         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs November 22, 2005

               STATE OF TENNESSEE v. SHANE M. MCANALLY

                      Appeal from the Circuit Court for Bedford County
                              No. 15666    Lee Russell, Judge



                      No. M2005-00774-CCA-R3-CD - Filed May 3, 2006



David G. Hayes, Judge, dissenting.


        My colleagues conclude that, under the facts of this case, the appellant’s act of urinating in
the patrol car constitutes vandalism. I respectfully disagree.

         The majority concludes that the appellant “damaged the patrol car by contaminating
it,”although no pecuniary damages were proven at trial. Additionally, the majority concludes that
the appellant “tampered with the patrol car” by his act of urination. I am unable to agree with either
of these conclusions.

        The majority defines “contaminating” as “to soil, stain, defile, taint, make impure or unclean
by contact.” Tampering is defined as “to interfere in a harmful manner.” I have concerns that
application of these broadly defined acts would subject a considerable number of good citizens of
this State on any given date to criminal prosecution for vandalism. For example, a person who enters
a building with dirt on his or her feet (soiling) or who spills anything on the floor (staining) could
be convicted of vandalism without proof of any pecuniary damages to the property. “Due process
requires that the law give sufficient warning so that people avoid conduct which is forbidden.” State
v. Thomas, 635 S.W.2d 114, 116 (Tenn. 1982) (citing Rose v. Locke, 423 U.S. 48, 49-50, 96 S. Ct.
243, 244, 46 L.Ed.2d 185 (1975). In addition, the Tennessee Supreme Court stated, “It is a basic
principle of due process that an enactment is void for vagueness if its prohibitions are not clearly
defined.” Id. (citing Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 2298, 33 L.Ed.
2d 222 (1972)).

       More importantly, as previously expressed, I conclude that under the facts of this case, the
appellant’s act of urinating in public is not encompassed by the crime of vandalism. Vandalism,
which is codified in Chapter 14, Offenses Against Property, of our criminal code is directed at the
damage or destruction of the property of another. T.C.A. § 39-14-408. Acts of vandalism are to be
valued according to the provisions of Tennessee Code Annotated section 39-11-106(a) (36) (2003).
        The act of urinating in a public place is prosecuted under every Model Code jurisdiction in
these United States under the offense of disorderly conduct. As relevant here, a person commits
disorderly conduct when, “in a public place and with intent to cause public annoyance . . . (3) [he
or she] creates a physically offense condition by any act that serves no legitimate purpose.” T.C.A.
§ 39-17-305(a)(3) (2003). These are the facts as presented by the prosecution in this case. Indeed,
as evidenced by no proof of damages, it is the appellant’s offensive conduct which is at issue and
not the harm to property.

       By overcharging the Class A misdemeanor offense of vandalism instead of disorderly
conduct, a Class C misdemeanor, the State has indicted upon the wrong crime. For the above
reasons, I would reverse and dismiss the conviction.




                                                      ____________________________________
                                                      DAVID G. HAYES, JUDGE




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