STATE OF NORTH CAROLINA v. CYNTHIA JOHNSTON
NO. COA04-1283
Appeal by defendant from judgment entered 19 May 2004 by Judge
W. Allen Cobb, Jr. in New Hanover County Superior Court. Heard in
the Court of Appeals 20 April 2005.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General William P. Hart and Assistant Attorney
General Caroline Farmer, for the State.
Jeffrey Evan Noecker for defendant-appellant.
HUNTER, Judge.
Cynthia Johnston (“defendant”) presents the following issues
for our consideration: Did the trial court err by (I) failing to
instruct the jury regarding an essential element of felonious
damage to computers; (II) denying her motion to dismiss; and (III)
entering judgment on a fatally flawed indictment. After careful
review, we vacate the judgment of the trial court and remand this
case for entry of judgment and sentence on the misdemeanor offense
of damaging computers.
The State presented evidence at trial tending to show the
following: Dr. Thomas Kirby (“Dr. Kirby”) is an optometrist with
a practice located in four cities in New Hanover, Pender, and
Brunswick Counties. Dr. Kirby and two other optometrists rotated
through these four locations. Prior to 1998, Dr. Kirby's insurance billing procedure
consisted of completing a standardized health claim insurance form
by hand and mailing the form to the insurance company via standard
United States mail. In order to improve efficiency, he contracted
with defendant, a representative with Island Automated Medical
Systems, in February of 1998 to computerize his billing system.
Defendant thereafter purchased billing software and uploaded the
software onto Dr. Kirby's office computers at all four locations.
As payment, defendant and Dr. Kirby agreed that defendant would
receive five percent (5%) of all insurance claims received from the
insurance companies. Dr. Kirby testified that the computer program
software was owned by defendant. Dr. Kirby also hired defendant as
his data entry processor, for which he paid defendant an hourly
salary in addition to the five percent (5%) portion of the
insurance claims. Defendant was responsible for filing the
insurance claims.
Dr. Kirby's and defendant's business relationship worked well
until the end of 2000, when defendant's work quality declined due
to personal problems. Defendant was absent from work without
explanation, and while at work she handled personal business. As
a result, a backlog developed in the number of claims processed.
On 20 October 2000, Dr. Kirby had a “counseling” meeting with
defendant, during which he discussed defendant's work quality andgave defendant several warning notices. After the meeting,
defendant left Dr. Kirby's office and went to her vehicle parked
outside. Before getting into her car, however, defendant “spun
around and came back in the office.” She sat down at her desk and
“did something on the [computer] keyboard.” Defendant then removed
a box of computer diskettes from her desk and left the building.
Defendant appeared to be angry and “was mumbling something about
not having to put up with this.”
Dr. Kirby and two other individuals immediately checked the
computer and noticed the program icon for the billing program was
no longer on the computer screen. Prior to the meeting, an
employee had observed the billing program up and running on the
computer. Dr. Kirby testified that all of the patient and
appointment information was missing. The patient information
consisted of demographic data, patient demographics, names,
addresses, insurance type, insurance numbers, and past claims. He
testified this information was not part of defendant's software,
but was stored on the hard drive. Dr. Kirby testified that the
software was owned by defendant; however, the data was his
property. Defendant removed the software program from the
Wilmington location only. The three other locations retained the
software and data. As a result of defendant's removal of the software, Dr. Kirby
purchased a new software program that was ultimately incompatible
with his computers. Dr. Kirby purchased a new computer system and
hired Patricia Payne (“Payne”) to attempt to rebuild the lost
insurance claims. Payne reviewed the patient files, spoke with
patients, and re-filed several claims. Dr. Kirby agreed to pay
Payne twenty percent (20%) of anything he received from her
insurance filings with insurance companies. No testimony was given
regarding the amount of the lost claims.
Defendant presented no evidence. Upon review of the evidence,
the jury found defendant guilty of damaging a computer. The trial
court sentenced defendant to a suspended sentence of ten to twelve
months imprisonment and placed her on supervised probation for
thirty-six months. The trial court also ordered defendant to pay
costs and restitution in the amount of $1,766.00. Defendant
appeals.
Defendant argues the trial court erred by (I) failing to
instruct the jury regarding an essential element of felonious
damage to a computer; (II) failing to dismiss the charge of
felonious damage to a computer as there was insufficient evidence
that defendant acted without authorization or that her actions
amounted to alteration, damage, or destruction; and (III) entering
judgment on a fatally flawed indictment.
