Monday, July 21, 2014

The Juvenile, the Computer and Exigent Circumstances

A juvenile court judge in Oregon held that “J.C.L.”, a minor whose age is not given in the opinion this post examines, was “within the jurisdiction of the juvenile court for conduct that, if committed by an adult, would constitute the criminal offenses of first-degree encouraging child sexual abuse, Oregon Revised Statutes § 163.684(1)(a)(A) (2007), (Counts 1 and 3) and second-degree encouraging child sexual abuse, Oregon Revised Statutes§163.686 (2007) (Counts 2 and 4).”  In re J.C.L., 261 Or.App. 692 (Oregon Court of Appeals 2014).
J.C.L. appealed, arguing, among other things, that “the juvenile court erred in denying his motion to suppress evidence of child pornography found on his computer, which was seized without a warrant from a computer repair person.”  In re J.C.L., supra. The Court of Appeals began its opinion by explaining how J.C.L. came before the juvenile court judge.  In re J.C.L., supra. But before I get into that, I need to note that in this blog post I have replaced the court’s use of “youth” to refer to J.C.L. with his initials.  I, at least, found the repeated use of “youth” irritating.
This is how the case began:
J.C.L. was 16 years of age. . . . In March 2007, [his] uncle, Conahan, came to the attention of police when they linked him to the IP address of a computer that was downloading child pornography. In May 2007, police detective Elliott executed a search warrant at Conahan's residence. Based on images found on Conahan's computers and thumb drives, Elliott arrested Conahan for possession of child pornography. Conahan made statements to police that led them to investigate J.C.L.

J.C.L. had a computer in his bedroom. When it needed repairs, he sought help from Dutton, a high school student with an informal computer repair business. On several occasions, Dutton had visited J.C.L.'s home to repair his computer and saw Conahan at the house. In March 2007, Dutton took J.C.L.'s computer to his own home to repair it. Again, in May 2007, Dutton took J.C.L.'s computer to his home for repairs.

On May 23, 2007, two days after Elliott arrested Conahan, Elliott attempted unsuccessfully to contact J.C.L. He then went to Dutton's house, where, without a warrant, he seized J.C.L.'s computer and its hard drive.

Eight days later, police obtained a warrant to search J.C.L.'s computer. Detective Wiltse found installed on J.C.L.'s computer a software program called `Limewire,’ a `peer-to-peer’ network that allows users to search the “shared” folders and files of Limewire users whose computers are also connected to the Internet and running Limewire.

In a `shared’ folder on J.C.L.'s computer, Wiltse found images and videos of child pornography identical to the images and videos found on Conahan's thumb drive. The shared folders and files were marked `hidden,’ and they could not, in fact, be shared through Limewire. The state did not present evidence as to whether J.C.L.'s computer was connected to the Internet, nor did it present evidence that the hidden folders or files had ever been shared through Limewire.

Police took J.C.L. into custody, and he was charged with the [offenses noted above] for which the juvenile court ultimately found him to be within the court's jurisdiction. In a pretrial motion, J.C.L. moved to suppress the evidence obtained as a result of the warrantless seizure of his computer, asserting that the seizure was not supported by one of the limited exceptions to the warrant requirement and therefore violated his rights against unreasonable searches and seizures under Article I, section 9, of the Oregon Constitution, and the 4th Amendment to the United States Constitution.
In re J.C.L., supra. 
As I noted in prior posts, and as Wikipedia explains, every U.S. state has its own constitution, which is binding on local law enforcement officers, among others.  A state constitutional provision cannot trump, i.e., override, a provision of the U.S. Constitution such as the 4th Amendment; the Supremacy Clause of the U.S. Constitution establishes the U.S. Constitution, federal statutes and federal treaties as the “supreme law of the land,” i.e., they trump state law. 
But a state constitutional provision that provides more protection than the U.S. Constitution – such as a state constitutional provision that provides more protection than the 4th Amendment – does apply to local law enforcement (absent countervailing circumstances) and can therefore provide more protection than, say, the 4th Amendment.  Check out this post if you want to read about a case in which that happened.
At the suppression hearing, Elliott, the detective who seized J.C.L.’s computer, testified
that, on May 21, 2007, when he had arrested Conahan, Conahan had explained how the child pornography came to be on his computer. Conahan said that, when he searched Limewire for music, Limewire would return images of child pornography and that, to avoid the return of pornographic images on subsequent searches, he had decided to download them to his computer.

He told Elliott that [J.C.L.] had experienced the same difficulty with Limewire and had unsuccessfully tried to help Conahan remove the child pornography from his computer. Unable to remove the images, [J.C.L.] had shown Conahan how to create `hidden’ folders on Limewire in which to store the images, to make them more discrete and less accessible. Conahan told Elliott that, in the past, he had taken his computer to Dutton to have the images removed.

