Motion to Dismiss Allowed - Felony Malicious Damage to a Motor Vehicle

September 2019

Our client was charged with Malicious Damage to a Motor Vehicle which is a felony. The police were called for a neighbor dispute over a common hallway. There was a dispute over cat feces in the common hallway outside of each of their doors. The police spoke to all of the parties involved and left after resolving the dispute by asking both parties to clean up the mess. 

The police were then called back later. One neighbor accused our client of putting cat feces on their motor vehicle. The police asked our client to clean it up, which they did. Police then asked the neighbor if they wanted to press charges on our client, and the neighbor did. Our client was charged with Malicious Damage to a Motor Vehicle in violation of Massachusetts General Laws chapter 266 §28(a).

We filed a Motion to Dismiss arguing there was no probable cause in the police report. In order to prove Malicious Damage to a Motor Vehicle in violation of M.G.L. c. 266 §28(a), the Commonwealth must show the following three things: 1) that the defendant injured or destroyed a motor vehicle 2) that the vehicle belonged to another person, and 3) the defendant acted with malice. See generally Instruction 8.220 Malicious Damage to Motor Vehicle of the Model Jury Instructions for Use in the District Court, supra. at P. 4.

In Commonwealth v. Savoy, the defendants were charged with willfully and maliciously injuring and destroying personal property of another under a theory that they had left a footprint in a motor vehicle among other allegations. The Appeals Court stated, “whether the footprints resulted in any ‘injury' to the car within the meaning of G. L. c. 266, § 127, (was a) matter of conjecture” and the verdicts were set aside. Commonwealth v. Savoy, 21 Mass. App. Ct. 519, 522 (Mass. App. Ct. 1986).

We argued in our Motion that there was no injury to the motor vehicle. We argued our client did not injure or destroy the motor vehicle of another person. There was no injury or destruction to the neighbor's motor vehicle. The cat feces that was put on the car was cleaned off. If they could simply be cleaned off, then there is no evidence that the motor vehicle was injured or destroyed. We argued this case was analogous to Commonwealth v. Savoy, where mere footprints on the interior of a motor vehicle was not enough to sustain a conviction of Malicious Destruction of Property.

The judge agreed and dismissed the case for lack of probable cause that a crime was committed. 

Practice area(s): Criminal Defense

David Ellison

Attorney David Ellison is the Founding Attorney of Ellison Law LLC.

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