Tennessee § 39-14-408 - Vandalism.

§ 39-14-408. Vandalism.

For purposes of this section: “Damage” includes, but is not limited to: Destroying, polluting, or contaminating property; Tampering with property and causing pecuniary loss or substantial inconvenience to the owner or a third person; Intentionally spilling, pouring, or otherwise administering chemicals or other toxic substances to or on the merchandise with the intent to: Render the merchandise unusable or unsellable; or Alter the merchandise from its original or intended form; Destroying, harming, or decreasing the value of merchandise offered for sale by a retail merchant in any other manner; or Intentionally marring, marking upon, or defacing, in a temporary or permanent manner, state or local government property or any entrance or curtilage to or fixture on the property, with the exception of temporary marking of sidewalks; “Merchandise” includes any goods, chattels, foodstuffs, or wares of any type of description, regardless of the value; “Polluting” means the contamination by man-made or man-induced alteration of the chemical, physical, biological, or radiological integrity of the atmosphere, water, or soil to the material injury of the right of another. Pollutants include dredged soil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, and industrial, municipal, and agricultural waste; “Retail merchant” means any person primarily engaged in the business of making retail sales. For purposes of this subdivision (a)(4), “primarily” means that at least fifty percent (50%) of the taxable gross sales of the business are retail sales; and “Retail sale” or “sale at retail” means any sale other than a wholesale sale. A person commits the offense of vandalism who knowingly: Causes damage to or the destruction of any real or personal property of another or of the state, the United States, any county, city, or town knowing that the person does not have the owner's effective consent; Solicits, directs, aids, or attempts to aid another to commit vandalism of a retail merchant, while acting with the intent to promote or assist the commission of vandalism of a retail merchant, or to benefit in the proceeds or results of the offense; Damages merchandise offered for retail sale by a retail merchant; or Facilitates commission of vandalism of a retail merchant or acts as an accessory after the fact to vandalism of a retail merchant. A person violating subdivision (b)(1) or (b)(3) is a principal under § 39-11-401 and shall be punished as for theft under § 39-14-105, after determining value under § 39-11-106. In addition to any sentence imposed for a violation of subdivision (b)(1) or (b)(3), the court shall include an order of restitution for any property damage or loss or cleaning and restoration expenses incurred as a result of the offense. A person violating subdivision (b)(2) is a principal under § 39-11-402 and shall be punished as for theft under § 39-14-105, after determining value under § 39-11-106. A person violating subdivision (b)(4) by facilitating a felony act of vandalism committed under subdivision (b)(1) or (b)(3), shall be punished one (1) classification lower than the value of the act of vandalism committed under subdivision (b)(1) or (b)(3). A person violating subdivision (b)(4) as an accessory after the fact, under § 39-11-411, to a felony act of vandalism committed under subdivision (b)(1) or (b)(3) commits a Class E felony. Notwithstanding subdivision (c)(1)(A), a person violating subdivision (b)(1) by intentionally marring, marking upon, or defacing, in a temporary or permanent manner, state or local government property or any entrance or curtilage to or fixture on state or local government property, where the value determination under § 39-11-106 is less than two thousand five hundred dollars ($2,500), commits a Class A misdemeanor, unless the state or local government property is designated as a historic landmark or listed on the national register of historic places, in which case the violation shall be punished in accordance with subdivision (c)(1). In addition, a second or subsequent violation of subdivision (b)(1) with respect to state or local government property shall be punished by a mandatory fine of five thousand dollars ($5,000). Acts 1989, ch. 591, § 1; 1997, ch. 284, § 3; 2005, ch. 353, § 16; 2015, ch. 183, § 1; 2020 (2nd Ex. Sess.), ch. 3, §§ 