Wednesday, March 04, 2015

Child Pornography, the Alford Plea and Ineffective Assistance of Counsel

After Joshua Zachary Matter was “charged with two felonies for possession and dissemination of pornography on a computer”, he agreed to
enter an Alford plea to the possession-related charge in exchange for the state's dismissal of the dissemination-related charge and a sentence that consisted of 120 days of electronic home monitoring with work release, restricted computer use, and `all other terms and conditions open to argument.’ The plea offer was also `conditioned on [his] cooperat[ion] with [the] PSI and making all court dates.’
Matter v. State, 2015 WL 732481 (Court of Appeals of Minnesota 2015).  As the Court of Appeals points out in a footnote, a “defendant who enters an Alford plea maintains innocence but concedes that there is sufficient evidence to support a guilty verdict.”  Matter v. State, supra.
The opinion goes on to explain that in his plea petition, Matter
made statements supportive of his attorney's performance, including that he had `sufficient time to discuss my case with my attorney,’ that he was `satisfied that my attorney is fully informed as to the facts of this case,’ that `[m]y attorney has discussed possible defenses,’ and that `I am satisfied that my attorney has represented my interests and has fully advised me.’ The plea petition also includes [his] acknowledgement that he understood his various trial rights and waived them. The district court accepted the plea and ordered a presentence investigation (PSI).
Matter v. State, supra.
The Court of Appeals also pointed out that the
PSI report notes that the presumptive guidelines sentence for the offense of conviction is a stayed fifteen-month sentence and recommends a probationary sentence in accordance with [Matter’s] plea agreement. The PSI proposes as conditions of probation that [he] `[r]egister as a predatory offender and submit a DNA sample as required by statute.’

In conjunction with preparation of the PSI, [Matter] participated in a psychosexual assessment. The evaluator diagnosed [him] with `paraphilia not otherwise specified,’ depression, and avoidant personality disorder, and recommended that [he] `should be required to complete adult group sex offender treatment.’ The evaluator rejected [Matter’s] claim that he never intentionally sought child pornography, noting that [his] computer showed `”numerous hits” for terms, such as “pedo and pthc” (which are indicative of child pornography),’ that he `downloaded these files from Shareaza, a peer-to-peer file sharing program,’ and that some files were named `Sandra Teen Model Nude Pics Pedo Pthc, Pedo Lolita Kids Kinder Pedofilia Sandra Teen Model Nude Pics Pedo Pthc, and Raygold Lolita pedo 10Yo F–––––g a Sister Sleep 11Yo.’ The evaluator concluded that `[b]ased on the titles of these files, it would be impossible for an individual not to know what was on’ the downloaded files.
Matter v. State, supra.
At Matter’s sentencing,
consistent with his plea agreement, the [trial judge] stayed imposition of sentence and placed [Matter] on probation for five years, requiring him to be placed on home monitoring for 120 days. Probation was made subject to numerous conditions, including that [he] successfully complete a sex-offender program, register as a predatory offender, and provide a DNA sample.
Matter v. State, supra.
In May of 2013, Matter’s Probation Agent filed a probation violation report
alleging failure to complete sex-offender treatment and later added violations for contact with minors, going places where children congregate, and marijuana use. In August 2013, [Matter] moved to withdraw his plea, arguing that he had repeatedly maintained his innocence, no actual images of child pornography were found on his computer, he was convinced to plead guilty by his attorney's statement that he would likely lose custody of his ten-year-old daughter if he did not accept the plea, and his attorney's advice to enter an Alford plea set him up `for almost certain failure’ because `he would be required to complete a treatment program that included polygraph examinations.’
Matter v. State, supra.  In a footnote to Matter’s claim that no child pornography was found on his computer, the court says “[a]t Matter's plea hearing, he admitted that he downloaded “a number of images” which involved minors in sex acts.”  Matter v. State, supra.
After Matter’s Probation Agent
filed a new probation violation report for his use of drugs, [he] petitioned for postconviction relief, alleging that his attorney provided ineffective assistance of counsel by failing to advise him at the time of his plea that he could be required to complete sex-offender treatment as a condition of probation, and by advising him to enter an Alford plea despite a weak case against him and his consistent claim of innocence.
Matter v. State, supra.
The trial judge then “dismissed [Matter’s] petition without an evidentiary hearing, concluding that [he] had not shown a factual basis for plea withdrawal or an actionable claim of ineffective assistance of counsel.”  Matter v. State, supra. Matter then filed this appeal.  Matter v. State, supra.
The Court of Appeals began its analysis of Matter’s arguments by explaining that
[a]ppellate courts apply an abuse-of-discretion standard of review to a postconviction court's denial of an evidentiary hearing. Caldwell v. State, 853 N.W.2d 766 (Minnesota Supreme Court 2014). A postconviction court must hold an evidentiary hearing unless the petition, records, and files conclusively show that the petitioner is not entitled to relief. Minnesota Statutes § 590.04, subd. 1 (2014). An evidentiary hearing is necessary if material facts exist that must be resolved for a determination of the merits of the claim. Powers v. State, 695 N.W.2d 371 (Minnesota Supreme Court 2005). But if the petitioner alleges facts that, even if true, are legally insufficient to entitle the petitioner to the requested relief, the postconviction court need not hold an evidentiary hearing. Bobo v.. State, 820 N.W.2d 511 (Minnesota Supreme Court 2012).

