Unauthorized Use of Property, Theft in Office and Merger

After she was convicted of unauthorized use of property in violation of Ohio Code § 2913.04 and theft in office in violation of Ohio Code§ 2921.41, Tonya Claborn appealed.  State v. Claborn, 2012 WL 1078930 (Ohio Court of Appeals 2012).  (In case you were wondering, she was sentenced “to two years of community control under basic supervision under the condition that she remain in full-time employment.”  State v. Claborn, supra.)

The case began on May 17, 2009 when Claborn was in a car accident involving two other cars:

[O]ne of the cars stopped in a non-turning lane to make a left turn. When [Claborn] stopped, she was hit from behind by another car. The turning car continued on, as [Claborn] and the driver of the third car pulled over. The driver of the car who hit [her] from behind provided her with the name Marcus Jones and a phone number, but left before the police could be contacted. Before he left, [Claborn] took a picture of his license plate with her phone. The other car returned to the scene, and she also took a picture of that car's license plate.

State v. Claborn, supra. 

That night, “after unsuccessful attempts to contact Jones,” Claborn “began to suspect that the accident was the result of a staged scam.” State v. Claborn, supra.  She contacted “her insurance company to assess her options for car repair.”  State v. Claborn, supra.  After Claborn provided “the adjustor with the license plate numbers, she was told the first car was registered to an Eshay Stanley, not Marcus Jones, and the license plate on the second car was invalid.”  State v. Claborn, supra. 

At the time all this happened, Claborn was a fraud investigator for the Ohio Bureau of Workers' Compensation (`BWC).  State v. Claborn, supra.  Her job was to “proactively seek out persons who were defrauding BWC.”  State v. Claborn, supra.  Investigators were allowed “to investigate people for possible fraud, even if a field investigator or supervisor had not made a formal request”. State v. Claborn, supra. 

Part of her job included working on special projects that involved using obituaries and prison publications to verify that people who died or were imprisoned were not receiving workers' compensation benefits. These projects were known to, and approved by, [Claborn’s] supervisor. To perform these duties, [she] had access to several computer information services that are not readily accessible to the general public, namely Accurint and ISOnet.

State v. Claborn, supra. 

The day after the accident, Claborn went to work as usual.  State v. Claborn, supra.  During the day, she spoke to several people, “including a friend, Brenda Neary, who works in the Ohio Department of Public Safety (`DPS’), about her accident.” State v. Claborn, supra. Claborn asked Neary “if she knew how she could get more information on the owner of the vehicles using the license plate numbers she had in her possession,” but Neary did not help her. State v. Claborn, supra.  Later that day, Claborn “ran searches on her work computer using the license plate numbers of the cars involved in her accident.” State v. Claborn, supra. Testimony at her trial showed “she used Accurint to run the searches, although testimony differed as to whether she also ran searches on ISOnet.” State v. Claborn, supra. Claborn then “filed the first of two police reports.”  State v. Claborn, supra. 

At Claborn’s trial, two of her co-workers testified that she said “she had a friend at DPS run the plates for her”, but Claborn denied saying that.  State v. Claborn, supra.  The next day, Claborn sent Neary an email saying “`I found the info I was looking for yesterday!””  State v. Claborn, supra.  Neary sent an email saying “`Wonderful! Sorry I couldn’t be of more help to you.’”  State v. Claborn, supra.  Later that day, Claborn filed “the second police report, using Stanley’s personal information.”  State v. Claborn, supra. 

On May 20, Claborn had a recorded conversation with

her insurance company about her claim. In this conversation, appellant was the first to use the name `Eshay Stanley,’ and she told the investigator she had not spoken to Stanley since the crash. When she was asked how she obtained Stanley's information, she told the investigator, ‘I can't tell you where I got the address from. It came from where his plates are registered.’

State v. Claborn, supra. 

That same day, Daniel Fodor, Claborn’s supervisor, “was alerted to a potential issue with [Claborn] using state resources to do research related to her accident”, but also heard that “someone from DPS helped her find the other driver’s real identity.” State v. Claborn, supra.  The next day, Fodor asked Claborn about the accident.  State v. Claborn, supra.  She told him she did not speak to anyone at DPS about it and “did her research on her own at home”; she also said she did not know the names of the drivers involved.  State v. Claborn, supra. 

Fodor then reviewed Claborn’s usage of

Accurint for that week and found the two license plate searches [she] ran on May 18. Fodor . . . had never seen a BWC investigation request that required license plates to be run. Upon confirming that the license plates were not run as part of a field investigation request, Fodor contacted his supervisor with the information he had gathered and his concerns. He obtained the police report associated with [Claborn’s] accident and confirmed that the plates that were run were the same plates involved in the accident.

State v. Claborn, supra. 

The information was passed on to Joe Montgomery, a Deputy Inspector General for BWC, who called Claborn into his office, where she “engaged in a recorded interview, under oath” with Montgomery and another man.  State v. Claborn, supra.  She admitted she “`verified the plate number of the gentleman that hit me’” but denied “`run[ing] any reports”.  State v. Claborn, supra.  That led to this exchange:

MONTGOMERY: Okay. So you ran the plate number of the gentleman that hit you from behind?

CLABORN: Um-hmm.

MONTGOMERY: Okay. And you ran that through Accurint?

CLABORN: Um-hmm.

MONTGOMERY: And you did that at work with your work computer.

CLABORN: Um-hmm.

MONTGOMERY: Do you admit that that was not related to state business?

CLABORN: Yes.

State v. Claborn, supra.  Claborn also told Montgomery “she knew Accurint and ISO net were for business purposes only.”  State v. Claborn, supra. 