I. Jury Instructions
[1] Defendant argues the trial court erroneously failed to
instruct the jury regarding an essential element of the crime of
felonious damage to a computer. Specifically, defendant contends
the trial court did not instruct the jury that the computer damage
must exceed $1,000.00 in order to constitute a felony.
As an initial matter, we address the State's contention that
this issue is not preserved for appellate review because defendant
failed to object to the trial court's instruction during the charge
conference or after the charge was given to the jury. Pursuant to
Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure:
A party may not assign as error any portion of
the jury charge or omission therefrom unless
he objects thereto before the jury retires to
consider its verdict, stating distinctly that
to which he objects and the grounds of his
objection; provided, that opportunity was
given to the party to make the objection out
of the hearing of the jury, and, on request of
any party, out of the presence of the jury.
N.C.R. App. P. 10(b)(2). Defendant did not object to the jury
instruction in this case. Therefore, we can only review this issue
for plain error.
See N.C.R. App. P. 10(c)(4);
State v. Odom, 307
N.C. 655, 659, 300 S.E.2d 375, 378 (1983). Defendant, however, has
not alleged plain error and, therefore, this issue is not properly
preserved for appellate review.
See State v. Moore, 132 N.C. App.197, 201, 511 S.E.2d 22, 25,
disc. review denied, 350 N.C. 103, 525
S.E.2d 469 (1999).
However, under Rule 2 of the Appellate Rules:
To prevent manifest injustice to a party,
or to expedite decision in the public
interest, either court of the appellate
division may, except as otherwise expressly
provided by these rules, suspend or vary the
requirements or provisions of any of these
rules in a case pending before it upon
application of a party or upon its own
initiative, and may order proceedings in
accordance with its directions.
N.C.R. App. P. 2.
In
Viar v. N.C. Dep't of Transp., 359 N.C. 400, 610 S.E.2d 360
(2005), our Supreme Court stated “[i]t is not the role of the
appellate courts . . . to create an appeal for an appellant.”
Id.
at 402, 610 S.E.2d at 361. In
Viar, the majority opinion addressed
an issue not raised or argued by the plaintiff which was the basis
of the Industrial Commission's decision, namely, the reasonableness
of the defendant's decision to delay installation of median
barriers at a dangerous location.
Id. By addressing an issue not
raised by either party, the appellee did not have notice of the
issue and did not address the issue in its brief. Our Supreme
Court stated “[a]s this case illustrates, the Rules of Appellate
Procedure must be consistently applied; otherwise, the Rules becomemeaningless, and an appellee is left without notice of the basis
upon which an appellate court might rule.”
Id.
In this case, we choose to invoke Rule 2 upon our own
initiative to “expedite decision in the public interest”
(See footnote 1)
for the
following reasons. First, our review of the record indicates the
trial court failed to instruct on an essential element of the crime
of felonious damage to computers, to wit: the damage must exceed
$1,000.00. A pattern jury instruction does not exist for this
statutory crime, and the lack of a pattern jury instruction may
have facilitated the error in this case. Additionally, there are
no cases interpreting, analyzing, citing, or explaining Article 60
“Computer-Related Crime” of Chapter 14 of our General Statutes.
Specifically, section 14-455 of our General Statutes has never been
addressed by our appellate courts. Thus, even if a trial court was
inclined to fashion a jury instruction from the applicable case
law, no applicable case law exists. Finally, the trial court
utilized the incorrect statutory version of section 14-455 to
charge the jury in this case. Notably, unlike the situation in
Viar, the parties have addressed these issues in their briefs and
at oral argument.
We also find that an invocation of Rule 2 is consistent with
the purpose of Rule 2. Rule 2 was enacted in 1975. In explaining
the rationale of Rule 2, the drafting committee included the
following commentary in our appellate rules:
This Rule expresses an obvious residual power
possessed by any authoritative rule-making
body to suspend or vary operation of its
published rules in specific cases where this
is necessary to accomplish a fundamental
purpose of the rules. The power does not of
course depend upon its express reservation by
the Court in the body of the Rules. It is
included here as a reminder to counsel that
the power does exist, and that it may be drawn
upon by either appellate court where the
justice of doing so or the injustice of
failing to do so is made clear to the court.
The phrase “except as otherwise expressly
provided” refers to the provision in Rule
27(c) that the time limits for taking appeal
laid down in these Rules . . . may not be
extended by any court.
N.C.R. App. P. 2, Commentary (1977). We therefore address the
merits of defendant's argument in order to clarify the law of
computer related crime in North Carolina.
See,
e.g.,
State v.
