Monday, January 30, 2012


This post examines an issue that arose in a Vermont prosecution for “disturbing the peace by telephone in violation of” 13 Vermont Statutes Annotated § 1027(a)(iii). State v. Wyrocki, __ A.3d __, 2012 WL 231554 (Vermont Supreme Court 2012).

Section 1027(a)(iii) provides as follows:

A person who, with intent to terrify, intimidate, threaten, harass or annoy, makes contact by means of a telephonic or other electronic communication with another and . . . disturbs, . . . by repeated anonymous telephone calls . . . , whether or not conversation ensues, the peace, quiet or right of privacy of any person at the place where the . . . communications are received shall be fined not more than $250.00 or be imprisoned not more than three months or both. . . .

Jennifer Wyrocki was convicted of violating this statute, for reasons we’ll get to in a moment, and appealed, arguing that the calls she made were not “anonymous.” State v. Wyrocki, supra.

This, according to the opinion, is how the prosecution arose:

On August 22, 2009, Roxanne Emilo received two telephone calls in succession on her cellphone while at work. The first came at about 3:20 in the afternoon. Though Emilo's cellphone has caller identification (caller ID), she could not view the caller's phone number because it registered on her caller ID as `withheld.’

Upon answering the call, however, Emilo at once identified the caller as [Wyrocki] because she recognized her voice. Emilo knew [Wyrocki’s] voice because [Wyrocki] was her son's girlfriend and they had spoken many times before.

Emilo's son had been living with [Wyrocki] for more than six years, during which time [she]and Emilo had visited each other's houses and talked over the phone. At trial, Emilo testified that she was `absolutely’ sure that [Wyrocki] was the caller.

After Emilo answered, [Wyrocki] unleashed a series of profanity-laced insults at her. Screaming, she said to Emilo, `I hope you're happy,’ `You fucking bitch,’ `He's going to die in jail,’ and `I hope you die.’ Upset, Emilo ended the call. Two minutes later, Emilo received a second call, during which she again immediately recognized [Wyrocki] as the caller. This time [Wyrocki] said, `I hope you run your car into a tree and fucking die.’

Unknown to Emilo, her son had been removed from [Wyrocki’s] apartment earlier that day and taken to jail. This apparently resulted from Emilo's report to the Vermont Housing Authority that her son was living with [Wyrocki] in violation of [her] housing agreement. Although Emilo was unaware of her son's arrest, she had long disapproved of his relationship with [Wyrocki], with whom he shared substance abuse problems.

State v. Wyrocki, supra.

Wyrocki was charged with violating § 1027(a)(iii) and convicted after a bench trial. State v. Wyrocki, supra. Before the trial judge entered a verdict of conviction, Wyrocki moved for a judgment of acquittal on the charge, arguing that the calls she made were not “`anonymous.’” State v. Wyrocki, supra. Since anonymity is an element of the offense, if the calls were not anonymous, Wyrocki would have to be acquitted. State v. Wyrocki, supra.

The trial judge rejected her argument, concluding that Wyrocki’s

calls were anonymous as required by § 1027. Using Black's Law Dictionary, it defined `anonymous’ as `not named or identified,’ and reasoned that [Wyrocki’s] calls satisfied this definition because she did not identify herself and `called from a phone that prevented Emilo from seeing her phone number.’

State v. Wyrocki, supra.

As I noted above, Wyrocki appealed, arguing, in part, that “the trial court erred in finding her calls were `anonymous’ because Emilo knew that [Wyrocki] was the person calling her.” State v. Wyrocki, supra. The Supreme Court began its analysis of her argument by noting that since the “meaning of `anonymous’ under § 1027 [was] ‘one of first impression,'” it would review “the trial court's interpretation de novo.” State v. Wyrocki, supra.

The court explained that § 1027 was “[e]nacted in 1967,” which meant it became

law well before caller ID became commonplace in American telephones and has not been amended substantively since. . . . Vermont's prohibition on anonymous disturbing calls was in place for years before there was any conventional way for a caller's identity to be known short of the now somewhat quaint necessity of having to blindly pick up the receiver to answer a telephone. The absence, or even masking of caller ID, therefore, is of no moment to our reading of § 1027.