Elliott testified that, when he went to Dutton's house on May 23, 2007, Dutton informed him that he was working on J.C.L.’s computer to remove a virus and had not seen any child pornography on the computer. Dutton told Elliott that, when J.C.L. had given him the computer for repair, [he] had told Dutton to back up everything, but that, on May 22, 2007 the day after Conahan's arrest – J.C.L. had called and requested Dutton delete the contents of the computer, including the back-ups. Dutton told Elliott he had scanned J.C.L.’s computer for viruses, but had not deleted anything yet.

Elliott saw J.C.L.’s hard drive had been removed from the computer tower and was connected to Dutton's computer by a cable and that Dutton had already created a back-up of J.C.L.’s hard drive. Based on Conahan's statements and J.C.L.’s recent request, Elliott believed there was child pornography on J.C.L.’s computer.

Given J.C.L.’s request and the fact his hard drive was presently connected to Dutton's computer, Elliott believed the destruction of evidence was imminent, and he seized J.C.L.’s computer and hard drive. Elliott then left, but returned to Dutton's home one hour later and obtained Dutton's consent for the seizure of his own computer.
In re J.C.L., supra. 
In denying J.C.L.’s motion to suppress, the juvenile court judge found that,
considered together, the information Elliott had obtained from Conahan and the timing of J.C.L.’s request to delete the contents of the computer and its back-up provided probable cause that there was child pornography on J.C.L.’s computer. The court concluded, further, that the warrantless seizure of his computer was justified by exigent circumstances, `especially given it was at the time connected to the computer of [Dutton,] who had the capacity to follow through on [J.C.L.’s] request to remove it all.’
In re J.C.L., supra. 
The case went to trial and, after both sides had presented all their evidence, J.C.L. moved for an acquittal.  In re J.C.L., supra.  The juvenile court denied the motion and, as noted above, found J.C.L. was within the juvenile court’s jurisdiction.  In re J.C.L., supra. 
On appeal, J.C.L. argued, first, that his motion to suppress should have been granted  because the seizure of his computer was “not justified by either a warrant or an exception to the warrant requirement.”  In re J.C.L., supra.  The court began its analysis of that argument by noting that the prosecution
has never disputed that Elliott seized J.C.L.’s computer when he took it from Dutton's home. Police may search or seize property without a warrant without violating the Oregon or federal constitutions when they have probable cause to believe that the property is evidence of a crime, upon a showing of exigent circumstances.  State v. Machuca, 347 Or. 644, 227 P.3d 729 (Oregon Supreme Court 2010) (warrantless search permissible if officer has probable cause to believe crime was committed and exigent circumstances exist). . . .

It is the state's burden to show exigency, by establishing both that the destruction of evidence was imminent and that a warrant could not have otherwise been expeditiously obtained. State v. Machuca, supra.  

Although, on appeal, J.C.L. concedes that Elliott had probable cause to believe that J.C.L.’s computer contained evidence of a crime, he contends that, contrary to the juvenile court's determination, no exigency required it to be seized without a warrant.
In re J.C.L., supra. 
The Court of Appeals began its analysis of the arguments by noting that “[e]xigent circumstances exist when a reasonable person in the police officer's position would determine under the circumstances that immediate action is necessary to prevent the disappearance, dissipation, or destruction of evidence. State v. Snow, 337 Or. 219, 94 P.3d 872 (Oregon Supreme Court 2004).” In re J.C.L., supra.  The court then took up the issues in this case, explaining that in
J.C.L.’s view, there was no exigency, because, in light of the circumstances then existing, it was not objectively reasonable for Elliott to conclude that Dutton might destroy the evidence on J.C.L.’s computer. J.C.L. emphasizes that Dutton had no reason to tamper with evidence, and that Dutton had been polite and cooperative and -- in fact -- had volunteered the information concerning J.C.L.’s request to delete the contents of the computer. 

J.C.L. contends that, in light of the absence of any indication that Dutton had engaged in wrongdoing, the fact J.C.L.’s hard drive was connected to Dutton's computer could not support a reasonable fear of imminent destruction of evidence and supported only the inference that Dutton was in the process of fixing J.C.L.’s computer. In his view, that evidence, together with the fact that, despite having received J.C.L.’s request to delete the computer's contents the day before, Dutton had not yet done so, supports an inference that Dutton was not likely to destroy the contents of the computer.

Further, J.C.L. proposes that Elliott must in fact have trusted Dutton not to destroy the evidence, or he would not have left Dutton alone with his own computer for approximately one hour before returning to seize it, even though it contained a copy of J.C.L.’s hard drive. Finally, J.C.L. contends that a warrant reasonably could have been obtained by telephone with Elliott waiting on the premises.
In re J.C.L., supra. 
The Court of Appeals, though, was not convinced:
Although J.C.L. has described inferences that might be drawn from the evidence in support of a conclusion that there was no exigency, we agree with the state that the record supports the juvenile court's conclusion that Elliott reasonably believed Dutton was about to erase J.C.L.’s hard drive and that, if he left J.C.L.’s computer within Dutton's control to obtain a warrant, the destruction of evidence was imminent.

