2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 7 - Damage to and Intrusion Upon Property
Article 2 - Criminal Trespass and Damage to Property
Part 1 - General Provisions
§ 16-7-23. Criminal Damage to Property in the Second Degree

1. A person commits the offense of criminal damage to property in the second degree when he:
   1. Intentionally damages any property of another person without his consent and the damage thereto exceeds $500.00; or
   2. Recklessly or intentionally, by means of fire or explosive, damages property of another person.
2. A person convicted of the offense of criminal damage to property in the second degree shall be punished by imprisonment for not less than one nor more than five years.

(Code 1933, § 26-1502, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1985, p. 484, § 2; Ga. L. 1985, p. 1491, § 2; Ga. L. 2008, p. 444, § 2/SB 400.)

- For article surveying legislative and judicial developments in Georgia local government law for 1978-79, see 31 Mercer L. Rev. 155 (1979).

ANALYSIS

• General Considerations
• Application
• Merger of Offenses

O.C.G.A. §§ 16-7-21 and16-7-23 define identical crimes except for the amount of damage required for conviction and the former is a lesser included offense of the latter. Merrell v. State, 162 Ga. App. 886, 293 S.E.2d 474 (1982); Williams v. State, 180 Ga. App. 854, 350 S.E.2d 837 (1986).

§ 16-7-22(a)(1). - Because criminal damage to either marital or family property partially owned by another was sufficient to establish the commission of an offense under either O.C.G.A. § 16-7-22(a)(1) or O.C.G.A. § 16-7-23(a)(1), sufficient evidence was presented by the state to support the defendant's conviction under the former as charged. Gooch v. State, 289 Ga. App. 74, 656 S.E.2d 214 (2007).

- In a popular sense, the word "damage" frequently means depreciation in value, whether such depreciation is caused by a wrongful or a lawful act, but in statutes the word always refers to some actionable wrong - some loss, injury, or harm which results from the unlawful act, omission, or negligence of another. Bembry v. State, 155 Ga. App. 847, 273 S.E.2d 208 (1980).

Damage to personal property means all injuries which one may sustain in respect to that person's ownership of personal property. Bembry v. State, 155 Ga. App. 847, 273 S.E.2d 208 (1980).

Application

Probable cause for arrest.

- Arrestee showed no Fourth Amendment violations because the arrest under O.C.G.A. § 16-7-23 had been based on probable cause; thus, the claim for malicious prosecution under 42 U.S.C. § 1983 was properly dismissed on summary judgment. The claim was also properly analyzed under the Fourth Amendment rather than the Fourteenth Amendment in that the claims flowed from the allegedly unlawful arrest. Jordan v. Mosley, F.3d (11th Cir. Aug. 28, 2008)(Unpublished).

- When an arrestee refused to allow a guest back into the arrestee's home and removed the guest's things, officers were not entitled to qualified immunity as to the arrestee's claims under the Fourth and Fourteenth Amendments, because the officers did not show that the officers had probable cause to arrest the arrestee for criminal damage to property under O.C.G.A. § 16-7-23 since the arrestee alleged that the arrestee did not damage any of the guest's property and that an officer knew that at least some of the property was not actually damaged. Gray v. City of Roswell, F.3d (11th Cir. Aug. 13, 2012)(Unpublished).

Even assuming that the plaintiff was arrested rather than detained when the plaintiff was placed in the backseat of a patrol car at the scene of an accident, the officer was entitled to qualified immunity as the plaintiff failed to set forth a claim that the plaintiff's clearly established Fourth Amendment rights were violated. Even if the officer was mistaken, the officer was entitled to rely on a victim's allegations at the scene of the accident and, thus, the officer had reason to believe that the plaintiff damaged the property of another person without consent in violation of Georgia law; further, because the warrantless arrest was supported by at least arguable probable cause, the officer was entitled to search the plaintiff incident to that arrest. Moreno v. Turner, 572 Fed. Appx. 852 (11th Cir. July 22, 2014)(Unpublished).

