Parsing Crimes

As I explained in a post I did last year, criminal charges against someone are brought in a charging document, which is usually an indictment (charges returned by a grand jury) or an information (charges brought by a prosecutor without using a grand jury).

As I also explained, each criminal charge – each accusation of violating a specific criminal statute – is brought in a separate “count” of the indictment or information.

That post was about the rules that are used to decide the scope of the charge that can be put in a single count. This post is about a related but different issue: Deciding what crimes arose from a particular course of conduct.

To analyze that issue, we’re going to use the facts and charges in State v. Wolf, 2009 WL 1152183 (Ohio Court of Appeals 2009). Here are the facts, as set out by the court:

Larry Wise, the Superintendent of the Shelby City Wastewater Treatment Plant, was cleaning out some old files from the city-owned computer at the plant during which he found a nude photograph of one of his employees, Richard Lee Wolf. . . . Wise immediately shut down the computer and reported the situation to the Shelby Utilities Director, Brad Harvey. Mr. Harvey . . . contacted the Shelby Police Department, asking to speak to Chief Mike Bennett personally for advice on how to proceed. The chief was unavailable that day, so Mr. Harvey directed Mr. Wise to take the computer, and lock it in the trunk of his car where it would be secured for the weekend.

The following Monday morning, Larry Wise took the computer to the Shelby Police Department and turned it over to Sergeant David Mack, who was assigned to conduct the investigation. Sgt. Mack immediately made contact with [Wolf] . . . and took a statement regarding his activities on the city's computer during working hours. [Wolf] admitted he joined a website called `Adult Friend Finder’ . . . to meet women. Several . . . women asked for his picture, so he bought a digital camera . . . and took some naked pictures of himself. [Wolf] admitted he used the city-owned computer in the wastewater treatment plant to upload and send those photographs while he was on the clock. He also accessed various pornography websites . . . . [Wolf] admitted his conduct was in violation of established work practices, and was `unethical and wrong;’ however, he did not believe that he committed a crime. . . .

Sgt. Mack contacted Detective Scott Dollison of the Westerville Police Department to conduct a forensic analysis of the . . . hard drive. . . . Dollison determined there were several inappropriate web sites that were accessed on the city-owned computer. In the computer's temporary internet files, Detective Dollison located 703 pornographic photos and several sexually explicit e-mails in which [Wolf] was soliciting services from a dominatrix named Madam Patrice. Comparing the dates and times the photographs and e-mails were accessed to the time cards from the wastewater treatment plant, Sgt. Mack determined [Wolf] was working during those times.

Following the forensic analysis of the computer, Sgt. Mack met [Wolf] at the wastewater treatment plant. . . . [and] took another statement from [him]. [Wolf] admitted he used the internet on the City of Shelby's computer during hours he was working for the City of Shelby. [He] estimated that he spent over a hundred hours on the internet for personal business when he should have been performing work for the City of Shelby.

Payroll records maintained by the City of Shelby indicated [Wolf]'s hourly wage in December, 2005 was $17.19 an hour plus benefits. . . . [and, later,] $17.71 an hour, and with benefits it was $23.92. Therefore, for the hundred hours [Wolf] was on the internet while he should have been working, he would have been paid $2,392.00.

State v. Wolf, supra. Wolf “was indicted by the Richland County Grand Jury on one count of theft in office, with a specification that the value of the property or services stolen was more than $500 and less than $5000, in violation of [Ohio Revised Code §] 2921.41(A)(2), a fourth degree felony” and on “one count of unauthorized access to a computer, with a specification that the value of the property or services stolen was more than $500 and less than $5000, in violation of [Ohio Revised Code § 2913.04(B), a fifth degree felony”. State v. Wolf, supra. He pled not guilty, went to trial and was convicted.

On appeal, Wolf argued, among other things, that there was “insufficient evidence to establish the elements” of either crime. State v. Wolf, supra. The Ohio Court of Appeals rather cursorily disposed of his argument that the evidence was not sufficient to support his conviction for unauthorized access to a computer:

Upon review, we find that the crux of the State's `unauthorized use’ case was based on the proposition that [Wolf] was acting outside the scope of his authorization to use the computer by engaging in criminal conduct, i.e. soliciting prostitution.

Having found that the State presented evidence [Wolf] used his computer to upload nude pictures of himself onto adult dating sites and to access certain pornographic websites to support the charge of solicitation. . . we find such conduct was `beyond the scope of the express or implied consent” and the charge of `unauthorized use of a computer’ was based upon sufficient evidence.

State v. Wolf, supra. The Ohio statute, Ohio Revised Code § 2913.04(B), based an unauthorized access charge on the defendant’s accessing a computer or computer system “without the consent of, or beyond the scope of the express or implied consent of, the owner of the computer” or computer system. So the crime Wolf was convicted of is really an exceeding authorized access (insider goes too far in using the system he is authorized to use) crime, rather than an unauthorized access (outsider “breaks into” a system he/she isn’t authorized to use).

I think the Court of Appeals was correct; while I’m sure the City of Shelby didn’t have a policy telling its employees they weren't not to use city computers to access porn sites and/or upload nude pictures of themselves to adult sites, I suspect its employees knew they weren’t supposed to do this. Since Wolf admitted he “established work practices” at the wastewater treatment plant, the evidence proved beyond a reasonable doubt that he knowingly used the city computer in a way he was not authorized to.

Wolf had much better luck with the theft in office charge. As I noted, that charge was brought under Ohio Revised Code § 2913.02, which proves as follows:

(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways:
(1) Without the consent of the owner or person authorized to give consent;
(2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent;
(3) By deception;
(4) By threat;
(5) By intimidation.

(B)(1) Whoever violates this section is guilty of theft.

The Court of Appeals also dealt with this issue cursorily, but this time Wolf came out ahead:

[T]he State is alleging [Wolf] deprived the City of Shelby of his services while he was engaging in the unauthorized use of his computer.

Upon review, we find that while the State presented evidence [Wolf] spent approximately 100 hours over a five month-period utilizing internet websites that were not related to his job, there was no evidence presented that his job performance suffered or that he failed to perform his job duties.

Furthermore, even if it could be shown that [Wolf] failed to perform such job duties, while it could certainly serve as a basis for termination from his employment, such could not be the basis of a criminal theft in office charge.

State v. Wolf, supra. The Court of Appeals therefore affirmed Wolf’s conviction on the unauthorized access charge but reversed his conviction on the charge of theft in office and vacated the sentence the trial court had imposed on him. State v. Wolf, supra.

I’m not sure I agree with that result. One of the judges wrote a dissent, in which he said the other judges had “written an additional element into the theft in office charge that does not exist.” State v. Wolf, supra (Delaney, dissenting). Judge Delaney pointed out that Wolf “spent over 100 hours of his paid work time over a five-month period in which he solicited prostitution, uploaded nude photos of himself and perused pornographic websites on a city-owned computer, Internet, and email system.” He thought, and I tend to agree, that this would qualify as theft of services, since Wolf was getting paid for time he devoted to non-work activities.

I can’t find another case involving similar charges and similar facts, but there are fraud cases in which the fraud consisted of taking a salary while doing something other than working for the person’s employer. It seems to me Wolf did engage in theft of services because his employer “lost” something – the money it paid him to do his job for those hours when he was frolicking on the computer. I don’t see why his not getting his work done changes that, but I could be missing something . . . .