iPhone Juror Misconduct

In a post I did about a year and a half ago, I explained what juror misconduct is and pointed out that technology has made juror misconduct – at least misconduct of a certain type – much more common than it used to be. Since then, I’ve done a few other posts that dealt with various aspects of juror misconduct in an era of pervasive technology.

This is another post on that issue. I certainly don’t intend to write about every case in which jurors use technology in connection with a trial, thereby giving rise to a claim of juror misconduct. I decided to write about this one because the facts are a little different from those that have come up in prior cases . . . and because of precisely how the juror used the technology.

The case is Tapanes v. State, 43 So.3d 159 (Florida Court of Appeals 2010), and it involves Jose Tapanes' appeal from his conviction for manslaughter. Basically, it seems that something went very, very wrong between Tapanes and a man and his family who moved into Tapanes’ neighborhood in September 2006. This is how the Court of Appeals’ opinion describes what happened:

[Tapanes] stopped by the victim's house to introduce himself and welcome the victim to the area. Later that night, the victim woke his mother and her fiancé to tell them [Tapanes] had pulled a gun on him while he was walking his dog. The victim called his mother during the confrontation. . . .

The victim's mother and fiancé convinced [him] not to call the police to report the confrontation. The victim then drove to [Tapanes’] house and pulled into his driveway. [He] honked the car horn and then knocked on [Tapanes’] front door. The victim's family followed [him] to [Tapanes’] house. [His] sister heard the victim say, `[Y]ou have a gun behind there, don't you.’ At that point, [Tapanes] stepped out carrying a rifle and pointed it at the victim. [Tapanes] and victim exchanged words, and then there was a flash and a shot fired. The victim was no longer standing. [Tapanes] took two steps forward, lowered the gun, and fired again. The victim sustained two gunshots, including a fatal wound to his abdomen.

Tapanes v. State, supra.

I couldn’t find any online stories about the case, but I found a news story on Westlaw that gives a little more information about what happened. This is how it describes what led to Tapanes’ being charged with murder:

Jose Tapanes, 64, a slight man with a history of medical problems including three strokes, was convicted of manslaughter . . . in May. . . [and] ordered to . . . [pay] funeral costs for . . . Christopher Cote, 19.

On Sept. 17, 2006, an intoxicated Cote, who had just moved into . . . neighborhood, took his dog for a walk and encountered Tapanes. Cote questioned why Tapanes was carrying a gun with him as he took out his trash. They argued and Tapanes pointed his BB gun at Cote, according to testimony. [At trial, the] defense said Cote became enraged, shoved Tapanes and threw a beer bottle at him. Cote then returned home and argued with family members about calling the police.

Minutes later, he drove his Jeep into [Tapanes’] driveway . . . and began honking the horn. . . . [He] got out, walked up to the house and started banging on the door and yelling. . . . Tapanes' doors were locked and his windows were still boarded up from the hurricane. . . . [He] opened his front door, picked up a pump-action 12-gauge shotgun and fired into Cote's chest. Once Cote fell in the doorway, Tapanes fired again.

Man Who Shot Neighbor Will Serve 15 Years, South Florida Sun-Sentinel (July 12, 2008), 2008 WLNR 13120471. I include these additional facts because I think they’re relevant to what the juror did, and why. At trial, Tapanes took the stand and said Cote was yelling “`I’m going to kill you, open the door’”, among other things. Tapanes v. State, supra.

Tapanes was charged with murder which, as Wikipedia notes, is the most serious type of homicide. As Wikipedia also notes, historically, murder was defined as homicide that is committed with “malice aforethought”, a state of mind Florida’s statute captures. Under Florida Statutes § 782.04(1)(a)(1), murder is the “unlawful killing of a human being” that is “perpetrated from a premeditated design to effect the death of the person”.

Under Florida law, as in other states, manslaughter is a lesser-included offense of murder, i.e., it consists of causing the death of human being with a lesser degree of culpability than is required for murder. According to the Florida jury instruction for manslaughter, in order to prove someone guilty of manslaughter, the prosecution must prove beyond a reasonable doubt. (i) that the victim is dead and (ii) that the defendant’s act caused the victim’s death. Florida Standard Jury Instructions in Criminal Cases 7.7. The instruction notes that to convict someone of manslaughter, “it is not necessary for the State to prove that the defendant had an intent to cause death, only an intent to commit an act that was not justified or excusable and which caused death.” Florida Standard Jury Instructions in Criminal Cases 7.7.