At the time he seized J.C.L.’s computer, Elliott was aware that Dutton had previously helped Conahan delete child pornography from his computer. He was aware that J.C.L. had instructed Dutton to delete everything on his computer, including back-up files. He saw that J.C.L.’s hard drive was hooked up to Dutton's computer and that Dutton had already copied J.C.L.’s hard drive onto his own computer.

Together, that information supported Elliott's decision that it was necessary to seize J.C.L.’s computer to avoid the imminent destruction of evidence on J.C.L.’s computer, and that leaving the computer within Dutton's control for any length of time to obtain a warrant would have resulted in a loss of the evidence.

For that reason, we conclude the juvenile court did not err by concluding that the warrantless seizure of J.C.L.’s computer and hard drive was justified by the exigent circumstances exception to the warrant requirement.
In re J.C.L., supra. Therefore, for this and other reasons, the Court of Appeals affirmed the juvenile court judge’s ruling.  In re J.C.L., supra. 

Friday, July 18, 2014

False Light, the Ripoff Report and Defragmentation

This post examines a recent opinion from the Michigan Court of Appeals:  Rooks v. Krzewski, 2014 WL 1351353 (2014). Joseph Krzewski appealed when, after a bench trial, a udge held he “portrayed” the two plaintiffs, Jonathan Rooks and Bradley Guizinga, "in a false light." Rooks v. Krzewski, supra.  The judge ordered Krzewski to "remove the false statements about [them] from the Internet and enjoined him from republishing any of the false statements." Rooks v. Krzewski, supra.  (For more on false light, check out this post.) 
The Court of Appeals began its opinion by explaining that in April of 2010, the plaintiffs
Jonathan Rooks and Bradley Gruizinga sued Krzewski for “false light invasion of privacy” and the trial judge found in their favor.  Rooks v. Krzewski, supra.  The court then began its analysis of the false light issues by explaining that Rooks owns 
Parkland Realty, Inc., and Parkland Investments, Inc. . . . Through one of his corporate entities, Rooks purchased an old school building on Broadway Street in Grand Rapids. He sold [it] to Union Square Condominiums, LLC (Union Square), an entity owned by Gruizinga, which developed [it] into approximately 180 condominium units. Gruizinga contracted with Parkland Realty to market the units.

At the time of trial, [Krzewski] was 30 years old and lived with his parents, James and Patricia Krzewski. He previously owned a condominium unit in the Landmark Lofts in Grand Rapids. He has never owned, leased, or occupied a condominium unit in the Union Square building.

Rooks first encountered [Krzewski] in 2006 or 2007 at a home show, where [he] was selling hot tubs. Rooks thought [Krzewski] had a `good sales personality,’ and invited him to apply for a sales position with Parkland Realty. [Krzewski]  had two interviews. However, after Rooks did some `background checking,’ he hired someone [else].

[They] had another encounter when [Krzewski] was selling his Landmark Lofts condominium unit. During the Parade of Homes, [Krzewski] placed a sign on the street indicating his unit was `Best of Parade.’ Rooks called [Krzewski]. According to Rooks, [he called] to let [Krzewski] know that, because his unit was not in the Parade of Homes, he could get into trouble with the Home Builders' Association. Rooks got [Krzewski’s] voicemail, and [it] . . . asked the caller why he or she would want to buy a condominium unit at Boardwalk, which has high dues and is a block from the Grand River, when one could live directly on the river. Rooks asked [Krzewski] to call him, and [he] did. Rooks told [Krzewski] it did not make sense to promote his condominium unit by badmouthing other condominium developments. According to [Krzewski], Rooks threatened to sue him for his unlawful participation in the Parade of Homes.
Rooks v. Krzewski, supra.  
The court then explains that while Krzewski “never owned or lived” in a Union Square
condominium unit, he posted messages on the Union Square Forums, an Internet website for discussion of Union Square. His user name was `BestofParade.’ On April 29, 2008, [Krzewski] inquired on the Union Square Forums whether it was true that an owner of a condominium unit had been injured due to faulty construction.

On June 29, 2008, [he] answered his own inquiry and stated it was not a rumor, explaining that `[f]ormer resident Matt Stanley # 324 was injured pretty bad.’ On November 10, 2008, [Krzewski] sent Allen Derusha, administrator of the Union Square Forums, a message, asking Derusha why his posts were being deleted and promising his best `to post warnings about U2 [Union Square] on Craigslist.com.’

On January 3, 2009, `Terryb’ from Grand Rapids posted a report about Rooks and his corporate entities on ripoffreport.com (the ripoff report). The ripoff report read, in pertinent part:

`Beware of Jon Rooks, his development companies, and his main partner in development, Brad Gruizinga. These people mislead buyers, provide extremely shoddy and low quality workmanship, cut every possible corner, lie when they are confronted, and then absolve themselves of any ownership of problems after the sale, leaving their customers with unfinished condos and bad quality work. Here are just a few actual situations that purchasers of Jon Rooks' condos have experienced:

1. Low quality construction work with little soundproofing. Many owners of Parkland condo developments experience major problems. . . . No insulation was used in walls, leaving just a few layers of drywall between units. . . .

