2021 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 15 - Property Damage
Section 30-15-1 - Criminal damage to property.

Criminal damage to property consists of intentionally damaging any real or personal property of another without the consent of the owner of the property.

Whoever commits criminal damage to property is guilty of a petty misdemeanor, except that when the damage to the property amounts to more than one thousand dollars ($1,000) he is guilty of a fourth degree felony.

History: 1953 Comp., § 40A-15-1, enacted by Laws 1963, ch. 303, § 15-1.

Cross references. — For destruction of newspapers kept by county clerk, see 4-40-10 NMSA 1978.

For authority of conservation officers to enforce these provisions under emergency circumstances, see 17-2-19 NMSA 1978.

For polluting of water, see 30-8-2 NMSA 1978.

For destruction of cemetery property, see 30-12-13 NMSA 1978.

For criminal trespass, see 30-14-1 NMSA 1978.

For liability of parents for destruction of property by child, see 32A-2-27 NMSA 1978.

For flooding of highway, see 67-7-4 NMSA 1978.

For interference with or changing of water measuring devices, see 72-5-20 NMSA 1978.

For injury and interference with waterworks, see 72-8-1 and 72-8-3 NMSA 1978.

For interference with community ditches, see 73-2-64 NMSA 1978.

For injuring of survey marks, see 73-17-5 NMSA 1978.

For injuring of fence, see 77-16-10 NMSA 1978.

The replacement cost of irreparable items is an appropriate measure of the value of the items. State v. Cobrera 2013-NMSC-012, 300 P.3d 729.

The purchase price of an item was sufficient evidence of replacement cost. — Where defendant damaged household goods of defendant's estranged spouse; and the state's evidence showed that the purchase price of the irreparably damaged items was greater than $1,000, there was sufficient evidence from which the jury could conclude that the replacement cost of the items was greater than $1,000. State v. Cobrera 2013-NMSC-012, 300 P.3d 729.

Determining damage amount for felony criminal damage to property. — The damage amount for felony criminal damage to property is the cost of repair or replacement cost, whichever is less. The state bears the burden of proving the replacement cost of the damaged property. State v. Fernandez, 2015-NMCA-091.

Where defendant kicked victim's twelve-year-old pickup truck, causing a large dent in the door of victim's vehicle and then struck victim's truck with defendant's own vehicle, and the state presented evidence at trial that the cost of repair of victim's truck was between $1,500 and $1,600, but failed to offer evidence regarding replacement cost, there was insufficient evidence to convict defendant of felony criminal damage to property, because the state was required to submit evidence as to replacement cost so that the jury could reasonably determine whether it exceeded the cost of repair. State v. Fernandez, 2015-NMCA-091.

Criminal damage to property was a lesser included offense of breaking and entering. — Where defendant attempted to force entry into an apartment through the front door; the occupants of the apartment struggled to hold the door closed; defendant pushed the occupants back into the apartment about a foot and stepped into the apartment; while one occupant of the apartment attempted to call 911, defendant walked away; and when the other occupant opened the door to see which way defendant had gone, defendant returned and began kicking the door, defendant's initial act of trying to force open the door of the apartment and then returning minutes later to kick the door was unitary conduct and defendant's conviction of criminal damage to property, which was a lesser included offense of defendant's conviction of breaking and entering, violated defendant's right to be free from double jeopardy. State v. Sorrelhorse, 2011-NMCA-095, 150 N.M. 536, 263 P.3d 313, cert. denied, 2011-NMCERT-008, 268 P.3d 513.

Cost of repair. — The cost of repair alone is sufficient to support a conviction for criminal damage to property. State v. Barreras, 2007-NMCA-067, 141 N.M. 653, 159 P.3d 1138.

Lesser included offenses. — Entrustment and conversion are not elements of criminal damage to property. State v. Archie, 1997-NMCA-058, 123 N.M. 503, 943 P.2d 537.

Defendant charged under this section and vehicle tampering statute. — Where defendant caused damage in excess of $1000 to a vehicle, the general/specific rule did not apply to prevent a charge of criminal damage to property under this section, on the basis that defendant could only be charged under Section 66-3-506 NMSA 1978 (now Section 30-16D-5 NMSA 1978), prohibiting injuring or tampering with a vehicle. State v. Arellano, 1997-NMCA-074, 123 N.M. 589, 943 P.2d 1042, cert. quashed, 124 N.M. 589, 953 P.2d 1087 (1998).