State v. Wyrocki, supra.

The Supreme Court then summarized the “dueling definitions of `anonymous’ offered” by Wyrocki and by the prosecution. State v. Wyrocki, supra.

The State, echoing the trial court, argues that a call is `anonymous’ under § 1027 when `a defendant [takes] steps to conceal his or her identity,’ a definition also drawn from Black's Law Dictionary. Black's Law Dictionary 100 (8th ed.2000). To the State, this means [Wyrocki’s] calls were anonymous `because she failed to identify herself and she called from a phone that prevented her victim from seeing who was calling.’

[Wyrocki] contends that no call is anonymous if the person receiving the call identifies the caller. She does not dispute the use of Black's Law Dictionary to define `anonymous,’ but disagrees with viewing anonymity from the caller's perspective only. [Wyrocki] maintains the calls were not anonymous because Emilo immediately recognized her as the caller.

State v. Wyrocki, supra.

The Supreme Court agreed with Wyrocki. State v. Wyrocki, supra. It explained that

[t]his construction is consistent with the common understanding of what `anonymous’ means. Again, Black's Law Dictionary defines `anonymous’ as `not named or identified.’ Black's Law Dictionary 100 (8th ed.2000). Webster's defines it as `having or giving no name’ or `of unknown or unnamed origin.’ Webster's New Collegiate Dictionary 46 (1981). Another dictionary defines anonymous as `[h]aving an unknown or unacknowledged name’ or `having an unknown or withheld authorship or agency.’ The American Heritage Dictionary of the English Language 54 (New College 1979).

State v. Wyrocki, supra.

The court noted that the prosecution “posit[e]d that the trial court properly relied upon Black’s Law Dictionary to define `anonymous,’ as opposed to another dictionary definition”, but found that as

shown by these three exemplary definitions, . . . there is little, if any, significant variation as to the commonly accepted meaning of the term. The real issue is not between definitions, but whether the trial court's focus on anonymity from the caller's viewpoint, and not the listener's, comports with the meaning of the Legislature.

Under all of these definitions, a telephone caller's anonymity depends in part on the listener's non-recognition of the person engaging in the call, since at the instant of recognition the caller's name or identity, or both, are known.

Under any definition, a call cannot be anonymous when its author is known to the listener. It is therefore a necessary condition of § 1027 anonymity that the person taking the call does not know the sender.

State v. Wyrocki, supra.

The Supreme Court then pointed out that

[b]ecause the trial court's findings and Emilo's testimony leave no doubt that she knew [Wyrocki] was the caller, we hold that [her] calls were not anonymous within the meaning of § 1027. If the conduct charged against [Wyrocki] had occurred after enactment of § 1027, but during the twenty years before the dawn of caller ID, it is beyond cavil that it would be no offense under § 1027(a). The invention of caller ID did not turn what was no violation of the statute in 1967 into a crime today.

State v. Wyrocki, supra.

The court also explained that in reaching this result, it was rejecting the prosecution’s

argument that defining `anonymous’ as `anonymous in fact’ leads to an absurd result. The State contends that § 1027 could hardly be enforced if its violation depended upon victims not recognizing a caller's voice.

First, if correct, the State's argument is still no reason to apply the statute contrary to its plain meaning at the time of passage. Second, it is not inherently absurd to read a criminal statute in a way that limits the range of possible offenders. See State v. Oliver, 151 Vt. 626, 629, 563 A.2d 1002, 1004 (Vermont Supreme Court 1989) (`Penal statutes . . . are to be strictly construed in a manner favorable to the accused.’).

Moreover, as [Wyrocki] impliedly argues in her brief, it is not patently unreasonable that the Legislature would criminalize terroristic, intimidating, threatening, harassing, or annoying telephone calls from unknown, rather than known actors, since such messages can reasonably be viewed as more vexing, disturbing, or sinister when communicated anonymously.

In contrast, [Wyrocki’s] identity was not unknown, her telephonic communication was not anonymous, and § 1027 does not criminalize the conduct alleged in this case.

State v. Wyrocki, supra.

The court therefore reversed Wyrocki’s conviction. State v. Wyrocki, supra.