Now we need to deal with the problematic juror. As I noted earlier, Tapanes was convicted of manslaughter, not the murder with which he was charged. After he had been convicted, a juror contacted Tapanes’ lawyer and said that during a break from

deliberations, the foreperson used a smartphone, specifically an iPhone, to look up the definition of `prudence.’ The court granted a motion to interview jurors and determined, after an evidentiary hearing, that there was juror misconduct based on the fact that the jury foreperson utilized his smartphone to search an internet site, Encarta, for the definition of `prudent’ or `prudence.’

The foreperson shared this definition with other jurors during deliberations. At the hearing, the foreperson testified that he did not bring the smartphone physically into the jury room, but he shared the definition that he remembered basically as meaning `careful and sensible, with care to consequences.’ Many of the other jurors who testified at the hearing remembered another juror sharing the definition of `prudent.’ The court found that the misconduct was compounded by the foreperson sharing the definition with other jurors.

Tapanes v. State, supra. The trial judge, however, found that the “juror misconduct was harmless”, i.e., did not affect the verdict, and so denied Tapanes’ motion for a new trial. Tapanes v. State, supra. He raised that issue in appealing his conviction to the Court of Appeals. Tapanes v. State, supra.

In addressing Tapanes’ appeal, the Court of Appeals noted that a new trial can be warranted if jurors consult “unauthorized materials” that affect their verdict. Tapanes v. State, supra. It also noted that a dictionary is

not one of the materials permitted to be taken into the jury room. . . . Thus, a dictionary cannot be considered by the jurors. The fact that the foreperson utilized the smartphone to look up the definition of the word during a break and later shared his recollection of the definition with other jurors during deliberations is no less a juror misconduct than if the foreperson physically brought the smartphone into the jury room and read the definition therefrom.

Tapanes v. State, supra. The Court of Appeals, then, agreed with the trial judge that the juror committed misconduct; the critical issue was whether the misconduct was prejudicial, which would mean that the conviction would have to be reversed. Tapanes v. State, supra. In analyzing that issue, the court explained that (i) “the mere presence of unauthorized material in the jury room is not per se reversible error” and (ii) the presence of such material in the jury room will be harmless error if it was “irrelevant to both the legal and factual issues in the case.” Tapanes v. State, supra.

The Court of Appeals held that it was required to reverse Tapanes’ conviction:

[L]ooking up the definition of `prudent could hardly be considered irrelevant to the legal and factual issues in this case. The word `prudent’ was mentioned in the jury instructions given by the trial court. The state mentioned the term repeatedly during closing argument. The facts . . . center on whether [Tapanes] acted in a `prudent’ manner . . . when confronted by the victim at his front door and whether [he] should have called 911 instead of opening the door. The concept of `prudence’ is one that could be key to the jury's deliberations. At the very least, we cannot say there is no reasonable possibility that the juror's misconduct, by utilizing the smartphone to retrieve the definition of `prudence,’ did not affect the verdict in this case.

Tapanes v. State, supra. It therefore reversed Tapanes’ conviction and remanded the matter for a new trial. Tapanes v. State, supra.

After Tapanes was convicted, the judge sentenced him to serve 15 years in prison for Cote’s death. Jason Schultz, Shooter’s Release Outrages Victim’s Kin, Palm Beach Post (August 6, 2008) 2008 WLNR 14730828. In August of 2008, the judge granted Tapanes’ request to be released while he appealed his conviction; the judge approved his release on $250,000 bond and house arrest, with “an electronic bracelet to monitor his whereabouts.” Shooter’s Release Outrages Victim’s Kin, supra. I don’t know, but I’m assuming he’s been out on house arrest since.

I suspect the judge who presides over the new trial will be really, really sure jurors don’t use iPhones or BlackBerrys or other technology to do research while they deliberate. I wonder if Tapanes is worried about the outcome of his new trial. . . .

Consent and Taint

As I’ve explained in earlier posts, consent is one of the exceptions to the 4th Amendment’s warrant requirement. As I noted in those posts, the 4th Amendment requires that a search or a seizure be “reasonable;” the default way a search or seizure can be reasonable is for it to be conducted pursuant to a search and/or seizure warrant.

