Everyone knows or should know that an owner of personal property (couch, watch, jewelry, bike, etc.) can do whatever they wish with that property. The criminal code does not prevent you from throwing it away, hitting it with a baseball bat, cutting it up with scissors, etc. Hypothetically, a person can damage or destroy his or her own property all day long.
Stay with me, I am going somewhere.
Let’s change the facts a little. What if a less than loving wife takes a baseball bat to her husband’s Ferrari after catching him cheating with her best friend. Let’s say he purchased the Ferrari using the money from their joint savings account. He is the only one that drives the car; however, both are listed on the insurance as drivers. Can the husband have his wife arrested? She did two-thousand three-dollars of damage criminal mischief style to the windshield.
On the other hand, what if the husband purposely destroys the wife’s costume-jewelry necklace given to her by her new younger boyfriend. It is only worth maybe fifteen dollars, and she never wears it. The husband’s intentions where to get on his wife’s nerves, but not destroy anything of real value. Is this a crime?
Who should the police arrest according to Criminal Domestic Violence Law? We know they should both go to counseling and a psychiatrist, but who should go to jail according to the law?
Let’s look at the Alabama Code sections for Domestic Violence Criminal Mischief.
Section 13A-6-132, Ala. Code 1975, states that:
“(a) A person commits domestic violence … if the person … commits the crime of criminal mischief in the second or third degree pursuant to Sections 13A-7-22 and 13A-7-23; … and the victim is a current or former spouse, parent, child, any person with whom the defendant has a child in common, a present or former household member, or a person who has or had a dating relationship, as defined in Section 13A6-139.1, with the defendant. Domestic violence in the third degree is a Class A misdemeanor.”
Okay, so the code defines what relationship turns a crime like criminal mischief into Domestic Violence criminal mischief. The parties involved, the Victim and the Assailant have to be current or former spouses, a parent and a child, a child and a parent, people who have a child together, etc.
In our hypothetical, our husband and wife have the relationship considered by the statute. What about Criminal Mischief?
Alabama Code 1975, Sections 13A-7-22 and 23 define the activity that is considered criminal mischief. Specifically, Section 13A-7-23 states:
“(a) A person commits the crime of criminal mischief in the third degree if, with intent to damage property, and having no right to do so or any reasonable ground to believe that he or she has such a right, he or she inflicts damages to property in an amount not exceeding five hundred dollars ($500).”
Ala. Code 1975, Section 13A-7-22, says the following:
“(a) A person commits the crime of criminal mischief in the second degree if, with intent to damage property, and having no right to do so or any reasonable ground to believe that he or she has such a right, he or she inflicts damages to property in an amount which exceeds five hundred dollars ($500) but does not exceed two thousand five hundred dollars ($2,500).”
It appears the only difference between the two sections are the dollar value of the damage done. To commit criminal mischief, a person must purposely damage property causing damage up to $2,500.00 with no right to do so or any reasonable ground to believe that he or she has such a right.
Back to the original questions. Who should go to jail? The wife did more than two thousand dollars of damage to the husband’s Ferrari. The husband damaged a gift from his wife’s lover.
The outcome hinges on “having no right to do so or any reasonable ground to believe that he or she has such a right.” Sections 13A-7-22 and 13A-7-23, Ala. Code 1975.
The Court of Criminal Appeals clarified this issue. In Horn v. State, 908 So. 2d 303 (Ala. Crim. App. 2004), a husband damaged a car that was bought during his and his wife’s marriage with marital funds he earned from farming. The title was in his wife’s name because the husband had judgments entered against him, and the husband was listed as the primary driver on the insurance. However, the wife had given the car to her daughter.
He damaged the car and was arrested for Domestic Violence Criminal Mischief. After the close of the state’s evidence, he moved for a motion for judgment of acquittal, which was denied by the trial court. He appealed to the Court of Criminal Appeals, and that court reversed and remanded stating that the Motion for Judgment of Acquittal should have been granted. As stated above, the state failed to establish that the husband did not have the right to damage the automobile or that he could not have reasonably believed that he had the right to damage the automobile. Horn, So. 2d 303, 305 (Ala. Crim. App. 2004).
In other words, he could have reasonably believed it was his to tear up after he purchased the vehicle using money from his farming, he was listed as the primary driver on the insurance, and other reasons than ownership prevented him from having his name on the title.
Most marital property is going to fall into the above category considered by Horn. We can use this to answer our hypothetical questions.
Taking Horn into consideration, I think the state may have a hard time proving that the wife in our hypothetical could not reasonably believe she had a right to damage the Ferrari. I think she could argue she believed she was an owner. Marital funds were used to purchase the car, and the wife was listed as an owner on the insurance. The wife should not get arrested based on those facts; however, I think it will come up in the divorce proceedings and be an issue in Civil Court for damaging marital property.
What about the husband? No facts support that the husband had any ownership interest in the necklace. Even though it was cheap, it was given directly to the wife. It was not bought with marital funds. In this situation, there is a strong argument that the necklace is not marital property. In the hypothetical, the husband may be in trouble.
I, by no means, am saying you will NOT get arrested for damaging marital property. Judge Shaw in his dissent to Horn stated that no authority existed supporting a limit on the above statute and other jurisdictions have held that a spouse can get arrested for damaging marital property even if he or she has an interest. See Horn, 908 So. 2d 303, 305 (Ala. Crim. App. 2004). I know people have been arrested for just that; however, Horn supplies a good defense.
Sean Hampton, Esq