Since there was no dissent, I think it’s appropriate to note a little more about the prosecution’s arguments on appeal. The prosecution argued that if the Supreme Court accepted Wyrocki’s interpretation of § 1027(a)(iii), this would lead to an

absurd result. . . . Under Section 1027(a)(iii) it should only matter whether a defendant took steps to conceal his or her identity when harassing a victim via repeated telephone calls. . . . It should not matter whether or not the victim was able to eventually figure out who the defendant is. . . .

If it were the case that prosecution was prohibited simply because a victim recognized a defendant's voice, then a majority of prosecutions would never occur and Section 1027(a)(iii) hardly enforced. . . .

Appellee State of Vermont’s Brief, State v. Wyrocki, 2011 WL 638362 (2011). The prosecution also argued that accepting Wyrocki’s argument would mean that a

criminal could avoid prosecution under Section 1027(a)(iii) if they were simply bad at concealing their identity. In other words they could avoid prosecution if they were bad criminals. It is hard to imagine the legislature intended this result. . . .

[Wyrocki] took several steps to conceal her identity. First, she placed both calls from a phone where the number would be `withheld’ on her victim's caller ID. Second, for both calls she failed to identify herself when her victim picked up the phone. Finally, for both calls she hung up immediately after disturbing her victim's peace, quiet, and right to privacy without giving her victim a chance to try to identify who was harassing and annoying her. . . .

While [Wyrocki’s] counsel argues . . . that she assumed her victim knew who was calling, there is no evidence in the record to support that. . . . Consequently, according to the plain meaning of the term `anonymous,’ [Wyrocki] was not `named or identified’ when she place the repeated telephone calls to her victim, even though the victim was able to discern her identity and help law enforcement enforce Section 1027(a)(iii).

Appellee State of Vermont’s Brief, State v. Wyrocki, supra.

Friday, January 27, 2012

Slip-and-Fall, Facebook and Privilege

As Wikipedia explains, in U.S. tort law, “slip and fall

is a claim or case based on a person slipping (or tripping) and falling. It is a tort, and based on a claim that the property owner was negligent in allowing some dangerous condition to exist that caused the slip or trip.

This post is about an issue that arose in a slip and fall case filed in the U.S. District Court for the Eastern District of Michigan. On January 29, 2010, Lela Tompkins filed a slip and fall law suit against the Detroit Metropolitan Airport, Northwest Airlines and several other defendants. First Amended Complaint, Tompkins v. Crown Corr., et al., (U.S. District Court for the Eastern District of Michigan 2010), 2010 WL 2390920. This, according to the Complaint, is how the case arose:

5. At all times material hereto, the Defendants. . . owed a duty to the Plaintiff, LELA TOMPKINS, and other members of the general public similarly situated, to design, build, repair, maintain and keep the Midfield Terminal, Main Tram Station, Detroit Metropolitan Airport and its premises in a reasonably safe condition and to protect, and/or warn the Plaintiff, LELA TOMPKINS, of any dangers which said Defendants' business and/or its employees and/or agents were, or should have been, aware existed.

6. Prior to December 29, 2005, Defendants . . . were advised of and attempted to repair a leak or leaks in the roof of the Midfield Terminal, Main Tram Station, Detroit Metropolitan Airport but negligently failed to properly perform the repairs and/or maintenance of the roof.

7. On December 29, 2005, the Plaintiff, LELA TOMPKINS, was a business invitee of the Defendants . . . at the Midfield Terminal, Main Tram Station, Detroit Metropolitan Airport.

8. On December 29, 2005, the Plaintiff, LELA TOMPKINS, was walking in the Midfield Terminal, Main Tram Station, Detroit Metropolitan Airport when and where she slipped and fell on water, liquid or other foreign substance on the floor, which condition existed in violation of applicable safety and building codes, as well as good design, building and maintenance practices and procedures.

First Amended Complaint, Tompkins v. Crown Corr., et al., supra.

(If you’re wondering how and why a tort case arising under Michigan law could be filed in a federal court, I’m assuming the case is brought under the court’s diversity jurisdiction. As Wikipedia notes, the U.S. Constitution gives federal courts the jurisdiction to hear suits in which the parties are “diverse” in citizenship, i.e., are from different states or different countries. The Complaint says Tompkins is a citizen of Florida and the defendants were citizens of Michigan. First Amended Complaint, ¶¶ 2 & 4, Tompkins v. Crown Corr., et al., supra.)

