CYB3RCRIM3: Robbery, Unlawful Access to a Computer and Double Jeopardy

After being convicted of first-degree robbery in violation of Kentucky Revised Statutes § 515.020 and first-degree unlawful access to a computer under Kentucky Revised Statutes § 434.845, Paul R. Day Jr. appealed, arguing that his convictions for both crimes violated double jeopardy. Day v. Commonwealth, __ S.W.3d __, 2012 WL 1758127 (Kentucky Court of Appeals 2012).

The prosecution arose at approximately 5:15 a.m. on November 13, 2008, when Day,

armed with a handgun, confronted Roger Becker while he was walking to work at Pennyrile Allied Community Services (PACS) in Hopkinsville, Kentucky. Day put a gun to Becker's back and demanded money. Becker did not have any cash. Day told [him] to walk to an abandoned house approximately 75 to 100 feet away from PACS; Becker complied.

Once inside the house, Day forced Becker to lay face down on the floor and bound [his] hands and feet. Day demanded Becker's wallet. Becker explained he did not carry a wallet; instead, he had a small leather case that contained his driver's license, military identification, and U.S. Bank debit card. Day took Becker's debit card and demanded [his] pin number, which Becker provided. Day declared that, if the debit card and/or pin number did not work, he would return and kill Becker. Day stuffed a rag into Becker's mouth and fled the abandoned house.

Becker freed himself and returned to PACS where co-workers called the police. Upon arrival, officers observed Day leaving the U.S. Bank ATM, which was approximately one-quarter mile from the abandoned house. After placing Day under arrest, officers found $400.00 in [his] left pocket and $600.00 in [his] right pocket.

Officers also found a receipt in Day's pocket from a BB & T ATM indicating $400.00 was withdrawn from Becker's U.S. Bank account at 5:37 a.m. [They] further discovered at Day's feet a receipt from a U.S. Bank ATM indicating $600.00 had been withdrawn from Becker's U.S. bank account at 5:41 a.m.

Day v. Commonwealth, supra. Day “subsequently admitted to using Becker's debit card at the BB & T and U.S. Bank ATMs.” Day v. Commonwealth, supra.

On December 19, the Christian County Grand Jury returned an indictment “charging Day with first-degree robbery, first-degree burglary, kidnapping, two counts of first-degree unlawful access to a computer, possession of a handgun by a convicted felon, and tampering with physical evidence.” Day v. Commonwealth, supra. The case went to trial and on August 20, 2010, “the jury returned a guilty verdict as to all charges .” Day v. Commonwealth, supra. The trial judge sentenced Day to fifteen years in prison, after which he appealed. Day v. Commonwealth, supra.

As I noted earlier, Day argued, on appeal, that “his convictions for first-degree robbery . . . and first-degree unlawful access to a computer . . . offend double jeopardy.” Day v. Commonwealth, supra. And as you may know, the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution says that non one shall “ be subject for the same offense to be twice put in jeopardy of life or limb”. As Wikipedia notes, the Clause has been interpreted as prohibiting (i) the prosecution from retrying someone for charges as to which they were acquitted in a previous trial and (ii) imposing multiple punishments for the “same offense”. Day, of course, relied on the latter interpretation.

The Kentucky Court of Appeals began its analysis of Day’s double jeopardy argument by noting that, as I’ve explained in earlier posts, the test used to determine whether two crimes are the “same offense” is the test the Supreme Court enunciated in Blockburger v. U.S., 284 U.S. 299 (1932). The Blockburger Court held that

where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

Blockburger v. U.S., supra. Years later, the Court noted, in U.S. v. Dixon, 509 U.S. 688 (1993), that the Blockburger test asks whether each “offense contains an element not contained in the other; if not, they are the `same offence and double jeopardy bars” imposing punishment for both.

The Court of Appeals noted, then, that in deciding if Day’s convictions for robbery and unlawful access to a computer violated double jeopardy, “we must closely examine and compare the elements of first-degree robbery and first-degree unlawful access to a computer.” Day v. Commonwealth, supra. It therefore parsed both crimes into their essential elements, beginning with robbery. (You can access the text of the statutes defining the offenses via the links included earlier in this post.)

It explained that to commit the crime of first degree robbery, the defendant must:

(1) in the course of committing a theft

(2) use or threaten the immediate use of physical force

(3) with intent to accomplish the theft

(4) while either

(a) causing physical injury upon a person not a participant in the crime

(b) being armed with a deadly weapon or

Day v. Commonwealth, supra (parsing Kentucky Revised Statutes § 515.020).