The 6th Amendment guarantees the right to counsel, U.S. Const. amend. VI, which includes the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a claim of ineffective assistance of counsel, `an appellant must demonstrate that counsel's performance fell below an objective standard of reasonableness, and that a reasonable probability exists that the outcome would have been different but for counsel's errors.’ State v. Rhodes, 657 N.W.2d 823 (Minnesota Supreme Court 2003). . . . `A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ Strickland v. Washington supra. An appellate court need only address one prong of the Strickland test if that prong is dispositive. State v. Rhodes, supra.
Matter v. State, supra.
Matter also argued that
under Padilla v. Kentucky, 559U.S. 356 (2010), his attorney should have informed him of the consequences of his conviction, including the possibility of his being required to participate in sex-offender treatment, which typically requires an admission of guilt, and that had his attorney properly counseled him, he would not have agreed to the Alford plea. Padilla v. Kentucky, supra (holding that counsel must inform client of consequences of a guilty plea that placed client at risk of deportation). [Matter] asserts `that sex offender treatment has become so interrelated to the criminal process in cases with sexual overtones that it too should require full disclosure to criminal defendants as part of the guilty plea process.’ We disagree.
Matter v. State, supra.
The Court of Appeals explained, first, that
[w]hen considering the first Strickland prong, appellate courts have limited the holding of Padilla to deportation cases. See Sames v. State, 805 N.W.2d 565 (Minnesota Court of Appeals 2011) (ruling that Padilla does not require an attorney to advise a client that a guilty plea may result in the client's ineligibility to possess a firearm).

Following Padilla, Minnesota courts have made a distinction between collateral and direct consequences of a plea in determining the reasonableness of an attorney's performance, and have held that attorneys must advise their clients of only direct consequences of a plea, such as `the maximum sentence to be imposed and the amount of any fine,’ Alanis v. State, 583 N.W.2d 573 (Minnesota Supreme Court 1998), abrogated in part by Padilla, supra. . . .

The consequence of pleading guilty at issue here, which required completion of sex-offender treatment as a condition of probation, is collateral to [Matter’s] plea, and `ignorance of a collateral consequence does not entitle a criminal defendant to withdraw a guilty plea.’  Alanis v. State, supra.
Matter v. State, supra.
The Court of Appeals also pointed out that Matter’s postconviction petition
does not allege that [his] attorney failed to advise him that he might be required to attend sex-offender treatment. The petition states only that [he] `understood at the time [of the plea] that treatment was not likely because this was his first offense. . . .’ These alleged facts are insufficient to support a finding that [Matter] was not advised of the requirement of sex-offender treatment.
Matter v. State, supra.
The court went on to explain that
[f]or these reasons, [Matter] cannot satisfy the first Strickland prong to show that his trial counsel's performance was defective. Moreover, even assuming that [his] attorney should have informed him of the likelihood of required sex-offender treatment or of the DNA registration requirement, these omissions did not satisfy the second Strickland prong, that there is a reasonable probability that the result would have been different without the errors. Contrary to [Matter’s] claim, the evidence against him was strong: police legally obtained evidence that he had downloaded numerous images of child pornography on his computer.