On appeal, Claborn argued that here convictions on both offenses were “not supported by sufficient evidence”.  State v. Claborn, supra.  In addressing that argument, the Court of Appeals noted that in analyzing a sufficiency of the evidence claim, it “ examine[s] the evidence in the light most favorable to the state” to determine “whether any rational trier of fact could have found that the state proved beyond a reasonable doubt the essential elements of the crime.”  State v. Claborn, supra.  It  will uphold the verdict unless it finds “that reasonable minds could not arrive at the conclusion reached by the trier of fact.”  State v. Claborn, supra. 

 As to the unauthorized use of property conviction, Claborn argued, on appeal, that she ran

the searches as part of her job to . . . seek out workers' compensation fraud. [She] claimed that, because the information she was given at the accident proved to be false, she was convinced her accident was a part of a scam. . . . [She] thought it was possible that the individuals involved in her accident could be engaged in other types of fraud, including workers' compensation fraud. [She] [claims] these searches were . . . part of her job, and she would not have been punished if she had found workers' compensation fraud.

State v. Claborn, supra. 

The Court of Appeals rejected this claim, noting that Claborn’s searches “benefited her, not BWC.”  State v. Claborn, supra.  It also found that, based on the evidence presented at trial, “the jury could have reasonably concluded that [she] obtained the information on her own, she knew she had no permission to run the searches for her own benefit, and her actions were unauthorized.”  State v. Claborn, supra. 

The court also upheld her conviction on theft in office, noting that Ohio Code § 2921.41(A)(2) defines the crime of theft in office, stating that no public official

shall commit any theft offense when the property or service involved is owned by the state of Ohio. A public official is defined as `any elected or appointed officer, or employee, or agent of the state or any political subdivision. . . . ‘ Ohio Code § 2921.01(A). At the time of the offense, [Claborn] was an employee of BWC, and as such was a public official under § 2921.41. Claborn, as an employee of the state, committed a theft offense . . . using the state's computer and the state's access to Accurint. 

State v. Claborn, supra.  The Court of Appeals therefore found that the evidence was sufficient to find that “Claborn was guilty of theft in office”.  State v. Claborn, supra. 

Claborn also made a technical argument, relying on Ohio Code § 2941.25(A), which states that “[w]here the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.”  The statute seems to implement a version of the doctrine of merger of offenses in criminal law. 

Claborn argued that the trial court “erred by convicting . . . her on the allied offenses of unauthorized use of property and theft in office”, and the prosecution agreed.  State v. Claborn, supra.  In analyzing the issue, the Court of Appeals noted that Ohio Supreme Court articulated a “two-part test to determine whether two offenses are allied under this statute” in State v. Williams, 124 Ohio St. 3d 381 (2010). 

First, we compare the elements of the two crimes. If the elements of the offenses correspond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import, and we proceed to the second step. . . . Second, we review the defendant's conduct to determine whether the defendant can be convicted of both offenses. If we find that the crimes were committed separately or that there was a separate animus for each crime, then the defendant may be convicted of both offenses. . . .

State v. Claborn, supra. 

The Court of Appeals then found that the trial judge erred in not merging the convictions and sentence Claborn for only one offense:

[T]he elements of the crime of unauthorized use of property and the elements of the crime of theft in office correspond to such a degree that they are allied offenses of similar import. Further, [Claborn’s] searches on her BWC computer caused her convictions for both crimes. There was no separate animus, as [she] committed both offenses through this single act. Where there are two allied offenses of similar import, the state may try both, but if the defendant is convicted of both offenses, the state must decide which offense will merge into the other, and defendant must be sentenced for the single offense.

State v. Claborn, supra. 

It therefore remanded the case to the trial judge for “the proper merger and resentencing of the convictions for unauthorized use of property and theft in office.”  State v. Claborn, supra. 

Computers, Counterfeiting and Unanimity

After being convicted of possessing counterfeiting apparatus in violation of California Penal Code § 480(a) and forgery in violation of California Penal Code § 476, and sentenced to five years in prison, Fred Howe appealed.  People v. Howe, 2012 WL 1113318 (California Court of Appeals 2012).

According to the Court of Appeals’ opinion, the case began on June 25, 2010, when Agatha Breslin, who would become Howe’s codefendant, “attempted to or did”  

pass counterfeit $100 bills at four stores in Valley Center, California. At around 2:00 p.m. . . ., [she] attempted to purchase light bulbs at A–1 Irrigation using a $100 bill. The employees . . . refused to accept the bill. . . . [She] then went to Armstrong Feed and attempted to purchase dog food and shampoo using a $100 bill. An employee told [her] the bill was counterfeit and returned it. . . . At about 5:00 p.m. . . ., Breslin attempted to purchase light bulbs at Wallace Hardware using a $100 bill. A deputy sheriff arrested [her] as she waited at the counter. The deputy found a bill on Breslin, which he believed to be counterfeit.

The following day, deputy sheriffs arrived at Howe's apartment to execute a search under a valid 4th Amendment waiver. . . . Howe and Breslin were together when Howe previously attempted to pass counterfeit bills. . . . The apartment had two bedrooms and was very cluttered. Howe shared the bedroom on the right-hand side with Susan Elaine Crow-Woods, the mother of [his] son. Howe's son had the other bedroom.

In Howe's bedroom, deputies found a computer with a document depicting a security thread with `USA100’ repeated several times. The computer operating system had been loaded on June 2, 2010, and the username on the computer was `Fred Howe, Jr.’ The file depicting the security thread had been copied from the Internet to the computer on June 7 and printed from a particular type of printer. The computer also contained e-mail correspondence by Howe. When asked about the document, Howe claimed it had `been there for a long time. That was there before I got arrested last time’ and [said] the document was `used for making fraudulent currency.’ A search of the son's bedroom revealed a counterfeit $100 bill that had not yet been cut to size (the uncut bill). Howe claimed that the uncut bill had been planted and that he had not made any fraudulent currency since he got out of prison the last time.