Consent substitutes for a warrant because a consent for police to search or seize is a waiver of your right to have them not do so. The Supreme Court has long held that our constitutional rights are personal rights, which means it’s up to us as to whether or not we want to exercise a particular right (like the right not to be searched) or waive it, i.e., give it up. Wikipedia tells you a little more about consent searches, if you’re interested.

This post is about a Utah case in which the defendant claimed his consent to a search of his laptop was invalid because it was “tainted” by “a prior illegal search of the computer.” State v. Newland, __ P.3d __, 2010 WL 5186660 (Utah Court of Appeals 2010). This is how the case arose:

[A] Clearfield City police officer, responding to a reported trespass by two juveniles in a vacant apartment unit, recovered stolen property, including a laptop. . . The . . . officer contacted Officer Jeffries, a property crimes investigator, to retrieve the stolen property from the location where it was found. When Jeffries first saw the laptop, the lid was open and a text document was on the screen. Although he glanced at the document, Jeffries did not review it closely. Instead, he closed the lid and flipped the laptop over to locate the serial number. The serial number corresponded with that of a laptop [Dale] Newland had reported stolen, so Jeffries notified Newland that his laptop had been recovered and could be retrieved at the police station.

While awaiting Newland . . . Jeffries decided to take another look at the text document to determine if it contained any evidence of the juveniles' activities. Although he did not recall closing the document prior to the laptop's transport to the police station, [it] was no longer on the screen when he reopened the computer's lid. For that reason, he began searching through the file folders appearing on the computer’s desktop, the first screen he saw. . . . [H]e opened a opened a folder titled `My Pictures,’ in which he saw thumbnail images of naked females who appeared to him to be under the age of eighteen. He immediately discontinued his search.

Jeffries then approached Newland, who had since arrived at the station, and requested consent to search the computer for evidence that the juveniles may have placed on the computer. The officer did not inform Newland of his previous search or the nature of the evidence he was seeking. Newland gave his consent to the search.

State v. Newland, supra. Jeffries went back to his office, opened the files and confirmed “that they did contain photographs of naked females who appeared to be under” 18. State v. Newland, supra. Jeffries then told Newland he had found evidence

(which he did not describe) on the computer and was going to send [it] to the state forensic laboratory for further examination. Newland made no protest and thanked the officer. At some point after he obtained Newland's consent to search the computer, Jeffries asked another officer to assist him in locating the date and time the photographs had been saved on [it]. Their investigation indicated the photographs had been placed on the computer prior to the date Newland had reported [it] stolen. Jeffries obtained a search warrant and sent the computer to the forensic laboratory where an investigator. . . determined that twenty-one photographs saved on the computer prior to its theft appeared to be child pornography.

State v. Newland, supra. Newland was charged with possessing child pornography in violation of Utah Code § 76-5a-3(1)(a), and moved to suppress the images found on his laptop “as the fruit of an illegal search.” State v. Newland, supra. The trial judge denied the motion, holding that while “the initial search was illegal, Newland's consent cured the illegality because [it] was voluntary and was not obtained through exploitation of the prior illegality.” State v. Newland, supra. Newland went to trial, was convicted and appealed, claiming the trial judge erred in denying his motion to suppress. State v. Newland, supra.

On appeal, the prosecution did not contest the trial judge’s finding that the initial search of Newland’s laptop “without a warrant or consent” violated the 4^th Amendment, so the Court of Appeals assumed, “without deciding,” that the search was illegal. State v. Newland, supra. This meant that the only issue the court had to decide was “whether the child pornography discovered during . . . the ensuing consent search should have been suppressed as a fruit of the initial illegality.” State v. Newland, supra.

In addressing Newland’s argument that his consent was tainted by the earlier, illegal search, the Court of Appeals noted that an illegal search “does not inevitably result in the suppression of all evidence that would not have been discovered had the wrongful search not happened.” State v. Newland, supra. It then quoted the Supreme Court’s decision in Wong Sun v. U.S., 371 U.S. 471 (1963) for the proposition that a court need

`not hold that all evidence is fruit of the poisonous tree simply because it would not have come to light but for the illegal actions of the police. . . . . [T]he more apt question in such a case is whether granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of the illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’

State v. Newland, supra (quoting Wong Sun v. U.S. supra).

