Appellate court erred in its characterization of "presumption" of nonconsent; trial judge did not err in denying motion for judgment of acquittal or in finding appellant guilty. 78 H. 262, 892 P.2d 455.

These sections of the Code provide a unified treatment of offenses relating to property damage. Dispensed with are archaic labels such as "arson" and "criminal mischief." The offense of criminal property damage is divided into four degrees which represent gradations of penalty depending on: (1) the culpability of the actor (i.e., whether the actor acts intentionally or merely recklessly), (2) the means used (i.e., whether the means present potential danger of widespread damage to persons or property), and (3) the value of the property damaged.

Section 708-800 provides some relevant statutory definitions. "Property" is defined, in §708-800, basically, as "any money, personal property, real property, thing in action, evidence of debt or contract, or article of value of any kind." "Property of another" is defined, in §708-800, to mean "property which any person, other than the defendant, has possession of or any other interest in, even though that possession is unlawful." A security interest in property, however, does not make the holder thereof any "owner" of an interest for purposes of this chapter. [See §708-800.]

The determination of value is governed by §708-801. When value cannot be determined according to the rules provided by subsections (1) and (2) of §708-801, subsection (3) provides that the value shall be deemed to be not more than $50, therefore limiting conviction to the lowest degree of the offense when the value of property constitutes an element. Section 708-801(4) provides that the value of property is prima facie evidence that the defendant possessed the requisite culpability with respect thereto. Section 708-801(5) affords the defendant a defense, which reduces the degree of the offense, based on the lack of the requisite culpability with respect to the value of the property involved in the offense--when the factor is an element of the offense. Section 708-801(6) provides that amounts involved in separate offenses committed pursuant to the same scheme or course of conduct may be aggregated in determining value.

Criminal property damage in the first degree, §708-820, presents the most aggravated form of property damage: damage which carries with it an incidental risk of danger to the person. Under former formulations of property offenses, arson, which is sometimes regarded as an offense against the person, was regarded as the most serious property offense deserving the most severe sanction. Yet actual risk of danger to another was not required for conviction of arson, and it is possible to think of many cases in which, although fire is not the method used in causing the damage, actual risk to the safety of another would result from property damage. The conjunction of property damage and risk to the person is made a separate offense which, because of the cumulative dangers involved, is punished more severely than the offense of reckless endangering.[1] If the conduct places another in danger, it is not required for conviction under §708-820 that the property damaged be that of another; any property damage will suffice.

Section 708-821, criminal property damage in the second degree, covers damage aggravated by three factors: intentional behavior on the part of the actor, and either a potential of widespread damage or a high value of the property. Subsection (1)(a) incorporates the traditional offense of arson and, in addition, would cover other property damage by "means capable of causing potential widespread injury or damage." The Code employs the phrase "widely dangerous means," defined in §708-800, to cover, in addition to fire, such methods of damage as floods, avalanche, and radioactive material. It is the potential for indiscriminate destruction that is the gravamen of this offense. It seems clear that separate, but substantially similar, methods of property damage should not constitute separately defined offenses merely for the sake of preserving old labels and phrases. It should be pointed out that under §708-821(1)(a), unlike §708-820, another person need not actually be placed in danger of death or bodily injury by the actor's conduct. Subsection (1)(b) seeks to differentiate the degree of the offense on the basis of the value of property damaged. As one of the factors differentiating the seriousness of similar offenses, the value of the property involved has traditionally been considered in theft offenses. It seems here no less applicable. Accordingly, theft and property damage offenses are correlated to the extent the value of the property involved is a governing factor.

Section 708-822, criminal property damage in the third degree, reduces the grade of the offense to a misdemeanor if the actor recklessly damages the property of another, without the other's consent, by the use of widely dangerous means, or if the actor intentionally damages such property, the value of which exceeds $50. At common law arson was an intentional offense. Subsection (1)(a) in part extends the arson offense, but subsection (2) provides a reduced penalty, reflecting a lesser degree of culpability. Subsection (1)(b) imposes misdemeanor liability for intentional property damage based in part on the value of the property involved. It is part of the differentiation referred to above and must be compared with §§708-821(1)(b) and 823.

Section 708-823 provides a residual property damage offense and is graded a petty misdemeanor. The damage must be intentional; however, the property damaged may be of any value.

Previous Hawaii law was rather typical of the confused state of decisional and statutory law regarding offenses of property damage.[2] The Hawaii Revised Statutes recognized no less than six offenses predicated on damage by fire: two degrees of arson, three degrees of malicious burning, and a separate offense of wilful burning with intent to injure an insurer.[3] Such fine distinctions were required as to whether the act was done by day or night, the value of the property damaged, and the nature of the property damaged (e.g., which range from the inhabited dwelling house of another to any wood, field, grass or standing product of the soil). A separate offense, in a different chapter, resulting in a less severe sentence, was provided if the defendant chose to use explosives.[4] Property damage not involving what the Code has called "widely dangerous means" was labeled malicious injury and was made a misdemeanor under previous law; the offense was not differentiated on the basis of the value of the property involved. This Code attempts to greatly simplify, clarify, and rationalize the wide range of property damage offenses in the prior law.

Act 314, Session Laws 1986, amended §708-822 by increasing the dollar amount of the property involved in the offense of criminal property damage. The previous figure ($50) was designated in 1972 when the Code was first codified. With the increase, the dollar amount will more accurately reflect current property values and consequently the offense will warrant the level of culpability intended when it was originally drafted. Senate Standing Committee Report No. 820-86.

Act 170, Session Laws 1996, amended §708-820 by making damage to property in an amount exceeding $20,000 criminal property damage in the first degree. Prosecution is permitted for damage to property in the stated amount as a class B felony, consistent with other class B felony threshold amounts found in other crimes in the penal code. Senate Standing Committee Report No. 2599.

Act 170, Session Laws 1996, amended §§708-821 and 708-822 by raising the property damage thresholds from $500 to $1,500 for criminal property damage in the second degree (§708-821), a class C felony, and from $100 to $500 for criminal property damage in the third degree (§708-822), a misdemeanor. The legislature found that with the inflation of prices and services over the years, the amounts used to repair damages did not properly reflect the seriousness of the cases involved, as many cases involved damages to vehicles that may cost up to $1,000 for repairs. The legislature also found that the present threshold amounts did not accurately reflect the proper values for class C felony and misdemeanor property damage. Senate Standing Committee Report No. 2599, House Standing Committee Report No. 196-96.

Act 19, Session Laws 2003, amended §§708-820 and 708-821 to include "knowingly" as a state of mind alternative for the crimes of criminal property damage in the first or second degree. The legislature found that there are cases where the defendant is aware that property damage will occur as a result of the defendant's action but intentional property damage is not the motivating factor for the action. The legislature believed that in these cases, defendants should be held accountable for their actions and found that including the word "knowingly" as a state of mind alternative would accomplish this goal. Senate Standing Committee Report No. 591, House Standing Committee Report No. 1257.

§§708-820 To 823 Commentary:

1. Cf. §§707-713 and 714.

2. See generally, in relation to arson, M.P.C., Tentative Draft No. 11, comments at 34-37 (1960).

3. H.R.S. §§723-2 through 723-10.

4. Id. §753-8.