People v. Howe, supra. 

At Howe’s trial, U.S. Secret Service Special Agent Mark Haaser testified that to deter

counterfeiting, . . . genuine currency has a watermark, a unique serial number and an imbedded security thread. The security thread for a $100 bill shows the phrase `USA100’ followed by an inverted `USA100,’ with the pattern repeating along the length of the security thread. Because the security thread is embedded in the note, it is very difficult to counterfeit. One method used by counterfeiters to avoid this security measure is to type a security thread on their computer, scan a false bill into the computer, and then scan the counterfeit security thread on top of the bill that they want to print. Another method is to print the front and back side of a counterfeit bill, print a security strip, put the strip between the two sides of the bill, and glue them together.

Haaser analyzed the uncut bill recovered from Howe's apartment and the two counterfeit bills passed by Breslin. He stated that the three bills had a defective security thread because the phrase `USA100’ did not follow the inverted pattern. This was the first time he had seen a security thread without inversion. He thought the security threads on the bills matched the image on Howe's computer. Additionally, the $100 bill recovered from codefendant Breslin after her arrest and the uncut bill recovered from Howe's apartment had the same serial number.

People v. Howe, supra. 

At trial, the court allowed the prosecution to present evidence that in 2008 “ Howe was involved in four incidents of possessing or passing counterfeit money” and “was working with Breslin” in “two of those incidents”.  People v. Howe, supra.  On March 9, Howe

attempted to pass a counterfeit $20 bill at Harrah's Casino. . . . On August 9, [he] purchased an ink cartridge from a Target store with a counterfeit $100 bill. . . . On September 15, a Border Patrol agent pulled over a car occupied by Howe and Breslin [and found] thirteen $100 bills, six $50 bills, and thirteen $20 bills. The agent determined the bills were counterfeit because each denomination had the same serial number.  Finally, on October 28, a Riverside County deputy sheriff investigated the passing of two counterfeit $100 bills at a SuperTarget store.

People v. Howe, supra. 

The deputy searched Howe’s and Breslin’s car and found “receipts from other stores.”  People v. Howe, supra. He “recovered 12 counterfeit $100 bills” from those stores, all of which had the “same security thread defect, where the phrase “USA100” had not been inverted. People v. Howe, supra. The trial judge told the jury they could consider the evidence “for the limited purpose of deciding whether Howe had a plan or scheme to commit the charged offenses”, i.e., that he “created the fake bills and he or Breslin would pass them.”  People v. Howe, supra.  On appeal, Howe claimed the judge erred in admitting the evidence for this purpose, but the Court of Appeals found it was properly admitted under California Evidence Code§ 1101(b).  People v. Howe, supra.

Howe also argued that the trial judge erred in not giving a unanimity instruction to the jury.  People v. Howe, supra.  This argument went to comments the prosecutor made in arguing to the jury that Howe should be convicted on the possessing counterfeiting apparatus charge.  People v. Howe, supra.  In her argument to the jury, the prosecutor claimed “the crime was `super easy’” because it had two elements:

`[T]hat you're possessing something you can use to make counterfeit money. And apparatus is -- there's [a] whole bunch of choices on apparatus which defendant made or had. In some instances you might have to make something in order to make counterfeit money. For example, you might have to make a security strip. So he made or had an apparatus, paper, either the kind of paper that you need to make counterfeit money, or a machine, a computer, or a computer system. So it's very simply [a] general intent crime that you have this -- some kind of machine or computer system or some paper, some ingredient for making counterfeit money. And that he used it.’

The prosecutor then mentioned the uncut bill found in Howe's apartment and the computer file of a security strip and concluded: `So for both having the fake bill which has the paper and having the computer file on your computer, these are both satisfactory for 480.’ During rebuttal, the prosecutor contradicted herself, stating that Howe was `charged with 480(a) and 476. The 480(a) is for the computer.’ She later told the jurors that `[t]he evidence about the computer file is satisfactory for 480(a) as well as the paper used to make the fake bill.’

People v. Howe, supra. 

Howe argued that “the prosecutor's reference to the `fake bill’ and the `computer file’” required a unanimity instruction and the prosecution disagreed.  People v. Howe, supra.  The court began its analysis of the issue by noting that when the evidence shows more

than one unlawful act that could support a single charged offense, the prosecution must elect which act to rely upon, or the jurors must be given a unanimity instruction telling them they must agree which act constituted the crime. . . .  The unanimity instruction ensures that a defendant will not be convicted when there is no agreement among the jurors as to which single offense was committed. . . .

People v. Howe, supra. 

The Court of Appeals found that no unanimity instruction was required here because

there was evidence of only one possible unlawful act for each of the charged offenses. A person will be guilty of forgery if he or she `makes, passes, utters, or publishes, with intent to defraud any other person’ a false bill, note or check for the payment of money or property, knowing the document is false, but intending to pass or use the document as genuine. . . . Thus, . . . this crime can only be committed if an individual possesses a counterfeit bill, note or check. Accordingly, the only evidence Howe committed forgery is the uncut bill found in his apartment.

To be guilty of possessing counterfeiting apparatus, the People needed to prove Howe created or possessed `any die, plate, or any apparatus, paper, metal, machine, or other thing, made use of in counterfeiting’ bank notes or bills. (italics added.) Thus, . .  a person cannot violate § 480 by possessing a counterfeit bill; rather, the person must create or possess some material used in making a counterfeit bill. . . . Accordingly, the uncut bill is not relevant to this crime and the only evidence Howe possessed counterfeiting apparatus is the computer and computer file of the security thread.

People v. Howe, supra. 