The court then addresses the prosecution’s argument that the trial judge “correctly ruled that Newland’s subsequent voluntary consent to search the computer removed any taint from the initial illegal search.” State v. Newland, supra. It explained that two factors

`determine whether consent to a search is lawfully obtained following initial police misconduct[:] . . . whether the consent was voluntary and whether the consent was obtained by police exploitation of the prior illegality.’ State v. Arroyo, 796 P.2d 684 (Utah Supreme Court 1990). Newland does not dispute that his consent was voluntarily given. Rather, he contends the consent was tainted by the illegal search.

State v. Newland, supra. The court noted that its inquiry focused on whether Newland’s consent “was obtained through exploitation of the illegal initial search or if his consent was sufficiently separate from the initial search to remove any resulting taint.” State v. Newland, supra. It also explained that, under the Utah Supreme Court’s decision in Arroyo, a Utah court should consider three factors – temporal proximity of the illegality and the consent, the presence of intervening factors and the purpose and flagrancy of the official misconduct – in deciding whether the initial illegal search tainted Newland’s consent and therefore rendered it void. State v. Newland, supra.

As to the first factor, the Court of Appeals noted that “Jeffries sought Newland’s consent immediately after the conducted the illegal search” but did not tell Newland he had already searched the laptop. State v. Newland, supra. It agreed that a defendant’s lack of knowledge about a prior search should be considered in the taint analysis, but only as “part of the temporal proximity factor.” State v. Newland, supra. After considering the circumstances, the Court of Appeals that while Newland’s ignorance as to the initial search “diminished the significance of the close temporal proximity” of that search and Newland’s consent, it ultimately “add[ed] no weight either in favor or against suppression” of the evidence. State v. Newland, supra.

As to the second factor, the Court of Appeals agreed with the trial judge that there “were no intervening circumstances” in this case that were relevant to the taint analysis. State v. Newland, supra. It therefore turned to the third factor – the “purpose and flagrancy of the official misconduct.” State v. Newland, supra.

The court noted, first, that Jeffries “did not initially search the computer with the purpose of obtaining Newland’s consent” or as a pretext “for investigating any crimes suspected to have been committed” by him. State v. Newland, supra. So “to the extent” the search was investigatory, “it was aimed not at Newland,” but at the juveniles. State v. Newland, supra. It also noted that at the suppression hearing, Jeffries testified that “even after he found the child pornography, he was still concerned that it was the juveniles who placed the photographs” on the laptop. State v. Newland, supra. The Court of Appeals found this significant because “at least one other court, in . . . a purpose and flagrancy analysis, has” held that the fact that the “initial illegality was aimed at obtaining information regarding a third person weighs against purposefulness.” State v. Newland, supra (citing U.S. v. Green, 111 F.3d 515 (U.S. Court of Appeals for the 7^th Circuit 1997)).

The court also noted that the evidence did not indicate Jeffries realized that his

initial search of the laptop was improper. . . . At the suppression hearing, Jeffries testified that he had seen a text document on the screen when he first recovered the laptop and suspected he might find evidence of the juveniles' activities in it. Although he did not seek a warrant or request consent prior to the search, Jeffries believed he had an arguable basis for searching the computer based on his recollection of that document and desire to follow the lead he thought it gave him. . . . Once he found what appeared to be pornographic photographs of underage females, Jeffries realized the scope of his search had expanded beyond his original task of finding the text document and immediately ceased the search.

State v. Newland, supra. The Court of Appeals also found it significant that the

computer profile on which the pornographic photographs were found -- Newland's -- had none of the usual indicators of privacy that might be expected under the circumstances. Despite the portability of the laptop . . . [his] profile . . .was not password-protected. Moreover, the pornographic photographs were stored in a folder appearing on the desktop, i.e., the first screen that would be visible upon accessing the computer. Nor does the folder's label, `My Pictures,’ communicate any intent to keep private the documents and images stored in it.. . . When the officer opened the folder, he did not open any of its files but instead was immediately presented with thumbnail images of the pictures it contained.

State v. Newland, supra. (The opinion mentions that the laptop had “multiple users,” but that’s all I know about that.)