[Matter] asserts that he lacked intent to commit the offense of conviction, but this claim is contradicted by evidence on his computer of his use of search terms that focused on and specifically sought images of sex acts involving children. Further, [his] suggestion that the typical child pornography case involves many more images of children is of no legal import; the offense of conviction requires possession of only one image. See Minnesota Statutes § 617.247, subd. 4 (2010) (making it a crime to `possess[ ] a pornographic work’).

[Matter] has failed to demonstrate ineffective assistance of counsel, and the district court did not abuse its discretion by denying [him] an evidentiary hearing.
Matter v. State, supra.
Finally, Matter claimed his plea was invalid because his trial lawyer told him he
would likely lose custody of his child if he did not accept the plea offer. A defendant does not have an absolute right to withdraw a plea. State v. Farnsworth, 738 N.W.2d 364 (Minnesota Supreme Court 2007). A defendant may withdraw a plea after sentencing only if `withdrawal is necessary to correct a manifest injustice.’ Minnesota Rules of Criminal Procedure 15.05, subd. 1. Manifest injustice exists when a guilty plea is invalid. State v. Theis, 742 N.W.2d 643 (Minnesota Supreme Court 2007).

A valid guilty plea must be accurate, voluntary, and intelligent. State v. Raleigh, 778 N.W .2d 90 (Minnesota Supreme Court 2010). The defendant bears the burden to establish an invalid plea. State v. Raleigh, supra.

Because [Matter] merely identifies this issue in his pro se brief without citing legal authority to support it, we normally would deem the issue waived. See State v. Palmer, 803 N.W.2d 727 (Minnesota Supreme Court 2011). . . . Further, [Matter’s] specific allegation was that he was informed by his attorney that the prosecution would `not try and go after your daughter if you take the plea.’ This fails under either prong of Strickland. `A guilty plea is involuntary when it rests in any significant degree on an unfulfilled or unfulfillable promise. . . .’ Uselman v. State, 831 N.W.2d 690 (Minnesota Court of Appeals 2013). . . .

The `promise’ here was only purportedly made by the state and relayed by his attorney. Further, [Matter] can show no prejudice in accepting the plea when the evidence of his guilt was strong and he received a very favorable sentence.
Matter v. State, supra.  For these and other reasons, the Court of Appeals affirmed Matter’s conviction.  Matter v. State, supra.  I decided to do a post on this case because I find Alford pleas something of an oxymoron:  The person pleads guilty while maintaining innocence. 
If you would like to see a photo of Matter and read a news story about the case, check the story you can find here.

Monday, March 02, 2015

Tweets, Terroristic Threats and "True Threats"