2. When you close on your condo, you are given a `punch list’ of construction items that need to be corrected. . . . Rooks and his company pressured many people to close on their condos before they were completely finished. The problem is that once the closing documents are signed, Parkland and Jon Rooks are completely absolved of any further legal responsibility for the construction. People that closed on their condos years ago still have not had their punch lists completed. . . .

3. Jon Rooks and his company advertising [sic] one of his developments as `luxury condos.’ Owners were promised exercise facilities and two laundry rooms. However, . . . Rooks' company purchased used exercise equipment that broke down less than a year later. Owners were then  stuck with the bill of thousands of dollars to replace [it]. Owners were also promised to [sic] laundry rooms, but Rooks decided only one was necessary, with only two washers and dryers for 180 condos. . . .

4. Jon Rooks and Brad Gruizinga have the condo association documents written so they maintain control over the condo association even when 95% or more of the condos have been sold. . . .

7. Jon Rooks is a pathological liar. You can't believe anything he says. . . .' 
Rooks v. Krzewski, supra.  This part of the opinion has nine lengthy paragraphs outlining allegations attributed to Krzewski.  I cannot include all of that in this post; if you would like to read the whole thing you can find the entire opinion online, for free, here.
The court then took up the “ripoff.report.com” issue, explaining that Krzewski acknowledged
he is a registered user of ripoffreport.com. His user name is `Upsetcustomer.’ [He] denied he was `Terryb’ or . . . prepared any portion of the ripoff report. According to [Krzewski], he made no efforts to contact `Terryb’ or to learn the identity of `Terryb.’

[Krzewski] posted three comments to the ripoff report. In the first comment, titled `JON “CROOKS” ROOKS,’ [he] wrote, `I would suggest contacting the BBB of Western Michigan and file a complaint. This man associates himself with a lot of snakes. . . .’ In the second complaint, [he] wrote that . . . he had been threatened with a lawsuit by Rooks after voicing his concern about high maintenance fees at Boardwalk. He, therefore, understood why `Terry B.’ decided to conceal his identity.

The third comment, which defendant wrote under the user name `paybacksabitch,’ was titled, `WARNING!!! WATCH OUT FOR BINDING ARBITRATION CLAUSE IN PARKLAND REALTY PURCHASE AGREEMENT AND/OR CONTRACT.’ [Krzewski] posted some questions and answers regarding binding mandatory arbitration and a page from `Parkland Realty's purchase agreement’ that included a provision on dispute resolution. [At trial, Krzewski] testified that he received the purchase agreement through a Freedom of Information Act (FOIA) request he sent to the Bureau of Commercial Services after reading of a complaint on the Internet.
Rooks v. Krzewski, supra.  Again, the opinion gives more detail than I can include here.
One other thing of note is that on December 28, 2009, Krzewski “made a posting” to Craigslist to which he attached three documents, one of which was “a criminal record report that showed Rooks had been charged with operating while intoxicated in 1996.”  
Rooks v. Krzewski, supra.  He testified at trial that he obtained the report “from the state of Michigan through ICHAT.”  Rooks v. Krzewski, supra.  Again, there were many more comments posted in various places, none of which were, to say the least, complimentary to Rooks. If you are interested, check out the full opinion at the site noted above.
While the case was being prepared for trial, the judge ordered that the plaintiffs’ computer expert, Brandon Fannon, was to be allowed to inspect Krzewski’s computers.  Rooks v. Krzewski, supra.  After Krzewski turned his laptop over to the plaintiffs to be examined, they moved for an order to show cause and sanctions.  Rooks v. Krzewski, supra.  The judge held a hearing on the motion and Fannon testified that the plaintiffs hired him to examine 
four computers: (1) a desktop computer from [Kraweski’s] place of employment; (2) a desktop computer that belonged to [his] parents; (3) a laptop computer that belonged to [Krzewski]; and (4) a desktop computer that belonged to [him]. Fannon was concerned that data had been deleted from [Krzewski’s] parents' desktop computer and from [his]  laptop computer.

He explained that [Krzewski’s] parents' desktop computer had been delivered to him on November 24, 2010, and earlier that morning, disk cleanup and disk defragmentation had been run on [it]. In addition, three files in a folder titled `AOL Saved PFC,’ which is a container file for email, had been accessed at 9:12 a.m., but the three files were no longer on the computer. Fannon believed it was highly unlikely that the steps taken on the desktop computer were for a purpose other than to cause data loss. In addition, [he] testified that similar steps had been taken to [Krzewski’s] laptop computer before it was delivered to him. . . . [T]he Firefox browser was uninstalled and disk cleanup and disk defragmentation were run. . . . Fannon was not prepared to say that information on [Krzewski’s] laptop computer was completely destroyed or was unavailable.

Information could be recovered from the volume shadow copy, and he had not done any analysis of the volume shadow copy. Windows XP, the operating system on ]Krzewski’s] parent's desktop computer, however, does not automatically generate a volume shadow copy.
Rooks v. Krzewski, supra.  
Krzewski admitted he had run disk defragmentation and disk cleanup on his laptop
shortly before he delivered it to Fannon. He explained he had private images on the computer, which were irrelevant to the case, and did not want Fannon to see them. In addition, [Krzewski] acknowledged that he deleted the Firefox browser from his laptop computer. He did not want Fannon to see the websites he had visited.