- Judgment finding that the defendant was rendered ineffective assistance of counsel for counsel's alleged failure to advise of deportation consequences for a destruction of property offense was reversed because the defendant's date of admission was not within five years of the date of the commission of the crime in 2002; thus, the defendant failed to prove that the defendant was deportable by virtue of having committed a crime of moral turpitude. State v. Addaquay, 302 Ga. 412, 807 S.E.2d 413 (2017).

Defendant's former wife had legal occupancy of damaged house, where her divorce decree awarded her "use" of the house, even though the defendant had not yet complied with an order to give her a quitclaim deed. Rash v. State, 182 Ga. App. 655, 356 S.E.2d 719 (1987).

- When the defendant is convicted of criminal damage to property in the second degree (a felony) and criminal trespass (a misdemeanor) and when the offenses were committed at different apartments under different tenancies, such convictions do not fall within the purview of former Code 1933, § 26-506 (see now O.C.G.A. § 16-1-7(a)). Hiatt v. State, 133 Ga. App. 111, 210 S.E.2d 22 (1974) (see O.C.G.A. § 16-1-7(a)).

- Because the state was not required to prove that the victim's damaged van was titled in the victim's name, but only needed to show that the victim had lawful possession of the property, the defendant's criminal damage to property conviction was upheld; thus, the defendant was not entitled to a directed verdict of acquittal as to that charge. Self v. State, 288 Ga. App. 77, 653 S.E.2d 787 (2007).

- There was sufficient evidence to support a burglary conviction, which was based on the intent to commit second-degree criminal damage to property under O.C.G.A. § 16-7-23, when the defendant entered the victim's home, broke glass, attempted to kick down the victim's bedroom door, and caused $13,540 in damage to the victim's home. Jones v. State, 291 Ga. App. 296, 661 S.E.2d 651 (2008).

- Trial court charged the jury on criminal damage to property as a lesser included offense of arson under O.C.G.A. § 16-7-23(a)(2), which did not require a showing of lack of consent, unlike paragraph (a)(1). Therefore, the state was not required to prove that the owner of a mobile home that the defendant damaged by lighting the defendant's girlfriend in flames did not consent to the act. Brown v. State, 288 Ga. 364, 703 S.E.2d 609 (2010), cert. denied, 131 S. Ct. 2454, 179 L. Ed. 2d 1221, 2011 U.S. LEXIS 3708 (U.S. 2011).

- Testimony of the owner of property as to the owner's opinion of the value of the property, without giving the owner's reasons therefor, is inadmissible in evidence as the testimony has no probative value. Johnson v. State, 156 Ga. App. 411, 274 S.E.2d 778 (1980), cert. denied, 451 U.S. 989, 101 S. Ct. 2327, 68 L. Ed. 2d 848 (1981).

Trial court erred in failing to direct verdict of acquittal on charge of criminal damage to property where there was no competent evidence of value of damages in excess of $100.00. Porter v. State, 163 Ga. App. 511, 295 S.E.2d 179 (1982).

Testimony of the owner of property as to the owner's opinion of the value of the property, without giving the owner's reasons therefor, is inadmissible in evidence as it has no probative value. However, when the witness pays the monetary amount necessary to make the owner's property whole again, the owner thereafter is not stating the owner's opinion as to the value, but is stating a fact. Holbrook v. State, 168 Ga. App. 380, 308 S.E.2d 869 (1983); In re M.C., 239 Ga. App. 767, 521 S.E.2d 900 (1999).

Testimony of victim's husband as to the value of a damaged waterbed and carpet, along with his canceled check for $1,900, sufficiently established the ownership and present value of the items within the contemplation of the statute. Russell v. State, 188 Ga. App. 167, 372 S.E.2d 445, cert. denied, 188 Ga. App. 912, 372 S.E.2d 445 (1988).

When the state offered no proof of any amounts paid for repair of the property damaged and presented no photographs depicting the property damaged, there was no competent evidence from which the jury could determine that the value of the damage for which the defendant was responsible was in excess of $500.00, an essential element of the indicted crime. Hildebrand v. State, 209 Ga. App. 507, 433 S.E.2d 443 (1993); Bereznak v. State, 223 Ga. App. 584, 478 S.E.2d 386 (1996).