It explained that to commit the crime of first-degree unlawful access to a computer, the defendant must

(1) without the owner's consent

(2) knowingly and willingly

(3) access or caused to be accessed a computer or component thereof

(4) in order to either

(a) devise or execute a scheme of fraud, or

(b) obtain money, property, or services by means of false or fraudulent pretenses.

Day v. Commonwealth, supra (parsing Kentucky Revised Statutes § 434.845).

The Court of Appeals found that a “cursory review reveals that first-degree robbery and first-degree unlawful access to a computer do not share even a single . . . element.” Day v. Commonwealth, supra. The crimes were therefore not the “same offense” under the Blockburger test, which meant “Day’s conviction for both offenses does not violate . . . constitutional protections against double jeopardy.” Day v. Commonwealth, supra.

The court then applied an additional test, as required by the Kentucky Supreme Court’s decision in Lloyd v. Commonwealth, 324 S.W.3d 384 (2010). The Lloyd Court explained that the U.S. Supreme Court has held that Blockburger is “`a rule of statutory construction, and because it serves as a means of discerning congressional purpose the rule should not be controlling where . . . there is a clear indication of contrary legislative intent.’” Lloyd v. Commonwealth, supra (quoting Albernaz v. U.S., 450 U.S. 333 (1981)).

The Court of Appeals therefore proceeded to analyze the Kentucky legislature’s intent in adopting both criminal statutes because “where the [state] legislature clearly intends to prohibit convictions for two offenses arising from one underlying transaction or act, the Blockburger test must yield”. Day v. Commonwealth, supra. In other words, if the state (or federal) legislature wants to allow someone to be convicted of two crimes based on the same, single act, they can . . . as long as they make their intention to do so clear.

Day argued that “the Kentucky legislature did not intend for a person to be convicted both of first-degree robbery and first-degree unlawful access to a computer” but did not “provide any evidence of the legislature's intent in support of his conclusory statement.” Day v. Commonwealth, supra. Instead, he relied on a Florida case – Gorday v. State, 907 So.2d 649 (Florida Court of Appeals 2005), which held that Gorday could not be convicted of both “armed robbery and theft of a credit card” because under Florida law, “armed robbery and credit card theft are merely degree variants of the same core offense of theft.” Gorday v. State, supra.

Gorday robbed a woman of her purse – “at scissor point” – and then used a credit card that had been in her purse to buy gasoline. Gorday v. State, supra. He was charged with and convicted of armed robbery and credit card theft but the Florida Court of Appeals reversed his convictions because (i) the crimes were merely variants of "theft" and (ii) the convictions “arose out of a single act”, i.e., Gorday’s taking the victim’s purse. Gorday v. State, supra. The Florida court noted that it “It was not the act of using the credit card, but the act of taking the credit card that gave rise to and completed both crimes.” Gorday v. State, supra (emphasis in the original).

The Court of Appeals did not find the Gorday relevant here because Kentucky law

does not consider the two crimes at issue here degree variants of the same underlying crime, i.e., theft. . . . [F]irst-degree robbery falls under Title L, [Kentucky Revised Statutes] Chapter 515 titled `Robbery’ while first-degree unlawful access to a computer falls under Title XL, Chapter 434 titled `Offenses Against Property By Fraud’ evincing that the Legislature did not consider the latter to be a mere degree variant of the former.

Additionally, unlawful access to a computer is an offense against property while robbery is an offense against a person. . . . Consequently, we conclude that our Legislature did not intend to prohibit convictions for both first-degree robbery and first-degree unlawful access to a computer arising from one underlying transaction or act.

Day v. Commonwealth, supra.

The court also found that Day's convictions did not arise “out of one single act, but instead resulted from two separate, distinct acts.” Day v. Commonwealth, supra.

[U]sing a handgun, Day threatened Becker with bodily harm, bound [his] hands and feet, and stole [his] debit card and pin number. Day then walked approximately a quarter mile to the BB & T ATM to access Becker's bank account using the stolen debit card.

It was not until Day used Becker's ATM card at the BB & T ATM that he committed the offense of first-degree unlawful access to a computer. Day committed the second count of first-degree unlawful access to a computer when he used Becker's ATM card at the U.S. Bank ATM.

Thus, it was the separate, subsequent acts of using Becker's ATM card, after the completion of the crime of robbery, which gave rise to the two counts of first-degree unlawful access to a computer. Had Day never unlawfully used Becker's ATM card, he never would have committed the offense of first-degree unlawful access to a computer.

The geographical and temporal separation of the specific acts giving rise to each offense compels the conclusion that Day's convictions for first-degree robbery and first-degree unlawful access to a computer did not arise out of a single incident.

Day v. Commonwealth, supra.

The Court of Appeals therefore affirmed Day’s convictions on both crimes and his sentence. Day v. Commonwealth, supra.