I've always enjoyed the phrase "unlawful mischief." To me, it sounds endearing—like an impish lawbreaker getting up to shenanigans. "Unlawful mischief" as used in Vermont jurisprudence is essentially vandalism. Fun fact: the Vandals are a punk rock band from Southern California, whose first album, Peace Thru Vandalism, includes this track (NSFW) that is just so bad it's good. Their bass player is a lawyer and represented the band in a trademark dispute with Variety magazine. What does all this have to do with the case SCOV issued this week? Not a whole lot, but that should be no surprise to regular readers of this blog.
Ah, the case at hand, yes. One opinion issued Friday. Defendant, an involuntary resident of Le Hotel Newport Police Department's Holding Suite, allegedly "urinated, spat, and rubbed his genitals on various parts of his holding cell, necessitating the closure of the cell and incurring $75 in clean-up costs." Defendant was stopped by police after ducking into a stairwell to hide. A couple bystanders told police that defendant had given them some items he claimed to have stolen from Walmart. Defendant started threatening one of the bystanders and police arrested defendant. Defendant "claimed he was armed with a 'bear gun, pellet, two tasers and spray' and appeared to be under the influence." If I knew how to write air quotes around "appeared to be," you bet I'd do it. Frankly, it's hard to imagine a sober person threatening a witness in front of the cops.
At any rate, defendant ended up in Newport's lodging for the evening. The above-described acts occurred. Defendant was charged with three offenses, including unlawful mischief. After a jury trial, defendant was convicted of unlawful mischief and attempted assault on a law enforcement officer with bodily fluids. He got the court to grant a judgment of acquittal on a disorderly conduct charge.
Defendant appeals only the unlawful mischief charge. "On appeal, defendant argues that the trial court misconstrued the term 'damage' as used in the unlawful-mischief statute. Defendant contends that the trial court incorrectly defined damage to include situations where a defendant's action impairs only the function of property. Defendant argues that this Court should adopt a narrower definition of damage and hold that making property dirty or unsanitary does not suffice." It's not a bad argument. After all, the cell was cleaned. And not to be gross about it, but arguably worse stuff happens in hotel rooms and we all still use them, often with less cleaning than occurred here. Have you ever seen Another Dirty Room? Probably better you don't.
Did I digress again? The SCOV majority looks at the plain meaning of "damage," the broadness of the applicable phrase "any damage," and concludes that "While the amount of damage was minimal, it was enough to meet the statutory prohibition on causing 'any damage to property of any value.'" (majority's emphases). The majority rejects defendant's argument that this interpretation will criminalize trivial and normal impairment of property.
Justice Cohen thinks defendant might have a point. "In my view, there was insufficient evidence for the jury to find that defendant’s actions amounted to damage as the Court defines it because defendant did not cause a 'substantial impairment' to the use or function of the holding cell." Justice Cohen explains "Defendant’s actual behavior . . . caused minimal if any impairment to the holding cell. The evidence presented at trial was that defendant rubbed his genitals on several bathroom surfaces in his holding cell, spit on the floor, and 'appeared to attempt' to urinate in the sink. Such actions may be unsanitary and vulgar but cannot be reasonably viewed to have significantly impaired the function of the cell such that it was 'damaged' for purposes of the unlawful-mischief statute."
This is a close call. I have to admit that I laughed a little when I read the facts. I'm not condoning the behavior, but I have to imagine that there were some spirited discussions about this case in SCOV's hallways. I expect there may be amusing citations to this case in the future. State v. Wells, 2025 VT 5.
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