After Caryn Aline Nascimento was “convicted of one count of
aggravated first-degree theft and one count of computer crime”, she
appealed. State v. Nascimento, 2015 WL 465188 (Court of Appeals of Oregon
2015). On appeal, Nascimento raised a
single assignment of error to the trial
court's denial of her motion for judgment of acquittal of the computer-crime
count. Defendant argues that she did not access the lottery terminal `without
authorization,’ as required by Oregon Revised Statutes 164.377(4), because,
as part of her duties at the store, she was authorized by the store manager to
access the machine to sell lottery tickets to paying customers.
State v. Nascimento,
supra.
The Court of Appeals began its analysis of Nascimento’s
argument by explaining that in
October 2007, [she] was hired to work
at the deli counter in a convenience store. The store had a touch-screen
lottery terminal that produced draw-game tickets and was connected by phone
line to the Oregon Lottery network. From the terminal, a clerk could print out
a ticket for a selected game, and also could print ticket-sales reports.
The store manager trained [Nascimento]
on the use of the lottery terminal and authorized [her] to sell lottery tickets
to, and validate tickets for customers, because deli clerks would assist at the
counter when the counter employee was busy or on break, even though it was not
their job. The general manager testified, however, that operating the lottery
terminal and cash register was not part of [Nascimento’s] job description as a
deli clerk and that [she] did not have authorization to use the terminal. Store
policy prohibited employees from purchasing lottery tickets or validating their
own lottery tickets while on duty.
About a year after [Nascimento] was
hired, the store manager fell a few months behind in reconciling daily lottery
ticket sales with the store's cash receipts. In February 2009, she discovered
shortfalls in cash receipts for lottery sales of Keno tickets between November
2008 and February 2009, which prompted the general manager to investigate his
records and involve the police.
The investigation uncovered that large
shortfalls and high-dollar wagers on Keno occurred only during [Nascimento’s]
shifts. The store's surveillance video showed that, when no one was
around, [she] would leave the deli counter and print out and pocket lottery
tickets from the lottery terminal. One of the high-dollar winning tickets
printed during [Nascimento’s] shift was redeemed by her by mail, and others
were redeemed by her at a local grocery store.
State v. Nascimento,
supra.
The prosecution’s brief on appeal provides more detail on
the facts, noting that
[Nascimento] worked as a clerk at the
deli counter of the Tiger Mart, a gas station mini-mart. . . . Under her job
description set by the store owner, deli clerks were not authorized to operate
the store cash registers or the Oregon lottery machines located behind the
counter in the store. . . .Unknown to the store owner, the store manager
allowed deli clerks occasionally to operate the cash registers and lottery
machines as backups when register clerks took breaks or when the store was
unusually busy. . . . Company policy prohibited on-duty employees from
purchasing or redeeming lottery tickets during their shift. . . .
About one year after [Nascimento] began
working, her store manager fell significantly behind in reconciling the daily
lottery sales with store cash receipts. . . . Eventually, internal
auditing revealed significant shortages in receipts from Keno lottery games - a
total of $16,923 between November 2008 and February 2009. . . . Before that
period, the store experienced occasional shortages in lottery receipts, but
they typically were for less than $20. . . . During the 11/08 to 2/09 span,
daily shortages just from Keno sales ranged from $150 to $1300. . . .
The store owner reviewed employee
timecards and some store video surveillance tapes and determined that the
`severe shortages’ occurred only on Keno lottery receipts during shifts when [Nascimento]
had been working. . . . Several of the surveillance videos showed [her] go
from her work station behind the deli counter to the cash register and lottery
machine (only at times when the register cashier was absent), use the lottery
machine, and pocket the tickets. . . . The store owner confronted [Nascimento]
with his suspicions and the surveillance videos, and she denied stealing any
tickets; the store owner immediately fired her. . . .
The store owner contacted police to
investigate these suspected thefts. . . . [Oregon State Police] Detective
Owren, of the lottery security section, examined lottery records, store
records, and store surveillance videotapes. . . . Lottery records showed an
unusually large number of Keno ticket sales during [Nascimento’s] shifts - many
of them maximum individual wages of $100 per ticket. . . .
Many of those tickets were printed out
back-to-back within seconds of each other, indicating that the same person had
printed them. . . . All 82 of the $100 Keno tickets in this 4-month period were
printed during [her] shifts. . . . No pattern of large sales of Keno tickets
was seen during the times [Nascimento’ was not working at the store. . . .
