State v. PowelsState v. Powels
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- Before:
- Vigil
Lead Opinion
{1} Criminal damage to property consists of “intentionally damaging any real or personal property of another without the consent of the owner of the property.”
BACKGROUND
{2} The evidence presented to the grand jury in support of the indictment is very sparse. Detective Garry Garcia testified he was dispatched to the home of Kelly Powels’s father where she was visiting. Her husband, Defendant, had come to the house upset because he had not seen her for a couple of days and said, “I know what you’re all about.” He then walked away from her, took a tire iron out of the car he was driving, and broke all the windows on a 1984 Oldsmobile. The cost to replace the windows was $1153.20. The Oldsmobile was purchased during the marriage, but was registered only in the name of Ms. Powels.
STANDARD OF REVIEW
{3} We review questions of statutory interpretations de novo. In re Gabriel M., 2002-NMCA-047, ¶ 10, 132 N.M. 124, 45 P.3d 64.
DISCUSSION
{4} The parties agree that the Oldsmobile was community personal property. See
{5} The statute requires that the Oldsmobile be “property of another” for the crime of criminal damage to property to be committed. Since the Oldsmobile belonged to Defendant and Ms. Powels equally, the Oldsmobile was not “property of another” as far as Defendant was concerned. Therefore, based upon well-settled concepts of New Mexico community property law, since the Oldsmobile belonged to Defendant and Ms. Powels equally, it was not ‘property of another,’ and
{6} We find additional support for our conclusion by examining the history of the statute in the common law. See Sims v. Sims, 1996-NMSC-078, ¶¶ 23-24, 122 N.M. 618, 930 P.2d 153 (determining meaning of a statute, courts often construe the language in light of the preexisting common law; court presumes legislature informed about existing common law before statute enacted and did not intend to enact a statute that conflicted with the common law).
{7} In the common law of larceny, where property is owned by co-tenants so that each
{8} The meaning of “property of another” has been expanded by statute in other states to include a greater number of owners and possessors than at common law. 3 Torcia, supra, at 458-59. There has been no such statutory modification in Section 30-15-1. On the contrary, the statute continues to adhere to the common law concept by requiring that the damage to the property be “without the consent of the owner of the property.” Section 30-15-1 (emphasis added). It does not include community property owned by both a husband and wife.
{9} The State argues that because there is a strong public policy not to foster domestic abuse and because the Family Violence Protection Act,
{10} When the Family Violence Protection Act was first adopted in 1987, the term “domestic abuse” was limited to an incident “resulting in physical harm, bodily injury or assault or a threat causing imminent fear of such harm by any household member.” 1987 N.M. Laws ch. 286, § 2. The term “household member” was originally defined to mean “[a] spouse, former spouse, family member, present or former household member or co-parent of a child.” Id. In 1993, the term “domestic abuse” was expanded to include criminal damage to property and other harms not pertinent here. 1993 N.M. Laws ch. 109, § 1. The definition of “household member” was also expanded to mean “[a] spouse, former spouse, family member, including a relative, child, co-parent of a child or a person with whom the petitioner has had a continuing personal relationship. Cohabitation is not necessary to be deemed a household member for purposes of this section.” Id. In 1995, the definition of “household member” was again expanded, this time to its present form. 1995 N.M. Laws ch. 23, § 3;
{11} In addition, from the time the Family Violence Protection Act was enacted, it required the commission of an act of “domestic abuse.” When criminal damage to property was added as an element of “domestic abuse” in 1993, Section 30-15-1 was not amended. However, the definition of “household member” was amended, meaning “domestic abuse” could be committed in an incident resulting in the criminal damage to the separate property of a spouse or the property owned by a former spouse, or other “family member.” When there was a further expansion of what constitutes a “family member” in 1995, Section 30-15-1 still was not changed. Simply stated, the legislature has never made damage to community property which one owns an element of criminal damage to property in Section 30-15-1 although it has had at least three specific opportunities to do so. We agree with the State that public policy abhors domestic abuse. However, it is for the legislature, and not this
{12} It stretches the plain, unambiguous wording of Section 30-15-1 to include community property which a person owns within its parameters. To the extent there is any ambiguity in the statute, we are required to construe that ambiguity strictly against the State, because it is also the common law in New Mexico that penal statutes must be resolved in favor of lenity. State v. Hicks, 2002-NMCA-038, ¶ 11, 132 N.M. 68, 43 P.3d 1078. This serves the function of giving clear and unequivocal warning in language that people generally understand concerning actions that expose them to criminal penalties. See In re Gabriel M., 2002-NMCA-047, ¶ 20, 132 N.M. 124, 45 P.3d 64.
{13} Finally, we agree wjSnSpefendant that the cases cited by the State in its brief in chief are inapplicable because they are not from community property states or because they rely upon statutory backgrounds and modifications which do not exist in New Mexico.
CONCLUSION
{14} We conclude Section 30-15-1 does not include community property owned by an accused within its parameters. We affirm dismissal of the indictment with prejudice on the basis that under the evidence presented to the grand jury, there was no probable cause to charge Defendant with criminal damage to property in violation of Section 30-15-1, as a matter of law. See
{15} IT IS SO ORDERED.
I CONCUR: A. JOSEPH ALARID, Judge.
Concurrence Opinion
(specially concurring).
WECHSLER, Chief Judge(specially concurring).
{16} I concur in the result. I write separately to stress an apparent gap in legislative intent.
{17} I believe that the criminal damage to property statute, Section 30-15-1, is ambiguous with regard to community property. It can be read, as the majority does, from the perspective of ownership, such that “property of another” precludes any common ownership interest and “consent of the owner” requires the consent of common owners. It can also be read from the point of view of a victim, such that “property of another” refers to the property interest of the victim and “consent of the owner” refers to the consent of the victim as to the victim’s property interest. Our interpretation of the statutory language is a matter of legislative intent. State v. Ogden, 118 N.M. 234, 242, 880 P.2d 845, 853 (1994).
{18} The legislative intent, however, is problematic. The criminal damage to property statute, as the opinion demonstrates, is founded in the common law, and at common law, the crime could not be committed if the perpetrator was one of the owners of the property. We presume the legislature adopted the common law meaning in enacting the statute. 4 Torcía, supra, § 475, at 66 (observing that even though the common law concept had been modified by statute, “the essence of the offense remains the same; an injury to or destruction of the property of another”).
{19} When it included criminal damage to property as an act of domestic abuse in the Family Violence Protection Act, the legislature indicated a different intent. See
{20} However, the legislature did not accomplish this intent. When it carried over the criminal damage to property statute into the Family Violence Protection Act, it also carried over the legislative intent for enacting the criminal damage to property statute. This original intent, based on the common law, does not include damage to community property within the scope of the crime. See State v. Cleve, 1999-NMSC-017, ¶ 15, 127 N.M. 240, 980 P.2d 23 (stating that a statute should be interpreted in accord with how the legislature “understood it at the time it was passed”) (internal quotation marks and citation omitted).
{21} As a result, when I look to the legislative intent to construe the criminal damage to property statute, what appears to be the obvious intent of the Family Violence Protection Act does not assist in my inquiry. I therefore agree with the majority to affirm the dismissal of the indictment and suggest that if my reading of the legislative intent is correct, legislative action is necessary. See