The court noted that while the prosecutor “misspoke during closing argument when she argued that the `fake bill’ and the `computer file’ would satisfy § 480”, she “twice correctly told the jury that Howe violated § 480 with the computer or computer file and  this crime referred to `some ingredient [used] for making counterfeit money.’” People v. Howe, supra.  It also noted that the trial judge “correctly instructed the jury” that it could only find Howe guilty of possessing counterfeiting apparatus if “he created or possessed `an apparatus, paper, machine, computer, or computer system’” and used it to create counterfeit bills.  People v. Howe, supra.  Given this and the fact the judge also told the jury that they were to “follow the law” as given in the court’s instructions and “ignore conflicting comments on the law by the attorneys”, the Court of Appeals found that the erroneous comment by the prosecutor was harmless error. People v. Howe, supra. 

Finally, Howe claimed that while he was charged with two crimes -- possessing counterfeiting apparatus and forgery – the “two offenses constituted a single act, preventing the court from imposing double punishment under” California Penal Code § 654(a).  People v. Howe, supra.  Section 654(a) states, in part, that an “act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”

The Court of Appeals did not buy Howe’s argument.  It explained that § 654 prohibits

the imposition of multiple sentences where a single act or course of conduct pursuant to a single objective violates more than one statute. In such a situation, a defendant may be punished only for the more serious offense. . . . However, if the evidence discloses that a defendant entertained multiple criminal objectives independent of . . . each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were part of an otherwise indivisible course of conduct. . . .

People v. Howe, supra. 

It found that in this case, § 654 did not bar punishment for both offenses because

each offense required a separate criminal objective. Namely, § 476 prohibited the possession of counterfeit bills for the purpose of fraud and § 480 prohibited creating or possessing materials used to make counterfeit bills. Accordingly, Howe necessarily harbored separate and different criminal objectives, which were independent and not merely incidental to each other.

People v. Howe, supra.  The Court of Appeals therefore affirmed Howe’s conviction and sentence.  People v. Howe, supra. 

Warrant Executed by FBI Analyst Instead of State Officer

After Robert Twiggs was convicted on “one count each of aggravated child molestation, aggravated sexual battery, child molestation, rape, statutory rape, and incest involving his stepdaughter”, he appealed, arguing, in part, that “he received ineffective assistance of counsel at trial”.  Twiggs v. State, __ S.E.2d __, 2012 WL 1003592 (Georgia Court of Appeals 2012).

More precisely, Twiggs appealed the trial court’s denying his motion for a new trial, which was based, in part, on the same argument.  Twiggs v. State, supra.

This is all the opinion says about how the prosecution arose:

Twiggs met the victim's mother in 1998 when the girl was approximately six years old. The family lived in Valdosta until 2006 when they moved to Henry County, where the charges in this case were filed. The victim testified that Twiggs began playing games with her when she was about seven years old, games that always ended with Twiggs sticking his private part in her bottom. . . .

The victim was 15 when the family moved to Henry County, and Twiggs began putting his private part, and sometimes his fingers, in her private part or put his private part into her mouth. . . .

[W]hen the family was still living in Valdosta, the victim's younger brother saw Twiggs doing something to the victim's private area on one occasion in Valdosta, when the victim was wearing only a black tank top. Twiggs told the brother he was checking to see if she was pregnant. Twiggs and the victim's mother split up, and when . . . the victim told her mother about these events, her mother contacted the police.

Twiggs v. State, supra.

As Wikipedia explains, ineffective assistance of counsel is an argument that is

raised by a convicted criminal defendant that her attorney's performance was so ineffective as deprive her of the constitutional right guaranteed by the Assistance of CounselClause of the Sixth Amendment to the United States Constitution. Having the . . .  assistance of counsel means that the criminal defendant has had a competent attorney representing him or her. Competence is defined as reasonable professional assistance and is defined in part by prevailing professional norms and standards.

In his appeal, Twiggs argued, in part, that “he received ineffective assistance of counsel at trial when his attorney . . . failed to challenge the search of his computer as illegal under [Georgia Code § 17-5-24].”  Twiggs v. State, supra. The Court of Appeals began its analysis of his argument by noting that to establish his claim of ineffective assistance,

Twiggs must show both that trial counsel's performance was deficient and that the deficient performance was prejudicial to his defense. Strickland v. Washington, 466 U.S.668 (1984). . . . `Failure to satisfy either prong of the two-part Strickland test is fatal to an ineffective assistance claim.’ (Footnote omitted.) Nelson v. State, 302 Ga. App. 583, 691 S.E.2d 363 (2010). Moreover,

`[i]n reviewing the trial court's decision, we accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.’

`Furthermore, there is a strong presumption that the performance of counsel was within the wide range of reasonable professional lawyering, and we cannot reach a contrary conclusion unless defendant successfully rebuts the presumption by clear and convincing evidence. Judicial scrutiny of counsel's performance must be highly deferential.’

Bridges v. State, 286 Ga. 535, 690 S.E.2d 136 (2010).

Twiggs v. State, supra.

(The Court of Appeals also explained, in a footnote, that “`[o]n appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys the presumption of innocence.’” Twiggs v. State, supra (quoting Brown v. State, 274 Ga. App. 302, 617 S.E.2d 227 (2005)).)

Twiggs argued that his defense attorney’s performance was ineffective because the attorney did not challenge the “search of his computer because it was conducted by an employee of the Federal Bureau of Investigation (`FBI’), not a Georgia peace officer,” which he contended was required by Georgia Code § 17-5-24. Twiggs v. State, supra.  That statute provides as follows:

The search warrant shall be issued in duplicate and shall be directed for execution to all peace officers of this state. However, the judicial officer may direct the search warrant to be executed by any peace officer named specially therein.