[He] denied he performed disk cleanup and disk defragmentation on his parents' desktop computer. He presumed his mother ran the disk cleanup and disk defragmentation. His mother has said she runs these programs all the time. However, [Krzewski] had told his mother Fannon was an expert in computers and that, if there were any images or emails on the computer she did not want Fannon to see, she should get rid of them.

At the conclusion of the hearing, the trial court stated that, because personal information is stored on a computer, what [Krzewski] did was `somewhat understandable.’ However, it also stated that `from the truth-seeking perspective, it's simply not allowed.’ The trial court held that [Krzewski] was required to pay for Fannon's additional efforts to obtain and review information on [his] laptop computer and [his] parents' desktop computer. However, the trial court was not prepared to say that evidence had been lost because Fannon and [Krzewski’s] expert agreed the deleted data could probably be recovered from the volume shadow copy.
Rooks v. Krzewski, supra.  
At trial, Fannon testified that since the hearing, he had not done anything to
further analyze [Krzewski’s] parents' desktop computer. The operating system on the computer did not create volume shadow copy and, therefore, the data that was `overwritten’ was no longer accessible or recoverable. Fannon recalled that on November 24, 2010, the day he was supposed to analyze the parents' desktop computer, the computer was delivered to his office at 12:30 p.m. He discovered that at 9:12 a.m., the AOL address book was accessed, but the address book was no longer on the computer. In addition, after the AOL address book was accessed, the recycle bin was emptied and disk cleanup and disk defragmentation were run on the computer. The disk defragmentation was manually executed.

Fannon believed this was a `sophisticated, yet unsophisticated’ attempt to permanently delete data. According to Fannon, the same steps were taken to [Krzewski’s] laptop computer before it was delivered to his office on January 4, 2011. . . . Fannon [said] anything [Krzewski] posted to the Internet in 2009 was not done using the laptop computer. Fannon testified that he found nothing on “Krzewski’s] desktop computer to indicate that any data had been deleted from that computer.
Rooks v. Krzewski, supra.  At trial, Patricia Krzewski testified that she “knows how to defragment her computer” and “does so about once a week.” Rooks v. Krzewski, supra.  
The Court of Appeals then addressed the false light issue, noting that the trial judge found Krzewski was Terryb, based on “circumstantial evidence.” Rooks v. Krzewski, supra.  The trial judge noted that Terryb has not been
formally identified. As such, one can conclude this is a false name. [Krzewski] has a history of using false names on his internet posts. It appears the earliest Terryb post was in October, 2009. This was about one year after [Krzewski] first began posting negative comments on various forums and wrote, `I will do my best to post warnings about U2 on Craigslist.com.’
Rooks v. Krzewski, supra.  
In finding for the plaintiffs, the trial judge found that Krzewski, posing as Terryb,
knew or acted in reckless disregard of the falsity of the statements. . . . [T]he information contained in the ripoff report was detailed and required research and that, although it was evident [he] had spent `considerable time and effort “digging up dirt”’ on Rooks and Gruizinga, many of the facts were `half-truths or complete fabrications,’  which were similar to [his]  unilateral declarations that Rooks damaged a fishery. . . . According to the trial court, [Krzewski] published any negative information about Rooks or Gruizinga he could find without regard to the accuracy of it. [He] did so, stated the trial court, because he had an `irrational ax to grind’ with plaintiffs because Rooks did not hire him and Rooks confronted him about his improper claim that his condominium unit was `Best of Parade.’ 

The trial court further found that, even if [Krzewski] was not `Terryb,’ [his] reckless disregard of the falsity of the statements was exemplified by the following: (1) [he] used a variety of disguised names to post material on the Internet, making it look as if there were a variety of posters; (2) [he] sent an email to Rooks's business competitors; (3) [he] published that Stanley, a nonexistent condominium unit owner, was injured due to construction negligence; (4) [he] wrote that one of Rooks's developments had a negative effect on a critical fish habitat in the White River, despite having never been to the area; (5) [he] admitted in a pretrial proceeding he attempted to erase or hide evidence on his computers; and (6) [he] lied and declared his former condominium unit `Best of Parade’ to lure potential purchasers to it.
Rooks v. Krzewski, supra.  
The Court of Appeals began its analysis with the trial judge’s finding that Krzewski was Terryb, noting that if  the only evidence that supported the trial court's finding . . . was the fact that [Krzewski] used `false names’ on the Internet, we would be left with a definite and firm conviction that the trial court erred in finding that defendant was `Terryb’”, but his “use of `false names’ is not the only evidence that supports the trial court's finding.” Rooks v. Krzewski, supra.  It explained that in finding Krzewski was Terryb, the judge did not believe
[his] testimony that he was not `Terryb’ or that he did not prepare any portion of the ripoff report. We are required to give due regard to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it. . . .