6-8. Sentencing Commission Comments. Prior code §§ 39-3-1316 , 39-3-1318 — 39-3-1320 and 39-3-1322 — 39-3-1327 prohibited a wide variety of destructive acts, including injuring, defacing or destroying buildings or fixtures; monuments, works of art or ornamental trees or shrubs; goods, chattels or valuable papers; monuments, fences or structures on battlefields; camp grounds; boundary monuments; land or line marks; plant beds; material in caves or caverns; wire fences; trees or other growth on public lands; buildings or fences on public lands; timber on the land of another; and products on the land of another. This section is a consolidation and simplification of these former code sections. It is written broadly to include damage or destruction of any property without the consent of the owner, and also includes pollution of property. Vandalism is classified according to the value of the damage done to the property and is punished as theft pursuant to § 39-14-103 . Vandalism is no less than a Class A misdemeanor. Special vandalism statutes are included in §§ 39-14-411 , 39-14-412 and 39-14-413 . Compiler's Notes. Acts 2005, ch. 353, § 18 provided that the act shall apply to sentencing for criminal offenses committed on or after June 7, 2005. Offenses committed prior to June 7, 2005, shall be governed by prior law, which shall apply in all respects. However, for defendants who are sentenced after June 7, 2005, for offenses committed on or after July 1, 1982, the defendant may elect to be sentenced under the provisions of the act by executing a waiver of such defendant's ex post facto protections. Upon executing such a waiver, all provisions of the act shall apply to the defendant. Acts 2005, ch. 353, § 19 provided that the act shall have no application to sentencing for persons convicted of murder in the first degree, which shall be governed by the provisions of §§ 39-13-202 — 39-13-208 . Acts 2005, ch. 353, § 20(b) provided that the Tennessee Code Commission is requested to insert a cross reference in §§ 39-13-102 , 39-13-502 , 39-13-503 , 39-13-505 , 39-13-506 , 39-13-522 , 39-14-302 and 39-14-408 to § 40-35-114 stating that the enhancement factor formerly found in each such section was moved to § 40-35-114 so that all enhancement factors are located in one (1) section. The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation. For the Preamble to the act concerning a uniform framework of laws that will protect the rights of all Tennesseans to peacefully demonstrate, see Acts 2020 (2nd Ex. Sess.), ch. 3. 2020 (2nd Ex. Sess.), ch. 3, § 26 provided that the act, which amended this section, applies to offenses committed after August 20, 2020. Amendments. The 2020 (2nd Ex. Sess.) amendment by ch. 3 added (a)(1)(E), (c)(1)(B), and (c)(5). Effective Dates. Acts 2020 (2nd Ex. Sess.), ch. 3, § 26. August 20, 2020. Cross-References. Abuse of corpse, § 39-17-312 . Outdoor advertising on certain interstate highways prohibited, § 54-21-115 . Alleging grave-robbing, § 40-13-220 . Arson, title 39, ch. 14, part 3. Criminal sentencing enhancement factors, § 40-35-114 . Criminal trespass, § 39-14-405 . Desecration of venerated object, § 39-17-311 . Destruction of valuable papers, § 39-14-130 . Disorderly conduct, § 39-17-305 . Failure of cemetery corporation to establish improvement fund, § 46-1-304 . False reports, § 39-16-502 . Indictment without prosecutor, § 40-13-104 . Interference with county meridian markers, penalty, § 8-12-114 . Jury may provide punishment for less than year, § 40-20-103 . Liability for damage to cemetery, § 46-2-102 . Penalty for Class E felony, § 40-35-111 . Pollution of streams, title 69, ch. 3, part 1, § 70-4-206 . Trespass or injury to cemetery property, § 46-1-313 . Violation of boating safety act, § 69-9-219 . Violation of graves indictable without prosecutor, § 40-13-104 . Penalty for Class A misdemeanor, § 40-35-111 . Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 7.6. Tennessee Jurisprudence, 5 Tenn. Juris., Cemeteries, § 10; 10 Tenn. Juris., Double Jeopardy, § 12; 13 Tenn. Juris., Fences, § 1; 18 Tenn. Juris., Maliciously Secreting Property, § 1; 18 Tenn. Juris., Malicious Mischief, §§ 3, 4; 24 Tenn. Juris., Trees and Timber, § 5; 24 Tenn. Juris., Trespass, § 14. Law Reviews. Tennessee Water Law, You Never Miss the Water Till the Well Runs Dry (Vincent A. Sikora), 24 No. 5 Tenn. B.J. 12 (1988).