Employee Termination, Computer Crimes and Litigation

As I noted in an earlier post, the federal criminal code and various state statutes let someone who’s been the (alleged) victim of certain types of computer crime bring a civil suit seeking damages for the “harm” resulting from that crime. This post is about a Georgia gentleman – Larry Sitton -- who brought such a suit, under Georgia law, after his employer terminated his employment.

The case is Sitton v. Print Direction, Inc., __ S.E.2d __, 2011 WL 4469712 (Georgia Court of Appeals 2011), and this is how it arose:

[Print Direction, Inc. (`PDI’)] operated a commercial printing business and [William S.] Stanton was responsible for PDI's operations. PDI hired Sitton as an exclusive outside sales person in January 2005 and employed him as an at-will employee until he was discharged in September 2008. As an outside sales person, Sitton sold PDI's printing services and was required to bill all sales through PDI's accounting department, in order for the commission to be shared between PDI and Sitton.

When he was first hired, Sitton received a copy of PDI's Employee Manual, which provided that `[e]mployees may not take an outside job . . . with a customer or competitor of PDI.’ Nonetheless, during his employment by PDI, and without informing PDI or Stanton, Sitton brokered more than $150,000 in print jobs through Superior Solutions Associates LLC (`SSA’), a print brokerage business which Sitton's wife started in October 2007 and of which Sitton served as manager.

Sitton's work for SSA was in competition with PDI and continued through the date of his discharge from PDI. By brokering print jobs through SSA, Sitton was able to keep all the profit on the job rather than share the profit with his employer, PDI.

PDI provided Sitton with a laptop computer for use in connection with his work for PDI. However, Sitton chose to use his own computer, which he brought to his office at PDI, connected to PDI's system network, and used for PDI work. Sitton also used this computer for SSA work.

When Stanton `caught wind’ that Sitton was competing with PDI, he entered Sitton's office, moved the computer's mouse, clicked on the email listing which appeared on the screen, and printed certain emails from Sitton relating to a job for Apex Printing Company. These emails, which were on a separate email address from Sitton's PDI-issued email address, confirmed that Sitton was using SSA to compete with PDI. Stanton subsequently terminated Sitton as an employee of PDI.

Sitton v. Print Direction, Inc., supra.

After being discharged by PDI, Sitton sued the company and Stanton “for invasion of privacy and for computer theft and trespass in violation of Georgia Code § 16-9-93.” Sitton v. Print Direction, Inc., supra. The first three subsections of § 16-9-93 create the three causes of action Sitton asserted in his suit. Sitton v. Print Direction, Inc., supra.

Section 16-9-93(a) criminalizes computer theft, which consists of (i) using a computer or computer network “with knowledge that such use is without authority and with the intention of” (ii) “[t]aking or appropriating any property of another,” “[o]btaining property by any deceitful means” or “[c]onverting property to such person’s use in violation of an agreement or other known legal obligation”.

Section 16-9-93(b) criminalizes computer trespass, which consists of (i) using a computer or computer network “with knowledge that such use is without authority and with the intention of” (ii) “[d]eleting or in any way removing . . . any computer program or data from a computer or computer network”, “[o]bstructing, interrupting, or in any way interfering with the use of a computer program or data” or “[a]ltering, damaging, or in any way causing the malfunction of a computer, computer network, or computer program”.

And § 16-9-93(c) criminalizes computer invasion of privacy, which consists of using “a computer or computer network with the intention of examining any employment, medical, salary, credit, or any other financial or personal data relating to any other person with knowledge that such examination is without authority”.

As this opinion notes, “[f]ollowing a two-day bench trial,” the trial court entered judgment against Sitton”, i.e., he lost. He appealed, claiming the trial judge “erred in rejecting his claims under” Georgia Code § 16-9-93, i.e., his claims for computer trespass, computer theft and computer invasion of privacy. Sitton v. Print Direction, Inc., supra.

In addressing his arguments on appeal, the Court of Appeals noted that

Sitton contends that the trial court erred in determining that Stanton's viewing and printing the incriminating emails found on Sitton's personal computer did not constitute computer theft, computer trespass, or computer invasion of privacy under Georgia Code § 16-9-93. The court found that Stanton's use of Sitton's computer was not `without authority’ within the meaning of the statute.

Sitton v. Print Direction, Inc., supra.

