Instruction 8.280, Criminal Model Jury Instructions for Use in the District Court

WILLFUL AND MALICIOUS DESTRUCTION OF PROPERTY

G.L. c. 266, § 127

The defendant is charged with willful and malicious destruction

of property (of a value over $1,200).

In order to prove the defendant guilty of this offense, the

Commonwealth must prove the following (three) (four) things beyond

a reasonable doubt.

First: That the defendant injured or destroyed the (personal

property) (dwelling house) (building) of another;

Second: That the defendant did so willfully; (and)

Third: That the defendant did so with malice;

If value of property is alleged to be greater than $1,200, add third element.

(and)

Fourth: That the amount of damage inflicted to the

property was more than $1,200.

Effective April 13, 2018, St. 2018, c. 69, increased the felony threshold for this

offense from $250 to $1,200. For offenses committed prior to April 13, 2018, insert

“$250” in place of “$1,200.”

An act is “willful” if it is done intentionally and by design, in

contrast to an act which is done thoughtlessly or accidentally. A

person acts willfully if he (she) intends the conduct and its 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.

If value of property is alleged to be greater than $1,200. If you

determine that the Commonwealth has proved beyond a

reasonable doubt that the defendant is guilty of willful and

malicious destruction of property, you must go on to

determine whether the Commonwealth also proved beyond

a reasonable doubt that the reasonable cost of repair of the

damaged property – or the reasonable cost of replacement

if it cannot be repaired – was more than $1,200.

Commonwealth v. Deberry, 441 Mass. 211, 215 n.7 (2004) (citing model instruction

approvingly); Commonwealth v. McGovern, 397 Mass. 863, 868 (1986); Commonwealth

v. Hosman, 257 Mass. 379, 384 (1926); Commonwealth v. Chambers, 90 Mass. App. Ct.

137, 144 n.7 (2016) (malice need not be directed toward owner of the property, just

toward someone); Commonwealth v. O’Neil, 67 Mass. App. Ct. 284, 291 (2006) (offense

requires proof of cruel, hostile or vengeful intent in addition to intentional doing of the

unlawful act); Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 440-44 (1983) (malice

requires a showing that defendant was motivated by “cruelty, hostility or revenge”).

Destruction incidental to some other venture or purpose is insufficient. Commonwealth v.

Morris M., 70 Mass. App. Ct. 688, 692-93 (2007) (it is not reasonably inferable that

defendant purposefully destroyed the fence and turf motivated by hostility, cruelty, or

vengeance as opposed to the resulting damage being occasioned by, or incidental to, his

desire to escape his circumstances).

SUPPLEMENTAL INSTRUCTION

Where “willful and malicious” and “wanton destruction are both charged

in separate counts. If you find that it has been proved beyond

a reasonable doubt that the defendant did commit the

property damage as alleged, you must then go on to

determine whether it was done “willfully and maliciously”

as alleged in Count ___, or “wantonly” as alleged in

Count ___. As I have informed you, such conduct would

be “willful and malicious” if the defendant acted out of

cruelty, hostility or revenge toward another, and intended

both the conduct and the harmful consequences.

Such conduct would instead be “wanton” if the

defendant intended the conduct but not the harmful

consequences, and was reckless or indifferent to the

substantial damage that such conduct would probably

cause. Since the required intent is different for the two

counts, if you find the defendant guilty on one of those

counts, you are to return a not guilty verdict on the other

count.

See Instruction 8.260, Wanton Destruction of Property.