For reasons we will get to in a moment, the State of Missouri charged Robert Metzinger with “making a terroristic threat under [Missouri Revised Statutes] § 574.115(4).”  State v. Metzinger, 2015 WL 790463 (Missouri Court of Appeals 2015). Section 574.115(4) makes it a “class A misdemeanor” to
communicate[] a threat to cause an incident or condition involving danger to life, communicates a knowingly false report of an incident or condition involving danger to life, or knowingly causes a false belief or fear that an incident has occurred or that a condition exists involving danger to life: . . . [w]ith criminal negligence with regard to the risk of causing the evacuation, quarantine or closure of any portion of a building, inhabitable structure, place of assembly or facility of transportation.
State v. Metzinger, supra.
The charge against Metzinger was based on four tweets he sent via Twitter:
● October 21, 2013: Going to be tailgating with a # PressureCooker during games 3–4–5 in # STL during # WorldSeries. # STLStrong # GoCards # postseason from Springfield, MO.
● October 22, 2013: Putting my loft up for ridiculous `Boston-only’ rate on @airbnb for the # WorldSeries. Pressure cooker sold separately.
● October 22, 2013: The # WorldSeries will be another finish line not crossed by # Boston.
● October 25, 2013: Listening to the Offspring's `Bad Habit’ and the lyrics just ring true of what will go down very soon.
State v. Metzinger, supra.
After being charged, Metzinger filed a motion to dismiss the information pursuant to
Rule 24.04(b)(2). In his motion, [Metzinger[ claimed that `the information does not, and cannot, allege all essential elements of § 574.115’ because [his] `sarcastic posts on Twitter did not constitute “true threats” as a matter of law and cannot be punished by the State.’

More specifically, [he] argued that the information was insufficient because it failed to: `identify which tweets the State intends to argue were threatening’; allege that [he] communicated a `true threat’; and allege that [his] speech `created a substantial and unjustifiable risk of the evacuation of Busch Stadium.’ [Metzinger] stressed that his tweets `express[ed] insensitive sarcasm, competition, and overt trash talking’ in the excitement surrounding the Major League Baseball World Series, but did not communicate `any threat, let alone a “true threat.”’ (emphasis in original).
State v. Metzinger, supra.
The prosecution filed a response, “in which it identified the `four specific tweets that are relevant to this case’ and asserted that the information alleged `all essential elements of § 574.115.’” State v. Metzinger, supra.
On February 28, 2014, the trial judge held a hearing on Metzinger’s motion to dismiss. State v. Metzinger, supra.  At the hearing, Metzinger argued, among other things, that
the tweets failed to constitute a `true threat’ and argued that [he] was `protected by the 1st Amendment because it's not a threat.’ The State responded, among other things: `. . . the context of a tweet with Boston coming to the World Series, and mentioning pressure cooker, the same explosive device that was used, and saying the finish line won't be crossed, which is where the bomb was placed at the Boston Marathon, that makes this in the context a threat.’ Finally, the State advised the trial court that: `You can't joke about setting off a pressure cooker bomb after the Boston Marathon.’
State v. Metzinger, supra.
After hearing arguments from both sides, the trial judge said
I do not find any of the tweets, in totality, even if you throw the music lyrics on top of it, rising even remotely to the level of a true threat or an implied threat. . . .

These are untimely ramblings, that upon his inner circle advising him of the ridiculousness of them, he sought to pull them off prior to any intervention from any outside source. Therefore, I don't believe they're true threats or implied threats.
State v. Metzinger, supra.  The judge therefore dismissed the charges with prejudice, which meant the case was over. State v. Metzinger, supra.
The Court of Appeals began its analysis of the issues in this appeal by noting that, because the judge dismissed the case before a trial had started, “jeopardy” under the 5th Amendment’s prohibition on double jeopardy had not attached, so the judge’s ruling was appealable.  State v. Metzinger, supra.
The court went on to address the prosecution’s argument that the judge erred in dismissing the prosecution because the information
charged the essential elements of the offense and apprised [Metzinger] of the facts constituting the offense. . . . [He] contends in response that: `[t]his case is not—and never has been—about whether the charging document the State submitted mechanically recites the elements of the crime charged.’

The 6th Amendment of the United States Constitution and article I, section 18(a) of the Missouri Constitution guarantee a defendant the right `to be informed of the nature and cause of the accusation. . . .’ [Missouri Rule of Criminal Procedure] 23.01 provides that the indictment or information shall `[s]tate plainly, concisely, and definitely the essential facts constituting the elements of the offense charged. . . .’ Rule 23.01(b)(2). `Measured by these standards, the test of the sufficiency of an indictment is whether it contains all the essential elements of the offense as set out in the statute and clearly apprises defendant of the facts constituting the offense in order to enable him to meet the charge and to bar further prosecution.’ State v. Reese, 697 S.W.2d 635 (Missouri Court of Appeals 1985). . . . 

