People v. Culp

• Decision Date: 05 August 1981
• Docket Number: Docket No. 52875
• Citation: 310 N.W.2d 421,108 Mich.App. 452
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth Eugene CULP, Defendant-Appellant. 108 Mich.App. 452, 310 N.W.2d 421
• Court: Court of Appeal of Michigan — District of US

Page 421

310 N.W.2d 421

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth Eugene CULP, Defendant-Appellant.

Docket No. 52875.

108 Mich.App. 452, 310 N.W.2d 421

Court of Appeals of Michigan.

Aug. 5, 1981.

Released for Publication Sept. 28, 1981.

[108 MICHAPP 453] Leonard J. Malinowski, Lansing, Frank R. Del Vero, Howell, for plaintiff-appellee.

Lawrence R. Greene, Detroit, for defendant-appellant.

Before R. B. BURNS, P. J., and ALLEN and GILLESPIE, ^* JJ.

ALLEN, Judge.

Does the offense of malicious destruction of property, M.C.L. § 750.377a; M.S.A. § 28.609(1), require a finding of specific intent? The question [108 MICHAPP 454] raised is of first impression. On April 16, 1980, defendant was found guilty by a jury of malicious destruction of property and resisting or obstructing a police officer in the discharge of his duty, M.C.L. § 750.479; M.S.A. § 28.747. Sentenced to one year in jail, he appeals of right.

Defendant was charged with damaging an automobile belonging to David and Martha Simmerman. Testimony established that at approximately 8:30 p. m. on October 17, 1979, defendant beat on the automobile with his hands and feet while it was parked in front of the Simmerman home. Approximately $350 worth of damage resulted.

Several witnesses testified that the defendant appeared intoxicated at the time of the offense, although no testimony was presented during trial regarding the quantity of alcohol consumed. At the preliminary examination, Howard VanValkenburgh testified that he had been with defendant from 1:30 p. m. until 8:30 p. m. on October 17, 1979, and that the two had consumed a substantial quantity of whiskey during that time.

A City of Howell police officer, responding to a call at 8:45 p. m. on October 17, 1979, asked the defendant for identification, told the defendant that he was under arrest, and attempted to place him in the patrol car. The officer said that defendant began fighting and kicked him in the thigh as defendant was being pulled into the patrol car. While in the car, the defendant used loud and vulgar language and spat on a police officer's coat.

During trial, the defendant asked the court to instruct the jury that specific intent is an element of malicious destruction of property and that voluntary intoxication is a defense to that crime. The court refused, and defendant, on appeal, claims that the refusal to instruct the jury on voluntary intoxication constituted error requiring reversal.

[108 MICHAPP 455] The defendant was charged under M.C.L. § 750.377a; M.S.A. § 28.609(1), which provides:

"Any person who shall wilfully and maliciously destroy or injure the personal property of another, by any means not particularly mentioned or described in the preceding section, if the damage resulting from such injury shall exceed $100.00, shall be guilty of a felony. If the damage done shall be $100.00 or less, such person shall be guilty of a misdemeanor."

If the statute requires a finding of specific intent, voluntary intoxication may be shown to negate that intent. People v. Kelley, 21 Mich.App. 612, 176 N.W.2d 435 (1970). No Michigan case law has determined whether this statute in question contains a specific intent element. This Court therefore must determine whether a specific intent must be shown to sustain a conviction for malicious destruction of property.

Specific intent is a nebulous concept. In Roberts v. People, 19 Mich. 401, 414 (1870), the Supreme Court distinguished between general and specific intent, holding that:

"(W)hen a statute makes an offense to consist of an act combined with a particular intent, that intent is just as necessary to be proved as the act itself, and must be found by the jury, as matter of fact, before a conviction can be had."

Specific intent has been held to be an element of statutory crimes that include an express requirement of intent. In People v. Jones, 228 Mich. 426, 200 N.W. 158 (1924), assault with intent to murder was observed to be a specific intent crime; in People v. Berryhill, 8 Mich.App. 497, 154 N.W.2d 593 (1967), specific intent was found to be an element of assault with intent to do great bodily harm less than murder; and in People v. Stram, 40 [108 MICHAPP 456] Mich.App. 249, 198 N.W.2d 753 (1972), assault with intent to rob being armed was recognized as requiring a showing of specific intent.

Specific intent has been held to be an element in some statutory crimes that do not state an intent element. In Kelley, supra, 21 Mich.App. 619, 176 N.W.2d 435, this Court observed that convictions for crimes involving larceny, such as armed robbery and burglary, require a showing of specific intent because a larceny is not merely a wrongful taking, which would be a mere trespass, but is a wrongful taking with felonious intent.

The malicious destruction of property statute does not contain the word "intent" but does require that the conduct be "willful and malicious". The Michigan Criminal Jury Instructions define these terms:

"The phrase 'wilfully and maliciously' means that the defendant (1) committed the act, (2) while knowing it to be wrong, (3) without just cause or excuse, and (4) did it intentionally or (5) with a conscious disregard of known risks to the property of another." CJI 32:1:01

The commentary to the jury instructions states that there must be a willful act aimed at the property in question and an intent to do damage. CJI, Commentary, p. 32-13.

The word "willfulness" has been called a "word of many meanings, depending upon the context in which it is used". People v. Cook, 89 Mich.App. 72, 85, 279 N.W.2d 579 (1979). This Court held that "willfully" in the joyriding statute, M.C.L. § 750.413; M.S.A. § 28.645, requires a showing of specific intent to take possession of a vehicle. People v. Lerma, 66 Mich.App. 566, 571, 239 N.W.2d 424 (1976). In so doing, the Court recognized that "willfully" has been variously defined as an "evil intent", a "bad purpose", or a "guilty knowledge". The Court gave [108 MICHAPP 457] two reasons for holding that "willfully" in the joyriding statute means specific intent. First, the Court cited one prior case, People v. Limon, 4 Mich.App. 440, 145 N.W.2d 287 (1966), for the proposition that "willfully" is a separate and distinct element of joyriding, and it interpreted the separate element as something more than the mere physical act of driving away a vehicle without authority. Second, the Court recognized that joyriding is classified among the larceny statutes, which include a specific intent.

Like "willful," "malice" is a term of various meanings, depending upon its context. In People v. Tessmer, 171 Mich. 522, 137 N.W. 214 (1912), the Supreme Court distinguished general malice from malice directed at a particular object. The general malice is that required for any criminal conduct, while a particular malice is that which is directed at an object.

While a Michigan appellate court has never determined whether "willful and malicious" in the malicious mischief statute should be interpreted to mean the broad general intent or a narrower intent, the Supreme Court did address the problem in the context of the now-repealed statute proscribing interference with the business of a railroad, 1877 PA 11, Sec. 2; 1882 Howell's Statutes, Sec. 9275, repealed by 1891 PA 23,...