Susie M. Plasters v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: June 27, 2000
• Docket: 1870993
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Bumgardner and Frank Argued at Richmond, Virginia

SUSIE M. PLASTERS MEMORANDUM OPINION * BY v. Record No. 1870-99-3 JUDGE RUDOLPH BUMGARDNER, III JUNE 27, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ALLEGHANY COUNTY Duncan M. Byrd, Jr., Judge

Terry N. Grimes (King, Fulghum, Snead, Nixon & Grimes, P.C., on brief), for appellant.

Shelly R. James, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

The trial court convicted Susie M. Plasters of five counts

of computer invasion of privacy in violation of Code

§ 18.2-152.5. She contends the evidence was insufficient to

support her convictions. One count charged that she committed

computer invasion of privacy against Catherine Humphries on

July 16, 1998 by accessing personal information about her from a

computer terminal in West Virginia. The Commonwealth concedes

the evidence was insufficient to prove the defendant accessed a

computer terminal in West Virginia. Accordingly, we reverse

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. that conviction, but we conclude the evidence is sufficient to

support the other four convictions.

When the sufficiency of the evidence is challenged on

appeal, we view the evidence and all reasonable inferences

fairly deducible therefrom in the light most favorable to the

Commonwealth. See Commonwealth v. Presley, 256 Va. 465, 466,

507 S.E.2d 72, 72 (1998). The statement of facts established

that the defendant worked as a part-time dispatcher for the

Covington Police Department from February 1995 through January

1999. She was trained and certified to use the Virginia

Criminal Information Network (VCIN) in February 1995 and again

in October 1997 when she received the highest possible grade.

As a dispatcher, the defendant could obtain confidential

personal information only by entering her individual

user-identification number which her employer had provided.

Each time the network was accessed, the following notice

appeared on the computer screen: "Information obtained from

VCIN may be used for criminal justice purposes only."

The defendant worked as a dispatcher on each of the dates

specified in the indictments. Her unique identification number

was used to access restricted information from VCIN using a

computer terminal at the Covington Police Department. To obtain

personal information about a particular person, the operator had

to enter either the name or social security number of that

person. The defendant concedes she "understood that dispatchers

- 2 - could not use the VCIN computer to access criminal histories of

persons without prior authorization or pursuant to a formal

request."

"A person is guilty of the crime of computer invasion of

privacy when he uses a computer or computer network and

intentionally examines without authority any employment, salary,

credit or any other financial or personal information relating

to any other person." Code § 18.2-152.5(A). The evidence must

establish the offender viewed the information after she knew or

should have known she was unauthorized to do so. See id.

The defendant concedes she accessed the information

alleged, but contends she did not know she was unauthorized to

do so because it was personal, not criminal history,

information. This argument is without merit for two reasons.

First, the defendant knew she was unauthorized to access

criminal information from the VCIN computer without proper

authorization. The records she accessed on the four dates

alleged in the indictment contain criminal history information.

On May 10, 1998, the information she obtained on Barry Dean

Abshire included "Previous DWI: 01 10." On October 2, 1998, the

defendant retrieved information on Clayton Wayne Gaylor which

included "Previous DWI: 01 06" and "driver license status

- suspend[ed]/habitu[al]." On October 24, 1998, the defendant

also received information that Gaylor was a "wanted person" for

"failure to appear" for a DUI charge. On April 10, 1998, she

- 3 - obtained information on Terri Lynn Carper that included

"Previous DWI: 00." This information, which the defendant

concedes she accessed, clearly constitutes criminal history

information. As to the invasion of Carper's privacy, we find

that even though she did not have a DWI record, that data is

still criminal history information.

Additionally, the VCIN warning indicates that any

"information obtained from VCIN may be used for criminal justice

purposes only." VCIN's restriction on the use of its data is

not limited to criminal history information. Thus, even if the

defendant accessed personal information alone, her use, unless

properly authorized or requested, would be unlawful.

Finally, it does not matter that the defendant did not know

accessing personal information was a crime. The training the

defendant received did not specifically address Code

§ 18.2-152.5, but "ignorance of the law is no excuse." See

Miller v. Commonwealth, 25 Va. App. 727, 731-32, 492 S.E.2d 482,

485 (1997) ("Although leading at times to seemingly 'unfair'

results, rigid application of the rule promotes the policy it

serves: 'to encourage people to learn and know the law.'"

(citations omitted)). See Shea v. Virginia State Bar, 236 Va.

442, 444, 374 S.E.2d 63, 64 (1988) (all attorneys are

responsible for knowing disciplinary rules).

The defendant was using the VCIN computer to access data

without authorization and without any request for the

- 4 - information. Each time the defendant accessed VCIN, the

terminal displayed the warning that use of any information was

limited to criminal justice purposes only. Her duties as a

dispatcher provide no separate reason to need or use the data.

She was not using the computer for any criminal justice purpose.

We conclude the evidence is sufficient to prove beyond a

reasonable doubt that the defendant intentionally used the VCIN

terminal to examine criminal history and other personal

information of other persons after she knew or should have known

she lacked any authority to do so. Accordingly, we affirm the

convictions other than the one for which the Commonwealth

confessed error.

Affirmed in part, reversed in part.

- 5 - Benton, JR., dissenting.

I concur in reversing the conviction for computer invasion

of privacy concerning Catherine Humphries. I dissent, however,

from the holding that the evidence was sufficient to prove Susie

Plasters committed the other computer invasion of privacy

offenses.

