State v. Tecle

396 P.3d 955, 285 Or. App. 384, 2017 Ore. App. LEXIS 603
CourtCourt of Appeals of Oregon
DecidedMay 10, 2017
Docket130431860; A158767
StatusPublished
Cited by1 cases

This text of 396 P.3d 955 (State v. Tecle) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Tecle, 396 P.3d 955, 285 Or. App. 384, 2017 Ore. App. LEXIS 603 (Or. Ct. App. 2017).

Opinion

DeVORE, J.

Defendant appeals a judgment of conviction for 18 counts of identity theft, ORS 165.800; 12 counts of theft in the second degree, ORS 164.045; and 18 counts of computer crime, ORS 164.377(2). He assigns error to the trial court’s denial of his motion for a judgment of acquittal on the computer crime counts, arguing that evidence that he knowingly provided false information to banks was not sufficient to show that he “used” a computer within the meaning of ORS 164.377(2), because the state should have been required to prove that he directly accessed or manipulated the banks’ computers. After review of the text, context, and legislative history, we agree that the record lacks evidence from which a factfinder could find that defendant “used” a computer or computer system within the meaning of the statute. The trial court, therefore, erred when it denied defendant’s motion for a judgment of acquittal on the 18 counts of computer crime. Defendant also assigns error to the trial court’s entry of a judgment of conviction on Count 10 for computer crime instead of identity theft. The state concedes the error, and we agree. Accordingly, we reverse defendant’s convictions for computer crime, reverse and remand as to Count 10 for entry of a conviction for identity theft, and remand for resentencing.

When denial of a defendant’s motion for a judgment of acquittal “centers on the meaning of the statute defining the offense,” we review the interpretation of the statute for legal error. State v. Hunt, 270 Or App 206, 210, 346 P3d 1285 (2015) (internal quotation marks and citation omitted). In determining the sufficiency of the evidence, we review the facts in the light most favorable to the state to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Cunningham, 320 Or 47, 63, 880 P2d 431 (1994), cert den, 514 US 1005 (1995).

The relevant facts are undisputed. In September and October 2012, defendant engaged in a scheme to defraud two banks. Defendant personally visited several bank branches and opened checking and savings accounts. Defendant provided the banks’ employees with false information, primarily [387]*387fraudulent social security numbers and home addresses. The bank employees relied on the information defendant provided, entering that information into the banks’ computer systems to create bank accounts for defendant. Defendant activated automatic teller machine (ATM) cards and provided worthless checks for deposit into his new accounts. In compliance with federal law, the banks made at least $100 available immediately after defendant opened the accounts, before the checks were processed. Shortly after defendant created the accounts, someone other than defendant used the ATM cards and passwords to withdraw credited funds from the accounts or make purchases before the banks could determine the validity of the checks. As a result, the banks suffered financial losses.

Defendant was charged with multiple counts of identity theft, theft in the second degree, and computer crime. At the close of the state’s case, defendant moved for a judgment of acquittal on the computer crime counts, among others, arguing that the state failed to present any evidence that defendant “used” a computer for purposes of ORS 164.377(2). He argued that there was no evidence that he opened an account online or that he withdrew any money from the accounts using an ATM. Defendant argued that, “just because a bank or a business that you go to uses computers, that doesn’t mean that [defendant] used a computer.” The state countered that defendant was “using a computer system” by “trying to inflate a bank balance” so that money could be withdrawn later from an ATM. In the state’s view, providing false information to a bank employee, who then enters that information into the bank’s computer database, constitutes “using” a computer under ORS 164.377(2). The trial court denied defendant’s motion, and the jury convicted defendant on all counts.

On appeal, defendant renews his arguments made in the trial court. Defendant contends that the state’s interpretation of the term “use” under ORS 164.377(2) is overly broad and contrary to the legislature’s intent. The state reiterates its arguments, relying primarily on the statute’s text and context to contend that defendant “used” the banks’ computer systems for purposes of ORS 164.377(2).

[388]*388The parties’ arguments raise a question of statutory interpretation of whether the legislature intended the phrase, to “use” a computer system, to reach defendant’s conduct here. In construing a statute, we consider its text, context, and legislative history, to discern legislative intent. State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009).

We begin with the text and context of the computer crime statute.1 That statute, ORS 164.377(2), provides:

“Any person commits computer crime who knowingly accesses, attempts to access or uses, or attempts to use, any computer, computer system, computer network or any part thereof for the purpose of:
“(a) Devising or executing any scheme or artifice to defraud;
“(b) Obtaining money, property or services by means of false or fraudulent pretenses, representations or promises; or
“(c) Committing theft, including, but not limited to, theft of proprietary information or theft of an intimate image.”

The statute defines various terms, from “access” to “services.” For example, to “access” is “to instruct, communicate with, store data in, retrieve data from or otherwise make use of any resources of a computer, computer system or computer network.” ORS 164.377(1)(a) (emphasis added). The statute, however, does not define its term “use.”

Because the legislature has not defined, “use,” we consider the term’s ordinary, plain meaning. PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993). The verb “use” at the time the legislature enacted the statute was defined as “to carry out a purpose or action by means of : make instrumental to an end or process : apply to advantage : turn to account [.] ” Webster’s Third New Int’l Dictionary 2524 (unabridged ed 2002). The dictionary explains that “use is general and indicates any putting [389]*389to service of a thing, usu[ally] for an intended or fit purpose or person [.] ” Id.

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Cite This Page — Counsel Stack

Bluebook (online)
396 P.3d 955, 285 Or. App. 384, 2017 Ore. App. LEXIS 603, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tecle-orctapp-2017.