Kinslow v. State ( 2021 )

In the Supreme Court of Georgia
Decided: June 21, 2021
S20G1001. KINSLOW v. THE STATE.
PETERSON, Justice.
Jereno Sadatrice Kinslow appeals his felony conviction for
computer trespass in violation of OCGA § 16-9-93 (b) (2). The
conviction is premised on evidence that Kinslow altered his
employer’s computer network settings so that e-mail messages
meant for Kinslow’s boss would also be copied and forwarded to
Kinslow’s personal e-mail account. The Court of Appeals affirmed
Kinslow’s conviction, and we granted Kinslow’s petition for
certiorari, posing the question of whether Kinslow’s conduct
constituted a violation of OCGA § 16-9-93 (b) (2). Although the
statute in general is extremely broad, the portion of (b) (2) on which
the State exclusively relies does not reach Kinslow’s conduct.
Accordingly, we conclude that the evidence presented at Kinslow’s
trial was insufficient to support his conviction under Jackson v.
Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979), and we
reverse.
Viewed in the light most favorable to the verdict, the evidence
presented at trial shows that, in 2013, Kinslow was an information
technology (“IT”) employee of the City of Norcross (“the City”). In
October 2013, Greg Cothran was hired to manage the IT
department, with an objective to increase the reliability and
efficiency of the City’s computer system. Shortly after Cothran
started his new position, he began having difficulties with Kinslow.
In November 2013, Cothran criticized Kinslow’s work performance,
which led to an argument and a loud outburst from Kinslow. Due to
Kinslow’s behavior, Cothran became concerned that Kinslow might
damage the City’s computer network. As a result, Cothran
attempted to place certain safety measures on the system, and
Kinslow’s employment was eventually terminated in June 2014.
In August 2014, Monique Lang, the City Clerk, sent an e-mail
2
from her work account to Cothran at his work account. Lang
addressed this message solely to Cothran. In response, Lang
received a “bounce-back” e-mail notification stating, in relevant
part, that Lang’s e-mail was undeliverable to a recipient with an
“@me.com” e-mail address. Lang alerted Cothran about this
occurrence, and subsequent investigation revealed that the
@me.com e-mail address was a personal account that had been
established by Kinslow. The City also discovered that the City’s
computer network settings had been altered by checking a box in the
City’s computer program to cause Cothran’s incoming e-mail
messages to be copied and forwarded to Kinslow’s personal @me.com
account. The forwarding of Cothran’s e-mail messages began in
approximately December 2013, while Kinslow was still employed by
the City. At that time, only Cothran and Kinslow had the necessary
“administrator-level access” to alter the settings in order to forward
Cothran’s incoming e-mails. This forwarding continued until it was
discovered in August 2014, two months after Kinslow’s termination.
Evidence indicates that Kinslow routinely accessed the @me.com
3
account from his cell phone prior to discovery by the City.
At the end of a jury trial, Kinslow was found guilty of one count
of violating OCGA § 16-9-93 (b) (2) and sentenced to ten years of
probation. The Court of Appeals affirmed. See Kinslow v. State, 353
Ga. App. 839 (839 SE2d 660) (2020). The only question before this
Court is whether the evidence presented at trial supported
Kinslow’s conviction for computer trespass under OCGA § 16-9-93
(b) (2).1
When we consider whether the evidence [was] legally
sufficient to sustain a conviction under Jackson, we view
the evidence in the light most favorable to the verdict,
draw every reasonable inference from the evidence that is
favorable to the verdict, ignore any conflicts or
inconsistencies in the evidence, assume that the jury
reasonably believed every word of testimony favorable to
the verdict and reasonably disbelieved every word
unfavorable to it, and only then inquire whether any
reasonable person could conclude that the State has
proved the guilt of the accused beyond a reasonable doubt.
1 The Court of Appeals concluded that Kinslow’s challenge to the
accusation was not properly before that court, as he did not file a general
demurrer or a motion in arrest of judgment. See Kinslow, 353 Ga. App. at 841
(1). That court also concluded that the trial evidence was sufficient under
Jackson. See id. at 842-843 (2). We granted certiorari only as to the Court of
Appeals’s determination that the evidence was sufficient, and this opinion
addresses only that issue.
4
Debelbot v. State, 308 Ga. 165, 168 n.6 (839 SE2d 513) (2020) (citing
Jackson, 443 U.S. at 319).