Generally, an information or indictment is sufficient if it contains all essential elements of the offense as set out in the statute creating the offense. . . . However, where `the statute uses generic terms in defining the offense, it is necessary to recite sufficiently the conduct constituting the offense in order to accomplish the purpose of the indictment or information.”  In addition, an . . . information is generally sufficient `if it is substantially consistent with the forms of indictments or informations which have been approved by the Missouri Supreme Court.’Griffin v. State, 185 S.W.3d 763 (Missouri Court of Appeals 2006). . . .     
State v. Metzinger, supra.
The court then explained that, in this case, the information “purported to charge [Metzinger] with the class A misdemeanor of making a terrorist threat in violation of § 574.115.“ State v. Metzinger, supra. It went on to note that the “Missouri Approved Charge” for this offense states, “in relevant part,” that the
(Grand Jurors) (Circuit Attorney) (Prosecuting Attorney) of the (City) (County) of, State of Missouri, charge(s) that the defendant, in violation of Section 574.115, . . .  committed the (class C felony) (class D felony) (class A misdemeanor) of making a terroristic threat, punishable upon conviction under [ Insert appropriate punishment provision. See Notes on Use 2.], in that (on) (on or about) [ date ], in the (City) (County) of, State of Missouri, the defendant [ Insert one of the following. Omit brackets and number] knowingly
communicated to [ Identify person, place, organization, etc. to whom threat was communicated. ] a threat to cause [ Describe incident or condition threatened. ], (an incident) (a condition) involving a danger to life, by [ Describe how threat was communicated.],

with criminal negligence with regard to the risk of causing the (evacuation) (quarantine) (closure) of (any portion of) [ Describe building or place.], (a building) (an inhabitable structure) (a place of assembly) (a facility of transportation).
State v. Metzinger, supra.
The information filed against Metzinger alleged that
on or between October 21, 2013 and October 25, 2013, in the City of St. Louis, State of Missouri, the defendant knowingly communicated to the public a threat to cause an explosion, an incident involving danger to life, by tweeting repeated messages involving the detonation of an explosive device, and the defendant did so with criminal negligence with regard to the risk of causing the closure of any portion of Busch Stadium, a place of assembly.
State v. Metzinger, supra.
In his motion to dismiss the information, Metzinger argued,
among other things, that the information was insufficient because the State failed to include the tweets upon which the information was based. More specifically, [he] argued: `Without [the tweets], the information is insufficient in that it does not clearly apprise defendant of the facts constituting the offense so as to enable defendant to prepare a defense to bar future prosecution for the same offense, and to permit the trial court to decide whether sufficient facts are alleged to support a conviction.’ (internal quotation omitted). We need not determine whether the words `tweeting repeated messages involving detonation of an explosive device’ clearly apprised Defendant of the essential facts constituting the charged offense because the State remedied any alleged deficiency by providing the specific language at issue in its response to Defendant's motion to dismiss.
State v. Metzinger, supra.
The court went on to explain that
[n]either the State nor [Metzinger] disputes that [he] tweeted the statements that formed the basis for the charge of making a terrorist threat. The dispute is whether the tweets constituted the type of threatening communication that the legislature intended to and may, consistent with the Missouri and U.S. Constitutions, criminalize. If . . . the tweets did not, as a matter of law, constitute `true threats,’ the information is fatally deficient for failure to allege an essential element of a crime under § 574.115 -- `communicates a threat to cause an incident or condition involving danger to life.’ (emphasis added). Point one is denied.
State v. Metzinger, supra.
The court then proceeded to address Metzinger’s argument that “the communications were not true threats because the tweets were: (1) facially non-threatening; (2) not directed at an individual or identifiable group; and (3) posted on Twitter, `the modern epitome of a public forum.’”  State v. Metzinger, supra.  It began its analysis by explaining that, in Virginia v. Black, 538 U.S. 343 (2002), the U.S. Supreme Court
reaffirmed that the 1st Amendment allows states to ban `true threats.’ . . . However, the Court provided minimal guidance to courts tasked with the challenge of distinguishing `true threats’ from protected speech. . . .