The opinion we’re going to be dealing with says Tompkins (the Plaintiff)

claims back and other injuries related to a December 29, 2005 accident at Detroit Metropolitan Airport. Plaintiff alleges that as a result of her injuries, she is impaired in her ability to work and to enjoy life.

Tompkins v. Detroit Metropolitan Airport, 2012 WL 179320 (U.S. District Court for the Eastern District of Michigan 2012).

The issue the federal judge who has the case is dealing with in this opinion does not go to the merits of the case, i.e., the defendants’ liability or lack of liability. He’s dealing with “Defendant Northwest Airlines’ Motion to Compel Plaintiff to Execute Authorizations” to release “records from her Facebook account.” Tompkins v. Detroit Metropolitan Airport, supra. Tompkins responded to the motion by objecting to “production of her entire Facebook account, including those sections she has designated as private and are therefore not available for viewing by the general public.” Tompkins v. Detroit Metropolitan Airport, supra.

Northwest Airlines’ Motion to Compel is part of the process of discovery in a civil case. As Wikipedia explains, discovery is the

pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for admissions and depositions. . . . When discovery requests are objected to, the requesting party may seek the assistance of the court by filing a motion to compel discovery.

So, here, Tompkins objected to Northwest Airlines’ attempt to get her Facebook records, and Northwest Airlines responded by filing a motion to compel. That is the issue the judge is addressing this in opinion, i.e., whether or not to require Tompkins to grant Northwest Airlines access to all of her Facebook records.

He began his analysis of the issues raised by the motion to compel by noting that

other courts have come to varying conclusions as to the discovery of information posted on social networking sites such as Facebook. The Defendant cites two state court cases, McMillen v. Hummingbird Speedway, Inc.,2010 WL 4403285 (Pennsylvania Common Pleas Court 2010), and Romano v. Steelcase, Inc., 30 Misc. 3d 426, 907 N.Y.S.2d 650 (New York Supreme Court 2010), in support of its argument that Facebook information is discoverable.

Both cases rejected claims that Facebook postings are privileged or that their disclosure would infringe upon a right of privacy. Instead, the cases ordered disclosure under the traditional discovery principles of Rule 26(b) of the Federal Rules of Civil Procedure, that is, `[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense,’ and that for purposes of discovery, `relevant’ evidence `need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.’

Tompkins v. Detroit Metropolitan Airport, supra.

The judge then explained that in both of these cases,

the public profile Facebook pages contained information that was clearly inconsistent with the plaintiffs' claims of disabling injuries. In McMillen, the plaintiff alleged `substantial injuries, including possible permanent impairment, loss and impairment of general health, strength, and vitality, and inability to enjoy certain pleasures of life.’ However, the public portion of his Facebook account contained comments about his fishing trip and his attendance at the Daytona 500 race in Florida.

In Romano, the plaintiff claimed that she had sustained permanent, serious injuries that caused her to be largely confined to her house and bed. The public portions of her Facebook and MySpace accounts showed that to the contrary, `she [had] an active lifestyle and [had] traveled to Florida and Pennsylvania during the time period she claims that her injuries prohibited such activity.’

Tompkins v. Detroit Metropolitan Airport, supra.

He also noted, however, that in McCann v. Harleysville Ins. Co. of New York, 78 A.D.3d 1524 (Supreme Court of New York – Appellate Division 2010), which Tompkins relied on, the court

upheld the denial of a motion to compel Facebook information not on grounds of privacy or privilege, but because the defendant `failed to establish a factual predicate with respect to the relevancy of the evidence,’ finding that `defendant essentially sought permission to conduct ‘a fishing expedition’ into plaintiff's Facebook account based on the mere hope of finding relevant evidence.’ [McCann v. Harleysville Ins. Co., supra.]

Tompkins v. Detroit Metropolitan Airport, supra.

The judge found that material posted on

a `private’ Facebook page, that is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy. Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view.

