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State v. Nascimento

Court of Appeals of Oregon

February 4, 2015

STATE OF OREGON, Plaintiff-Respondent,
CARYN ALINE NASCIMENTO, aka Caryn Aline Demars, Defendant-Appellant

Argued and Submitted March 22, 2013

Jefferson County Circuit Court. 09FE0092. George W. Neilson, Judge.

Daniel C. Bennett, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Douglas F. Zier, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge[*].


[268 Or.App. 719] ARMSTRONG, P. J.

Defendant, a store clerk, accessed a state lottery terminal to create Keno lottery tickets for herself without paying for them. Defendant was convicted of one count of aggravated first-degree theft and one count of computer crime. On appeal, defendant raises 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 ORS 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

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paying customers. We conclude that, even under the construction of the statute proffered by defendant, there was sufficient evidence from which the jury could find that defendant accessed the lottery terminal without authorization. Accordingly, we affirm.

" Our standard for reviewing the denial of the motion for judgment of acquittal is whether, viewing the evidence in the light most favorable to the state, any rational trier of fact could have found that the essential elements of the crime had been proved beyond a reasonable doubt." State v. Paragon, 195 Or.App. 265, 267, 97 P.3d 691 (2004). With that standard in mind, the facts are as follows. In October 2007, defendant 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 defendant on the use of the lottery terminal and authorized defendant 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 defendant's job description as a deli clerk and that defendant 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.

[268 Or.App. 720] About a year after defendant 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 defendant's shifts. The store's surveillance video showed that, when no one was around, defendant 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 defendant's shift was redeemed by her by mail, and others were redeemed by her at a local grocery store. As relevant to her appeal, defendant was charged with one count of computer crime under ORS 164.377(4),[1] which provides:

" Any 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, [268 Or.App. 721] computer system or computer network, commits computer crime."

At the close of the state's case, defendant 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 ...

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