Been charged with criminal mischief? Well, you’re certainly not alone. And often, that charge is domestic violence (“DV”) related. When we get these cases, it’s typically a husband or father who’s accused of kicking a door, punching a wall, or slapping a table; however, women and kids get charged with this, too – just far less frequently. Don’t panic. Such cases are often beatable.
If you’re facing a criminal mischief case, remember that just because you were angry when the incident took place, that certainly does not mean the prosecutor can prove his case, even if you scratched, damaged or totally busted something (like a door you may have kicked down).
First of all, your winning argument may be that you had no intent to damage the item. Utah Code § 76–6–106(2) states that a person commits criminal mischief if he or she “intentionally” damages, defaces, or destroys the property of another. So, unless you admitted you intended to damage the item at issue, that could be a huge factor in your favor.
Secondly, and this is key, police often just assume that the Defendant damaged the property “of another,” so always make sure to check that out in the police report. If the broken item was given to you as a gift, it was your property, not “community property.” And if the wife said, “All I have is yours,” that may be enough, too. She can’t then say, “I didn’t really mean that” after the fact.
In other words, it may be you only damaged your own property (even though this argument does not usually go over well with prosecutors). In fact, don’t be surprised if the prosecutor forgets to prove this element in your trial – he may just talk about how you kicked in the family door, and presume it was not your door. So, if he forgets to establish the door was not yours (but also your wife’s), move for a directed verdict.
Thirdly, if there was consent, you should argue for a dismissal – even if it was the property of another, or community property (like a door). Think about it, people who live to together throw away huge items like fridges, stoves and toilets because they think they no longer have any value. They also literally tear out walls (or pound nails in them for pictures), and rip out old driveways, so consent to get rid of and/or break things is not uncommon.
It’s critical you keep this in mind: cops just assume that because were “mad” when you kicked through that door that you could not have had consent, but they could be wrong in that presumption. Also, if the door was worthless to start with, and you were going to replace it anyway, it arguably had no value, thus, there was NO DAMAGE – and rarely is the broken item shown to the jury. Remember, if you were going to get rid of the “worthless thing,” you can argue you did not cause any damage because you had previously determined it had no value.
Fourth, you can argue an accident occurred, and you did not intend to break the item, but in Utah “a person is presumed to intend the natural and probable consequences of his acts,” so there are logical limits to that position. See State v. Sisneros, 631 P.2d 856, 859 (Utah 1981).
So, if you swerve your car at somebody to scare them, but “accidentally hit” their car, “the natural and probable consequence” of swerving into the other car could be viewed as damaging the other car. In other words, the act was “so reckless,” that any idiot would have known there was a very high likelihood of hitting the other car, but ignored that risk. Thus, a jury “could reasonably infer” you intended to damage the other car. See State v. Robertson, 2005 UT App 419, ¶ 15. “[I]ntent . . . is a state of mind, which is rarely susceptible of direct proof[;] it can be inferred from conduct and attendant circumstances in the light of human behavior and experience.” See State v. Cecil, 2012 UT App 280, ¶¶ 9-18.
If you’re facing a criminal mischief charge, contact us 801-651-1512.