Indictment Defective for Failure to Plead Computer Fraud as a Continuing Course of Conduct

 State v. Shaw (HSC October 1, 2021)

Background. Susan Shaw was prosecuted for one count of computer fraud in the third degree and fraudulent use of a credit card. In the indictment, the prosecution pleaded in the computer fraud count that from January 16, 2017 through and including May 18, 2017, Shaw “did knowingly access a computer, or computer network with the intent to commit the offense of theft in the third degree[.]” The count also provided the elements to theft in the third degree. Shaw moved to dismiss the indictment based on lack of probable cause. Shaw argued that aggregating the amounts for the thefts into a single felony is not permitted under the computer fraud statute. The motion was denied. Shaw was convicted as charged and the circuit court—the Hon. Judge Fa‘auuga L. To‘oto‘o presiding—sentenced her to five years imprisonment. She appealed to the ICA. The ICA held that the credit card offense should have been dismissed. The ICA vacated judgment and remanded the case back to a new trial on the computer fraud count only. Shaw petitioned to the HSC.

 

Computer Fraud can be Prosecuted Based on the Aggregate of Multiple Transactions . . . The HSC held that the ICA was correct in concluding that the offense allows the aggregation of multiple transactions into a single offense. “A person commits the offense of computer fraud in the third degree if the person knowingly accesses a computer, computer system, or computer network with the intent to commit the offense of theft in the third or fourth degree.” HRS § 708-891.6. The offense requires the specific intent to commit either theft in the fourth degree. In other words, the HSC needed to resolve if the offense could be prosecuted under a continuing course of conduct theory.

 

The continuing offense doctrine determines “whether the individual acts are prohibited, or the course of action which they constitute.” Blockburger v. United States, 284 U.S. 299, 302 (1932). Whether an offense allows the continuous course of conduct theory turns on the language of the statute. “[W]hether a crime may be charged on a continuous conduct theory is whether the language, structure, and purpose of the statute reveals a legislative intent to criminalize continuing conduct.” State v. Decoite, 132 Hawai'i 436, 438, 323 P.3d 80, 81 (2014). More specifically, courts examine if the conduct “is statutorily defined as an uninterrupted and continuing course of conduct, or manifests a plain legislative purpose to be treated as such or both[.]” State v. Arceo, 84 Hawai'i 1, 19, 928 P.2d 843, 861 (1996). And even more specifically, if the statute criminalizes “acts that essentially are of a transitory nature or brief duration,” then the Legislature did not permit a continuous course of conduct theory. State v. Temple, 65 Haw. 261, 267, 650 P.2d 1358, 1362 (1982). On the other hand, when the statute “describes an ongoing course of conduct,” the theory is permitted. Id.

 

The HSC examined the conduct element in computer fraud—“accessing” a computer. Access means “to gain entry to, instruct, communicate with, store data in, retrieve data from, or otherwise make use of any resources of a computer, computer system, or computer network.” HRS § 708-890. For the HSC, this language strongly suggests that the criminalized conduct was more than a “transitory” or brief encounter. It criminalizes an “ongoing process” And so the HSC held that computer fraud can be a continuous course of conduct.

 

. . . But you have to Plead it. Having held that the prosecution can bring computer fraud as a continuing course of conduct, the HSC examined if it did here. The indictment failed to aver that Shaw’s “access” was a continuing course of conduct. The argument of a defective charging instrument was raised for the first time on appeal. That means the indictment must be “liberally construed.” State v. Motta, 66 Haw. 89, 90, 657 P.2d 1019, 1019-1020 (1983); State v. Wells, 78 Hawai'i 373, 381, 894 P.2d 70, 78 (1995).

 

Under the Motta-Wells standard, appellate courts will not vacate the conviction for defective pleading “unless the defendant can show prejudice or that the indictment cannot within reason be construed to charge a crime.” Motta, 66 Haw. at 91, 657 P.2d at 1020. The liberal construction also allows the appellate court to look to other counts in the same indictment and read them together. State v. Sprattling, 99 Hawai'i 312, 319, 55 P.3d 276, 383 (2002).

 

Elements, however, are essential. When an element is omitted in the charging instrument, the charge fails to state an offense. State v. Baker, 146 Hawai'i 299, 308, 463 P.3d 956, 965 (2020).

 

The Problem with this Indictment. The HSC examined the indictment and held that the computer fraud count was defective—even under a liberal construction. Computer fraud in the third degree requires the specific intent to commit theft in either the third or fourth degree. HRS § 708-891.6. The indictment did not aver any intent to commit theft in the fourth degree and it failed to aver the conduct was in the aggregate or a continuing course of conduct. That meant for the HSC that an essential element was missing. The HSC held that “the indictment must allege that the defendant acted pursuant to a scheme or course of conduct” when computer fraud is based on the aggregation theory. The scheme or course of conduct is an element that the prosecution must prove beyond a reasonable doubt. The HSC vacated the order denying Shaw’s motion to dismiss.