§708-823  Criminal property damage in the
fourth degree.  (1)  A person commits the offense of criminal property
damage in the fourth degree if by means other than fire, the person
intentionally or knowingly damages the property of another without the other's
consent.



(2)  Criminal property damage in the fourth
degree is a petty misdemeanor. [L 1972, c 9, pt of §1; gen ch 1993; am L 2006,
c 181, §6 and c 230, §36]



 



Case Notes



 



  Appellate court erred in its characterization of
"presumption" of nonconsent; trial judge did not err in denying
motion for judgment of acquittal or in finding appellant guilty.  78 H. 262,
892 P.2d 455.



 



COMMENTARY ON §§708-820 TO 823



 



  These sections of the Code provide a unified treatment of
offenses relating to property damage.  Dispensed with are archaic labels such
as "arson" and "criminal mischief."  The offense of
criminal property damage is divided into four degrees which represent
gradations of penalty depending on:  (1) the culpability of the actor (i.e.,
whether the actor acts intentionally or merely recklessly), (2) the means used
(i.e., whether the means present potential danger of widespread damage to
persons or property), and (3) the value of the property damaged.



  Section 708-800 provides some relevant statutory definitions. 
"Property" is defined, in §708-800, basically, as "any money,
personal property, real property, thing in action, evidence of debt or
contract, or article of value of any kind."  "Property of
another" is defined, in §708-800, to mean "property which any person,
other than the defendant, has possession of or any other interest in, even
though that possession is unlawful."  A security interest in property,
however, does not make the holder thereof any "owner" of an interest
for purposes of this chapter.  [See §708-800.]



  The determination of value is governed by §708-801.  When
value cannot be determined according to the rules provided by subsections (1)
and (2) of §708-801, subsection (3) provides that the value shall be deemed to
be not more than $50, therefore limiting conviction to the lowest degree of the
offense when the value of property constitutes an element.  Section 708-801(4)
provides that the value of property is prima facie evidence that the defendant
possessed the requisite culpability with respect thereto.  Section 708-801(5)
affords the defendant a defense, which reduces the degree of the offense, based
on the lack of the requisite culpability with respect to the value of the
property involved in the offense--when the factor is an element of the
offense.  Section 708-801(6) provides that amounts involved in separate
offenses committed pursuant to the same scheme or course of conduct may be
aggregated in determining value.



  Criminal property damage in the first degree, §708-820, presents
the most aggravated form of property damage:  damage which carries with it an
incidental risk of danger to the person.  Under former formulations of property
offenses, arson, which is sometimes regarded as an offense against the person,
was regarded as the most serious property offense deserving the most severe
sanction.  Yet actual risk of danger to another was not required for conviction
of arson, and it is possible to think of many cases in which, although fire is
not the method used in causing the damage, actual risk to the safety of another
would result from property damage.  The conjunction of property damage and risk
to the person is made a separate offense which, because of the cumulative
dangers involved, is punished more severely than the offense of reckless
endangering.[1]  If the conduct places another in danger, it is not required
for conviction under §708-820 that the property damaged be that of another; any
property damage will suffice.



  Section 708-821, criminal property damage in the second
degree, covers damage aggravated by three factors:  intentional behavior on the
part of the actor, and either a potential of widespread damage or a high value
of the property.  Subsection (1)(a) incorporates the traditional offense of
arson and, in addition, would cover other property damage by "means
capable of causing potential widespread injury or damage."  The Code
employs the phrase "widely dangerous means," defined in §708-800, to
cover, in addition to fire, such methods of damage as floods, avalanche, and
radioactive material.  It is the potential for indiscriminate destruction that
is the gravamen of this offense.  It seems clear that separate, but
substantially similar, methods of property damage should not constitute
separately defined offenses merely for the sake of preserving old labels and
phrases.  It should be pointed out that under §708-821(1)(a), unlike §708-820,
another person need not actually be placed in danger of death or bodily injury
by the actor's conduct.  Subsection (1)(b) seeks to differentiate the degree of
the offense on the basis of the value of property damaged.  As one of the
factors differentiating the seriousness of similar offenses, the value of the
property involved has traditionally been considered in theft offenses.  It
seems here no less applicable.  Accordingly, theft and property damage offenses
are correlated to the extent the value of the property involved is a governing
factor.



