Name: State v Wolf
Cite: (not yet published) Ohio Ct.App. April 28, 2009
URL to Opinion: http://www.fifthdist.org/April%20272009/Wolf.pdf
Lexis: 2009 Ohio App. LEXIS 1677
Westlaw: 2009 WL 1152185
Court: Richland County, Ohio, Fifth Appellate District Court of Appeals
Date of Judgment: April 28, 2009
Facts:
While cleaning files off a municipally-owned computer, a municipal employee found nude photographs of the defendant, another municipal employee. The defendant admitted that he used the city-owned computer while on the clock in order to upload to “Adult Friend Finder†and send them to various individuals. He also admitted to using the computer to access pornography websites during work hours, despite it violating established work practices as well as being “unethical and wrong.†Forensic investigation and deposition of the defendant revealed several sexually explicit emails and over 700 nude photographs of the defendant, all sent during an estimated one hundred working hours.
Procedural Posture:
After a criminal trial, the defendant was found guilty of solicitation of prostitution, unauthorized access of a computer (under Ohio R.C. §2913.04), and theft in office (for the amount of wages earned while sending and viewing these materials during the 100 hours). The defendant raised nine claims of error on appeal, essentially claiming that the elements of his conviction could not be supported because (1) there was insufficient evidence of his unauthorized access of the computer, (2) the “lost†time should not constitute theft in office, (3) the admitted evidence was overly prejudicial, and (4) both the unauthorized access and theft in office convictions were contrary to public policy. Ohio’s Fifth Appellate District of Appeals affirmed in part and reversed in part (regarding his conviction for theft in office and the resulting restitution damages).
Statutes at Issue: : (emphasis added)
Ohio R.C. §2913.04(B):
“No person, in any manner and by any means, including, but not limited to, computer hacking, shall knowingly gain access to, attempt to gain access to, or cause access to be gained to any computer, computer system, computer network, cable service, cable system, telecommunications device, telecommunications service, or information service without the consent of, or beyond the scope of the express or implied consent of, the owner of the computer, computer system, computer network, cable service, cable system, telecommunications device, telecommunications service, or information service or other person authorized to give consent.â€
Ohio R.C. §2921.41:
“(A) No public official or party official shall commit any theft offense, as defined in division (K) of section 2913.01 of the Revised Code, when …
…
(2) The property or service involved is owned by this state, any other state, the United States, a county, a municipal corporation, a township, or any political subdivision, department, or agency of any of them, is owned by a political party, or is part of a political campaign fund.
Ohio R.C. §2913.02:
“(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways:
(1) Without the consent of the owner or person authorized to give consent;
(2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent;
(3) By deception;
(4) By threat;
(5) By intimidation.
(B)(1) Whoever violates this section is guilty of theft.
Summary of Holdings:
A municipal employee’s use of a municipally-owned computer, during work hours, to upload and view nude photographs, pornographic websites, and sexually explicit emails, as well as to solicit prostitution, exceeds unauthorized access and is compatible with public policy under the state laws of Ohio. Any “lost time†from such engagements, however, is not actionable as a “theft in office,†with or without specific evidence of job impairment.
Holding 1:
The defendant’s actions of uploading nude photos, accessing pornographic websites, and soliciting prostitution exceeded the scope of authorized access and thereby support a conviction for unauthorized use of a computer.
Holding 2:
Time spent exceeding authorized access is not sufficient to support a conviction of theft in office even if there is sufficient evidence of the number of work hours spent exceeding access and the degree to which defendant’s job duties were impaired or completely unaccomplished.
Holding 3:
Admission of evidence of unauthorized access, even if pornographic in nature, is not necessarily prejudicial to the defendant.
Holding 4:
The defendant’s conviction for unauthorized access of a computer is not contrary to public policy.
External Website of Interest: "Appellate Court Upholds Hacking Conviction for Misusing Workplace Computer," E-Commerce and Tech Law Blog (cache)
Cite: (not yet published) Ohio Ct.App. April 28, 2009
URL to Opinion: http://www.fifthdist.org/April%20272009/Wolf.pdf
Lexis: 2009 Ohio App. LEXIS 1677
Westlaw: 2009 WL 1152185
Court: Richland County, Ohio, Fifth Appellate District Court of Appeals
Date of Judgment: April 28, 2009
Facts:
While cleaning files off a municipally-owned computer, a municipal employee found nude photographs of the defendant, another municipal employee. The defendant admitted that he used the city-owned computer while on the clock in order to upload to “Adult Friend Finder†and send them to various individuals. He also admitted to using the computer to access pornography websites during work hours, despite it violating established work practices as well as being “unethical and wrong.†Forensic investigation and deposition of the defendant revealed several sexually explicit emails and over 700 nude photographs of the defendant, all sent during an estimated one hundred working hours.
