Monday, March 04, 2013

Theft and Index Cards

Carla M. Ramey was charged with one count of theft in violation of Ohio Revised Code § 2913.02(A)(1), convicted by a jury and “sentenced to a suspended prison term in lieu of a fine of $250.00” which was suspended if she paid “the fine in full by August 14, 2012,” plus restitution of $5.00 and 100 hours of community service and probation.  State v. Ramey, 2013 WL 749320 (Ohio Court of Appeals 2013). 

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

[Ramey] was an independent contractor providing services for SFT Medical Billing Company. In late December of 2011, [she] ceased affiliation with SFT, and cleaned out her desk. Among the items taken from the desk were note cards on a ring which [Ramey] used while at SFT.

[Ramey] had transferred information onto the note cards, including password and login names for various insurance companies for which SFT provided billing information. [She] claims to have purchased the cards with her own funds, and to have kept them in a locked drawer at her desk with other personal property.

Regina Owens, the owner of SFT Medical Billing, contacted [Ramey] asking her to return the note cards with the information. [Ramey] initially denied taking the cards, but later returned a few cards. [She] did not return all of the note cards.

State v. Ramey, supra.

Ramey made two arguments on appeal:  First, she claimed the prosecutor’s comment, at her trial, “on [her] prearrest silence amounted to prosecutorial misconduct.”  State v. Ramey, supra.  As Wikipedia explains, prosecutorial misconduct is a claim defendants can use to “argue that they should not be held criminally liable for actions which may have broken the law, because the prosecution acted in an `inappropriate’ or `unfair’ manner.”   

These are the prosecutor’s comments Ramey objected to:

`. . . . Regina is going to tell you she was pressured. She didn't know what to do so she called the Sheriff's office. They came in and they started an investigation and the deputy called Carla . . . in front of Regina and the two of them sat there and listened to [Regina] give a couple of different stories and finally she said, I don't have them; no, I have them; I don't have them anymore and then she agreed to come into the Sheriff's office and she did.’

`And you're going to hear from several people that she turned in three cards to the Sheriff's office. There's going to be a couple of problems with that, folks, and that is, first of all by turning those in, she admitted she had something in her possession.’

`The second is that Regina is going to tell you that it doesn't even really look like these are the originals. She'll explain to you why, but there's reason to believe these are recreations.’

`So not only do we have the [Ramey] turning in property to the Sheriff's office that she's saying is the property that she previously denied that she had. But you're also going to hear that there's reason to believe she actually was substituting that and presenting false information then to the Sheriff's office.’

`They attempted to talk to her again, she declined any further interviews with them and so—‘

State v. Ramey, supra.

When Ramey’s attorney objected “to the remarks”, the trial judge gave the jury this “limiting instruction”:  

`The Court: I just want to instruct you you're not to consider any reference to any evidence or suggestion that the Defendant chose or didn't make a statement to the police. All right. You may proceed.’

State v. Ramey, supra.

The Court of Appeals began its analysis of Ramey’s first argument by noting that the

test for prosecutorial misconduct is whether the prosecutor's comments and remarks were improper, and, if so, whether those comments and remarks prejudicially affected the substantial rights of the accused. . . . 

In reviewing allegations of prosecutorial misconduct, this Court must consider the complained of conduct in the context of the entire trial. Darden v. Wainwright, 477 U.S. 168 (1986).

State v. Ramey, supra. 

It also noted that the Ohio Supreme Court “has held ‘that use of a defendant's pre-arrest silence as substantive evidence of guilt violates the 5th Amendment privilege against self-incrimination.’” State v. Ramey, supra (quoting State v. Leach, 102 Ohio St.3d 135, 807 N.E.2d 335 (Ohio Supreme Court 2004). (The U.S. Supreme Court recently agreed to address this issue.)

After considering the nature of the prosecutor’s conduct, the court found

the same to be improper. However, in light of the limiting instruction and the strength of the evidence, we find the prosecutorial error was not prejudicial. The trial court immediately ordered the jury to disregard the statement, and the issue was not revisited.

State v. Ramey, supra.

Ramey’s second argument was that “the evidence was insufficient to support her conviction for theft.”  State v. Ramey, supra.  The Court of Appeals began its analysis of this argument by explaining that

[o]ur review of the constitutional sufficiency of evidence to support a criminal conviction is governed by Jacksonv. Virginia, 443 U.S. 307 (1979), which requires a court of appeals to determine whether `after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’  Jackson v. Virginia, supra.

State v. Ramey, supra.

The statute under which Ramey was convicted -- Ohio Revised Code § 2913.02(A)(1) --provides as follows:

No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services . . . [w]ithout the consent of the owner or person authorized to give consent[.]

The Court of Appeals noted that the criminal complaint filed against Ramey “states [she] took `20–30 index cards containing log-in, passwords, and security information to several private insurance companies’ without the permission of the owner, Regina Owens.”  State v. Ramey, supra.

On appeal (and maybe at trial?), Ramey argued that

the State failed to introduce evidence Regina Owens or SFT Medical Billings was the owner of the index cards. Rather, [Ramey] argues, she, as an independent contractor, purchased the note cards for her own personal purposes and they remained her own personal property.

State v. Ramey, supra.

The Court of Appeals explained that Ohio Revised Code § 2901.01(A)(10)(A) defines “property” as follows:

‘”Property” means any property, real or personal, tangible or intangible, and any interest or license in that property. “Property” includes, but is not limited to, cable television service, other telecommunications service, telecommunications devices, information service, computers, data, computer software, financial instruments associated with computers, other documents associated with computers, or copies of the documents, whether in machine or human readable form, trade secrets, trademarks, copyrights, patents, and property protected by a trademark, copyright, or patent.’

“’Financial instruments associated with computers” include, but are not limited to, checks, drafts, warrants, money orders, notes of indebtedness, certificates of deposit, letters of credit, bills of credit or debit cards, financial transaction authorization mechanisms, marketable securities, or any computer system representations of any of them.’

State v. Ramey, supra.

The court then noted that

[Ramey] purchased the note cards for her own use. However, upon transferring the passwords and log-in information for SFT's billing clients onto the cards, the cards contained `data’ which was the property of SFT and Regina Owens. 

State v. Ramey, supra.

The Court of Appeals therefore found that

the log-in, password and security information for the private insurance companies constitutes `data’ as defined in Ohio Revised Code § 2901.01(A)(10). 

Upon transferring the information to the note cards, [Ramey] caused the note cards to become the property of SFT and Regina Owens. Accordingly, we find there is sufficient evidence to support [her] conviction for theft.

State v. Ramey, supra.  It therefore affirmed Ramey’s conviction and sentence.  State v. Ramey, supra. 

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