  Section 708-822, criminal property damage in the third
degree, reduces the grade of the offense to a misdemeanor if the actor
recklessly damages the property of another, without the other's consent, by the
use of widely dangerous means, or if the actor intentionally damages such
property, the value of which exceeds $50.  At common law arson was an
intentional offense.  Subsection (1)(a) in part extends the arson offense, but
subsection (2) provides a reduced penalty, reflecting a lesser degree of
culpability.  Subsection (1)(b) imposes misdemeanor liability for intentional
property damage based in part on the value of the property involved.  It is
part of the differentiation referred to above and must be compared with
§§708-821(1)(b) and 823.



  Section 708-823 provides a residual property damage offense
and is graded a petty misdemeanor.  The damage must be intentional; however,
the property damaged may be of any value.



  Previous Hawaii law was rather typical of the confused state
of decisional and statutory law regarding offenses of property damage.[2]  The
Hawaii Revised Statutes recognized no less than six offenses predicated on
damage by fire:  two degrees of arson, three degrees of malicious burning, and
a separate offense of wilful burning with intent to injure an insurer.[3]  Such
fine distinctions were required as to whether the act was done by day or night,
the value of the property damaged, and the nature of the property damaged
(e.g., which range from the inhabited dwelling house of another to any wood,
field, grass or standing product of the soil).  A separate offense, in a
different chapter, resulting in a less severe sentence, was provided if the
defendant chose to use explosives.[4]  Property damage not involving what the
Code has called "widely dangerous means" was labeled malicious injury
and was made a misdemeanor under previous law; the offense was not
differentiated on the basis of the value of the property involved.  This Code
attempts to greatly simplify, clarify, and rationalize the wide range of
property damage offenses in the prior law.



 



SUPPLEMENTAL COMMENTARY ON §§708-820 TO 823



 



  Act 314, Session Laws 1986, amended §708-822 by increasing
the dollar amount of the property involved in the offense of criminal property
damage.  The previous figure ($50) was designated in 1972 when the Code was
first codified.  With the increase, the dollar amount will more accurately
reflect current property values and consequently the offense will warrant the
level of culpability intended when it was originally drafted.  Senate Standing
Committee Report No. 820-86.



  Act 170, Session Laws 1996, amended §708-820 by making damage
to property in an amount exceeding $20,000 criminal property damage in the
first degree.  Prosecution is permitted for damage to property in the stated
amount as a class B felony, consistent with other class B felony threshold
amounts found in other crimes in the penal code.  Senate Standing Committee
Report No. 2599.



  Act 170, Session Laws 1996, amended §§708-821 and 708-822 by
raising the property damage thresholds from $500 to $1,500 for criminal property
damage in the second degree (§708-821), a class C felony, and from $100 to $500
for criminal property damage in the third degree (§708-822), a misdemeanor. 
The legislature found that with the inflation of prices and services over the
years, the amounts used to repair damages did not properly reflect the
seriousness of the cases involved, as many cases involved damages to vehicles
that may cost up to $1,000 for repairs.  The legislature also found that the
present threshold amounts did not accurately reflect the proper values for
class C felony and misdemeanor property damage.  Senate Standing Committee
Report No. 2599, House Standing Committee Report No. 196-96.



