Instruction 8.250, Criminal Model Jury Instructions for Use in the District Court

VANDALISM

G.L. c. 266, § 126A

The defendant is charged with having committed vandalism. In order

to prove that the defendant is guilty of having committed the offense of

vandalism, the Commonwealth must prove four things beyond a

reasonable doubt:

First: That the defendant (painted) (marked) (scratched) (etched)

(injured) (marred) (defaced) (or) (destroyed) property;

Second: That the defendant did so intentionally;

Third: That the defendant did so (wilfully with malice) (wantonly); and

Fourth: That the property was owned or possessed by someone

other than the defendant.

To prove the second element, the Commonwealth must prove the

defendant acted consciously and deliberately, rather than by accident or as

the result of negligence.

To prove the third element, the Commonwealth must prove that the

defendant acted (wilfully with malice) (or) (wantonly).

A person acts wilfully if (he) (she) intends both the conduct and its

harmful consequences. The act must be done with the intent that it have

harmful consequences.

An act is done with “malice” if it is done out of cruelty, hostility or

revenge. To act with malice, one must act not only deliberately, but out of

cruelty, hostility or revenge toward another.

Commonwealth v. Chambers, 90 Mass. App. Ct. 137, 144-45 (2016).

A person acts wantonly by acting recklessly or with indifference to

the fact that (his) (her) conduct would probably cause substantial injury to,

or destruction of, another’s property. The Commonwealth must prove that

the defendant consciously disregarded, or was indifferent to this

probability.

Conduct is wanton if (1) the defendant knew it would create a risk of

substantial injury or destruction to another’s property, or (2) a reasonable

person – knowing what the defendant knew – would have realized the act

posed a risk of substantial injury to or destruction of another’s property.

If wilful and malicious conduct is alleged:

If wanton conduct is alleged:

It is not enough for the Commonwealth to prove that the defendant

acted negligently — that is, acted in a way that a reasonably careful person

would not. To prove the defendant acted wantonly, the Commonwealth

must prove that the defendant’s actions went beyond mere negligence and

amounted to wanton conduct as I have defined that term.

The defendant must have intended his (her) act, in the sense that it

did not happen accidentally.

If you find that the defendant’s act occurred by

accident, then you must find the defendant not guilty.

SUPPLEMENTAL INSTRUCTION

A person cannot be convicted of wanton

Likelihood of substantial damage.

injury to property unless it was likely that his actions would result in

substantial damage to others or their property. It is not enough that some

slight or insignificant injury was likely to result. A person acts “wantonly”

only if it is likely that his actions will result in substantial harm.

However, it is not necessary that the damage actually was substantial,

only that such actions were likely to cause substantial damage. The actual

If relevant to evidence:

outcome of someone’s actions is sometimes a matter of luck, and here the

law measures the nature of the actions, not the outcome.

Commonwealth v. Ruddock, 25 Mass. App. Ct. 508, 512-14 (1988).