In Black, the Court held that `”[t]rue threats” encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat.’ Virginia v. Black, supra. . . . The Court further explained that `[i]ntimidation in the constitutionally prescribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.’ Virginia v. Black, supra.

Following Black, federal courts have held that an indictment sufficiently charges the defendant with the crime of transmitting a `true threat’ in violation of 18 U.S. Code § 875(c) when it alleges that the defendant communicated a statement that `a reasonable jury could find . . .  expressed an intent to injure in the present or future.’ U.S. v. Stock, 728 F.3rd (U.S. Court of Appeals for the 3rd Circuit 2013). See also U.S. v. Martinez, 736 F.3d 981 (U.S. Court of Appeals for the 11th Circuit 2013) (`true threats’ are statements that contain a `serious expression of violent intent’).
State v. Metzinger, supra.
The Court of Appeals then took up the issue of whether Metzinger’s tweets were “true threats”, noting that “[n]either the Missouri legislature nor the Missouri Supreme Court has defined the term `threat as it is used in § 574.115.”  State v. Metzinger, supra.
But it also noted that another district of the Missouri Court of Appeals addressed this issue in In the Interest of C.G.M., II v. Juvenile Officer, 258 S.W.3d 879 (2008): “In C.G.M., the Western District held that a statement is not a true threat when a listener could not reasonably consider the statement to be a serious expression of an intent to cause injury to another.”  State v. Metzinger, supra.
This court then held that
[h]ere, as in C.G.M., the language of the tweets at issue demonstrated on their face that they were not serious expressions of an intent to cause injury to another. The parties do not dispute that [Metzinger] published the statements on Twitter during the 2013 World Series. In his tweet of October 21, 2013, [he] referred to `tailgating . . . during games 3–4–5’ and included the following: `# WorldSeries. # STLStrong # GoCards # postseason’ . . .

[His] tweets of October 22, 2013 also contained `# WorldSeries.’ [Metzinger’s] tweets facially reveal that they were made in the context of sports rivalry, an area often subject to impassioned language and hyperbole. While [his] references to pressure cookers and allusions to the Boston Marathon bombing were tasteless and offensive, the context of his tweets was such that a reasonable recipient would not interpret them as serious expressions of an intent to commit violence. . . .
State v. Metzinger, supra.
The Court of Appeals therefore held that
the trial court properly considered the language of the four tweets and, under the rather unique circumstances of this case, correctly determined, as a matter of law, that the four tweets did not constitute `true threats’ and, therefore, were improperly criminalized. Accordingly, the information did not charge the offense of making a terrorist threat within the meaning of § 574.115 and the trial court did not err in dismissing the information for insufficiency. Point three is denied.
State v. Metzinger, supra.  It therefore affirmed the trial judge’s ruling. State v. Metzinger, supra.
You can, if you are interested, read more about the case in the articles you can find here and here.


Friday, February 27, 2015

The Lottery Terminal, Computer Crime and "Authorization"

After Caryn Aline Nascimento was “convicted of one count of aggravated first-degree theft and one count of computer crime”, she appealed.  State v. Nascimento, 2015 WL 465188 (Court of Appeals of Oregon 2015).  On appeal, Nascimento raised a
single assignment of error to the trial court's denial of her motion for judgment of acquittal of the computer-crime count. Defendant argues that she did not access the lottery terminal `without authorization,’ as required by Oregon Revised Statutes 164.377(4), because, as part of her duties at the store, she was authorized by the store manager to access the machine to sell lottery tickets to paying customers. 
State v. Nascimento, supra.
The Court of Appeals began its analysis of Nascimento’s argument by explaining that in
October 2007, [she] was hired to work at the deli counter in a convenience store. The store had a touch-screen lottery terminal that produced draw-game tickets and was connected by phone line to the Oregon Lottery network. From the terminal, a clerk could print out a ticket for a selected game, and also could print ticket-sales reports.