The court began its analysis by explaining that under Georgia Code § 16-9-93,

[c]omputer theft is committed by one `who uses a computer or computer network with knowledge that such use is without authority and with the intention of’ taking, obtaining, or converting property of another. Similarly, a person commits computer trespass when he `uses a computer or computer network with knowledge that such use is without authority and with the intention of’ deleting any computer program or data; obstructing or interfering with use of a computer program or data; or altering, damaging, or causing to malfunction a computer, computer network, or computer program. A person commits computer invasion of privacy when he uses a computer or computer network `with the intention of examining any employment, medical, salary, credit, or any other financial or personal data relating to any other person with knowledge that such examination is without authority.’

It can be seen that these three computer offenses include at least the following elements: that the proscribed actions be taken `with knowledge’ that the use of the computer or the examination of the other person's data was `without authority’ and that the actions be taken with the requisite intent.

Sitton v. Print Direction, Inc., supra.

The Court of Appeals then found that Sitton had not proven Stanton acted with the requisite intent:

[T]he evidence fails to show that Stanton's use of Sitton's computer was `with the intention of’ performing any of the acts forbidden by the statute. Stanton did not, nor did he intend to: take, obtain, or convert Sitton's property (computer theft); delete any computer program or data, obstruct or interfere with a computer program or data, or alter or damage a computer, computer network, or computer program (computer trespass); or examine Sitton's personal data (computer invasion of privacy). Thus, Stanton's actions do not fall within the scope of subsections (a), (b), or (c) of [Georgia Code § 16-9-93].

Sitton v. Print Direction, Inc., supra.

The court also found that another element of the § 16-9-93

offenses -- lack of authority -- is also absent. The term `without authority’ is defined to include “the use of a computer or computer network in a manner that exceeds any right or permission granted by the owner of the computer or computer network.” [Georgia Code § 16-9-92(18)]. In the case at bar, Stanton found the incriminating emails on the computer Sitton used to conduct business for PDI. This computer was located in PDI's offices but was actually owned by Sitton. The trial court found that Stanton had authority to inspect this computer pursuant to the computer usage policy contained in PDI's Employee Manual, which Sitton had agreed to abide by when he started work with PDI.

Contrary to Sitton's contention, PDI's computer usage policy was not limited to PDI-owned equipment. The policy adverted to the necessity for the company `to be able to respond to proper requests resulting from legal proceedings that call for electronically-stored evidence’ and provided that for this reason, its employees should not regard `electronic mail left on or transmitted over these systems’ as `private or confidential.’

The trial court, acting as finder of fact, found that Stanton looked at an email on the screen of Sitton's computer at PDI. Whether the email was stored there permanently or only temporarily, the email was subject to review under the company's computer usage policy. Even if the email was `stored’ elsewhere, the company's policy also stated that `PDI will . . . inspect the contents of computers, voice mail or electronic mail in the course of an investigation triggered by indications of unacceptable behavior.’

Sitton v. Print Direction, Inc., supra.

In an effort to establish that Stanton acted without authority, Sitton relied on Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F. Supp.2d 548 (U.S. District Court for the Southern District of New York 2008). Sitton v. Print Direction, Inc., supra. In that case, a former employee sued his former employer, arguing, among other things, that the ex-employer’s accessing his emails was unauthorized and violated a federal statute, the Stored Communications Act. Pure Power Boot Camp v. Warrior Fitness Boot Camp, supra.

The Georgia Court of Appeals found that Sitton’s reliance on the Pure Power Boot Camp case was

misplaced. In that case, a former employer hacked into its former employee's email accounts without authorization. In the case before us, the trial court did not find evidence of hacking. Instead, the court found that, when Stanton moved the mouse, the email account appeared on the screen of Sitton's computer. Sitton challenges this finding, but because there is evidence to support it, we will not disturb it on appeal.

Because Stanton's actions were not taken `without authority,’ the trial court did not err in denying Sitton's claim under [Georgia Code § 16-9-93].

Sitton v. Print Direction, Inc., supra.

The Court of Appeals therefore affirmed the trial court’s judgment, which included an award of $39,257.71 in damages to PDI, which filed a counterclaim after being sued by Sitton. Sitton v. Print Direction, Inc., supra. The counterclaim was apparently based on the argument that Sitton violated his “duty of loyalty or fiduciary duty” to PDI, a duty which apparently derived from provisions of PDI’s Employee Manual. Sitton v. Print Direction, Inc., supra.