  Act 19, Session Laws 2003, amended §§708-820 and 708-821 to
include "knowingly" as a state of mind alternative for the crimes of
criminal property damage in the first or second degree.  The legislature found
that there are cases where the defendant is aware that property damage will
occur as a result of the defendant's action but intentional property damage is
not the motivating factor for the action.  The legislature believed that in
these cases, defendants should be held accountable for their actions and found
that including the word "knowingly" as a state of mind alternative
would accomplish this goal.  Senate Standing Committee Report No. 591, House
Standing Committee Report No. 1257.



  Act 116, Session Laws 2006, amended §708-820, expanding the
offense of criminal property damage in the first degree to include
intentionally or knowingly damaging the property of another during a civil
defense emergency or during a period of disaster relief. Act 116 penalized the
commission of certain crimes during a time of a civil defense emergency
proclaimed by the governor or during a period of disaster relief.  The
legislature found that Hurricanes Katrina and Rita created situations that
highlighted the prevalence of opportunistic crimes that can occur during these
times. When resources are needed to restore law and order, emergency response
aid to victims may be hampered or delayed, leaving victims at an increased risk
of bodily injury or death.  Stronger measures to control law and order may
deter looting and other crimes.  Senate Standing Committee Report Nos. 2938 and
3302, Conference Committee Report No. 64-06.



  Act 156, Session Laws 2006, amended §§708-820, 708-821, and
708-822 to protect Hawaii's agricultural and aquacultural industries by
establishing that a person commits the offense of criminal property damage: 
(1) in the first degree, if the person intentionally or knowingly damages the
agricultural or aquacultural equipment, supplies, or products of another
without the other's consent, in an amount exceeding $1,500, provided that the
value of future crops that were damaged is included in calculating the damage; 
(2) in the second degree, if the person intentionally or knowingly damages the
agricultural or aquacultural equipment, supplies, or products of another
without the other's consent, in an amount exceeding $500, provided that the
value of future crops that were damaged is included in calculating the damage;
and (3) in the third degree, if the person intentionally damages the
agricultural or aquacultural equipment, supplies, or products of another
without the other's consent, in an amount exceeding $100, provided that the
value of future crops that were damaged is included in calculating the damage. 
The legislature found that increasing the penalties for criminal property
damage offenses was consistent with the great impact the crimes have on Hawaii's agricultural and aquacultural industries and the ability of individual farmers and
ranchers to earn a living.  Conference Committee Report No. 74-06, Senate
Standing Committee Report No. 3310.



  Act 181, Session Laws 2006, amended §§708-820, 708-821, 708-822,
and 708-823 by excluding property damage caused by means of fire from the
offenses of criminal property damage in the first, second, third, and fourth
degrees.  Act 181 included arson as a new class of property damage and defined
four degrees of the offense of arson with appropriate sanctions. The
legislature found that fires that are intentionally set cause extensive damage
to public and private properties and threaten lives.  Conference Committee
Report No. 50-06.



  Act 230, Session Laws 2006, amended §708-822(1), by making it
an offense of criminal property damage in the third degree, to knowingly damage
the property of another without consent and in an amount exceeding $500.  House
Standing Committee Report No. 665-06.



  Act 230, Session Laws 2006, amended §708-823(1), by making it
an offense of criminal property damage in the fourth degree, to knowingly
damage the property of another without consent.



  Act 98, Session Laws 2007, amended §§708-820(1), 708-821(1),
and 708-822(1) by clarifying the calculation of the value of damage to
agricultural products to include future losses and the loss of future
production.  The legislature found that vandalism, theft, and arson are
critical problems with a significant impact upon Hawaii's agricultural industry. 
Act 98 would strengthen the present law in calculating damages.  Senate
Standing Committee Report No. 1606, House Standing Committee Report No. 459.



 



__________



§§708-820 To 823 Commentary:



 



1.  Cf. §§707-713 and 714.



 



2.  See generally, in relation to arson, M.P.C., Tentative
Draft No. 11, comments at 34-37 (1960).



 



3.  H.R.S. §§723-2 through 723-10.



 



4.  Id. §753-8.