Owner's opinion of the value of a piece of property, uncorroborated by evidence, has no probative value. Waldrop v. State, 231 Ga. App. 164, 498 S.E.2d 337 (1998).

When the only evidence of damage in excess of $500 was the victim's testimony regarding an estimate for repairs to the victim's van from a dealer and the victim's acknowledgment that the victim did not get the van repaired for this price, the testimony about the estimate was inadmissible hearsay, and the adjudication of delinquency for committing an act which would have supported a conviction for the offense of criminal damage to property in the second degree were the defendant charged as an adult was vacated. In re A.F., 236 Ga. App. 60, 510 S.E.2d 910 (1999).

Police officer's testimony that the damage to a car was "about $500" did not show the damage "exceeds $500" as required by O.C.G.A. § 16-7-23(a)(1). Mack v. State, 255 Ga. App. 210, 564 S.E.2d 799 (2002).

Defendant's convictions for armed robbery, possession of a firearm during the commission of a crime, robbery by intimidation, and criminal damage to property in the second degree were supported by sufficient evidence because, inter alia, defendant's sibling let the defendant and two others into a restaurant after hours, the defendant pointed a gun at the sibling's co-worker, and then beat on a safe and pried open the cash registers looking for money; all four co-conspirators involved, including the defendant, gave statements to police implicating themselves and their codefendants, and a bill was introduced showing that repair of the safe damaged during the robbery attempt cost $1,000.00. Polite v. State, 273 Ga. App. 235, 614 S.E.2d 849 (2005).

Defendant's conviction of criminal damage to property in the second degree in violation of O.C.G.A. § 16-7-23 was supported by sufficient evidence despite allegedly conflicting evidence on whether the damage exceeded the $500 threshold; the damage estimate relied on by the defendant to create a conflict was hearsay and had no probative value, and there was competent evidence showing that the damage to the vehicle exceeded $500. Leeks v. State, 281 Ga. App. 274, 635 S.E.2d 878 (2006).

Because it was undisputed that the victim failed to testify regarding the value of the damage to the subject property, an adjudication for the offense of second-degree criminal damage to property entered against a juvenile was vacated; however, given evidence that the juvenile intentionally damaged the property of another without consent, and the damage was $500 or less, an adjudication could be entered on a charge of criminal trespass which did not violate the juvenile's due process right to be notified of the charges. In the Interest of J.T., 285 Ga. App. 465, 646 S.E.2d 523 (2007).

Opinion by a network manager for the victim that the victim incurred $1,929 in labor expenses for repairs to the cut telephone wire was not competent evidence to support the defendant's conviction for criminal damage to property in the second degree as it was not based on personal knowledge, and the only competent evidence showed $384 was spent to replace materials, which was sufficient for a conviction for criminal trespass to property. Clement v. State, 324 Ga. App. 39, 749 S.E.2d 41 (2013).

There was sufficient evidence to support the defendant's conviction for criminal damage to property in the second degree as the state presented evidence from the victim that the damage to the victim's car was a shot-out window and that the cost to get the car fixed exceeded $500 as well as a photograph showing the damaged window. Motes v. State, 352 Ga. App. 707, 834 S.E.2d 565 (2019).

- Accomplice's testimony implicating the defendant was corroborated by the hat found at the scene of the crime containing the defendant's DNA and, thus, the evidence was sufficient for the jury to have found beyond a reasonable doubt that the defendant was guilty of burglary and criminal damage to property in the second degree. Dunlap v. State, 351 Ga. App. 685, 832 S.E.2d 667 (2019).

- Defendant was entitled to reversal of a conviction for criminal damage to property in the second degree because there was no competent evidence from which the jury could determine that the value of the damage for which the defendant was responsible was in excess of $500, an essential element of the offense. Lenoir v. State, 322 Ga. App. 583, 745 S.E.2d 824 (2013).

