Question: Was He Guilty of Malicious Mischief?

HISTORY: Following a nonjury trial, held on December 22, 1992, Duane Mitchell (the defendant) was convicted of the criminal mischief graded as a misdemeanor of the third degree. The defendant filed timely post-trial motions, which were denied, and the defendant was sentenced to pay a fine of $150. The defendant filed post-trial motions, which were denied. The Superior Court affirmed the trial court's denial of the motions. CRONIN, J.

FACTS: Following a report to the Upper Darby Police Department on Sunday, June 21, 1992, at 9:49 p.m., Lieutenant Michael Kenney and Officer Mark Manley of the Upper Darby Police Department proceeded to 7142 Stockley Road, Upper Darby, Pennsylvania. Upon arriving at the above location, both officers observed the following: painted on the front walk the word "nigger," the letters "KKK," and a cross painted under three dark marks; on each of the steps leading to the house was spray painted the word "nigger"; the front screen door had a painted cross with three marks above it; the patio was painted with the word "nigger" and a cross with three dark marks; the front walk had the word "nigger" and a cross with three dark marks; the front walk had the words "nigger get out" painted on it; the rear wall had painted the words "nigger get out or else" and a cross with the letters "KKK"; and the rear door had the words "KKK Jungle Fever Death" and a cross painted on it. The owners of 7142 Stockley Road, Upper Darby, Pennsylvania, are James and Betty Jo Johnson, who had made settlement on the property on June 15, 1992, but had not occupied the home with their seven-year-old daughter, Zena. The Johnsons are an interracial couple, James Johnson being Afro-American and Betty Jo Johnson being Caucasian.

The Johnsons had not given the defendant or any other person permission to spray paint on their property. On June 25, 1992, the defendant, Duane Mitchell, was taken into custody by the Upper Darby Police Department. The defendant voluntarily waived, in writing, his right to counsel and his right to remain silent and freely gave a statement to the police. The defendant told the Upper Darby Police that he, the defendant, alone spray painted the above-mentioned words and symbols on the Johnson property located at 7142 Stockley Road, Upper Darby, Pennsylvania; at the time that he did the spray painting, he had been drinking. Following a nonjury trial, held on December 22, 1992, the defendant was convicted of the summary offense of criminal mischief and the offense of ethnic intimidation, graded as a misdemeanor of the third degree in accordance with 18 Pa.C.S. § 2710(B). The defendant filed timely post-trial motions, which were denied by the order of trial court dated May 17, 1993.

OPINION: Criminal mischief is defined at 18 Pa.C.S. § 3304 as follows: § 3304. Criminal Mischief (A) Offense Defined-A person is guilty of criminal mischief if he: (1) damages the tangible property of another intentionally, recklessly, or by negligence in the employment of fire, explosives, or other dangerous means listed in section 3302(A) of this title (relating to causing or risking catastrophe); (2) intentionally or recklessly tampers with tangible property of another so as to endanger person or property; or (3) intentionally or recklessly causes another to suffer pecuniary loss by deception or threat. 18 Pa.C.S. § 3304(A), The defendant argues that the evidence was insufficient to prove that tangible property was damaged in the employment of fire, explosion, or other dangerous means. 1 Pa.C.S. § 1903 states that "(A) Words and phrases shall be construed according to rules of grammar and according to their common usage; " Section 1 of 18 Pa.C.S.§ 3304 makes a person guilty of the crime of criminal mischief if that person either intentionally damages the tangible property of another; recklessly damages the tangible property of another; or negligently damages the tangible personal property of another in the employment of fire, explosives or other dangerous means listed in section 3302(A) of title 18.

In this case it is abundantly clear that the defendant spray painted the phrases and words mentioned herein on the Johnsons' home located at 7142 Stockley Road, Upper Darby, Pennsylvania and that the defendant did so without the permission of the Johnsons. Sufficient evidence exists to support a verdict if the evidence, when viewed in a light most favorable to the verdict winner along with all reasonable inferences drawn therefrom, allows a fact finder to find that all elements of a crime have been established beyond a reasonable doubt. The evidence was sufficient to prove beyond a reasonable doubt that the defendant intentionally damaged the tangible property of the Johnsons. A court must interpret a statute to ascertain the intent of the legislature. It is clear from the use of the conjunctive "or" in Section 1 of 18 Pa.C.S. § 3304 that the legislature intended to punish either the intentional or the reckless or the negligent damaging of the tangible property of another person. The intentional spray painting of graffiti on the walls of a building is factually sufficient to support a conviction for criminal mischief. It is equally clear that the commission of any of the other acts specified in either Section 1 or Section 2 or Section 3 of 18 Pa.C.S. § 3304 is sufficient to support a conviction for criminal mischief since the conjunctive "or" is used between Sections 2 and 3 of 18 Pa.C.S. § 3304 and the conjunctive "or" is to be given the same meaning and legislative intent as "or" is given with the states of mind (intent, reckless or negligent) in Section 1 of 18 Pa.C.S. § 3304. See 1 Pa.C.S. § 1903(A),1 Pa.C.S. § 1921(A)(B). For the foregoing reasons the defendant's post-trial motions were denied.

Question: 1. State the elements of actus reus and mens rea as the Pennsylvania criminal mischief statute defines them.

2. List the facts relevant to each of the elements.

3. Assume you're Duane Mitchell's lawyer and argue that the facts don't prove the elements beyond a reasonable doubt.

4. Assume you're the state's prosecutor and argue that the facts prove the elements beyond a reasonable doubt.