Procedural Posture:
After a criminal trial, the defendant was found guilty of solicitation of prostitution, unauthorized access of a computer (under Ohio R.C. §2913.04), and theft in office (for the amount of wages earned while sending and viewing these materials during the 100 hours). The defendant raised nine claims of error on appeal, essentially claiming that the elements of his conviction could not be supported because (1) there was insufficient evidence of his unauthorized access of the computer, (2) the “lost†time should not constitute theft in office, (3) the admitted evidence was overly prejudicial, and (4) both the unauthorized access and theft in office convictions were contrary to public policy. Ohio’s Fifth Appellate District of Appeals affirmed in part and reversed in part (regarding his conviction for theft in office and the resulting restitution damages).
Statutes at Issue: : (emphasis added)
Ohio R.C. §2913.04(B):
“No person, in any manner and by any means, including, but not limited to, computer hacking, shall knowingly gain access to, attempt to gain access to, or cause access to be gained to any computer, computer system, computer network, cable service, cable system, telecommunications device, telecommunications service, or information service without the consent of, or beyond the scope of the express or implied consent of, the owner of the computer, computer system, computer network, cable service, cable system, telecommunications device, telecommunications service, or information service or other person authorized to give consent.â€
Ohio R.C. §2921.41:
“(A) No public official or party official shall commit any theft offense, as defined in division (K) of section 2913.01 of the Revised Code, when …
…
(2) The property or service involved is owned by this state, any other state, the United States, a county, a municipal corporation, a township, or any political subdivision, department, or agency of any of them, is owned by a political party, or is part of a political campaign fund.
Ohio R.C. §2913.02:
“(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways:
(1) Without the consent of the owner or person authorized to give consent;
(2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent;
(3) By deception;
(4) By threat;
(5) By intimidation.
(B)(1) Whoever violates this section is guilty of theft.
Summary of Holdings:
A municipal employee’s use of a municipally-owned computer, during work hours, to upload and view nude photographs, pornographic websites, and sexually explicit emails, as well as to solicit prostitution, exceeds unauthorized access and is compatible with public policy under the state laws of Ohio. Any “lost time†from such engagements, however, is not actionable as a “theft in office,†with or without specific evidence of job impairment.
Holding 1:
The defendant’s actions of uploading nude photos, accessing pornographic websites, and soliciting prostitution exceeded the scope of authorized access and thereby support a conviction for unauthorized use of a computer.
- Reasoning: At trial, the State argued that the “unauthorized access†was the defendant’s actions outside the scope of his employment to use a computer to engage in criminal conduct (soliciting prostitution). The appeals court agreed that all three actions exceeded the scope of the employer’s express or implied consent.
- Analysis: Although this seems to be the correct result, the appeals court fails to explain why this access exceeds authorization: Was it the defendant’s admission of breaking company policy, any of his actions alone, or some cumulative effect which exceeded the scope of authority?
Holding 2:
Time spent exceeding authorized access is not sufficient to support a conviction of theft in office even if there is sufficient evidence of the number of work hours spent exceeding access and the degree to which defendant’s job duties were impaired or completely unaccomplished.
- Reasoning: Although prosecutors produced evidence that the defendant (and municipal employee) exceeded his access of the municipally-owned computer for over 100 hours, that would not be sufficient for a conviction of theft in office. Even if prosecutors additionally demonstrated the degree to which the defendant’s job duties were impaired or unaccomplished, the court held that such evidence would only show cause for employment termination, not a basis for criminal theft in office.
- Analysis: It would have been helpful if the court had provided any reasoning as to why specific examples of job impairment could not support a charge of theft in office, or even form a basis for restitution damages to the employer.
Holding 3:
Admission of evidence of unauthorized access, even if pornographic in nature, is not necessarily prejudicial to the defendant.
- Reasoning: So long as prejudice does not outweigh probative value, prosecutors may illustrate the types and demonstrate the volume of materials at issue.
Holding 4:
The defendant’s conviction for unauthorized access of a computer is not contrary to public policy.
- Reasoning: None provided.
- Analysis: Although this result seems correct in light of state (and federal) unauthorized use laws, the appellate court provided no reasoning to support this holding. Perhaps the court wished to not decide any more than it was required to decide, and therefore avoided discussing legislative intent and public policy, but the court’s summary disposition of this claim provided little insight.
External Website of Interest: "Appellate Court Upholds Hacking Conviction for Misusing Workplace Computer," E-Commerce and Tech Law Blog (cache)