Murder, Hate Crime and “Other Acts” Evidence

After being convicted of 3 counts of murder, 2 counts of attempted first degree murder, 1 count of discharging a firearm at an occupied vehicle, 2 counts of assault with a semiautomatic firearm and 1 count of reckless driving while evading a peace officer, Joseph James Melcher appealed. State v. Melcher, 2011 WL 4432935 (California Court of Appeals 2011). The charges arose from two incidents that occurred in San Francisco in 2006. State v. Melcher, supra.

The first occurred on August 27 after Robert Stanford, Dominic Cheng and Tony Ma

left the home of their friend Latesha Li [in] the 2600 block of San Bruno Avenue. . . . [which] is dotted with businesses with Asian characters depicted in their signage. Stanford and Cheng got into Stanford's car and made a U-turn. Ma saw a burgundy reddish car pull in front of Stanford's car. . . . [A] White or Hispanic man, five feet 10 or five feet 11 inches tall, 140–150 pounds, bald with a hoodie got out of the car with a gun, walked to Stanford's car and fired eight or nine shots at him. The shooter then drove off. Cheng got out of the car, injured and bleeding; a bullet was removed from his leg. Stanford died of multiple gunshot wounds.

State v. Melcher, supra.

Then, around 9:00 p.m. on October 21, bartender “Mi Qyung Kim was working at The Flow bar in Japantown” and “Song Lee and Jung Lee were chatting at the bar.” State v. Melcher, supra.

A White man in his 20's, five feet 10 inches tall, no facial hair, wearing a white cap and a white hooded sweater shirt, walked into the bar. He asked Jung Lee in Korean, `[W]here is Jennifer?’ Song Lee asked, `Why are you asking?’ The man pulled out a black gun and shot Song Lee. . . . Mi Qyung Kim scooted behind the bar. The man aimed the gun at her and shot; she fainted.

State v. Melcher, supra.

Around the same time, “Jeffrey Tai was walking with Jimmy Yu and other friends in Japantown toward an intersection between Post and Buchanan.” State v. Melcher, supra.

Yu heard two shots coming from a basement. About two minutes later, a man ran next to the group, coming from the direction of the basement; he mumbled something. The man ran across the street while the light was still red, said `Fuck you, motherfucker’ to a man, pulled out a gun and shot him.

State v. Melcher, supra.

Tai and Yu described the shooter as Caucasian, 5 feet 10 inches tall, wearing a baseball cap, a white sweatshirt and jeans and with no facial hair. State v. Melcher, supra. That description was sent to the officers responding to the attacks, which included “Inspectors Jimmie Lew, John Tursi and Daniel Cunningham.” State v. Melcher, supra. They saw a man “wearing white clothing and a white cap with black striping” get into a Ford Focus and drive away holding “a handgun pointed toward the ceiling” of the car. State v. Melcher, supra. They got the license plate and, with other officers, pursued the car and eventually arrested Melcher, who had “blood on his jacket and sleeve” and on “his left shoe and jeans.” State v. Melcher, supra.

Later, officers searched Melcher’s home in Panorama City, Los Angeles (presumably with a warrant). State v. Melcher, supra. Officer Lynch, “a computer forensics expert,” searched Melcher’s computer, “looking for `hate crime type of documentation.’” State v. Melcher, supra.

Using keywords including `Asian,’ `kill,’ `hate’ and `Jennifer,’ he came upon the `rotten.com’ Web site accessed many times on [Melcher’s] computer, including on September 5 and 9 and October 4, 8, 10 and 14, 2006. Lynch described the Web site as containing graphic images of crime scenes, pictures related to racism, and morbid images. In [his] folder, accessed on October 14, 2006, was an animated cartoon of a female cut up as sushi. Another image, accessed on October 6, 2006, was of an animated Asian female lying on a bed, partially clothed. Other images accessed included Asian persons wearing protective masks over their faces, Asian military pictures, and sexually explicit animated cartoons.

State v. Melcher, supra.

Melcher went to trial, was convicted on the charges I listed above and, as I noted earlier, appealed. State v. Melcher, supra. He raised several issues on appeal, but we’re only concerned with his challenging the court’s admitting evidence that he had accessed the rotten.com site. State v. Melcher, supra. He claimed it “was unduly prejudicial character evidence that denied him due process and a fair trial. State v. Melcher, supra.