OCGA § 16-9-93 (b) (2) defines the offense of computer
trespass, in relevant part, as “us[ing] a computer or computer
network with knowledge that such use is without authority and with
the intention of . . . [o]bstructing, interrupting, or in any way
interfering with the use of a computer program or data.” Kinslow
was charged with committing computer trespass by “us[ing] a
computer network with knowledge that such use was without
authority and with the intention of obstructing and interfering with
data from a computer, by copying Greg Cothran’s e-mails and
causing them to be forwarded to his own private e-mail account.”
The State thus was required to prove that Kinslow used a computer
network knowingly without authority with the intention of
obstructing or interfering with the use of data.2 We conclude that
2 The trial court gave the jury an instruction broader than the basis on
which Kinslow was charged in the accusation:
I charge you that a person commits the offense of computer
5
the evidence presented at trial was insufficient to prove that
trespass when such person uses a computer or computer network
with knowledge that such use is without authority and with the
intention of: deleting or in any way removing, either temporarily
or permanently, any computer program or data from a computer
or a computer network; or obstructing, interrupting, or in any way
interfering with the use of a computer program or data; or altering,
damaging, or in any way causing the malfunction of a computer,
computer network, or a computer program, regardless of how long
the alteration, damage, or malfunction persists.
The State in its brief to this Court, however, expressly waived any reliance on
the “computer program” language in the “use of a computer program or data”
phrase of the statute. While we are not bound by such a concession, see Holt v.
Ebinger, 303 Ga. 804, 808 n.3 (814 SE2d 298) (2018), we choose to accept it
here, particularly given the potential due process concerns involved in
convicting a defendant on a ground not charged in the accusation. See Pippen
v. State, 299 Ga. 710, 713 (2) (b) (791 SE2d 795) (2016) (“We have held that the
giving of a jury instruction which deviates from the indictment violates due
process where there is evidence to support a conviction on the unalleged
manner of committing the crime and the jury is not instructed to limit its
consideration to the manner specified in the indictment.” (citation and
punctuation omitted)). We express no opinion on whether there was sufficient
evidence to convict Kinslow under OCGA § 16-9-93 (b) (2) for “[o]bstructing,
interrupting, or in any way interfering with the use of a computer program,”
or whether, even if there had been sufficient evidence, due process would
nevertheless forbid conviction on that ground.
In addition, although the State’s brief to this Court does not disclaim
reliance on the “interrupting” language of the statute as explicitly as it does
the “use of a computer program” language of the statute, the State does say the
question for this Court is “whether Appellant’s actions of altering network
settings to cause the e-mails to be forwarded was done with the intention of
obstructing or interfering with data[.]” On the other hand, in arguing that
Kinslow’s actions amounted to “obstructing . . . the use of . . . data,” the State
uses “interrupting” as one possible definition of “obstructing.” At any rate, as
discussed below, we reject this argument that Kinslow’s actions amounted to
“interrupting” the use of data.
6
Kinslow’s use was done with the intention of obstructing or
interfering with the use of data.3
“The fundamental rules of statutory construction require us to
construe [a] statute according to its own terms, to give words their
plain and ordinary meaning, and to avoid a construction that makes
some language mere surplusage.” La Fontaine v. Signature
Research, Inc., 305 Ga. 107, 108 (823 SE2d 791) (2019) (citation and
punctuation omitted). “In construing language in any one part of a
statute, a court should consider the statute as a whole.” Id.The Court of Appeals concluded simply that Kinslow’s “act of
altering network settings to copy and redirect his supervisor’s
incoming e-mail . . . amounts to conduct sufficient to constitute the
offense of computer trespass, i.e., ‘[o]bstructing, interrupting, or in
any way interfering with the use of a computer program or data.’”
Kinslow, 353 Ga. App. at 842 (1). The State in particular argues here
3The Court of Appeals stated that “[i]t is undisputed that Kinslow did
not have authority or permission to forward his supervisor’s e-mail[.]” Kinslow,
353 Ga. App. at 842 (1).
7
that the evidence authorized the jury to conclude that Kinslow
“acted with the intention of obstructing or interfering with data.” 4
We disagree.
