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).
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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