Georgia Code § 17-5-24.

According to evidence presented at trial, this is how the computer search was conducted:

Detective Amanda McCord of the Henry County Police Department testified that on February 15, 2008, she applied for and obtained a search warrant for Twiggs' place of employment to look for computers and other storage media belonging to Twiggs. The search warrant was directed to: `All Peace Officers of the State of Georgia,’ and McCord conducted the search pursuant to the warrant the same day.

That search yielded a Dell desktop computer and a Dell laptop, which was located in a book bag on Twiggs's person. Detective Kelli Bowles Owen of the Henry County Police Department, and a former member of the FBI's Safe Child Task Force, testified that she sought a second search warrant on February 19, 2008 to obtain authority for a computer specialist to conduct a forensic search of the computers to look for evidence related to child pornography and child molestation. Owen's affidavit asked for permission to conduct an off-site search of the hardware and to use `whatever data analysis techniques appear necessary to locate and retrieve the evidence described. . . .’

The [warrant] signed by the magistrate was directed to: `All Peace Officers of the State of Georgia,’ but it specifically authorized a search of the computers held by the Henry County Police to be conducted as described in the affidavit provided by Detective Owen. Detective McCord testified that she transported the computers to the FBI for forensic evaluation.

The forensic examination, which apparently occurred at the FBI forensic lab in Atlanta, was conducted by Orlando Figueroa, an FBI forensic computer examiner. Figueroa undertook the examination in response to a police request `to provide a way for the investigator to analyze it for child pornography content.’  Figueroa preserved the evidence, catalogued it in a useable way, and presented it to the investigator to conduct the investigation.

He also ran it against a database of known victims of child pornography maintained by the Child Victim Identification Program at the National Center for Missing and Exploited Children. But after argument among the parties, the State chose not to introduce the results of that comparison. Instead, Figueroa testified only that nude photographs, which the victim previously had identified as pictures taken of her by Twiggs, appeared on Twiggs's laptop in a file labeled `dangerous.’

Twiggs v. State, supra.

In arguing that his attorney’s performance was ineffective, Twiggs relied on his trial attorney’s testimony at the hearing on this motion for a new trial:

Twiggs's trial attorney testified that he originally filed a motion to suppress the evidence seized in the case, but withdrew it after reviewing the search warrants and determining that they appeared to be in order.

But trial counsel testified that at the time he made the decision to withdraw the motion to suppress, he was not aware of the requirement under [Georgia Code § 17-5-24] that search warrants be issued to all peace officers in the state.

He stated that had he known of that requirement and had he determined that the FBI employee who conducted the search had not been deputized in Georgia, he would have pursued a motion to suppress.

Twiggs v. State, supra.

In analyzing Twiggs’ argument, the Court of Appeals noted that “`[w]hen trial counsel's failure to file a motion to suppress is the basis for a claim of ineffective assistance, the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion.’” Twiggs v. State, supra (quoting Biggs v. State, 281 Ga. 627, 642 S.E.2d 74 (2007)). 

Twiggs, of course, argued that “the evidence from the computers was subject to suppression because Figueroa was a civilian computer analyst, not a Georgia peace officer, and thus he could not execute the search warrant within the requirements of” Georgia Code § 17-5-24. Twiggs v. State, supra.  The Court of Appeals, however, was not convinced:

[T]his Court has previously recognized that civilians, acting under the supervision of police, can properly execute a search warrant. Bradford v. State, 184 Ga. App. 459, 361 S.E.2d 838 (Georgia Court of Appeals 1987) (no violation of Georgia Code § 17-5-24 when contraband located by private citizens known as `reserve deputies’ . . .[who were] were closely supervised by police and their activities circumscribed). And the Georgia Supreme Court has considered and rejected Twiggs's argument in the context of a forensic dental examination conducted by a private dentist.

As the Supreme Court noted, `it would be unreasonable to suggest that the actual physical gathering of the evidence, utilizing equipment and procedures requiring expert skill and having a high potential for harm to the person being searched, must be done by peace officers.’ Harris v. State, 260 Ga. 860, 401 S.E.2d 263(1991).

While presumably no potential for human injury existed in the forensic computer analysis, it cannot be disputed that the analysis required expert skill and without such expertise, it is conceivable that evidence may have been overlooked or even destroyed.

Moreover, the computer examination was conducted at the direction of Georgia peace officers to enable them to complete their own investigation. Cf. State v. Harber, 198 Ga. App. 170, 401 S.E.2d 57 (1990) (where county officers are present with the warrant at search locale, mere fact that actual physical acts involved in conducting search of the premises may have been performed by campus police does not mean that the search warrant was not executed jointly by campus and county officers).

Twiggs v. State, supra.

(In a footnote, the court also pointed out that

Twiggs's trial counsel objected vigorously to Figueroa's testimony on other grounds, including an objection to the introduction of any hearsay evidence from the comparison with the child pornography database, which led to the State's decision not to introduce the results of that comparison.

Twiggs v. State, supra.)

The Court of Appeals held, therefore, that “no basis existed under [Georgia Code § 17-5-24] for suppressing the results of that analysis.”  Twiggs v. State, supra.

The Request to Delete Files, the Phone Call and Probable Cause

After being convicted of four counts of possessing child pornography in violation of Nebraska law and sentenced to “18 months probation on each conviction, with the terms to run concurrently, Benjamin J. Sprunger appealed.  State v. Sprunger, __ N.W.2d __, 2012 WL 967861 (Nebraska Supreme Court 2012).  On appeal, he argued, in part, that the “search that uncovered the images” which provided the factual basis for the child pornography charges violated the 4^th Amendment.  State v. Sprunger, supra.