We can reject fairly quickly the State’s argument that the
evidence supported a finding that Kinslow acted with the intention
of “obstructing” data. Using a dictionary contemporaneous with the
1991 enactment of the statute, “obstruct” may be defined as “to block
or stop up . . . with obstacles or impediments”; “to hinder” or
“impede”; or “to cut off from being seen.” See Webster’s New World
Dictionary of American Language 983 (2d College ed. 1980).
Contrary to the State’s suggestion, the State presented no evidence
that Kinslow’s e-mail forwarding scheme “blocked” or even
“hindered” the flow of data in the form of e-mails to Cothran, who
continued to receive those e-mails intended for him. Rather, the
evidence showed only that Kinslow’s actions created an additional
4 The statutory language actually prohibits “interfering with the use of
. . . data.” OCGA § 16-9-93 (b) (2) (emphasis supplied). We observe that
interfering with data is not necessarily the same as interfering with “the use
of” data. But this case does not require us to examine any such distinction.
8
flow of data to another account. And although the State suggests
that “interrupt” is another meaning of the term “obstruct,” that does
not help the State at all. “Interrupt” carries a similar definition of
stopping or hindering, although “interrupt” often denotes a more
temporary stoppage than “obstruct,” such as “to make a break in the
continuity of.” See id. at 737. Again, the State presented no evidence
that Kinslow’s actions hindered the flow of e-mails to Cothran,
either permanently or temporarily.
As discussed in more detail below, the term “interfere” carries
a range of meanings, from merely meddling where one’s help or
interest is unwelcome, to stopping something from happening. Thus,
the question of whether Kinslow acted with the intention of “in any
way interfering” with the use of data is a closer question. But canons
of statutory construction indicate that the term “interfering” as used
in OCGA § 16-9-93 (b) (2) carries a narrower definition akin to
“hindering” — in this context, hindering the use of data. We conclude
that Kinslow’s actions did not violate that narrower definition.
Dictionary definitions of “interfere” contemporaneous with the
9
enactment of the statute include meanings such as “intrude in the
affairs of others,” “meddle,” and “intervene.” See The American
Heritage Dictionary of the English Language 940 (3d ed. 1992);
Black’s Law Dictionary 814 (6th ed. 1990). The State also cites
language from an academic work included in a legal dictionary, to
suggest that “interference” happens whenever one “‘bring[s] about a
particular result which is different from that which would have been
produced if the mechanism had been allowed unaided to follow its
inherent principles.’” See Black’s Law Dictionary (11th ed. 2019)
(quoting 2 Friedrich A. Hayek, Law, Legislation, and Liberty 128-
129 (1976)). That is a particularly broad definition.
But other dictionaries from the relevant time period also
include much narrower definitions of “interfere” closer to “obstruct,”
such as “[t]o check; hamper; hinder; [or] infringe”; “to come into
collision or opposition”; and “[t]o come between so as to be a
hindrance or an obstacle.” See The American Heritage Dictionary of
the English Language 940 (3d ed. 1992); Black’s Law Dictionary 814
(6th ed. 1990); Webster’s New World Dictionary of the American
10
Language 734 (2d College ed. 1980). And Georgia case law reflects
this narrower sort of definition of “interfere.” See Huckaby v.
Cheatham, 272 Ga. App. 746, 751 (1) (612 SE2d 810) (2005) (parking
on easement for shared driveway would “interfere” with neighbor’s
ingress and egress over the easement because it would “hinder or
infringe” on neighbor’s ability to use the easement); Ratliff v. State,
133 Ga. App. 256, 256-257 (3) (211 SE2d 192) (1974) (rejecting
challenge to jury charge on what constitutes “interfering” with police
officers in the performance of their lawful duties, noting that the
trial court said, “I think the test that the law requires would be that
it effectively hindered or impeded the law enforcement in the
carrying out of their duties”).
It is important to remember that “when we determine the
meaning of a particular word or phrase in a constitutional provision
or statute, we consider text in context, not in isolation.” Elliott v.
State, 305 Ga. 179, 186 (II) (B) (824 SE2d 265) (2019); see also Upper
Chattahoochee Riverkeeper, Inc. v. Forsyth County, 318 Ga. App.
499, 502 (1) (734 SE2d 242) (2012) (“[E]ven if words are apparently
11
plain in meaning, they must not be read in isolation and instead,
must be read in the context of the regulation as a whole.”). And
several canons of construction addressing the importance of
examining the context in which a word appears point us toward a
narrower definition of “interfering.”