Second, `where a party deliberately destroys evidence, or fails to produce it, courts presume the evidence would operate against the party who destroyed it or failed to produce it.’ Hamann v. Ridge Tool Co., 213 Mich. App. 252, 539 N.W.2d 753 (Michigan Court of Appeals 1995). Fannon testified that `sophisticated, yet unsophisticated’ attempts to permanently remove data from [Krzewski’s] laptop computer and his parents' desktop computer were done only hours before the computers were delivered to his office. The attempt to delete data from [his] laptop computer does not lead to any presumption against [Krzewski].

Fannon testified that he analyzed the volume shadow copy on the computer, and a booklet of what he found was presented at trial. There was no testimony that the attempt to delete data from the computer resulted in the actual loss of any data. However, Fannon testified that the data that was overwritten when disk cleanup and disk defragmentation were run on [Krzewski’s] parents' desktop computer was no longer accessible or recoverable because volume shadow copy was not used by the computer's operating system. Although [his] mother testified that, whenever she thought there might be a virus on the desktop computer, she ran disk cleanup and disk defragmentation on the computer, because the disk cleanup and disk defragmentation were run only hours before the desktop computer was delivered to Fannon, the evidence supports a finding that [Krzewski], who lived with his parents, ran the cleanup and defragmentation in an attempt to destroy data. Accordingly, the evidence presented at trial allowed a presumption that the data deleted from defendant's parents' desktop computer would have operated against [Krzewski].

Third, in its opinion, the trial court stated [Krzewski] had `an irrational ax to grind’ with Rooks and Gruizinga. [He] took numerous actions to grind his ax. He posted on the Union Square Forums that he would do his best to post warnings about Union Square on craigslist.com. He posted three comments to the ripoff report, and in [them] said, in part, that Rooks . . . associated with `snakes,’ and had threatened to sue him. [He] repeatedly posted the ripoff report on craigslist.com. To postings, he attached a criminal record report . . . that showed Rooks had been charged with operating while intoxicated. . . .. He submitted uncomplimentary reviews of Rooks on realestateratingz.com. . . .

The evidence supporting the trial court's finding that [Krzewski] was `Terryb’ cannot be classified as overwhelming or significant. Nonetheless, the evidence showed that [he]  actively pursued grinding his ax with Rooks and Gruizinga, often doing so while using “false names” on the Internet, and that [Krzewski]  was aware of and used ripoffreport.com.

This evidence, when combined with the regard that we must give to the trial court's determination that [his] testimony he was not “Terryb” was not credible and the presumption that data from [Krzewski’s] parents' desktop computer would have operated against [him], does not leave us with a definite and firm conviction that the trial court made a mistake when it found that defendant was ‘Terryb.’ . . .  Accordingly, we affirm the trial court's factual finding that [Krzewski] was the author of the ripoff report.
Rooks v. Krzewski, supra.  
Again, if you are interested in reading more about the facts and precisely what the trial court and Court of Appeals did in this case, check out the full opinion here.

According to the news story you can find here, Krzewski plans to appeal this ruling to the Michigan Supreme Court, raising a 1st Amendment issue. 

Wednesday, July 16, 2014

The Mother, the Daughter and Identity Theft

After “Rebecca F.” pled to eight counts of identity theft in violation of West Virginia Code § 61-3-54, and was sentenced “to an effective five-year prison term” and ordered to pay restitution, she appealed.  State v. Rebecca F., 758 S.E.2d 558 (Supreme Court of Appeals of West Virginia 2014).  As to why the opinion does not refer to her by her full name, a footnote says “[w]e adhere to our usual practice in cases involving sensitive facts and do not refer to the parties using their full names.”  State v. Rebecca F., supra. 
The opinion also notes,  that in February of 2011,
a Berkeley County Grand Jury indicted [Rebecca F.] on eleven counts of child abuse with bodily injury in violation of West Virginia Code § 61–8D–3(a) [1996], and eight counts of identity theft in violation of West Virginia Code § 61–3–54 [1998]. The eight counts of identity theft alleged that [she] fraudulently used her fourteen-year old daughter's identity (name, birth date, and social security number) `for the purpose of making financial or credit transactions’ in her daughter's name.

On April 2, 2012, [she] entered an Alford guilty plea to the eight felony counts of identity theft. The State recommended [Rebecca F.] receive a ten-year prison term and pay all of the restitution costs listed in the indictment.  The Circuit Court deferred sentencing the plea agreement and guilty plea were entered so a presentence investigation report could be prepared. The court also ordered that [she] undergo a diagnostic evaluation at the Lakin Correctional Center. After the presentence investigation report and diagnostic evaluation were completed, the Circuit Court held a sentencing hearing on January 14, 2013.
State v. Rebecca F., supra. 
As Wikipedia explains, in entering an Alford plea a defendant concedes that the prosecution would probably be able to prove his/her guilt of the charge(s) beyond a reasonable doubt at trial and therefore enters a guilty plea while maintaining his/her innocence of the charge(s).  In a footnote, the Supreme Court of Appeals explains that “[a]s part of the plea agreement, the remaining felony counts for child abuse with bodily injury were to be scheduled for trial.”  State v. Rebecca F., supra. 
At the sentencing hearing, the trial judge heard the arguments from the lawyers, as
well as statements from [Rebecca F.] and the victim. At the time of the sentencing hearing, the victim had reached the age of majority. The Circuit Court did not follow the State's recommendation that [Rebecca F.] be sentenced to serve a ten-year prison term. Instead, the court sentenced [her] to serve five years in prison. 