Detective Owren determined that some of
the Keno tickets from the Tiger Mart were redeemed by mail, with the redeemer
listing [Nascimento’s] name, address, and Social Security number. . . . Winning
tickets paying out more than $600 must be redeemed by mail or in person from
the lottery office; those with smaller prizes can be redeemed from any lottery
retailer. . . . Clerks at a local Thriftway store near [her] home (and where [Nascimento’s]
daughter formerly worked) reported that [she] cashed large lottery tickets at
their store several times. (Tr 217, 253, 257). Based on his investigation,
Detective Owren believed the loss in lottery sales to the Tiger Mart was
$10,030.
Respondent’s Answering Brief, State v. Nascimento, 2012 WL
6892903.
Nascimento was, as noted above,
later charged with “one count of computer crime under Oregon RevisedStatutes 164.377(4),” which say that
[a]ny person who knowingly and without
authorization uses, accesses or attempts to access any computer, computer
system, computer network, or any computer software, program, documentation or
data contained in such computer, computer system or computer network, commits
computer crime.
State v. Nascimento,
supra.
At her trial, when the prosecution rested its case,
Nascimento
moved for a judgment of acquittal on
the computer-crime count, arguing that her use of the lottery terminal was not
`without authorization,’ because she had `implied if not direct authorization
to use the machine * * *. And clearly [her] use of the lottery machine itself
was with authorization.’ The trial court denied [her] motion.
State v. Nascimento,
supra.
As the Court of Appeals noted, in Nascimento’s appeal she
reprises her argument that she was
`authorized,’ as that word is used Oregon Revised Statutes 164.377(4), `to
use the lottery computer at [the store] because she was specifically given
permission to do so by her direct supervisor, trained to do so by her
supervisor, and expected to do so as part of her work duties.’
[Nascimento] argues that the statute
cannot be applied to her conduct because `Oregon Revised Statutes 164.377(4) does
not criminalize committing theft on a computer which a person is otherwise
authorized to access’; rather, Nascimento asserts that that act is criminalized
only under Oregon Revised Statutes 164.377(2)(c), a crime for which [she]
was not charged. [Nascimento] argues that subsection (4) is expressly directed
at unauthorized use or access of a computer, that is, the use
of the device itself is unauthorized -- it is not directed at taking
unauthorized actions on a computer that the person otherwise has authorization
to access.
State v. Nascimento,
supra (emphasis in the original).
The court went on to explain that the prosecution
does not deny that [Nascimento] had
limited, implicit authorization from the store manager to access the lottery
terminal to sell tickets to paying customers. However, the state responds that
a jury could reasonably conclude that [her] use of the lottery machine was
`without authorization’ because `she had no authorization to use the lottery
computer to purchase a lottery ticket for herself during her work shift—much
less to steal a lottery ticket by printing it and not paying for it.’
The state also points to the
legislative history of § 164.377, which it argues demonstrates that the
legislature intended to `criminalize instances where someone had authorization
to use part of a computer system for some legitimate purpose but instead
accessed other portions of the system.’ Citing Tape Recording, House Committee
on Judiciary, Subcommittee 1, HB 2795, May 6, 1985, Tape 576 (statement of
Sterling Gibson, General Telephone Co.).
State v. Nascimento,
supra.
The Court of Appeals goes on the explain that the case,
as argued by [Nascimento], boils down
to whether Oregon Revised Statute 164.377(4) encompasses conduct that
(1) only involves a person accessing a device itself without authorization or
(2) also encompasses using a device, which the person otherwise has
authorization to physically access, in a manner contrary to company policy or
against the employer's interests.
Under the circumstances of this case,
however, we need not resolve that issue. There is evidence in the record that [Nascimento’s]
store manager gave [her] limited authorization to physically access the
lottery terminal to only sell tickets to, and validate tickets for, paying
customers and only when the counter employee was not available to do so.
This is not the case that [Nascimento]
tries to make it out to be. This is not a case where [she] had general
authorization to be on a computer to carry out her duties, but then used that
computer in a manner that violated company policy—such as, to use [her]
example, by playing solitaire during work hours.
For [Nascimento’s] duties, the lottery
terminal had but one function: to sell and validate lottery tickets. There was
evidence from which the jury could conclude that she was authorized to access
the physical device itself—the lottery terminal—only to serve paying customers.
Thus, even taking [her] construction of the statute, there was sufficient
evidence in the record from which the jury could rationally conclude that [Nascimento]
accessed the lottery terminal without authorization.
State v. Nascimento,
supra.
You can, if you are interested, see a photo of Nascimento in
the news story you can access here, which also explains that she was sentenced
to “32 months in prison for stealing from two separate local employers.”
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