During a lengthy pretrial hearing, Lynch testified about the forensic investigation of . . . [Melcher’s] computer, notably his 20 visits to the rotten.com Web site during the period September 5, 2006 through October 14, 2006. The trial court admitted the Internet links and images. . . . It ruled the evidence was relevant to prove motive, intent, premeditation, deliberation, and [Melcher’s] fixation on Asians, death and homicides . . .

At trial, Lynch described the rotten.com Web site and the type of images [Melcher] accessed. Two exhibits were passed among the jurors, one with the sushi picture and the other with images of Asians with protective masks, Asian military images, and sexually explicit cartoons of Asian women. On cross-examination, appellant admitting going to the rotten.com Web site several times, and acknowledged the nature of images depicted at the site.

State v. Melcher, supra.

The links and images were admitted under § 1101(b) of the California Evidence Code, which states that “[e]xcept as provided in this section” and several other sections of the Evidence Code, “evidence of a person's character or a trait of his or her character . . . is inadmissible when offered to prove his or her conduct on a specified occasion.” State v. Melcher, supra. Section 1101(b) states that “[n]othing in this section prohibits the admission of evidence that a person committed a crime . . . when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge [or] identity. . .) other than his or her disposition to commit such an act.” State v. Melcher, supra. (If you’d like to read more about “other acts” evidence, check out this online article.)

As the Court of Appeals noted, because this type of evidence (“uncharged conduct” or “other acts” evidence) “may be prejudicial, the court must weigh the probative value of the proffered evidence against the probability that its admission would create a substantial danger of undue prejudice, confusing the issues or misleading the jury.” State v. Melcher, supra. The court also explained that to admit uncharged other acts

evidence on the issue of intent, there must be a sufficient similarity between the charged and uncharged acts. . . . On the other hand, the relevance of other acts evidence on the issue of motive need not depend on a similarity between the charged and uncharged acts, provided there is a direct logical nexus between the two. . . . Thus, motive may be shown by evidence of prior dissimilar acts. . . . Motive, of course, is always pertinent in a criminal prosecution. . . .

State v. Melcher, supra.

The Court of Appeals then explained that Melcher was charged with

murder and attempted murder, with a special circumstance allegation that he intentionally killed the victims because of their `race, color, religion, nationality, or country of origin.’ . . . With his not guilty plea, [Melcher] put in issue all the elements of the murder offenses and the special allegation, including intent, deliberation, premeditation and the intentional killing because of the victims' race.

[He] asserts that his Internet views of the rotten.com images were `nothing short of irrelevant.’ We disagree. The other acts evidence was relevant to establish [Melcher’s] state of mind at the time he killed the victims, and attempted to kill the other victims, and whether he committed the crimes because the victims were Asian, supporting the section 190.2, subdivision (a)(16) allegation. . . .

The evidence was also relevant to show that [he] acted deliberately and with premeditation. That on numerous occasions [Melcher] viewed morbid death scenes and Asians in unflattering images tended in reason to show the planning and reflection involved in premeditation and deliberation, namely that in advance of the killings, he considered the choice to kill and then decided to kill the Asian victims.

State v. Melcher, supra.

The court also found that the admission of the evidence was not inherently prejudicial:

The rotten.com images were less inflammatory than the photographs of the actual crime scenes shown to the jury, including pictures of bloodied victims who died from multiple gunshot wounds. Moreover, the evidence did not consume undue trial time; the expert testimony on the subject was relatively brief as was the cross-examination of appellant on the subject.

State v. Melcher, supra.

As a result, the court found that the admission of the images did not violate due process because, as noted above, the evidence was relevant, was admitted “as probative of contested issues in the case” and was not prejudicial. State v. Melcher, supra.

Finally, the Court of Appeals noted that Melcher’s defense lawyer elicited testimony

from Lynch that his computer search did not unearth evidence of chat room activity or e-mails reflecting animus or hatred toward Asians. In closing argument, defense counsel underscored that point and argued that the absence of such evidence showed a lack of motive for the homicides, and undermined the `hate crime’ allegations. The jury rejected the murder because of victim's race allegations. Therefore, while there was substantial evidence to support the section 190.2, subdivision (a)(16) allegations, the jury evaluated the evidence -- including the contested images -- and rejected the allegations.