Further, the Circuit Court ordered that [she] pay restitution to the following financial institutions: $1,370.32 to Applied Bank; $1,114.98 to Barclay Card UC; $1,232.00 to Zenith Acquisition Corporation; $3,753.00 to Chase Card Services; $630.44 to HSBC Card Services; and $2,842.00 to SST/Columbus Bank and Trust. In addition, the Circuit Court ordered [Rebecca F.] to pay $10,000.00 in restitution to her daughter `because of the attempts and time and the effort she has to make to try to rectify the wrongful credit aspect of [the identity theft].’
State v. Rebecca F., supra.  Rebecca F. then appealed. State v. Rebecca F., supra. 
On appeal, she raised two issues:  She first claimed that the Circuit Court judge erred by sentencing her to five years in prison instead of to probation or “home confinement.” State v. Rebecca F., supra.  She conceded, though, that the sentence was “`within the statutory limits” for identity theft.  State v. Rebecca F., supra.  The Supreme Court of Appeals pointed out that she could have been sentenced to serve five years on each of the eight counts of identity theft to which she pled guilty, which meant she could have been sentenced to forty years in prison.  State v. Rebecca F., supra.  The court held that “[b]ecause it is undisputed that [she] was sentenced within the statutory limits, and . . . the sentence was not based on an impermissible factor, we find the Circuit Court did not abuse its discretion by sentencing [Rebecca F.] to serve five years in prison.”  State v. Rebecca F., supra. 
It then took up Rebecca F.’s second issue: the Circuit Court judge’s ordering her to pay restitution to her daughter, the victim of the identity theft.  State v. Rebecca F., supra.  The Circuit Court judge “awarded $10,000.00 to the victim `because of the attempts and time and the effort she has to make to try to rectify the wrongful credit aspect of [the identity theft]. That not only takes time and money and things like that so it is a restorative restitution[.]’” State v. Rebecca F., supra. 
On appeal, Rebecca F. argued that the restitution award to her victim was
not permissible under West Virginia Code § 61–11A–4 or West Virginia Code § 61–11A–5  of the Victim Protection Act of 1984, West Virginia Code §61–11A–1 et seq. [1984] (`Victim Protection Act ‘ or the `Act ‘). The defendant does not discuss these statutes in detail or cite any previous decisions from this Court in support of her argument.

Instead, [she] makes the general argument that `this $10,000.00 award of restorative restitution is punitive in nature and explicitly prohibited by the laws governing restitution.’ [Rebecca F.] further asserts that `the State in no way met its burden of proving that the $10,000.00 award of restorative restitution was necessary or cognizable under West Virginia Code § 61–11A–5.’
State v. Rebecca F., supra. 
The Supreme Court of Appeals found that her argument required it to examine the
Victim Protection Act, West Virginia Code §§ 61–11A–1 to 8. The Victim Protection Act governs restitution to direct victims of crime in criminal cases. West VirginiaCode § 61–11A–1 of the Victim Protection Act provides an extensive statement of the Legislature's intention `to enhance and protect the necessary role of crime victims and witnesses in the criminal justice process and to ensure that the state and local governments do all that is possible within the limits of available resources to assist victims and witnesses of crime [.]’ (Emphasis added)

This Court examined the Victim Protection Act in State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997), and held that a circuit court should ordinarily order a criminal defendant to make full restitution to victims of his/her crime when permitted under the Act. 
State v. Rebecca F., supra.  It also explained that
in State v. Whetzel, 200 W.Va. 45, 488 S.E.2d 45 (1997), this Court stated that the Victim Protection Act `predicates an award of restitution upon a defendant's conviction of a felony or misdemeanor and upon the “physical, psychological or economic injury or loss to the victim.”’ State v. Whetzel, supra. The Court further explained in Whetzel that

`the clear intention of the Legislature in enacting West Virginia Code § 61–11A–4(a) was to enable trial courts to require convicted criminals to pay all losses sustained by victims in the commission of the crime giving rise to the conviction. Any other interpretation would run counter to the legislative intent that ‘all that is possible’ be done, an intent set forth in West Virginia Code § 61–11A–1(b).’
State v. Rebecca F., supra. 
The Supreme Court of Appeals noted that here, Rebecca F. “pled guilty to eight felony counts of identity theft” and during the sentencing hearing “the victim described the psychological and economic injuries she has suffered as a result of the defendant's identity theft”.  State v. Rebecca F., supra.  This, apparently, is what the daughter said:
A mother and a daughter are supposed to have a trustworthy bond and my mother broke that bond in every possible way. Since I was 12 or 13 I have been getting calls from credit card companies. When I lived at my mother's house the children were not allowed to answer the phone, period, and if we did we got in a lot of trouble. Also, if we saw mail with our name on it we were not allowed to open it.