First, under the canon of noscitur a sociis, the word
“interfering” should be understood in relation to the other words in
the statute, because “words, like people, are judged by the company
they keep.” Warren v. State, 294 Ga. 589, 590-591 (1) (755 SE2d 171)
(2014) (citation and punctuation omitted). In particular, we
normally should “avoid ascribing to one word a meaning so broad
that it is inconsistent with its accompanying words, thus giving
unintended breadth to” an act of the General Assembly. Gustafson
v. Alloyd Co., 513 U.S. 561, 575 (115 SCt 1061, 131 LE2d 1) (1995).
Here, this canon counsels us to afford “interfering” a meaning that
is consistent with the category of words to which “obstructing” and
“interrupting” belong, if such a meaning is reasonable. See id. at
573-575 (applying noscitur a sociis canon to conclude that § 2 (10) of
12
the federal Securities Act of 1933, which defined a “prospectus” as
“any prospectus, notice, circular, advertisement, letter, or
communication, written or by radio or television, which offers any
security for sale or confirms the sale of any security,” refers only to
documents of wide dissemination, not all written communications).
As noted above, “obstruct” and “interrupt” carry meanings akin to
“hinder” or “stop.” A meaning of “interfering” consistent with the
terms “obstructing” and “interrupting” thus would be more like “to
come between so as to be a hindrance or an obstacle” than merely
“intruding,” “meddling,” or “intervening.”
Often applied in conjunction with the noscitur a sociis canon,
the canon of ejusdem generis also counsels reading “interfering”
narrowly.
[W]hen a statute or document enumerates by name
several particular things, and concludes with a general
term of enlargement, this latter term is to be construed as
being ejusdem generis (i.e., of the same kind or class) with
the things specifically named, unless, of course, there is
something to show that a wider sense was intended.
Ctr. for a Sustainable Coast v. Coastal Marshlands Protection
Comm., 284 Ga. 736, 737-738 (1) (670 SE2d 429) (2008) (citation
13
omitted). Here, “interfering” is a general term of enlargement and
thus should be construed as being of the same kind or class as
“obstructing” and “interrupting.” Again, that means we should
construe “interfering” as requiring a level of disruption
commensurate with the meanings of the preceding words “obstruct”
and “interrupt,” something more narrow than merely inserting
oneself into a situation without request or necessity. See id. at 739
(1) (limiting meaning of “otherwise alter” in OCGA § 12-5-286 (a),
which declared that “[n]o person shall remove, fill, dredge, drain, or
otherwise alter” marshlands without first obtaining a permit, to
altering in a physical manner akin to removing, filling, dredging, or
draining); see also Inquiry Concerning Crawford, 310 Ga. 403, 409
(851 SE2d 572) (2020) (Blackwell, J., concurring) (explaining that
applying ejusdem generis suggests that constitutional provision for
judges to be “removed, suspended, or otherwise disciplined” does not
include power to forever disqualify someone from holding judicial
office again).
Moreover, courts “typically use ejusdem generis to ensure that
14
a general word will not render specific words meaningless.” CSX
Transp., Inc. v. Ala. Dept. of Revenue, 562 U.S. 277, 295 (131 SCt
1101, 179 LE2d 37) (2011) (italics in original). And, relatedly,
“courts should avoid a statutory construction that will render some
of the statutory language mere surplusage.” Thornton v. State, 310
Ga. 460, 469 (3) (851 SE2d 564) (2020) (citation and punctuation
omitted); see also Campaign for Accountability v. Consumer Credit
Research Found., 303 Ga. 828, 832 (2) (815 SE2d 841) (2018).
If OCGA § 16-9-93 (b) (2) is as broad as the State suggests,
“obstructing” and “interrupting” become entirely surplusage and
redundant; in such an event, the relevant text would need to list only
“interfering.” 5 We should presume that the General Assembly
5 Such a construction of OCGA § 16-9-93 (b) (2) also would potentially
render superfluous other subsections of OCGA § 16-9-93, particularly § 16-9-
93 (b) (1) (“Any person who uses a computer or computer network with
knowledge that such use is without authority and with the intention of . . .