Hudson, 345 N.C. 729, 732, 483 S.E.2d 436, 438 (1997)
(stating
that, “[n]evertheless, we deny the State's request that we refuse
to review the issue now. The Court of Appeals exercised its
discretion pursuant to Rule 2 of the North Carolina Rules ofAppellate Procedure to consider this issue; we likewise exercise
our discretion pursuant to N.C.G.S. § 7A-31 to review the Court of
Appeals' decision so that the law pertaining to this issue in this
jurisdiction will be consistent and clear”).
[2] Defendant argues the trial court erred by failing to
instruct the jury regarding the amount of damages. Under N.C. Gen.
Stat. § 14-455(a) (1999), the statute in effect on 20 October 2000:
It is unlawful to willfully and without
authorization alter, damage, or destroy a
computer, computer system, computer network,
or any part thereof. A violation of this
subsection is a Class G felony if the damage
caused by the alteration, damage, or
destruction is more than one thousand dollars
($1000). Any other violation of this
subsection is a Class 1 misdemeanor.
Id. Under this statute, if the computer damage does not exceed
$1,000.00, the alleged perpetrator is guilty of a Class 1
misdemeanor, and not a Class G felony.
In order to convict defendant of felonious damage to a
computer, the State was therefore required to prove beyond a
reasonable doubt, and the jury was required to so find, that the
damages in this case exceeded $1,000.00.
Compare N.C. Gen. Stat.
§ 14-72(a) (2003) (providing that “[l]arceny of goods of the value
of more than one thousand dollars ($1,000) is a Class H felony”);
State v. Jones, 275 N.C. 432, 436, 168 S.E.2d 380, 383 (1969)
(emphasis omitted) (stating that, in order “to convict of thefelony of larceny, it is incumbent upon the State to prove beyond
a reasonable doubt that the value of the stolen property was more
than two hundred dollars [now $1,000.00]; and, value in excess of
two hundred dollars being an essential element of the offense, it
is incumbent upon the trial judge to so instruct the jury”). As
such, the trial court was required to instruct the jury regarding
valuation of damages in excess of $1,000.00.
See Jones, 275 N.C.
at 436-437, 168 S.E.2d at 383 (stating that, “[t]he basis for this
requirement is the elementary proposition that the credibility of
the testimony, even though unequivocal and uncontradicted, must be
passed upon by the jury”).
The trial court here, however, failed to instruct the jury
regarding the essential element of valuation. Absent such
instruction, the jury did not fix the value of the damages as in
excess of $1,000.00. Hence, the jury verdict did not establish
defendant was guilty of the felony of damaging computers of a value
in excess of $1,000.00.
See id. (holding that, as the trial court
did not instruct on the essential element of valuation for the
crime of felonious larceny, the jury failed to find that the
larceny of which the defendant was convicted related to property of
a value of more than $200.00 (now $1,000.00), and the verdict had
to therefore be considered a verdict of guilty of larceny of
personal property of a value of $200.00 (now $1,000.00) or less);
State v. Holloway, 265 N.C. 581, 583, 144 S.E.2d 634, 635 (1965)
(holding that, where no instructions are given on value, a judgment
of felonious larceny must be vacated);
State v. Cooper, 256 N.C.
372, 381, 124 S.E.2d 91, 98 (1962) (same);
State v. Keeter, 35 N.C.
App. 574, 575, 241 S.E.2d 708, 709 (1978) (noting that “although
the judgment of felonious larceny must be vacated where no
instructions were given on value, the verdict will stand, and the
case is to be remanded for entering a sentence consistent with a
verdict of guilty of misdemeanor larceny”).
Moreover, the State presented no evidence that the damage
caused by defendant to Dr. Kirby's computer exceeded $1,000.00.
Neither Dr. Kirby nor Payne testified regarding the amount of any
lost claims. Nor was evidence presented regarding the value of
Payne's services in recovering any lost data. Although the
indictment against defendant alleged economic harm in the amount of
thirty thousand dollars, the State failed to introduce evidence at
trial to support such a finding by the jury. We must therefore
vacate defendant's judgment and remand this case for entry of
judgment and sentencing on the misdemeanor of damaging computers.
II. Motion to Dismiss
[3] By further assignment of error, defendant contends the
trial court erred in denying her motion to dismiss on the ground
that the State failed to present evidence that she acted withoutauthorization or that she damaged Dr. Kirby's computer. We
disagree.
Defendant contends the State failed to present evidence that
she acted without authorization when she removed the software from
Dr. Kirby's computer. For computer-related crimes, “authorization”
is defined as “having the consent or permission of the owner, or of
the person licensed or authorized by the owner to grant consent or
permission to access a computer, computer system, or computer
network
in a manner not exceeding the consent or permission.” N.C.