When I was around 14 I saw the mail and I had a credit card with my name on it and I asked my mom what it was. She told me that they send you credit cards before you turn 18 in preparation for turning 18.

When I moved into my father's house I started getting calls on my cellphone and at my grandpa's house all hours of the night, day and night, about bills that I owed that I had no idea about. I asked my mother if she knew what the calls were about and she said she did not know and wanted me to leave it at that.

I discovered that I could not rent a place due to my credit score and I had to rely on moving in with friends.

When the car that my father bought for me died and I needed to get a new one I could not get any financing and I had to borrow money from family. I could not even get a gas card due to my credit. To this day my family and I still get calls regarding bills that I owe. I cannot get any loans of any kind. I'm not even able to go to school right now due to this situation. In addition, I have been turned down for multiple good paying jobs due to my credit report and it has taken me over a year to find a job that pays more than minimum wage.
State v. Rebecca F., supra. 
The court then explained that “[i]n addition to the victim’s statement,” the
presentence investigation report also described the psychological and economic injuries the victim suffered as a direct result of [Rebecca F.’s] identity theft. Based on this evidence of psychological and economic injuries suffered by the victim, the circuit court concluded an award of restitution was appropriate. West Virginia Code § 61–11A–4(a) requires, absent a finding of impracticality, that a circuit court order a defendant to make restitution to any crime victim who has suffered a physical, psychological or economic injury.

Because there was a clear showing of psychological and economic harm suffered by the victim, we find that the circuit court did not abuse its discretion in awarding restitution to the victim.
State v. Rebecca F., supra. 
The Supreme Court of Appeals then took up the final issue: whether the amount of restitution the Circuit Court ordered was “proper.”  State v. Rebecca F., supra.  It explained that West Virginia Code § 61–11A–4(b) provides “specific instruction” to
a circuit court when formulating a restitution award resulting from property damage, bodily injury and bodily injury causing death. . . . West Virginia Code § 61–11A–4(b) does not address the specific considerations a circuit court should undertake when formulating a restitution award resulting from psychological or economic injuries or loss. 

West Virginia Code § 61–11A–5(a), however, contains general considerations a circuit court should undertake when determining whether to order restitution under the Victim Protection Act and in determining the amount of restitution to award. [It states that:]

`The court, in determining whether to order restitution under this article, and in determining the amount of such restitution, shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependents, and such factors as the court deems appropriate.’
State v. Rebecca F., supra. 
The court therefore held that West Virginia Code § 61–11A–4(a) requires a
circuit court, absent a finding of impracticality, to order a defendant convicted of a felony or misdemeanor causing psychological or economic injury or loss to a victim, to make restitution to the victim of the offense. West Virginia Code § 61–11A–4(a) does not contain specific factors a circuit court should consider when formulating a restitution award to a victim who suffers psychological or economic injuries pursuant to West Virginia Code § 61–11A–4(a).

Therefore, a circuit court formulating a restitution award to a victim who suffers psychological or economic injuries pursuant to West Virginia Code § 61–11A–4(a) should consider the factors set forth in West Virginia Code § 61–11A–4(a) of the Victim Protection Act. These factors include (1) the amount of the loss sustained by any victim as a result of the offense; (2) the financial resources of the defendant; (3) the financial needs and earning ability of the defendant and the defendant's dependents; and (4) such factors as the court deems appropriate.
State v. Rebecca F., supra. 
It then applied this standard to the Rebecca F. case, explaining that the
first factor we consider is the amount of loss suffered by the victim. The victim stated that [Rebecca F.’s] identity theft prevented her from obtaining student loans, housing, transportation and employment.

While these damages are difficult to convert into a specific dollar amount, it is abundantly clear that the victim has suffered substantial psychological and economic damages as a result of the identity theft.

As to the second factor, [Rebecca F.] has not argued that she lacks the financial resources to comply with the restitution order. Similarly, [Rebecca F.] has not argued that her financial needs or her earning ability would prevent her from complying with the restitution order. Based on these factors, we do not find that the circuit court abused its discretion by ordering [her] to pay $10,000.00 in restitution to the victim.
State v. Rebecca F., supra.  
Finally, the court noted that in Kelly v. Robinson, 479 U.S. 36 (1989), the U.S. Supreme Court said restitution is “an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have cause.” State v. Rebecca F., supra.  It ended its opinion by noting that “[r]equiring the defendant to pay restitution to her daughter will force her to “confront, in concrete terms” the significant harm her actions have caused her daughter to suffer.”  State v. Rebecca F., supra. 

If you would like to see photos of “Rebecca F.”, find out her full name and read more about the facts in the case, check out the news story you can find here.  The story you can find here adds some more details (such as the child abuse charges were based on allegations that she struck her children with a “broom, baton and other objects” and the fact that some of the identity theft charges were based on her using her ex-husband’s identity).