Criminal Mischief — C.R.S. 18-4-501

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Note that this statute was amended to make destruction of jointly-owned property a crime after Avalanche goalie Patrick Roy broke some French doors in his house on October 22, 2000, during an argument with his wife. The case was dismissed because it wasn't against the law to break one's own personal property.

It is now a crime of domestic violence for a man to deliberately damage jointly-owned personal property.

18-4-501. Criminal mischief.

(1) Any person who knowingly damages the real or personal property of one or more other persons, including property owned by the person jointly with another person or property owned by the person in which another person has a possessory or proprietary interest, in the course of a single criminal episode commits a class 3 misdemeanor where the aggregate damage to the real or personal property is less than one hundred dollars. Where the aggregate damage to the real or personal property is one hundred dollars or more but less than five hundred dollars, such person commits a class 2 misdemeanor. Where the aggregate damage to the real or personal property is five hundred dollars or more but less than fifteen thousand dollars, such person commits a class 4 felony. Where the aggregate damage to the real or personal property is fifteen thousand dollars or more, such person commits a class 3 felony.

(2) If the court determines on the record that the underlying factual basis for any conviction of criminal mischief pursuant to subsection (1) of this section, or adjudication as a juvenile delinquent for an act that would constitute criminal mischief pursuant to subsection (1) of this section if committed by an adult, involves defacing property as described in section 18-4-509 (2), the offender's driver's license shall be revoked as provided in section 42-2-125, C.R.S.

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Source: L. 71: R&RE, p. 431, § 1. C.R.S. 1963: § 40-4-501. L. 77: Entire section amended, p. 963, § 25, effective July 1. L. 81: Entire section amended, p. 975, § 12, effective July 1. L. 84: Entire section amended, p. 537, § 9, effective July 1, 1985. L. 92: Entire section amended, p. 435, § 5, effective April 10. L. 98: Entire section amended, p. 1438, § 14, effective July 1; Entire section amended, p. 795, § 5, effective July 1. L. 99: Entire section amended, p. 391, § 1, effective July 1. L. 2002: (1) amended, p. 1581, § 7, effective July 1.

Editor's note: Section 31 of chapter 322, Session Laws of Colorado 2002, provides that the act amending subsection (1) applies to offenses committed on or after July 1, 2002.

Am. Jur.2d. See 52 Am. Jur.2d, Malicious Mischief, § 1.

C.J.S. See 54 C.J.S., Malicious Mischief, § § 3-5, 8.

Annotator's note. Since § 18-4-501 is similar to former § § 49-18-1 and 40-18-5, C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

Law reviews. For article, “Highlights of the 1955 Legislative Session — Criminal Law and Procedure”, see 28 Rocky Mt. L. Rev. 69 (1955). For article, “One Year Review of Criminal Law and Procedure”, see 39 Dicta 81 (1962).

This section is criminal, and it is not its province to make simply the intentional doing of an unlawful act, which injures another's property, a crime, independent of any evil purpose or intention. Mayn v. People, 56 Colo. 170, 136 P. 1016 (1913); Koch v. People, 71 Colo. 119, 204 P. 332 (1922); Schtul v. People, 96 Colo. 217, 40 P.2d 970 (1935).

Civil prosecution for same acts prohibited by this section has no part in a prosecution under this section. Mayn v. People, 56 Colo. 170, 136 P. 1016 (1913).

There must exist criminal intention. In a prosecution under this section for injury occasioned to a bridge, there can be no conviction, unless a criminal intention on the part of the accused appears. Mayn v. People, 56 Colo. 170, 136 P. 1016 (1913); Schtul v. People, 96 Colo. 217, 40 P.2d 970 (1935).

Criminal intent need not be expressly proved in criminal mischief cases, but may be implied or inferred from the surrounding facts and circumstances or from the relation existing between the defendant and the owner of the property injured or destroyed. Schtul v. People, 96 Colo. 217, 40 P.2d 970 (1935).

It must be the direct and not incidental object of an act. Neither the mere concealment of the crime, the omitting of the performance of a statutory duty, nor the mere intentional doing of an act prohibited by statute, constitutes criminal mischief, although it may damage the property of another. A conspiracy with a fraudulent or malicious intent wrongfully to injure the property of another is punishable. The mischief must be the direct object of the act, and not incidental to some other lawful or unlawful act, or must be the natural consequence of the act. Schtul v. People, 96 Colo. 217, 40 P.2d 970 (1935).