Given all this, the Court of Appeals agreed with the trial judge that Jeffries’ conduct was not “`flagrant misconduct’” but “`negligence’”, which meant the purpose and flagrancy factor weighed against suppressing the evidence recovered in the consensual search. State v. Newland, supra. It found that given the “lack of purposefulness and flagrancy”, the neutrality of the temporal factor and the “absence of intervening circumstances”, the trial judge correctly denied Newland’s motion to suppress. State v. Newland, supra.

And it noted that because Jeffries’ “conduct was due to negligence, . . . the deterrent value of suppression is minimal” and was outweighed by society’s interest in placing all relevant evidence before the jury. State v. Newland, supra. The Court of Appeals therefore affirmed the trial court’s denial of the motion to suppress.

"Tampering with Records"

Most – if not all – U.S. states have statutes that make “tampering with records” a crime. It seems to be considered a type of forgery.

As Wikipedia notes, the crime of forgery is “essentially concerned with a produced or altered object.” And as a treatise on criminal law explains, forgery “is a crime aimed primarily at safeguarding confidence in the genuineness of documents relied upon in commercial and business activity.” Wayne R. LaFave, 3 Substantive Criminal Law § 19.7(j)(5) (2d ed. 2003).

This post is about a recent decision that addressed the use of a computer to tamper with records. The case is State v. Shannon, 2010 WL 5110111 (Ohio Court of Appeals 2010), and this is how it arose:

[Julie Shannon] was elected and served as the treasurer clerk for the village of Sardinia, Ohio from September 2002 through December 31, 2007. She was also the village utility clerk during that time.

In those capacities, [Shannon] was responsible for payroll for the village employees and insuring the proper withholdings were made, writing payroll checks, including hers, keeping accounting records, keeping records of council meetings, posting utility meter readings, billing village residents for their utility usage, and collecting money and deposits for utility accounts. Her functions as treasurer clerk and utility clerk ended on December 31, 2007 after she was elected as village council member for the term beginning in January 2008. During the first two weeks of January 2008, [Shannon] trained Tracy Jodrey, the village's new fiscal officer and utility clerk.

In April 2009, [Shannon] was indicted on one count . . . [of] tampering with records in violation of [Ohio Revised Code § 2913.42(A)(1)], a third-degree felony. . . . The [charge] stemmed from a course of conduct between July 1, 2006 and January 10, 2008 during which [Shannon] allegedly . . . entered false information into the village utility computer to obtain free utility services from the village, to wit, [she] used her estranged husband's identity to open a second utility account for her home, and as a result, received utility services from the village for her home without paying for them.

State v. Shannon, supra. She was also charged with theft in office and identity fraud based in part on the same and in part on different conduct. State v. Shannon, supra.

Ohio Revised Code § 2913.42 provides as follows:

(A) No person . . . with purpose to defraud . . . shall do any of the following:

(1) Falsify, . . . [or] alter . . . any writing, computer software, data, or record. . .;

(B)(1) Whoever violates this section is guilty of tampering with records.

(2) . . . if the offense does not involve data or computer software, tampering with records is whichever of the following is applicable:

(a) . . . a misdemeanor of the first degree;

(b) If the writing or record is a will unrevoked at the time of the offense, a felony of the fifth degree.

(3) . . . if the offense involves a violation of division (A) of this section involving data or computer software, tampering with records is whichever of the following is applicable:

(a) Except as otherwise provided in division (B)(3)(b), (c), or (d), . . . a misdemeanor of the first degree;

(b) If the value of the data or computer software involved . . . or the loss to the victim is five hundred dollars or more and is less than five thousand dollars, a felony of the fifth degree;

(c) If the value of the data or computer software involved . . .or the loss to the victim is five thousand dollars or more and is less than one hundred thousand dollars, a felony of the fourth degree;

(d) If the value of the data or computer software involved . . . or the loss to the victim is one hundred thousand dollars or more or if the offense is committed for the purpose of . . . executing a scheme to defraud or to obtain property or services and the value of the property or services or the loss to the victim is five thousand dollars or more, a felony of the third degree. . . .

Shannon was charged with third degree felony tampering . . . which was apparently based either on (i) the fact that the tampering was committed “for the purpose of executing a scheme to defraud or to obtain . . . services” valued at $5,000+ or (ii) her having tampered with data valued at $100+.

(As an aside, I found it interesting that the statute includes a graduated system in which tampering with data or software can be a much more serious offense than tampering with paper records.)