Rather, consistent with Rule 26(b) and with the cases cited by both Plaintiff and Defendant, there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, the Defendant would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff's Facebook account.

Tompkins v. Detroit Metropolitan Airport, supra.

He then addressed the two specific arguments Northwest Airlines made in support of its motion to compel. Tompkins v. Detroit Metropolitan Airport, supra. In the first, it argued that Tompkins’

public postings, as well as some surveillance photographs, show the relevance of the private postings. They do not. The public postings, attached to Defendant's motion as Exhibit B, are photographs showing the Plaintiff holding a very small dog and smiling, and standing with two other people at a birthday party in Florida.

Unlike the situations in McMillen and Romano, these pictures are not inconsistent with Plaintiffs claim of injury or with the medical information she has provided. She does not claim that she is bed-ridden, or that she is incapable of leaving her house or participating in modest social activities. The dog in the photograph appears to weigh no more than five pounds and could be lifted with minimal effort.

Tompkins v. Detroit Metropolitan Airport, supra. (In a footnote, the judge explains that Tompkins asserted, “[i]n her response to this motion, . . . that the dog weighs two pounds.” Tompkins v. Detroit Metropolitan Airport, supra.)

Northwest Airlines’ second argument involved “surveillance photographs” it attached to its motion to compel – photos that showed Tompkins “pushing a grocery cart”. Tompkins v. Detroit Metropolitan Airport, supra. Once again, the judge was not persuaded:

If the Plaintiff's public Facebook page contained pictures of her playing golf or riding horseback, Defendant might have a stronger argument for delving into the nonpublic section of her account. But based on what has been provided to this Court, Defendant has not made a sufficient predicate showing that the material it seeks is reasonably calculated to lead to the discovery of admissible evidence. McCann v. Harleysville Ins. Co. of New York, supra (`Although defendant specified the type of evidence sought [access to plaintiff's Facebook account], it failed to establish a factual predicate with respect to the relevancy of the evidence.’).

Tompkins v. Detroit Metropolitan Airport, supra. (In a footnote, he pointed out that “[i]n the context of Social Security Disability claims,” courts have found that “`[m]erely because an individual is somewhat mobile and can perform some simple functions, such as driving, dishwashing, shopping, and sweeping the floor’” does not mean that he or she is not disabled. Tompkins v. Detroit Metropolitan Airport, supra (quoting Fulwood v. Heckler, 594 F. Supp. 540 (U.S. District Court for the District of Columbia 1984)).

He also pointed out that Northwest Airlines’

request for the entire account, which may well contain voluminous personal material having nothing to do with this case, is overly broad. `District courts have discretion to limit the scope of discovery where the information sought is overly broad or would prove unduly burdensome to produce.’ Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (U.S. Court of Appeals for the 6th Circuit 2007) (citing Federal Rule of Civil Procedure 26(b)(2)); accord Marshall v. Westinghouse Elec. Corp., 576 F.2d 588, 592 (U.S. Court of Appeals for the 5th Circuit 1978) (Rule 26 `does not, however, permit a plaintiff to ‘go fishing’ and a trial court retains discretion to determine that a discovery request is too broad and oppressive.’).

Tompkins v. Detroit Metropolitan Airport, supra.

The judge therefore denied Northwest Airlines motion to compel Tompkins to “sign authorizations to access her Facebook account”. Tompkins v. Detroit Metropolitan Airport, supra.

Wednesday, January 25, 2012

The Dog Sitter, the Computer and the Motion to Suppress

As the result of a sequence of events I’ll outline in a moment, Texan Gregg Baird was “charged with committing thirteen counts of possession of child pornography” in violation of Texas law. Baird v. State, __ S.W. 3d __, 2012 WL 89905 (Texas Court of Appeals 2012).

After the trial judge denied his motion to suppress evidence upon which the charges were based, Baird pled guilty to ten of the counts and, according to this news story, was sentenced to 15 years in prison, followed by 10 years probation. Baird v. State, supra. (And if you’re interested, this story has a little more information about the case.)