State failed to prove that the defendant caused at least $500 of damage to a Jeep as charged in the indictment because the victim's testimony about the damage discussed the cost as to the Jeep and another vehicle and, thus, failed to prove that the defendant committed criminal damage to personal property in the second degree with regard to that vehicle. Frey v. State, 338 Ga. App. 583, 790 S.E.2d 835 (2016).

Evidence was insufficient to support the defendant's convictions for 10 counts of second-degree damage to property as the state did not prove that the fair market value of the property damage exceeded $500 because the property owner provided no testimony as to the original price of the 10 air-conditioning units, their exact ages, or their condition when the units were vandalized; the evidence did not show that the damage to each of the 10 units individually exceeded $500; and, although evidence of the cost to repair an item could suffice, the owner testified that no repairs had actually been performed, and an estimate of repair costs alone was inadmissible hearsay that was insufficient to prove the fair market value of damage to property. Wynn v. State, 344 Ga. App. 554, 811 S.E.2d 53 (2018).

- See Masters v. State, 186 Ga. App. 795, 368 S.E.2d 557 (1988); Watkins v. State, 191 Ga. App. 325, 382 S.E.2d 107, cert. denied, 191 Ga. App. 923, 382 S.E.2d 107 (1989); Key v. State, 213 Ga. App. 556, 445 S.E.2d 349 (1994).

Sufficient circumstantial evidence supported the conviction for second degree damage to property as the defendant took credit for keying two of the spouse's vehicles; furthermore, the defendant was actually seen spray painting the vehicle two days earlier. Johnson v. State, 260 Ga. App. 413, 579 S.E.2d 809 (2003).

Defendant's statements to police and the victim's prior inconsistent statements were sufficient to support the defendant's conviction for criminal damage to property in the second degree despite the fact that the victim recanted at trial; the fact that the victim chose not to repair the hood of the victim's car did not eliminate the fact that the defendant damaged the hood, so the cost of repair of the hood was properly added to the total for purposes of criminal damage to property, and the testimony of the mechanic was sufficient to prove the value of the damage to the car. Wyche-Hinkle v. State, 268 Ga. App. 898, 602 S.E.2d 902 (2004).

Deputy was entitled to qualified immunity for plaintiff's Fourth Amendment claim under 42 U.S.C. § 1983 because it was objectively reasonable for the deputy to believe that the plaintiff intentionally caused damage to a backhoe, giving probable cause for arrest under O.C.G.A. § 16-7-23(a), a general intent crime that required no specific evidence of intent. Jordan v. Mosley, 487 F.3d 1350 (11th Cir. 2007).

Juvenile court properly denied a juvenile's motion for a new trial with regard to the juvenile's delinquency adjudication finding the juvenile guilty for aggravated assault, criminal property damage, cruelty to children, and reckless conduct arising from the shooting of a BB gun at a passing car. The juvenile was the only Caucasian identified in the group of youth; the juvenile admitted to hiding the BB gun; the juvenile did not dispute that the juvenile encouraged another youth to shoot the gun; and the judge was the final arbiter of the credibility and witness issues and had the province to reject the testimony of the juvenile and a parent that the juvenile did not shoot the gun. In the Interest of A.A., 293 Ga. App. 827, 668 S.E.2d 323 (2008).

When the owner of the facility was able to testify as to the building's condition before and after the burglary, and the owner also observed wires hanging with a shackle on them which were missing the following day; and then when approximately 70 to 75 feet of wire and a chain hook were found at the defendant's residence, and this was sufficient to establish that the defendant damaged the property under O.C.G.A. § 16-7-23. Adams v. State, 300 Ga. App. 294, 684 S.E.2d 404 (2009).

Juvenile court did not err in finding the defendant juvenile delinquent for committing the offense of criminal damage to property in violation of O.C.G.A. § 16-7-23(a)(1) because the evidence presented including the extent of the damage and the defendant's admission that the defendant and others kicked and pushed on the door to a rental home was sufficient. In the Interest of C.H., 306 Ga. App. 834, 703 S.E.2d 407 (2010).