These, according to the Court of Appeals’ opinion, are the facts the prosecution proved to establish that Shannon had committed tampering with records in violation of Ohio Revised Code § 2913.42(A)(1):

[A] utility account for 121 Pleasant Street, Sardinia, [Shannon’s] home address, with a billing address of 292 Gay Street, Williamsburg, the address of [her] estranged husband, [Robert], was opened on July 19, 2006, under the name of Shannon Robert, the inverted name of [her] estranged husband. [Robert] testified he did not put the utility account of 121 Pleasant Street in his name in July 2006 nor give anyone permission to do so.

Although [Shannon] continued to live at the 121 Pleasant Street address in 2006 and 2007 and received utility services from the village during that period . . . the utility account under her name indicates a break in service from August 16, 2006 to January 16, 2008. Beginning on January 16, 2008, charges began to appear, once again, on the utility account under her name. As utility clerk, [she] had access to the utility computer and to her utility account in 2006 and 2007. She also had access to the utility computer while training [her replacement, Tracy] Jodrey the first two weeks of January 2008.

[Shannon] claimed she received utility bills in 2006 and 2007, during the period where there was a break in service in her account, but could not pay all of them. She could not explain how a charitable organization's check issued to her to help with utility bills was posted on her estranged husband’s account. [Village administrator Timothy] Mock . . . had access to the utility computer in [Shannon’s] office only when she was in; had no way of entry if the office was closed; and did not have the password for the computer. Mock denied entering information on the utility computer or being in the office in 2006 and 2007 when [Shannon] was not in the office. Neither the mayor nor council members had access to the utility computer.

State v. Shannon, supra. The opinion also points out that the evidence showed that Shannon and her estranged husband filed for bankruptcy in March, 2005; her wages were “garnished in 2005 for child support arrears;” and she had “serious financial difficulties in 2006-2007.” State v. Shannon, supra.

The Court of Appeals held that the evidence was adequate to prove the “elements of tampering with records beyond a reasonable doubt, to wit, [Shannon] tampered with the utility computer and with the 2006 and 2007 receipt books.” State v. Shannon, supra. And for what it’s worth, the opinion notes that the “charges billed to Shannon Robert, totaling $1,907.50” were never paid. State v. Shannon, supra.

The Court of Appeals therefore affirmed her conviction for records tampering in violation of Ohio Revised Code § 2913.42(A)(1)]. State v. Shannon, supra. It also affirmed her convictions on the other charges and, by implication, the sentences . . . since Shannon only challenged the validity of the convictions, not the sentences.

The trial was held in January of 2010, Shannon was convicted (apparently pretty quickly) and, according to this news story, was sentenced on February 22, 2010. According to that same story, the judge sentenced Shannon to

three years in prison on both the theft in office and tampering with records counts and 18 months on the identity theft count. The three sentences are to be served concurrently, which means she will serve a maximum of three years at the Ohio Reformatory for Women in Marysville.

She was also ordered to pay $9,675.11 in restitution to the Village of Sardinia. State v. Shannon, supra. Another news story quotes the prosecutor as explaining why incarceration was appropriate in this case:

`Although we do feel compassion about Mrs. Shannon's health history and personal situation, there was a very devastating impact on the Village of Sardinia, especially in the economic times we had with tax revenues being down.’ [Brown County Prosecutor Jessica] Little said. `This amount alone doesn't seem like a lot of money, but it is a lot to the village and they did suffer a lot of hardship as a result.’

This story also mentions that the restitution amount was “down from around $12,000 due to a civil case against Shannon filed by the Village of Sardinia.”

This obviously isn’t a case that involves difficult or uncertain legal issues. I decided to do a post on it because I haven’t seen many (any?) computer tampering with records prosecutions. I found the use of the statute here interesting.

I also found it interesting that the prosecution didn’t include/substitute a charge for exceeding authorized access to a computer. Ohio Revised Code § 2913.04(B), for example, makes it a crime to knowingly access a computer or computer system in a manner that is “beyond the scope of the express or implied consent of” the owner of the computer or system. I can see an argument, at least, that the conduct attributed to Shannon in the tampering with records count would violate this provision, since the owner of the computer or computer system – the Village of Sardinia – had not consented for it to be used to execute a scheme to defraud or obtain services.