Baird appealed, arguing in part, that the trial judge erred when he denied Baird’s motion to suppress evidence. Baird v. State, supra. To understand why the trial judge denied the motion, it’s necessary to understand several things, the first of which is how law enforcement officers came into possession of the evidence on which the prosecution was based:

Baird hired Dawn Killian, who casually knew Baird through her boss, to stay at his home and to care for his dog while he was on a ten-day vacation to Panama with his parents. She met with Baird twice at his home, first to meet the dog, and second, on the day of Baird's departure, to be shown around the house. In the second meeting, Killian said that Baird walked her through the house and told her to `help yourself to everything,’ which he also said when he showed her the kitchen. Baird showed her how to operate his television and stereo.

Killian said that Baird also walked her through his bedroom and bathroom and told her to keep his bedroom door closed (both when she was and was not in the home) because he did not want his dog in the bedroom. Killian was to stay in a guest bedroom. Baird had a roommate who had his own bedroom and office, and Baird indicated that those were places that Killian and the dog would not be going in.

Killian testified that Baird did not specifically tell her where she could and could not go in the house and that he did not specifically instruct her to not go into his bedroom or that anything was `off limits.’

On the evening of May 8, 2009, Killian went into Baird's bedroom to use his computer to try to copy two songs from a music CD to her new phone. Baird had not specifically told her not to use his computer, nor did he specifically tell her that she could use it. The computer was on but in sleep mode, and when she moved the mouse, the computer's desktop came on. A password was not needed to access the computer.

After copying the songs to the computer and then realizing it would be more complicated to get them on her phone, Killian decided to delete the songs. She went into the `recent documents’ folder to delete the songs and saw file names suggestive of child pornography. She next opened the `recycle bin’ and saw thumbnail images of child pornography and then began playing a video that depicted child pornography.

After anonymously consulting with others in an online forum and then discussing it with people she knew, Killian reported what she had seen on Baird's computer to the College Station police. A search warrant was obtained and executed, and child pornography was found on several devices seized from Baird's home.

Baird v. State, supra.

Baird also testified at the hearing on the motion to suppress. Baird v. State, supra.

He said that he never gave Killian permission to enter his bedroom or to use his computer, and he disputed that he even showed her his bedroom. But he admitted that, other than telling her to keep the bedroom door closed so that the dog could not go in there, he did not specifically tell her to stay out of his bedroom or to not use his computer.

Baird also admitted that his roommate had permission to use, and did use, Baird's computer. Baird thought he had turned off the computer before he left on vacation.

Baird v. State, supra.

Now we come to the interesting part of the case (or maybe, one of the interesting parts of the case). If you follow this blog and/or read cases or other sources about cybercrime prosecutions, you probably know that people usually base a motion to suppress evidence on the argument that law enforcement officers found the evidence by engaging in conduct that violated the 4th Amendment’s ban on “unreasonable” searches and seizures. Baird, though, did not rely on the 4th Amendment.

Instead, he moved to suppress the evidence “obtained in the search under [Texas] Code of Criminal Procedure article 38.23(a), arguing that in entering his bedroom and accessing his computer, Killian committed the offenses of criminal trespass and breach of computer security.” Baird v. State, supra. Article 38.23(a) of the Texas Code of Criminal Procedure states that “[n]o evidence obtained by an officer or other person in violation of any provisions of the . . . laws of the State of Texas . . . shall be admitted in evidence against the accused.”

This statute, then, provides an alternative basis for moving to suppress evidence; instead of having to show that law enforcement officers violated the 4th Amendment (which, of course, also applies in Texas cases), a defendant can argue either that a law enforcement officer or a private citizen obtained the evidence by violating state law.

Here, as noted above, Baird is arguing that Killian violated Texas law by committing criminal trespass and/or “breach of computer security.” Texas Penal Code § 30.05(a) defines criminal trespass as follows:

(a) A person commits an offense if the person enters or remains on . . . property of another, including . . . a building, . . . without effective consent and the person . . .

(1) had notice that the entry was forbidden. . . .

(2) `Notice’ means:

(A) oral or written communication by the owner. . . .

And Texas Penal Code § 33.02(a) defines “breach of computer security” as follows: “A person commits an offense if the person knowingly accesses a computer, computer network, or computer system without the effective consent of the owner.”