Evidence was sufficient to sustain the defendant's conviction for second-degree criminal damage to property based on the victim's testimony that the defendant was wearing a dark shirt when the defendant fled through the back door after hearing the knock of the victim's friends, and the male friend testified that moments later, that witness saw a man in a dark shirt shooting at the victim's car parked outside the victim's house, thus, that evidence showed that the defendant was the person who shot at the male friend's car. Jones v. State, 320 Ga. App. 26, 739 S.E.2d 43 (2013).

Evidence was sufficient to convict the defendant of criminal damage to property based on the damage to a neighbor's vehicle parked on the street because the jury was authorized to find that, as a result of the defendant's flight from the intentional criminal actions of firing a firearm into the home of the complainant's mother, the defendant damaged the neighbor's vehicle. Brown v. State, 325 Ga. App. 237, 750 S.E.2d 453 (2013).

Evidence that the defendant threw a brick at the victim's truck and caused more than $500 in damages was sufficient to support the defendant's conviction for criminal damage to property in the second degree. Fleming v. State, 324 Ga. App. 481, 749 S.E.2d 54 (2013).

Evidence that the victim discovered damage to the victim's home after the defendant had been there supported the criminal damage conviction. Slaughter v. State, 327 Ga. App. 593, 760 S.E.2d 609 (2014).

- Trial court did not err by declining defendant's requests to charge on arrest by a private person, interference with government property, criminal damage to property in the second degree, and criminal trespass as the evidence did not support the charges. During an argument in which defendant's girlfriend threatened to tear up defendant's study papers for a peace officer training program, defendant grabbed his girlfriend by one arm, pulled her into the living room, threw her chest first against the back of a couch, handcuffed her hands behind her back, and did not release her from the handcuffs despite her requests to release her. Turner v. State, 307 Ga. App. 376, 705 S.E.2d 177 (2010).

Former Code 1933, § 26-1502 was not lesser included offense of crime of burglary. Christian v. State, 130 Ga. App. 582, 203 S.E.2d 914 (1974).

- Trial court did not err in failing to merge the defendant's convictions for the criminal damage to property charges because criminal damage to property in the first degree required evidence that the defendant acted in a manner that endangered human life, whereas criminal damage to property in the second degree required evidence that the damage to property exceeded $500, neither of which was required in the other. Sullivan v. State, 331 Ga. App. 592, 771 S.E.2d 237 (2015).

- When the evidence establishes without conflict that arson in the first degree occurred, and the defendant simply denies being the one who committed the arson, the crime of criminal damage to property merges with the crime of arson, and no charge on the lesser crime is required. Walker v. State, 193 Ga. App. 100, 386 S.E.2d 925 (1989).

- Anyone who commits first-degree arson necessarily has also committed criminal damage to property, provided that the property damaged belongs to another person. Since the criminal damage to property, however, is established by proof of the same conduct as first-degree arson, but requires proof of a less culpable mental state, it is an included crime in first-degree arson; and a defendant may not be convicted of both. Corson v. State, 144 Ga. App. 559, 241 S.E.2d 454 (1978).

One who commits first-degree arson has also committed criminal damage to property when the property in question belongs to another, but while the latter crime is established by the same conduct as the former, it requires proof of a "less culpable mental state" under the Criminal Code. Bryant v. State, 188 Ga. App. 505, 373 S.E.2d 289 (1988).

- Words used in former Code 1933, § 26-1502 (see now O.C.G.A. § 16-7-23(a)(2)), "recklessly, or intentionally, by means of fire or explosive, damages property of another," constitute a lesser offense within the ambit of former Code 1933, § 26-1402 (see now O.C.G.A. § 16-7-61). D.C.A. v. State, 135 Ga. App. 234, 217 S.E.2d 470 (1975).

Trial court properly merged a conviction of criminal damage to property in the second degree, in violation of O.C.G.A. § 16-7-23(a)(1), into a conviction for arson in the second degree, in violation of O.C.G.A. § 16-7-61, as the arson was not a lesser included offense of the criminal damage offense pursuant to O.C.G.A. § 16-1-6(1); arson required the higher mentally culpable state of knowingly, rather than the criminal damage scienter requirement of intentionally, and arson required that the damage to the property have been caused by fire or explosive. Youmans v. State, 270 Ga. App. 832, 608 S.E.2d 300 (2004).