The store manager trained [Nascimento] on the use of the lottery terminal and authorized [her] to sell lottery tickets to, and validate tickets for customers, because deli clerks would assist at the counter when the counter employee was busy or on break, even though it was not their job. The general manager testified, however, that operating the lottery terminal and cash register was not part of [Nascimento’s] job description as a deli clerk and that [she] did not have authorization to use the terminal. Store policy prohibited employees from purchasing lottery tickets or validating their own lottery tickets while on duty.

About a year after [Nascimento] was hired, the store manager fell a few months behind in reconciling daily lottery ticket sales with the store's cash receipts. In February 2009, she discovered shortfalls in cash receipts for lottery sales of Keno tickets between November 2008 and February 2009, which prompted the general manager to investigate his records and involve the police.

The investigation uncovered that large shortfalls and high-dollar wagers on Keno occurred only during [Nascimento’s] shifts. The store's surveillance video showed that, when no one was around, [she] would leave the deli counter and print out and pocket lottery tickets from the lottery terminal. One of the high-dollar winning tickets printed during [Nascimento’s] shift was redeemed by her by mail, and others were redeemed by her at a local grocery store. 
State v. Nascimento, supra.
The prosecution’s brief on appeal provides more detail on the facts, noting that
[Nascimento] worked as a clerk at the deli counter of the Tiger Mart, a gas station mini-mart. . . . Under her job description set by the store owner, deli clerks were not authorized to operate the store cash registers or the Oregon lottery machines located behind the counter in the store. . . .Unknown to the store owner, the store manager allowed deli clerks occasionally to operate the cash registers and lottery machines as backups when register clerks took breaks or when the store was unusually busy. . . . Company policy prohibited on-duty employees from purchasing or redeeming lottery tickets during their shift. . . .

About one year after [Nascimento] began working, her store manager fell significantly behind in reconciling the daily lottery sales with store cash receipts. . . . Eventually, internal auditing revealed significant shortages in receipts from Keno lottery games - a total of $16,923 between November 2008 and February 2009. . . . Before that period, the store experienced occasional shortages in lottery receipts, but they typically were for less than $20. . . . During the 11/08 to 2/09 span, daily shortages just from Keno sales ranged from $150 to $1300. . . .

The store owner reviewed employee timecards and some store video surveillance tapes and determined that the `severe shortages’ occurred only on Keno lottery receipts during shifts when [Nascimento] had been working. . . . Several of the surveillance videos showed [her] go from her work station behind the deli counter to the cash register and lottery machine (only at times when the register cashier was absent), use the lottery machine, and pocket the tickets. . . . The store owner confronted [Nascimento] with his suspicions and the surveillance videos, and she denied stealing any tickets; the store owner immediately fired her. . . .

The store owner contacted police to investigate these suspected thefts. . . . [Oregon State Police] Detective Owren, of the lottery security section, examined lottery records, store records, and store surveillance videotapes. . . . Lottery records showed an unusually large number of Keno ticket sales during [Nascimento’s] shifts - many of them maximum individual wages of $100 per ticket. . . .

Many of those tickets were printed out back-to-back within seconds of each other, indicating that the same person had printed them. . . . All 82 of the $100 Keno tickets in this 4-month period were printed during [her] shifts. . . . No pattern of large sales of Keno tickets was seen during the times [Nascimento’ was not working at the store. . . .