In its opinion, the Court of Appeals notes that in

denying the motion to suppress, the trial court made findings of fact and conclusions of law. When a trial court makes explicit fact findings, we are to determine whether the evidence, viewed in the light most favorable to the trial court's ruling, supports the fact findings.

Baird v. State, supra. On appeal, Baird challenged “several of the trial court's findings of fact, complaining that they are not supported by, and are contrary to, the evidence.” Baird v. State, supra.

The first was the trial court judge’s finding that Baird

placed no limits or restrictions on Killian's access to his home, bedroom, or computer and that Baird told her to `help herself to anything,’ or words to that effect. Baird emphasizes that both he and Killian testified that Baird did not affirmatively give her explicit permission to go into his bedroom or to use his computer.

But, it is undisputed that he did not tell her not to go into his bedroom and not to use his computer, and it is undisputed that, in telling her to keep his bedroom door shut at all times, it was said in conjunction with his desire to keep the dog out of his bedroom.

Killian said that Baird told her more than once -- and not just in the kitchen in reference to food and drink -- to help herself to anything. Because we must view the evidence in the light most favorable to the trial court's ruling, and because the trial court judges the credibility of the witnesses and the weight to be given their testimony, . . . these findings are supported by the evidence.

Baird v. State, supra. With regard to Killian’s statement that Baird told her to help herself to anything, the court noted that in

an attempt to show that he did restrict her access, Baird asserts that the record shows that he communicated to Killian that she was not to enter the roommate's bedroom or office, but her testimony does not support that assertion:

`Q. Okay. And after you went through the house with Mr. Baird on this particular occasion, just before he left, did he indicate to you that anything was off limits?’

`A. He did point out that the spare -- there was a roommate and this was the roommate's bedroom and that this was the roommate's office. You know, kind of indicating that those were probably places that neither I or the dog would be going. But, no, he said help yourself to everything.’ . . .

`Q. . . .With respect to the roommate's room and his bathroom or study, I guess, did he specifically tell you not to go in there or just – '

`A. No, but I would just assume, you know, that they're roommates.’

Baird v. State, supra. (The opinion notes that the trial judge “specifically found that Killian was credible” as a witness. Baird v. State, supra.)

Baird also challenged

the findings that he took no steps to protect the information on his computer through the use of passwords or other such methods (it is not disputed that the computer was not password-protected) and that Killian's access to the bedroom and computer was reasonably foreseeable to Baird. These complaints depend on Baird's interpretation that, by telling Killian to keep the bedroom door closed to keep the dog out, he was restricting her access to both the bedroom and the computer that was in it.

Based on Killian's and Baird's testimony and the trial court's determination of Killian's credibility, we reiterate that these findings are supported by the evidence.

Baird v. State, supra.

The Court of Appeals then noted that when a defendant moves to suppress evidence under Texas Code of Criminal Procedure article 38.23(a), “on the ground it was wrongfully obtained by a private person in a private capacity, the defendant must establish that the private person obtained that evidence in violation of law.” Baird v. State, supra. Baird also challenged the trial judge’s conclusions that “in discovering the evidence on his computer, Killian did not commit any criminal offense and specifically did not commit . . . criminal trespass or breach of computer security.” Baird v. State, supra. The Court of Appeals noted that a “common element of both of these offenses is the absence of effective consent.” Baird v. State, supra (citing Texas Penal Code § 30.05(a)).

The trial judge “concluded that Killian had Baird's effective consent to access his bedroom and computer.” Baird v. State, supra. Under Texas law, consent “means assent in fact, whether express or apparent.” Baird v. State, supra (citing Texas Penal Code § 1.07(a)(11)). Baird argued that these

conclusions are erroneous because they are based on the above-discussed allegedly faulty findings, which we have upheld. And while we agree that the evidence shows that Baird did not give his express consent to Killian to access his bedroom and computer, the evidence supports a finding of apparent, and thus effective, consent, as discussed above.

Because these conclusions are supported by the evidence, the trial court did not err in concluding that Killian did not commit the offenses of criminal trespass or breach of computer security because she had Baird's effective consent. The trial court did not err in denying Baird's motion to suppress.

Baird v. State, supra. So Baird lost. The Court of Appeals affirmed his conviction and sentence. Baird v. State, supra.