- Trial court did not err in instructing the jury on criminal trespass after granting a directed verdict of acquittal on a charge of second degree criminal damage to property, because criminal trespass is a lesser included offense of the latter crime. Jennings v. State, 226 Ga. App. 461, 486 S.E.2d 693 (1997).

Defendant, who shot and damaged three out-of-service power transformers and was convicted of second degree criminal damage to property, was entitled to jury charge on criminal trespass, a lesser included offense, because the state failed to prove that the value of the transformers was over $500. Waldrop v. State, 231 Ga. App. 164, 498 S.E.2d 337 (1998).

Trial court did not err when it reduced a charge of criminal damage to property in the second degree to criminal trespass when the state failed to prove damages in excess of $500, instead of granting defendant's motion for acquittal on the charge. The evidence showed that defendant broke the windshield and at least one other window on defendant's spouse's car during an argument and therefore was sufficient to sustain defendant's conviction for criminal trespass. Hill v. State, 259 Ga. App. 363, 577 S.E.2d 61 (2003).

Although the state failed to provide any evidence regarding the value of a broken window and, thus, a juvenile court erred in finding that a juvenile committed criminal damage to property in the second degree, the juvenile court did not err in finding that the juvenile participated in the act of breaking the victim's window in an attempt to burglarize the house, thus, the evidence was sufficient to support an adjudication of delinquency for committing an act which would support a conviction for the offense of criminal trespass to property as a lesser included offense of criminal damage to property in the second degree. The result of reducing the offense did not violate the juvenile's due process right to be notified of the charges against the juvenile since the juvenile, as a defendant, is on notice of all lesser crimes which are included in the crime charged as a matter of law. In the Interest of J. S., 296 Ga. App. 144, 673 S.E.2d 645 (2009).

While the evidence was insufficient under O.C.G.A. § 16-7-23(a)(1) to conclude that a juvenile damaged property at a mobile home park in excess of $500, the evidence was sufficient to support a conviction for criminal trespass to property under O.C.G.A. § 16-7-21(a) as a lesser-included offense of second-degree criminal damage to property. In re A. C. R-M, 311 Ga. App. 848, 717 S.E.2d 344 (2011).

While the evidence was insufficient to support the defendant's conviction for second-degree criminal damage to property because there was no evidence that the property damage exceeded $500, the evidence was sufficient on the lesser included offense of criminal trespass because the hostess testified as to the extent of the damage, and there was evidence that the defendant had picked up a small chair or similar item from the porch and thrown the chair at the front of the house, breaking a window. Simpson v. State, 353 Ga. App. 568, 839 S.E.2d 47 (2020).

Cited in Loethen v. State, 158 Ga. App. 469, 280 S.E.2d 878 (1981); Brinson v. State, 163 Ga. App. 567, 295 S.E.2d 536 (1982); In re G.G., 177 Ga. App. 639, 341 S.E.2d 13 (1986); Gunder v. State, 183 Ga. App. 122, 358 S.E.2d 284 (1987); In re A.W.G., 184 Ga. App. 343, 361 S.E.2d 510 (1987); Lovett v. State, 184 Ga. App. 478, 361 S.E.2d 863 (1987); Smith v. State, 186 Ga. App. 303, 367 S.E.2d 573 (1988); Carthern v. State, 272 Ga. 378, 529 S.E.2d 617 (2000); Williams v. State, 293 Ga. App. 193, 666 S.E.2d 703 (2008); Lucas v. State, 328 Ga. App. 741, 760 S.E.2d 257 (2014).

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Arson and Related Offenses, §§ 3, 5, 11 et seq. 52 Am. Jur. 2d, Malicious Mischief, § 1 et seq.

- 35 C.J.S., Explosives, § 95 et seq. 36A C.J.S., Fires, § 1 et seq. 54 C.J.S., Malicious or Criminal Mischief or Damage to Property, § 1 et seq.

- Prejudicial effect of argument or comment that accused, if acquitted on ground of insanity, would be released from institution to which committed, 44 A.L.R.2d 978.