[d]eleting or in any way removing, either temporarily or permanently, any . . .
data from a computer or computer network . . . shall be guilty of the crime of
computer trespass.”). The definition relied on by the State also might render
superfluous OCGA § 16-9-93 (c), which proscribes “us[ing] a computer or
computer network with the intention of examining any employment, medical,
salary, credit, or any other financial or personal data relating to any other
person with knowledge that such examination is without authority[.]” Indeed,
15
included the words “obstructing” and “interrupting” for a reason and
avoid reading “interfering” so broadly as to effectively render the
preceding terms unnecessary. See Gustafson, 513 U.S. at 574-575(applying the canon against surplusage to the effect that reading
“communication” to include every written communication “would
render ‘notice, circular, advertisement, [and] letter’ redundant”).
On the other hand, defining “interfering” along the lines of
“coming in between so as to be a hindrance or an obstacle” is not so
narrow a definition that it means precisely the same thing as
“obstructing” or “interrupting.” As noted above, “obstruct” often
means to stop or block passage of something; in this sort of case, it
might mean to stop the flow of data altogether. “Interrupt” can mean
to inflict more of a temporary stoppage, in the sense of making a
break in the continuity of something; in this sort of case, it might
it is possible that Kinslow could have been charged properly under subsection
(c) in this case, assuming that that the State could have proved that Kinslow
used the City’s computer network to copy and forward Cothran’s e-mails with
the intention of examining Cothran’s personal data. The other provisions of
OCGA § 16-9-93 are broad and provide ample means to deter and punish a
wide range of conduct, without expanding the meaning of “interfering” as used
in OCGA § 16-9-93 (b) (2).
16
mean that the data stops flowing intermittently or temporarily.
Even ascribing to “interfering” the narrow meaning of “hindering,”
“interfering” is a term of enlargement that has some overlap with
the terms “obstructing” and “interrupting,” but also means
something additional. Applying this definition, the term
“interfering” could mean a slowing of the flow of data that is neither
“obstructing” or “interrupting” — for example, changing a network’s
e-mail settings such that a particular account receives e-mails five
minutes after all other intended recipients do.
Applying each of the above canons — noscitur a sociis, ejusdem
generis, and the canon against surplusage — leads to the conclusion
that “interfering” as used in OCGA § 16-9-93 (b) (2) requires a level
of disruption consistent with the level of disruption inherent in the
meanings of “obstructing” and “interrupting.” Thus, proving that a
person violated OCGA § 16-9-93 (b) (2) by “interfering” with the use
of data requires proof that a person engaged in a level of interference
that hindered the use of data.
But even if such meaning was not entirely clear, and if we were
17
to conclude that the statute is ambiguous on this point, the rule of
lenity should resolve this ambiguity against the State. For more
than 50 years, this Court has recognized and employed the rule of
lenity when construing statutes in criminal cases. See, e.g., Gee v.
State, 225 Ga. 669, 676 (7) (171 SE2d 291) (1969). “Under the rule of
lenity, ambiguity in a statute defining a crime or imposing a penalty
should be resolved in the defendant’s favor.” State v. Hanna, 305 Ga.
100, 103 (2) (832 SE2d 785) (2019) (citation and punctuation
omitted); see also State v. Hudson, 303 Ga. 348, 353 (3) n.5 (812
SE2d 270) (2018). It “is applied only when an ambiguity still exists
after having applied the traditional canons of statutory
construction.” Hanna, 305 Ga. at 102 (2) (citation omitted). Here, if,
after consideration of the other canons of construction, there were
still ambiguity as to whether “interfering” should be read in its
narrow sense akin to “hindering,” we would adopt that narrower
construction. See Adams v. State, 340 Ga. App. 1, 6-7 (1) (795 SE2d
18
330) (2016) (Peterson, J.). 6
Finally, the use of the phrase “in any way” prior to “interfering”
does not mean that we must interpret the term “interfering” more
broadly. That phrase does not tell us which of the definitions of
“interfering” applies; it just says that whatever “interfering” means,
undertaking that action “in any way” qualifies. As discussed above,
the term “interfering” may be defined in a variety of different, non-
overlapping ways. A word means something particular, not several
different things simultaneously.