The case began on July 25, 2009, when the Washington County sheriff's office received a complaint from a man in Blair, Nebraska; the man reported that “about 2 weeks earlier” someone used “his bank debit/check card without his authorization to purchase computer equipment from a California company.”  State v. Sprunger, supra.

The deputies contacted the California company and it confirmed the purchase on the man's card. State v. Sprunger, supra. The computer equipment was sent to an address in New Jersey but the deputies subsequently learned that the “Internet protocol address used to make the purchase belonged to Sprunger at his apartment in Gretna, Nebraska.”  State v. Sprunger, supra.  Deputies from Washington and Sarpy Counties went to his apartment for a “`knock-and-talk.’” State v. Sprunger, supra.

Once there, they asked Sprunger about the purchase but he denied any knowledge of it. State v. Sprunger, supra. The deputies saw computers and other computer equipment in his apartment. State v. Sprunger, supra. But when they asked Sprunger if he would let them take the computers, he refused, telling them “they would need a warrant to take his computers.”  State v. Sprunger, supra.

In talking with Sprunger, the deputies learned he worked at a bank data processing center, where he had access to account information. State v. Sprunger, supra.  They also learned Sprunger was going to school to become a computer technician and so was likely well versed in computers. State v. Sprunger, supra.  The deputies left and applied for a search warrant, relying on an affidavit that recounted the information outlined above to establish probable cause for the search.  State v. Sprunger, supra.  “On October 29, 2009, the county court issued a warrant to seize `[a]ny and all computer equipment’ at Sprunger's apartment.”  State v. Sprunger, supra.

The deputies then returned to Sprunger’s apartment to execute the warrant.  State v. Sprunger, supra.  While the deputies were doing so, they learned “additional facts” that

led them to request a second search warrant. When the deputies told Sprunger they were there to take his computers, [he] asked if he could delete some files before [they] took his computers. The deputies denied him permission. Then, one deputy asked Sprunger if he had child pornography on his computers. When Sprunger said he did not, the deputy told Sprunger that if there was no child pornography on the computers, [he] had nothing to worry about.

A few days later, a lawyer representing Sprunger called the deputies. [He] asked about the child pornography case the deputies were working on. The lawyer [said] Sprunger told him `his computers had been taken to look for Child Pornography.’

State v. Sprunger, supra.

Using “these additional facts -- Sprunger's request to delete some files and the call from his attorney -- the deputies applied for a second search warrant.” State v. Sprunger, supra.  “On November 5, 2009, the county court granted a second warrant,” which “authorized a search of the computers for . . . child pornography.” State v. Sprunger, supra.  When they searched the computers, the deputies did not find “any evidence of the credit card crime” but they did find “what they believed to be child pornography.”  State v. Sprunger, supra.  It apparently turned out to be just that, because the State charged Sprunger with possessing child pornography. State v. Sprunger, supra. 

Sprunger moved to “suppress the results of the search warrants”, arguing neither was based on probable cause.  State v. Sprunger, supra. 

As to the first warrant, he argued that “the 3–month window between the alleged fraud and the application for the search warrant rendered the information [used to obtain the warrant] stale.” State v. Sprunger, supra. The trial judge denied Sprunger’s motion to suppress this warrant, finding that the information was not stale because (i) “the information would still have been on the computers unless Sprunger had deleted it” and/or (ii) “finding the user's physical address from the computer's IP address would take time.”  State v. Sprunger, supra. 

Sprunger’s motion to suppress the child pornography discovered when the deputies executed the second warrant was based on the argument that “the affidavit [used to obtain that warrant’ simply did not establish probable cause.”  State v. Sprunger, supra.  The trial judge also denied that motion to suppress, even though the judge agreed that

probable cause did not support the warrant for the child pornography search. But the court [found] the good faith exception saved the search. [It] determined that there would be little deterrent effect from excluding the evidence because Sprunger had not alleged maliciousness or intentional misconduct. The court recognized that the inquiry into good faith must be conducted from the vantage point of the officer.

The court concluded that the possibility Sprunger's attorney called the deputies about a child pornography investigation because Sprunger had mentioned having child pornography on his computer to his attorney was . . . enough to allow the deputies to rely on the warrant in good faith.

State v. Sprunger, supra. 

Although the Supreme Court’s opinion notes that Sprunger argued on appeal that the trial judge erred in denying both of his motions to suppress, the court only addressed the motion to suppress the second search warrant (presumably because that’s the one that led to the discovery of the child pornography).  State v. Sprunger, supra.  It began by noting that the 4^th Amendment creates a right to be free from “unreasonable” searches and seizures and also states that

`no Warrants shall issue, but upon probable cause . . . and particularly describing the place to be searched, and the persons or things to be seized.’ . . . The execution of a search warrant without probable cause is unreasonable and violates [the 4th Amendment].

Accordingly, a search warrant, to be valid, must be supported by an affidavit [that] establishes probable cause. Probable cause sufficient to justify issuance of a search warrant means a fair probability that contraband or evidence of a crime will be found. . . .

In reviewing the strength of an affidavit submitted as a basis for finding probable cause to issue a warrant, an appellate court applies a `totality of the circumstances test. The question is whether, under the totality of the circumstances illustrated by the affidavit, the issuing magistrate had a substantial basis for finding that the affidavit established probable cause.

State v. Sprunger, supra. 

The court then explained that since “[t]he State does not contend that the officers happened upon (or would have happened upon) the child pornography while searching for evidence of the credit card fraud”, the resolution of the case “turn[ed] on whether probable cause supported the second warrant authorizing the search for child pornography or, if probable cause did not support the warrant, whether the officers' reliance on [it] was objectively reasonable.”  State v. Sprunger, supra.  The State argued that “probable cause supported the warrant but, if not, exclusion of the evidence is inappropriate because of the Leon good faith exception.”  State v. Sprunger, supra. Sprunger argued that “not only was the warrant lacking probable cause, it was lacking probable cause to such a degree that reliance on the warrant was not objectively reasonable, and so exclusion is appropriate.”  State v. Sprunger, supra.

