail.) Bergman therefore acted with an intent to “damage” the property for purposes of our criminal mischief statute.

The judgement of the superior court is AFFIRMED.