State v. Melcher, supra.

The Court of Appeals rejected Melcher’s other challenges to his conviction, but found that “two aspects” of his sentence “were unauthorized” and so directed that the sentence be modified to address these issues. State v. Melcher, supra.

GangTrak and Threats to the Community

This post examines a recent opinion from the New Jersey Superior Court Appellate Division that addressed a man’s “application . . . for participation in the Hudson County Drug Court.” State v. Woodward, 2011 WL 4407565 (2011). As this news story explains, the Hudson County Drug Court is “an alternative to incarceration, only available to drug dependent non-violent offenders.”

According to the opinion, this is how the Drug Court issue arose:

[O]n December 19, 2009, officers were interviewing individuals in a public hallway at a housing complex concerning a homicide which occurred the night before, when [Lamar Woodward] entered the hallway with his right hand under the front of his jacket.

Officer Theodoroleas ordered [Woodward] to show his hands, but [he] did not comply, prompting other officers to stop [him] and search him for weapons. While he was being searched, [Lamar] stated, `I ain't got no gun, I just got a couple of bottles[,]’ which the officers understood to be slang for small glass vials used to hold drugs. At that point, [Lamar] opened his hand, in which he held money and glass vials containing suspected cocaine and suspected heroin.

Subsequently, a grand jury returned Indictment No. 10–03–0592, charging [Woodward] with two counts of possession of controlled dangerous substances (CDS) New Jersey Statutes § 2C:35-10(a)(1) (counts one and five); two counts of possession of CDS with intent to distribute, New Jersey Statutes § 2C:35-5(a)(1) and New Jersey Statutes § 2C:35-5(b)(3) (counts two and six); two counts of possession of CDS with intent to distribute within 1000 feet of school property, New Jersey Statutes § 2C:35-7 (counts three and seven); and two counts of possession of CDS with intent to distribute within 500 feet of real property comprising a public housing facility, a public park, or a public building, New Jersey Statutes § 2C:39-5(d) (counts four and eight).

State v. Woodward, supra.

On March 18, 2010, Woodward filed an

application to participate in the Hudson County Drug Court program. The Hudson County prosecutor rejected that application. The prosecutor's office indicated its denial was predicated upon [Woodward’s] two prior convictions of possession of CDS with intent to distribute within 1000 feet of school property and the significant threat he poses to the community as a member of the Sex, Money, Murder sect of the Bloods' gang.

State v. Woodward, supra.

After “considering the respective positions advanced,” the Drug Court judge found “that the prosecutor's rejection of [Woodward’s] application for Drug Court constituted a patent and gross abuse of discretion.” State v. Woodward, supra. In so ruling, the judge said

[t]he Court is going to find that based on the statements that I've just made before, in addition to the fact that minus the gang part that the Court finds that there is a patent gross abuse of discretion regarding this individual not being admitted into Drug Court where others have been admitted into Drug Court with a similar[,] if not worse record. Other than the gang affiliation proposition.

So therefore, the Court is going to find that in track one that there was a patent gross abuse of discretion. And also because of the danger part is, danger to the community is a part of track two, that's why I'm going to deal with, I'm dealing with both tracks.

However, for track two there is not enough information to show that there is a significant threat to the community.

State v. Woodward, supra.

The judge stayed the decision, though, and scheduled “a continuation of the hearing” on Woodward’s application for Drug Court. State v. Woodward, supra. In the interim, he was “evaluated by a substance abuse evaluator and determined to be clinically suitable for the Drug Court program.” State v. Woodward, supra. The evaluator recommended “long-term inpatient care.” State v. Woodward, supra.

When the hearing resumed, the prosecutor offered to present evidence

in camera concerning the State's position that defendant is a gang member; however, the State's proffer, which defense counsel characterized as an improper enlargement of the reasons previously given for rejecting [Woodward] from the program, was so vague the court declined to conduct an in-camera inquiry.

In that regard, the court inquired of the assistant prosecutor if the proffered information to be produced in camera would be the same as that which was included in the State's brief. The assistant prosecutor responded, `It could be, Your Honor, I don't know. I don't know how much information was given to me from [the] gang intelligence unit or how much information could be given to me. There might be additional questions that could be asked in camera, by Your Honor to our detective.’