The State argued that two facts included in the affidavit used to obtain the second warrant established probable cause:  “ (1) Sprunger's request to delete files when the deputies came to seize his computers and (2) [his] lawyer's call to the sheriff's office in the days after the deputies executed the first warrant.”  State v. Sprunger, supra. The Supreme Court began its analysis of this argument by noting that the trial court found

there were two possible explanations . . . for the call from Sprunger's lawyer. First, that Sprunger told his attorney what a deputy said and his attorney called based on this fact. Second, that Sprunger admitted to his lawyer he had child pornography on his computers and that the lawyer unwittingly alerted the deputies to this fact. We interpret the [trial court’s] order as concluding there was no probable cause because the State did not present any evidence to show Sprunger had admitted to his lawyer that he had child pornography on his computers. We agree.

State v. Sprunger, supra. 

The court also found that the fact Sprunger’s lawyer called the deputies about the

investigation does not establish that [he] admitted to possessing child pornography. First, believing a lawyer would unwittingly suggest to investigators that a client may have committed a crime without knowing the reason for their investigation requires a leap of faith; the lawyer would have to be living in a mental darkroom. But more important, a deputy had told Sprunger he `should have nothing to worry about’ if no child pornography was found on his computers. Unsurprisingly, Sprunger then talked to a lawyer, as a reasonable person would after law enforcement had seized that person's property. The lawyer likely would have inquired about what the deputies said and did during the search. And the lawyer would have reasonably interpreted the one deputy's statement to mean Sprunger was under investigation for possessing child pornography. So the attorney's inquiry did not establish probable cause. It merely reflected the deputy's statement. . . . Sprunger's attorney's call to the deputies does not add to a finding of probable cause to search for child pornography.

This leaves only Sprunger's request that he be allowed to delete some files before the deputies took his computers away. But because this fact alone does not create probable cause for finding any particular evidence on the computers, it is insufficient.

State v. Sprunger, supra. 

The court next noted that the 4^th Amendment also requires that a search warrant “particularly describe” the place to be searched and the things to be seized.  State v. Sprunger, supra.  It then explained that to establish probable cause for a search warrant,

it must be probable that (1) the described items are connected with criminal activity and (2) are to be found in the place to be searched.  Based only on the fact that Sprunger wanted to delete some files, the deputies could never say with particularity what it was they wanted to seize. They had no idea what files [he] might have wanted to delete. How could the deputies have had probable cause to believe that what they were looking for would be found on his computers when they did not even know what they were looking for?

State v. Sprunger, supra.  The Supreme Court noted that to “allow a search based only on the fact Sprunger wanted to hide something would sanction the type of general exploratory rummaging the Founders wished to prohibit” when they adopted the 4^th Amendment.  State v. Sprunger, supra. Like the trial judge, the Supreme Court then found that the warrant was not based on probable cause.  State v. Sprunger, supra. 

Unlike the trial judge, it found the good faith exception did not apply here.  State v. Sprunger, supra.  The court noted that the good-faith inquiry is limited to the

`objectively ascertainable question whether a reasonably well-trained officer would have known that the search was illegal despite a magistrate's authorization.’ Officers are assumed to `have a reasonable knowledge of what the law prohibits.’

State v. Sprunger, supra (quoting U.S. v. Leon, 468U.S. 897 (1984)).

The court found that “the deputies’ reliance on the [second] warrant was not reasonable and thus did not bring it within the Leon good faith exception to the exclusionary rule.”  State v. Sprunger, supra.  In so doing, it noted that a reasonable police officer would

know that telling a person he had `nothing to worry about’ if he had no child pornography on his computer would lead that person to believe he was being investigated for child pornography. The deputy had effectively planted the idea in Sprunger's head. Given this, we do not see how the deputies could have objectively relied on the warrant. The deputies knew -- or certainly should have known -- that the only fact showing any connection to child pornography was of their own making.

State v. Sprunger, supra.  The court also found that given the facts in this case,

excluding the evidence serves the deterrence aim of the exclusionary rule by forbidding the use of evidence obtained through an obvious 4th Amendment violation. Conversely, to ignore such a blatant lack of probable cause would set a low bar for future police conduct.

State v. Sprunger, supra.  It therefore held that the trial judge should have granted Sprunger’s motion to suppress the child pornography and remanded the case for “proceedings consistent with this opinion.”  State v. Sprunger, supra.  

Laptop Theft, Reformatting and Sentencing

After pleading guilty to theft in violation of Indiana Code § 35-43-4-2(a), Jonathan R. Stephens “was sentenced to three years with one year suspended to probation for a total of two years executed.”  Stephens v. State, 2012 WL 927035 (Indiana Court of Appeals 2012). 

Indiana Code § 35-43-4-2(a) states that

[a] person who knowingly or intentionally exerts unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use, commits theft, a Class D felony.

After he was sentenced, Stephens appealed, arguing that the “sentence was inappropriate in light of the nature of the offense and the character of the offender.”  Stephens v. State, supra.  As to the nature of the offense, the crime began when

[i]n the early morning hours of February 25, 2011, Stephens was in Blooey's bar in Wabash, Indiana. At approximately two in the morning, Stephens noticed a laptop computer sitting by the bar, and he `placed it underneath [his] jacket and walked out.’ . . .  

The laptop belonged to the owner of Blooey's. After discovering that his computer was missing, the owner reviewed the surveillance tapes, which showed a man, later identified as Stephens, twice use the ATM in the bar and then take the laptop.

Stephens v. State, supra. 

