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State v. Tecle

Court of Appeals of Oregon

May 10, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
FINOT TECLE, Defendant-Appellant.

          Argued and submitted November 15, 2016

         Multnomah County Circuit Court 130431860; Alicia A. Fuchs, Judge.

          Neil F. Byl, Deputy Public Defender, argued the cause for appellant. With him on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Patrick M. Ebbett, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Duncan, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for 18 counts of identity theft, ORS 165.800; 12 counts of theft in the second degree, ORS 164.045; and 18 counts of computer crime, ORS 164.377(2). He assigns error to the trial court's denial of his motion for judgment of acquittal on the computer crime counts, arguing that evidence that he knowingly provided false information to banks was not sufficient to show that he "used" a computer within the meaning of ORS 164.377(2). Held: The trial court erred in denying defendant's motion for judgment of acquittal on the computer crime counts. The record lacked evidence from which a factfinder could find that defendant "used" a computer or computer system within the meaning of ORS 164.377(2), because defendant did not directly access or manipulate a computer or computer system in the commission of theft or fraud. Although defendant induced the banks to act to permit his theft, at all times the victim banks remained in unqualified and uncompromised control of their computer systems.

         Convictions on Counts 2, 5, 8, 11, 14, 16, 18, 21, 24, 26, 28, 31, 34, 36, 38, 41, 44, and 47 reversed; Count 10 reversed and remanded for entry of judgment of conviction for identity theft; remanded for resentencing; otherwise affirmed.

          DEVORE, J.

         Defendant appeals a judgment of conviction for 18 counts of identity theft, ORS 165.800; 12 counts of theft in the second degree, ORS 164.045; and 18 counts of computer crime, ORS 164.377(2). He assigns error to the trial court's denial of his motion for a judgment of acquittal on the computer crime counts, arguing that evidence that he knowingly provided false information to banks was not sufficient to show that he "used" a computer within the meaning of ORS 164.377(2), because the state should have been required to prove that he directly accessed or manipulated the banks' computers. After review of the text, context, and legislative history, we agree that the record lacks evidence from which a factfinder could find that defendant "used" a computer or computer system within the meaning of the statute. The trial court, therefore, erred when it denied defendant's motion for a judgment of acquittal on the 18 counts of computer crime. Defendant also assigns error to the trial court's entry of a judgment of conviction on Count 10 for computer crime instead of identity theft. The state concedes the error, and we agree. Accordingly, we reverse defendant's convictions for computer crime, reverse and remand as to Count 10 for entry of a conviction for identity theft, and remand for resentencing.

         When denial of a defendant's motion for a judgment of acquittal "centers on the meaning of the statute defining the offense, " we review the interpretation of the statute for legal error. State v. Hunt. 270 Or.App. 206, 210, 346 P.3d 1285 (2015) (internal quotation marks and citation omitted). In determining the sufficiency of the evidence, we review the facts in the light most favorable to the state to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Cunningham, 320 Or 47, 63, 880 P.2d 431 (1994), cert den, 514 U.S. 1005 (1995).

         The relevant facts are undisputed. In September and October 2012, defendant engaged in a scheme to defraud two banks. Defendant personally visited several bank branches and opened checking and savings accounts. Defendant provided the banks' employees with false information, primarily fraudulent social security numbers and home addresses. The bank employees relied on the information defendant provided, entering that information into the banks' computer systems to create bank accounts for defendant. Defendant activated automatic teller machine (ATM) cards and provided worthless checks for deposit into his new accounts. In compliance with federal law, the banks made at least $100 available immediately after defendant opened the accounts, before the checks were processed. Shortly after defendant created the accounts, someone other than defendant used the ATM cards and passwords to withdraw credited funds from the accounts or make purchases before the banks could determine the validity of the checks. As a result, the banks suffered financial losses.

         Defendant was charged with multiple counts of identity theft, theft in the second degree, and computer crime. At the close of the state's case, defendant moved for a judgment of acquittal on the computer crime counts, among others, arguing that the state failed to present any evidence that defendant "used" a computer for purposes of ORS 164.377(2). He argued that there was no evidence that he opened an account online or that he withdrew any money from the accounts using an ATM. Defendant argued that, "just because a bank or a business that you go to uses computers, that doesn't mean that [defendant] used a computer." The state countered that defendant was "using a computer system" by "trying to inflate a bank balance" so that money could be withdrawn later from an ATM. In the state's view, providing false information to a bank employee, who then enters that information into the bank's computer database, constitutes "using" a computer under ORS 164.377(2). The trial court denied defendant's motion, and the jury convicted defendant on all counts.

         On appeal, defendant renews his arguments made in the trial court. Defendant contends that the state's interpretation of the term "use" under ORS 164.377(2) is overly broad and contrary to the legislature's intent. The state reiterates its arguments, relying primarily on the statute's text and context to contend that ...


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