One can illegally interfere with or damage someone else’s property in the manner of theft, burglary, criminal damage, or arson. Each of those are described here along with their unique mens rea and actus reus.

8.4.1 Theft

Theft is commonly thought of as “stealing.” The words “larceny” and “theft” are often used interchangeably, as well as sometimes “robbery” or “burglary,” though these are variations of the same type of crime. We discussed robbery in Chapter 7 which meant theft from an actual person while using a real or perceived threat. In this chapter, we will look at the types of theft that do not involve the presence of a victim.

Theft is a broad term for a property crime that covers several different ways of messing with (interfering with) property belonging to someone else that ruins their ability to use it themselves. Theft includes stealing but also any other deprivation of property from an owner. This deprivation can be withholding, moving, or receiving of stolen property.

The mens rea for theft laws is the intent to deprive an owner of their property. The actus reus for theft laws is stealing property or services. For example, stealing a car counts, but so does using someone else’s login for a streaming service.

Physically taking an item is considered the crime of general theft. The actual act of taking an item has two main components. First, the person committing the theft must gain control over the item. Then, they have to move the item. This is called asportation. Because theft requires actually physically taking something, it usually only applies to personal property and services, but not always. Real property (like a house) is really hard to steal and move somewhere else, so cases involving real property are rare.

Theft is a broad crime that can have many other variations in the law that address specific types:

• Shoplifting (stealing from a retail store)
• Embezzlement (a white collar crime we will cover in Chapter 9)
• Motor vehicle theft (stealing a vehicle)
• Burglary (theft from a residence, or even overstaying at a hotel or rental property)
• Theft of services (stealing utilities or using streaming subscriptions without paying for them)
• Robbery (forcible theft from a person as discussed in Chapter 7)

Theft laws and levels are based on the value of the property or service stolen. It is probably obvious to say higher-value thefts are more serious and lower-value thefts are less serious. The seriousness determines the punishment for the crime.

Grand theft is the biggest, highest level and is reserved for the theft of property with substantial value. Petty theft is the smallest, lowest level and is reserved for the theft of property with very low value.

8.4.2 Burglary

Burglary, like that discussed in the Chapter Overview, is often associated with theft because it is thought to involve the act of stealing. This is only partially true. Burglary is interfering with the use of real property. But remember, interfering can take many forms which includes theft but also includes remaining on property without permission, using property without permission, or entering property without permission. The differences are small but important.

The actus reus required for burglary varies, but typically includes the concept of unlawful or uninvited entry. Basically, it is illegal to enter any structure or vehicle at any time of day if you are not supposed to be in there. Some jurisdictions include “remaining” as a factor of the entry. That means “breaking and entering” is one thing, and “breaking, entering, and staying for a bit” is even worse. When we talk about criminal breaking-in, it is generally any physical force used to enter the burglarized area—even pushing open a closed door. (Commonwealth v. Hallums, 2004). Entry is a partial or complete intrusion of either the offender, the offender’s body part, or a tool or instrument (People v. Nible, 1988). In some jurisdictions, the entry must be unauthorized, (State v. Hall, 2000), while in others, it could be lawful (People v. Nunley, 1985). The mens rea element required for burglary is typically knowingly entering with the specific intent to commit a crime.

Burglary is put into degrees like with the crimes we discussed in Chapter 7 (first- through fourth-degree). The level is determined based on the seriousness of the actus reus in combination with the mens rea. For example, prosecutors will look at the use or possession of a weapon, the entry into a residence, dwelling, or building where people are present, the commission of burglary at nighttime, or the infliction of injury or death. Second- and third-degree burglary are usually felonies, although less serious than first-degree burglary as with other types of crimes.

8.4.3 Criminal Damage

Criminal damage means it is a crime to damage or destroy property or tamper with property. It also includes using deception or a threat that leads to a loss of property. Criminal damage is sometimes also called “vandalism” or “criminal mischief” in some jurisdictions.

The actus reus required for criminal damage is the physical interference with property: damaging, destroying, interfering with, or tampering. Criminal damage typically requires committing actions against the property of another (or property that is government owned) without permission.

The mens rea for criminal damage varies, depending on the jurisdiction and the amount of harm caused. The criminal intent could be purposely, knowingly, reckless, or negligent. It is generally a less serious offense either because the defendant inflicts damage to property in a “safe” or nonviolent manner or because the criminal intent is less vicious and directed toward an inanimate object instead of a person.

Some examples of criminal damage could be shattering someone’s car windshield with a golf club out of anger, throwing a brick through someone’s living room window to scare them, stabbing a tire with a screwdriver, hitting a mailbox with a baseball bat, or throwing someone’s cell phone. In each of these examples, the person doing the damage is doing so on purpose. These are not accidents. Accidental damage to property is not a crime.

Criminal damage is one variation of property crime that addresses a very specific type of interference with property. Graffiti is another type of criminal damage to property that is very specifically, applying graffiti to something. Any kind of tagging with spray paint, markers, or any other tool is considered criminal damage (figure 8.2).

Figure 8.2 Photograph of graffiti in Portland, Oregon.

The different levels or degrees of criminal damage are decided by the extent of the property damage and the state of mind of the offender. There is such a wide range in this category of crimes that criminal damage can be a felony, misdemeanor, petty misdemeanor, or violation, all depending on the extent of the damage or the criminal intent.

8.4.4 Arson

Another type of criminal property damage is arson. Arson is the intentional or malicious (intending to do harm) burning of property with fire or explosion. Laws in most jurisdictions criminalize burning almost anything, including the offender’s own property in many instances. However, for the burning of one’s own property to count as actual arson, the offender must have acted with the specific intent or purpose to defraud (such as burning down your own home and trying to make it look like an accident so you can get the insurance money).

The actus reus required for arson is typically setting fire to or burning real or personal property. This could include buildings, structures, land, and vehicles. The mens rea required for arson in many jurisdictions is intentionally burning or damaging property (doing it on purpose). First-degree arson may focus on arson of a place where people live and second-degree arson focuses more on arson of other property.

Other factors that are considered when deciding the level or degree of arson are if anyone was injured or killed, the extent of the property damage, and the value of the property that was burned. For arson, even smoke damage without burning or charring can be enough to lead to an arson charge.