Gen. Stat. § 14-453(1a) (1999) (emphasis added). Defendant argues
that, as the computer software belonged to her, she acted within
her authority in removing it. Dr. Kirby testified, however, that
defendant's actions in removing the software also resulted in a
loss of all of his patient data stored on his computer's hard
drive. Both the data and the computer hard drive were the property
of Dr. Kirby. Although defendant was certainly authorized to
access the computer, Dr. Kirby employed defendant to enter patient
data onto his computer, not to delete such files. Such action
clearly “exceeded the consent or permission” of Dr. Kirby, the
owner of the computer, and thereby violated the statute. The trial
court did not err in denying defendant's motion to dismiss.
[4] Defendant also contends the State failed to prove that she
damaged the computer because there was no evidence that sheintroduced a computer virus into Dr. Kirby's computer system. The
version of section 14-455 of our General Statutes in effect on 20
October 2000 provided that:
(a) It is unlawful to willfully and
without authorization alter, damage, or
destroy a computer, computer system, computer
network, or any part thereof. A violation of
this subsection is a Class G felony if the
damage caused by the alteration, damage, or
destruction is more than one thousand dollars
($1,000). Any other violation of this
subsection is a Class 1 misdemeanor.
(b) This section applies to alteration,
damage, or destruction effectuated by
introducing, directly or indirectly, a
computer program (including a self-replicating
or a self-propagating computer program) into a
computer, computer system, or computer
network.
N.C. Gen. Stat. § 14-455 (1999). Defendant contends subsection (b)
of section 14-455 in effect modifies subsection (a) to limit the
crime of damage to computers to damages caused by computer viruses
only. This argument has no merit. As the State notes, defendant
erroneously asserts that the term “'applies to'” means “'is defined
as.'” Under defendant's reasoning, both subsections refer to the
same crime. We agree with the State that, rather than limiting
subsection (a), subsection (b) creates a new separate offense
relating to a computer virus. We overrule this assignment of
error.
III. Indictment
[5] Finally, defendant argues that the charges against her
should have been dismissed in that the indictment against her was
fatally flawed. The indictment against defendant charged she
damaged computers by “unlawfully, willfully and feloniously . . .
entering a controlled computer system from an outside line without
the knowledge or consent of the owner . . . for the purpose of
damaging the system by deleting operational and system files
causing a loss . . . of $30,000.00.” Defendant contends the
indictment nowhere alleges she “'altere[d], damage[d] or
destroy[ed]'” a computer and that a fatal variance therefore exists
between the indictment and the evidence adduced at trial. We
disagree.
“An indictment charging a statutory offense must allege all of
the essential elements of the offense.”
State v. Snyder, 343 N.C.
61, 65, 468 S.E.2d 221, 224 (1996).
“An indictment is sufficient in form for
all intents and purposes if it expresses the
charge in a plain, intelligible and explicit
manner. It will not be quashed 'by reasons of
any informality or refinement, if[,] in the
bill or proceeding, sufficient matter appears
to enable the court to proceed to judgment.'
[
State v. Russell, 282 N.C. 240, 244, 192
S.E.2d 294, 296 (1972)]. It is generally held
that the language in a statutorily prescribed
form of criminal pleading is sufficient if the
act or omission is clearly set forth so that a
person of common understanding may know what
is intended.”
Id. at 66, 468 S.E.2d at 224 (citations omitted) (quoting
State v.
Coker, 312 N.C. 432, 434-35, 323 S.E.2d 343, 346 (1984)). Here, the indictment was sufficiently plain and intelligible
and charged defendant with all of the essential elements of the
crime of damaging computers. The indictment alleged that defendant
(1) “unlawfully, willfully and feloniously”; (2) “without the
knowledge or consent of the owner”; (3) “enter[ed] a controlled
computer system . . . for the purpose of damaging the system by
deleting operational and system files”; thereby (4) “causing a
loss.” The State presented evidence at trial from which the jury
could find defendant damaged Dr. Kirby's computer by deleting
important patient and other data from the hard drive without
authority or consent. The indictment against defendant was
therefore not fatally flawed, and we overrule this assignment of
error.
In conclusion, we hold the trial court erred in failing to
instruct the jury on an essential element of the crime of felonious
damage to computers. In light of our decision, we need not address
defendant's remaining assignment of error. We vacate the judgment
of the trial court and remand this case for entry of judgment and
sentence on the misdemeanor crime of damaging computers.
Vacated and remanded.
Judges HUDSON and GEER concur.
Footnote: 1