Detective Owren determined that some of the Keno tickets from the Tiger Mart were redeemed by mail, with the redeemer listing [Nascimento’s] name, address, and Social Security number. . . . Winning tickets paying out more than $600 must be redeemed by mail or in person from the lottery office; those with smaller prizes can be redeemed from any lottery retailer. . . . Clerks at a local Thriftway store near [her] home (and where [Nascimento’s] daughter formerly worked) reported that [she] cashed large lottery tickets at their store several times. (Tr 217, 253, 257). Based on his investigation, Detective Owren believed the loss in lottery sales to the Tiger Mart was $10,030.
Respondent’s Answering Brief, State v. Nascimento, 2012 WL 6892903.
Nascimento was, as noted above, later charged with “one count of computer crime under Oregon RevisedStatutes 164.377(4),” which say that
[a]ny person who knowingly and without authorization uses, accesses or attempts to access any computer, computer system, computer network, or any computer software, program, documentation or data contained in such computer, computer system or computer network, commits computer crime.
State v. Nascimento, supra.
At her trial, when the prosecution rested its case, Nascimento
moved for a judgment of acquittal on the computer-crime count, arguing that her use of the lottery terminal was not `without authorization,’ because she had `implied if not direct authorization to use the machine * * *. And clearly [her] use of the lottery machine itself was with authorization.’ The trial court denied [her] motion.
State v. Nascimento, supra.
As the Court of Appeals noted, in Nascimento’s appeal she
reprises her argument that she was `authorized,’ as that word is used Oregon Revised Statutes 164.377(4), `to use the lottery computer at [the store] because she was specifically given permission to do so by her direct supervisor, trained to do so by her supervisor, and expected to do so as part of her work duties.’

[Nascimento] argues that the statute cannot be applied to her conduct because `Oregon Revised Statutes 164.377(4) does not criminalize committing theft on a computer which a person is otherwise authorized to access’; rather, Nascimento asserts that that act is criminalized only under Oregon Revised Statutes 164.377(2)(c), a crime for which [she] was not charged. [Nascimento] argues that subsection (4) is expressly directed at unauthorized use or access of a computer, that is, the use of the device itself is unauthorized -- it is not directed at taking unauthorized actions on a computer that the person otherwise has authorization to access.
State v. Nascimento, supra (emphasis in the original).
The court went on to explain that the prosecution
does not deny that [Nascimento] had limited, implicit authorization from the store manager to access the lottery terminal to sell tickets to paying customers. However, the state responds that a jury could reasonably conclude that [her] use of the lottery machine was `without authorization’ because `she had no authorization to use the lottery computer to purchase a lottery ticket for herself during her work shift—much less to steal a lottery ticket by printing it and not paying for it.’

The state also points to the legislative history of § 164.377, which it argues demonstrates that the legislature intended to `criminalize instances where someone had authorization to use part of a computer system for some legitimate purpose but instead accessed other portions of the system.’ Citing Tape Recording, House Committee on Judiciary, Subcommittee 1, HB 2795, May 6, 1985, Tape 576 (statement of Sterling Gibson, General Telephone Co.).
State v. Nascimento, supra.
The Court of Appeals goes on the explain that the case,
as argued by [Nascimento], boils down to whether Oregon Revised Statute 164.377(4) encompasses conduct that (1) only involves a person accessing a device itself without authorization or (2) also encompasses using a device, which the person otherwise has authorization to physically access, in a manner contrary to company policy or against the employer's interests.

Under the circumstances of this case, however, we need not resolve that issue. There is evidence in the record that [Nascimento’s] store manager gave [her] limited authorization to physically access the lottery terminal to only sell tickets to, and validate tickets for, paying customers and only when the counter employee was not available to do so.

This is not the case that [Nascimento] tries to make it out to be. This is not a case where [she] had general authorization to be on a computer to carry out her duties, but then used that computer in a manner that violated company policy—such as, to use [her] example, by playing solitaire during work hours.

For [Nascimento’s] duties, the lottery terminal had but one function: to sell and validate lottery tickets. There was evidence from which the jury could conclude that she was authorized to access the physical device itself—the lottery terminal—only to serve paying customers. Thus, even taking [her] construction of the statute, there was sufficient evidence in the record from which the jury could rationally conclude that [Nascimento] accessed the lottery terminal without authorization.
State v. Nascimento, supra.

You can, if you are interested, see a photo of Nascimento in the news story you can access here, which also explains that she was sentenced to “32 months in prison for stealing from two separate local employers.”