Plasters was convicted of violating the following statute:

A person is guilty of the crime of computer invasion of privacy when he uses a computer or computer network and intentionally examines without authority any employment, salary, credit or any other financial or personal information relating to any other person. "Examination" under this section requires the offender to review the information relating to any other person after the time at which the offender knows or should know that he is without authority to view the information displayed.

Code § 18.2-152.5(A). The Commonwealth failed to prove Plasters

"review[ed] the information . . . after the time at which [she

knew] or should [have known] that [she was] without authority to

view the information displayed." Id.

The statement of facts established that Plasters and other

dispatchers for the Covington Police Department received

certification training. Plasters had last taken this training

in 1997; however, the course did not cover the prohibitions

contained in Code § 18.2-152.5. The training course instructor

"testified that course materials prepared for instruction given

- 6 - in 1999 did address Code § 18.2-152.5, and had Plasters'

employment not been terminated in January 1999, Plasters would

have received training at the 1999 certification session

addressing Code § 18.2-152.5, among other things." Indeed, the

outline for the 1999 recertification course specifically notes

that the training will include "Personal Trespass by Computer

under Code of Virginia 18.2-152.7," which is a topic that was

not included in the course's previous outline.

Plasters testified "that she understood that dispatchers

could not use the VCIN computer to access criminal histories of

request." (Emphasis added.) She knew this because the employee

handbook contained the following information directed toward

dispatchers:

Article 134. Criminal History Records:

Dispatchers shall not release or show any criminal history record to any individual, organization or company without the expressed permission of the Chief of Police.

Under no circumstances shall any criminal history information obtained through VCIN or NCIC be released to other than legally constituted Criminal Justice agencies. Local criminal history records are not to be released except to the above-described agencies.

The improper release of criminal history information could result in the termination of VCIN and NCIC services.

- 7 - All messages seeking criminal history records shall be recorded in the terminal log. (Emphasis added.)

None of the fifteen articles in the handbook relating to the job

duties of dispatchers contain an admonition against viewing

personal or non-criminal history information.

Kenneth R. Lane, an officer with the Department, testified

for the Commonwealth that the information Plasters accessed "did

not include information concerning criminal histories,

employment, salary, credit or other financial information."

Clearly, if the Commonwealth's own expert witness testified that

Plasters did not access "criminal histories," Plasters could not

be expected to know the information would contain what the

majority opinion now asserts to be "information . . . [that]

constitutes criminal history." The evidence is undisputed that

Plasters did not access the Central Criminal Records Exchange

maintained by the State Police. Furthermore, no evidence in the

record establishes that Plasters knew that she was not

authorized to access Department of Motor Vehicles and

non-criminal history information on the VCIN computer. Code

§ 18.2-152.5 by its specific terms requires proof that Plasters

knew or should have known that she had no authority to review

the personal information she accessed on the computer.

I disagree with the suggestion that in this case we must

give rigid application to the rule that "ignorance of the law is

- 8 - no excuse." Miller v. Commonwealth, 25 Va. App. at 731, 492

S.E.2d at 485. As we noted in Miller, where we did not rigidly

apply that rule, "[t]he rationale underlying the rule is less

compelling for crimes that are malum prohibitum, viz., acts that

are 'wrong because prohibited,' not by virtue of their inherent

character." Id. at 731-32, 492 S.E.2d at 485 (citation

omitted). Indeed, Code § 18.2-152.5 specifically bars rigid

application of that rule to this offense. The statutory

language itself reflects the General Assembly's policy decision

that each person's level of knowledge must be considered in

applying this criminal statute.

Moreover, I do not believe it is reasonable to expect the

police department's lay employee to know that State law differs

from what she is taught in her "official training." It is clear

from the record that the Department's training course had not

covered this aspect of the Code of Virginia as it relates to

Plasters' job. Furthermore, nothing in the record establishes

that Plasters was required as a part of her employment to go

beyond her training and independently read the Code.

Thus, proof that Plasters knew she was not authorized to

"use the VCIN computer to access criminal histories" was not

sufficient to support this conviction where the evidence proved

only that she viewed personal information that was not a

criminal history. Although the VCIN system displayed a warning

that "information obtained from VCIN may be used for criminal

- 9 - justice purposes only," that warning did not state that viewing

the information was prohibited and it did not define "used."

"When a word is not defined . . . we normally construe it in

accord with its ordinary or natural meaning." Smith v. United

States, 508 U.S. 223, 228 (1993). In discussing the definition

of the term "use," the United States Supreme Court has said the

following:

Webster's defines "to use" as "[t]o convert to one's service" or "to employ." Webster's New International Dictionary of English Language 2806 (2d ed. 1949). Black's Law Dictionary contains a similar definition: "[t]o make use of; to convert to one's service; to employ; to avail oneself of; to utilize; to carry out a purpose or action by means of." Black's Law Dictionary 1541 (6th ed. 1990). Indeed, over 100 years ago we gave the word "use" the same gloss, indicating that it means "'to employ'" or "'to derive service from.'" Astor v. Merritt, 111 U.S. 202, 213 (1884).

Smith, 508 U.S. at 228-229. Although Plasters admitted that she

viewed the information after she accessed it on her computer, no

evidence in the record proved that Plasters "used" the

information for any purpose.

Under the terms of the statute, it does matter whether

Plasters knew she was without authority to view personal

information. The Commonwealth is required to prove beyond a

reasonable doubt that she "reviewed the information . . . after

the time at which [she knew] or should [have known] that [she

was] without authority to view the information displayed." Code

- 10 - § 18.2-152.5(A). Thus, it is significant and fatal to these

convictions that Plasters did not know she was without authority

to view personal information.

For these reasons, I would reverse all the convictions.

Therefore, I dissent.

- 11 -