Community property of defendant. — This section does not criminalize damage to community property one owns; such property is not "property of another" for purposes of this section. State v. Powels, 2003-NMCA-090, 134 N.M. 118, 73 P.3d 256.

Equitable owner of property. — The equitable owner of property under a real estate contract cannot be criminally charged with damaging that property. State v. Earp, 2014-NMCA-059.

Where defendant purchased a home pursuant to a real estate contract; when defendant failed to pay the balance due on the contract, the seller terminated the contract; prior to vacating the property, defendant removed a number of appliances and fixtures from the house and left the house in a state of disrepair; and defendant was charged with criminal damage to property, 30-15-1 NMSA 1978 did not apply to property in which defendant had an equitable ownership interest. State v. Earp, 2014-NMCA-059.

Defense of habitation. — Question whether force used by a person in defense of habitation exceeded what was reasonably necessary was for the jury to resolve upon appropriate instructions by the trial judge. State v. Couch, 1946-NMSC-047, 52 N.M. 127, 193 P.2d 405.

The defense of habitation alone, without a statute making it a felony to unlawfully and maliciously injure a house, gave householder the right to meet force with force, and "an attack upon a dwelling, and especially in the night, the law regards as equivalent to an assault on a man's person, for a man's house is his castle." State v. Couch, 1946-NMSC-047, 52 N.M. 127, 193 P.2d 405.

When one's home was attacked in the middle of a dark night by persons riding in an automobile, the householder, being unable to determine what weapons the assailants had, was not obliged to retreat but might pursue his adversaries until he found himself out of danger. State v. Couch, 1946-NMSC-047, 52 N.M. 127, 193 P.2d 405.

Resistance to commission of felony. — While no law countenanced wanton slaying, the protection and security of life being the most vital interest of society, the law of defense of habitation and the resistance to the commission of a felony thereon gave householder right to kill aggressor, if such killing was necessary or apparently necessary to prevent or repel the felonious aggression. State v. Couch, 1946-NMSC-047, 52 N.M. 127, 193 P.2d 405.

Tort liability for injury to trespasser. — As a matter of law the use of a gun by owner while stopping trespass or theft of watermelons by group of boys was not permissible, and when owner fired gun he became liable to injured boy. Brown v. Martinez, 1961-NMSC-040, 68 N.M. 271, 361 P.2d 152.

Sufficiency of evidence. — Evidence was sufficient to support an inference that damages were at least $1,000. State v. Haar, 1990-NMCA-076, 110 N.M. 517, 797 P.2d 306, cert. denied, 110 N.M. 330, 795 P.2d 1022.

Sufficient evidence. — Where the evidence showed that defendant bashed out the windows of a truck with a baseball bat, threw rocks at the truck and through the windows of the truck, kicked the truck, tore the face plate off of the stereo in the truck in an attempt to take the stereo, which damaged the entire stereo system, destroyed the rearview mirror in truck, and irreparably damaged the ignition column of the truck, the evidence was sufficient to support defendant's conviction of criminal damage to property. State v. Dickert, 2012-NMCA-004, 268 P.3d 515, cert. denied, 2011-NMCERT-012.

Insufficient evidence of intent to damage the property of another. — Where defendant was convicted of criminal damage to property based on DNA evidence found in a burglarized house, there was insufficient evidence to permit a rational jury to find the essential facts to establish each element of the crime of criminal damage to property beyond a reasonable doubt, because although there was evidence that defendant had entered the property without authorization, the state, without presenting any evidence linking defendant to the property damage, failed to establish, either directly or by circumstantial evidence, that defendant intentionally damaged the property of another. State v. Ledbetter, 2020-NMCA-046.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 52 Am. Jur. 2d Malicious Mischief §§ 1 to 11.

Liability for injury to property occasioned by oil, water or the like flowing from well, 19 A.L.R.2d 1025.

Liability for damage to automobile left in parking lot or garage, 13 A.L.R.4th 442.

54 C.J.S. Malicious or Criminal Mischief or Damage to Property §§ 1 to 11.