Abandonment is no defense to completed crime of criminal mischief. People v. Johnson, 41 Colo. App. 220, 585 P.2d 306 (1978).

The damage element in criminal mischief relates to economic loss caused by the knowing infliction of damage to the real or personal property of another. People v. Dunoyair, 660 P.2d 890 (Colo. 1983).

Value is an essential element of felony criminal mischief. People v. Cisneros, 193 Colo. 380, 566 P.2d 703 (1977).

Theft distinguished. The gravamen of criminal mischief is the knowing causation of damage to another's property with resulting economic loss to the owner or possessor of the property. The crime of theft, in contrast, is a crime of misappropriation or wrongful taking with no added element of damage or destruction to the property taken. People v. Dunoyair, 660 P.2d 890 (Colo. 1983).

Value is relevant to the damage element because an offender cannot cause an economic loss that surpasses the actual value of the property damaged. People v. Dunoyair, 660 P.2d 890 (Colo. 1983).

Actual value will generally be determined by market value, that is, the price a willing buyer would pay for the object in the open market. People v. Dunoyair, 660 P.2d 890 (Colo. 1983); People v. Dobson, 847 P.2d 176 (Colo. App. 1992).

Unless there is no market for the item. Where, however, there is no market for the particular item, then such factors as the original purchase price, replacement cost, the general use and purpose of the article, and salvage value may be considered as some evidence of actual value. People v. Dunoyair, 660 P.2d 890 (Colo. 1983); People v. Dobson, 847 P.2d 176 (Colo. App. 1992).

The crime of criminal mischief is not a lesser included burglary offense because the elements are far different. While criminal mischief requires damage to property, burglary does not. People v. Cisneros, 193 Colo. 380, 566 P.2d 703 (1977).

The pulling up of one or more posts of a fence in process of erection warrants a conviction under this section. Olson v. People, 56 Colo. 199, 138 P. 21 (1914).

This section does not apply to the pulling down of a fence by defendant, erected across land claimed by him and in his possession without his consent. Koch v. People, 71 Colo. 119, 204 P. 332 (1922).

Police officer's undisputed testimony of estimated damage is admissible at a preliminary hearing. People ex rel. Russel v. Hall, 620 P.2d 34 (Colo. 1980).

Evidence held sufficient to sustain a conviction. People v. O' Donnell, 184 Colo. 434, 521 P.2d 771 (1974).

Evidence held insufficient to sustain a conviction. Schtul v. People, 96 Colo. 217, 40 P.2d 970 (1935).

For instructions on previously required element of malice, see People v. Woods, 179 Colo. 441, 501 P.2d 117 (1972).

Instruction on intentional conduct not plain error. An instruction that the culpable mental state for criminal mischief is intentional conduct does not constitute plain error as intentional conduct is a higher degree of culpability than the knowing conduct required by this section, and, therefore, the erroneous instruction actually benefits the defendant. People v. Founds, 631 P.2d 1166 (Colo. App. 1981).

Self-defense instruction inappropriate for charge of criminal mischief where case involved unreasonable or excessive force by police during an arrest. Although self-defense instruction is required when evidence has been presented that officers displayed weapons and were commanded to discharge them in course of effecting arrest and that their conduct was unreasonable or excessive under the circumstances, such instruction was not appropriate as to charge of criminal mischief arising from events after defendant was taken into custody. People v. Fuller, 781 P.2d 647 (Colo. 1989).

Applied in Corder v. People ex rel. Smiley, 87 Colo. 251, 287 P. 85 (1930); Schindelar v. Michaud, 411 F.2d 80 (10th Cir.), cert. denied, 396 U.S. 956, 90 S. Ct. 426, 24 L. Ed.2d 420 (1969); People v. Griffith, 197 Colo. 544, 595 P.2d 231 (1979); People v. Trujillo, 631 P.2d 146 (Colo. 1981); People ex rel. Hunter v. District Court, 634 P.2d 44 (Colo. 1981); People v. Stoppel, 637 P.2d 384 (Colo. 1981); People v. Holloway, 649 P.2d 318 (Colo. 1982); People v. Thompson, 655 P.2d 416 (Colo. 1982).

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