At another point, the court asked, `But for the gang, alleged gang membership, would the State be, [its] position be that Mr. Woodward would be a[n] eligible candidate?’ To that inquiry, the assistant prosecutor replied, `Respectfully, Your Honor, the State chooses not to answer that question based on the fact that it is part of the formula that we use to assess the files.’

State v. Woodward, supra.

The Drug Court judge responded by (i) not holding an in camera hearing and (ii) and, instead, found that the prosecutor’s rejecting Woodward for the Drug Court program,

based on an alleged gang affiliation [he] denies, was unsubstantiated. More specifically, the court found there were no records indicating [Woodward] had self-identified as a Blood, and no report of what gang paraphernalia may have been observed or seized from him. The court also noted that a nickname or `street name’ does not demonstrate gang membership.

Citing further the State's unwillingness to divulge certain factors used to deny [Woodward’s] application, the court found `there was a clear abuse of discretion under track one,’ and accordingly, ordered that [Woodward] be admitted to the Drug Court program. The court determined that [his] admission to the Drug Court program was also appropriate under track two.

State v. Woodward, supra.

As I noted earlier, the prosecution appealed the judge’s decision to the New Jersey Superior Court Appellate Division, which issued the opinion we’re concerned with. State v. Woodward, supra. In reviewing that decision, the Superior Court first summarized the standards for admitting someone to the program; since we’re not specifically focusing on that issue, I’m not going to review them here. State v. Woodward, supra. The court also noted that “our review of the trial court's decision inquires whether there was sufficient evidence to support the court's finding that the prosecutor's decision was arbitrary, irrational or otherwise an abuse of discretion, a gross and patent abuse of discretion.” State v. Woodward, supra.

The prosecution argued that Woodward was properly rejected from the Drug Court

program pursuant to New Jersey Statutes § 2C:35-`4(a)(9) to which requires the court to find `no danger to the community will result from the person being placed on special probation.’ The State maintains defendant is a self-admitted gang member and gang members are a significant threat to the community.

The State asserts it determined [Woodward] to be a gang member by GangTrak, computer software used by the Prosecutor's Office to form a database of gang affiliation, and it explains the information on gang affiliation is gleaned from the admissions of prisoners during their time of incarceration and physical observations, such as tattoos.

The State also relied on an e-mail from Detective Miguel Matos of the Hudson County Police Gang Task Force, which stated [Woodward] `self-admitted that he is a member of the street gang known as the Bloods' set Sex, Money, Murder in February of 2009.’ The e-mail also stated, without detail, that [Woodward] `possessed gang paraphernalia during his prior incarceration.’

State v. Woodward, supra.

As may be evident from the earlier description of the Drug Court judge’s ruling, that court found the prosecution’s “claim of gang affiliation was unsubstantiated and therefore an inappropriate factor for its consideration.” State v. Woodward, supra. That judge also found (i) that “[a]bsent independent verification, . . . the claimed gang affiliation was unreliable” and (ii) since Woodward “did not have access to the information contained on GangTrak, the information was not consistent with due process”. State v. Woodward, supra.

The prosecution

sought to justify the nondisclosure of information on GangTrak by asserting it is work-product and not subject to discovery. Notably, `[i]n order for the [work-product] doctrine to apply, the materials must have been prepared in anticipation of litigation and not in the ordinary course of business.’ Payton v. N.J. Tpk. Auth., 148 N.J. 524 (1997). . . .

Here, the information is put into the computer by the gang divisions of the Department of Corrections and the Prosecutor's Office. The information included on the software is the individual's name, SBI number, gang affiliation, aliases and distinctive markings. Based on the State's description, this information does not appear to have been prepared in anticipation of litigation.

Rather, it appears only to track known or asserted gang members and their affiliation. Without further validation or elaboration on the accuracy of the information, it was within the exercise of sound discretion by the Drug Court to refuse to accept the conclusory information on GangTrak or to find that it falls within the protected work-product exception.

State v. Woodward, supra.

The Superior Court therefore explained that it was

satisfied the Drug Court judge did not abuse her discretion when she declined the belated and seemingly empty proffer from the State and accepted [Woodward’s] unequivocal denial of gang membership. Without support [his] gang affiliation, the State had no basis to contend that [he] posed a threat to the community.

State v. Woodward, supra.