What is Felony Vandalism?

By:  Prosecutor Sherri Bevan Walsh

We recently had a case in which the defendant caused damage to a jail after being arrested on misdemeanor charges. While in custody, the defendant urinated throughout the cell and broke the smoke detector and fire alarm, causing the entire jail to be evacuated.

Certainly that sort of damage to government property would warrant a felony charge, right?

The answer depends on two factors: necessity to conducting business and monetary value. First, is the damaged property so crucial that the agency would be forced to shut down without it? And second, is the cost to repair the damage at least $1,000? If the answer to either of those questions is yes, then the perpetrator can be charged with felony vandalism.

According to Ohio law, vandalism is serious physical harm to an occupied structure or its contents. The property must be owned by either a business or a government, and the damage must be reasonably expected based on the actions of the person doing the vandalizing. For example, one can reasonably expect damage from hitting a window with a sledgehammer. One would not expect damage, however, from slamming a door with a glass window in it.

Vandalism can only be charged as a felony if the damaged property is necessary for the operation of a business or government agency or the cost to repair the damage is at least $1,000. If the damage does not meet either of these requirements, the suspect would face misdemeanor charges of criminal damaging (a misdemeanor of the second degree) and/or criminal mischief (a misdemeanor of the third degree). Criminal mischief is a misdemeanor of the first degree if the damage creates personal harm.

Necessity can be a point of contention between the victim and the legal system. In the eyes of the law, not every object used in the course of business falls into the necessary category. Necessary means the business or agency could not operate without it. For example, a dentist cannot conduct his business without his drill. If one of his windows is broken, on the other hand, he can still see his patients.

Because one of the criteria for felony vandalism is the cost to replace, repair and/or clean the damaged property, it is important to be able to calculate the monetary value of the damage. This is also important for determining the level of the felony. Vandalism is a felony of the fifth degree when the cost of repairs is less than $7,500. It becomes a felony of the fourth degree when the cost of repairs is $7,500 to $150,000. And vandalism is a felony of the third degree if the cost of repairs is more than $150,000.

Damage to an individual’s property that is not used in business or to an unoccupied structure does not constitute vandalism. Both of these would fall under criminal damaging. Depending on the surrounding circumstances and how the property was damaged, there could also be felony charges. For example, setting fire to an abandoned house would result in arson charges. Destroying someone’s flat-screen TV and living room furniture, although likely to cause more than $1,000 in damage, would result in burglary charges. Breaking the engine in a motorboat sitting in someone’s driveway, though, would only result in criminal damaging charges.

Simply being government property is not enough to elevate a vandalism charge from a misdemeanor to a felony. However, some courts have ruled that law enforcement property is necessary for doing business. Therefore, there is an argument that damage to jail cells, breathalyzers, cruisers and other items used by law enforcement do not need to meet the $1,000 threshold in order to warrant a felony charge. Damage to government property not valued over $1,000 is handled on a case by case basis, so you should consult your county prosecutor’s office.

The defendant mentioned at the beginning of this article was charged with and eventually pleaded guilty to Vandalism (F5), since the total cost to clean up the jail and repair all the damage was more than $1,000. However, by breaking the smoke detector and fire alarm, which caused the entire jail to be evacuated, the defendant effectively shut down the “business” of the jail. Arguably, this would also elevate his crime to a felony, regardless of cost.

This article is not to be considered legal advice. Please consult your police legal advisor regarding any legal issue.

Sherri Bevan Walsh

Summit County Prosecuting Attorney