Police were able to

trace the account [Stephens] accessed to Britney L. Dickerhoff. . . . After learning that Ms. Dickerhoff was incarcerated, police visited her at Wabash County Jail. . . .

During a first meeting, Ms. Dickerhoff told the police that she was married to [Stephens] and he had access to her ATM card and PIN number for her bank account. . . . At their second visit, the police discussed the laptop theft with Ms. Dickerhoff. . . . In response, Ms. Dickerhoff stated that the man in the surveillance footage was not her husband, and someone must have stolen the ATM card. . . .

Brief of Appellee, Stephens v. State, 2011 WL 7099461.

The police then

accessed phone calls made between [Stephens]and Ms. Dickerhoff while she was incarcerated. . . . On February 27, 2011, two days after stealing the laptop, [Stephens] discussed how he was `super relaxed’ because he `smoked earlier’. . . . Later in the call, when Ms. Dickerhoff discussed her employment opportunities upon her release from jail, [Stephens] suggested she should `[s]tart swinging dope’. . . .

The next day, Ms. Dickerhoff warned [him]: `the cops are looking for you.’ . . . According to the police officer reviewing the tapes, [Stephens] also told his wife that though the couple could not afford a computer, `he figured something out’. . . . He then told his wife about how he cleared the memory of the laptop. . . .

Brief of Appellee, Stephens v. State, supra.

The prosecution’s brief on appeal explains what happened next:

Due to [Stephens’] theft, the victim was left without access to his laptop from February to, at least, July of 2011. . . . [Stephens] had erased the memory on the computer and changed its operating system. . . .

The victim used the laptop to run his business, and due to the theft, he must manually create two years of business records and inventories, restore the original operating system, and reinstall all of his software. . . .

Though the victim properly backed up his information on an external hard drive, the backup is unusable because [Stephens] reformatted the laptop with a new operating system. . . .

Brief of Appellee, Stephens v. State, 2011 WL 7099461.

The Court of Appeals began its analysis of Stephens’ appeal by noting that it has

`authority to revise a sentence “if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.”’ Spitler v. State, 908 N.E.2d 694 (Indiana Court of Appeals 2009) (quoting Indiana Appellate Rule 7(B)). . . .

We understand and recognize the unique perspective a trial court brings to its sentencing decisions. . . . .The defendant bears the burden of persuading this court that his sentence is inappropriate.

Stephens v. State, supra. 

Stephens argued, first, that the sentence was inappropriate because

when reviewing the nature of the offense, the facts of this case illustrates that this particular theft was not particularly heinous and therefore should not be classified as the worst offense. Stephens was a patron in the bar. The laptop computer was sitting in the bar area and he took it. . . .

After his arrest, Stephens caused the laptop computer to be given to the police so that it could be returned to its lawful owner. . . . There was no illegal entry involved. There was no violence or threat of violence involved in this offense. The computer was returned to its owner.

Thus, it is clear that this is definitely not the most heinous of theft offenses. As Stephens is not the worst offender and this was not the most heinous of theft offenses, the maximum sentence of three (3) years with one year suspended was inappropriate in this matter and should be revised.

Brief of Appellant, Stephens v. State,  2011 WL 6749943.

The Court of Appeals disagreed:

The nature of the offense is that Stephens stole a laptop computer belonging to the owner of Blooey's bar. Because of this theft, the victim was without the laptop, which he used in order to run his business, for approximately five months.

After he stole the computer, Stephens erased the laptop's memory and reformatted the computer with a new operating system. In doing this, he rendered the victim's backup hard drive unusable upon its return.

The victim estimated that it would take 120 hours of labor to restore the computer, including manually creating two years' worth of business records and inventories, restoring the original operating system, and reinstalling software. Stephens's actions after stealing the laptop created a significant burden for the victim.

Stephens v. State, supra. 

Stephens also argued that the sentence was inappropriate given his character:

Stephens was employed at the time of the offense until his incarceration in this matter . . . In addition, Stephens indicated that he supports his stepchildren and his wife is pregnant with their first child. . . . Stephens acknowledges that he has a lengthy criminal history . . . .

His criminal history, though, is primarily comprised of alcohol and/or drug related offenses. . . . He was convicted in 2003 at the age of nineteen (19) years of a burglary.

The Presentence Investigation Report (PSI) reflects, though, that at the time of his arrest for the burglary, he was also arrested for illegal possession of alcohol. Thus, alcohol may have played a role in that matter as well. . . . This case is Stephens' first conviction for theft and it was committed from a bar. . . . Presumably, Stephens was consuming alcoholic beverages while he was sitting at the bar prior to the theft of the laptop computer.

Thus, while Stephens does have a criminal history, his criminal contacts have generally centered around drugs and alcohol. In the taped conversation between Stephens and his wife, they jointly agreed to stop consuming drugs. . . . Stephens is clearly a man in need of assistance for his substance abuse. However, this does not make Stephens the worst offender.

Brief of Appellant, Stephens v. State, supra. 

The Court of Appeals did not buy Stephens’ argument as to why his character militated for a lower sentence:

As to Stephens's character, the evidence showed that, since the age of fifteen, he has almost continuously engaged in criminal acts. As a juvenile, Stephens was adjudicated delinquent for committing theft.

He was charged with four felonies and twelve misdemeanors, which resulted in two felony convictions and six misdemeanor convictions. Further, Stephens's criminal history shows that, when placed on probation as a juvenile, he twice violated the terms of such probation, and as an adult, he violated his probation four times.

We therefore conclude that Stephens's three-year sentence with one year suspended to probation was not inappropriate in light of the nature of the offense and the character of the offender.

Stephens v. State, supra. 

The Court of Appeals therefore affirmed his conviction and sentence. Stephens v. State, supra.