In the context of this statute, the most plausible meaning of
“interfering” is hindering the use of data in some way. Applying this
narrow construction, the State did not present sufficient evidence as
a matter of constitutional due process to convict Kinslow as charged
under OCGA § 16-9-93 (b) (2). On this record, a rational jury could
6 Application of the rule of lenity is not necessary to the conclusion that
we ultimately reach here. And we certainly need not rely on the apparently
far-reaching breadth of the statute as constructed by the State. But as the
United States Supreme Court recently observed in a case about a similar
federal statute, the State’s “interpretation of the statute would attach criminal
penalties to a breathtaking amount of commonplace computer activity.” Van
Buren v. United States, 593 U.S. __, __ (141 SCt 1648) (2021). This potential
“fallout underscores the implausibility of the [State]’s interpretation.” Id.
19
conclude at most that Kinslow altered the City’s computer network
settings to cause a colleague’s incoming e-mail messages to be copied
and forwarded to a personal account associated with Kinslow. There
is no evidence that Kinslow by his actions hindered the flow of data
to any intended recipient or otherwise hindered the use of data, only
evidence that he enabled a copy of that data to flow to an additional
recipient as well.
Judgment reversed. All the Justices concur, except Melton, C.
J., and Ellington and LaGrua, JJ., who dissent.
20
BETHEL, Justice, concurring.
I concur fully in the Court’s opinion and write separately only
to emphasize that the State prosecuted this case solely on the theory
that Kinslow committed the crime of computer trespass by
interfering with the use of data in violation of OCGA § 16-9-93 (b)
(2). The State did not pursue a theory that Kinslow interfered with
the operation of a computer program, which is also punishable under
the same Code section. 7 As the Court notes, following a proper
construction of the relevant language, the State did not present
evidence that Kinslow interfered with the use of data in as much as
the data in question continued to flow as it was intended. What the
evidence showed (when viewed in the light most favorable to the
verdict) is that Kinslow caused the computer program (the email
system) to replicate the data and forward that data to his own
7 Specifically, the accusation alleged that Kinslow used “a computer
network with knowledge that such use was without authority and with the
intention of obstructing and interfering with data from a computer, by copying
Greg Cothran’s emails and causing them to be forwarded to his own private
email account[.]” (emphasis supplied). Further, in its briefing, the State stated:
“[Kinslow] also contends that his conviction cannot be affirmed if he was found
to have obstructed or interfered with a computer program as he was not
charged with such[,] and [the State] agrees.”
21
private address. I question whether this conduct might be construed
as an interference with that computer program for purposes of
OCGA § 16-9-93 (b) (2). The State’s choices in its prosecution,
however, obviate the need to answer that question today.
22
MELTON, Chief Justice, dissenting.
In reaching its erroneous conclusion, the majority rewrites part
of the statute that is the subject of this case, ignores other plain
language in that same statute which compels a different result, and
upends the constitutional standard of review in sufficiency cases.
There was sufficient evidence to support the jury’s finding of guilt in
this case. Accordingly, I dissent.
OCGA § 16-9-93 (b) (2) defines the offense of computer
trespass, in relevant part, as “us[ing] a computer or computer
network with knowledge that such use is without authority and with
the intention of . . . [o]bstructing, interrupting, or in any way
interfering with the use of a computer program or data.” 8 So, the
State was required to prove two main elements to satisfy OCGA §
16-9-93 (b) (2): first, that Kinslow used a computer or computer
8 Kinslow was charged with committing computer trespass by “us[ing] a
computer network with knowledge that such use was without authority and
with the intention of obstructing and interfering with data from a computer,
by copying Greg Cothran’s e-mails and causing them to be forwarded to his
private e-mail account. . . .” Without objection, the trial court, however,
instructed the jury on the entirety of OCGA § 16-9-93 (b) (2).
23
network knowing he did not have authority to do so, and, second,
Kinslow’s use was done with the intention of obstructing,
interrupting, or interfering with the use of a computer program or
data. The sufficiency of the evidence for each of these elements will
be considered in turn.
(a) Sufficient evidence was presented at trial to prove that
Kinslow knew that his use of the City’s computer network was done
without authority. “‘Without authority’ includes the use of a
computer or computer network in a manner that exceeds any right
or permission granted by the owner of the computer or computer
network.” OCGA § 16-9-92 (18). Cothran testified that the City’s
policies allow only the mayor and members of the city council to have
their e-mails forwarded. Cothran also testified that he never gave
Kinslow permission to alter the City’s network to establish the
forwarding of Cothran’s e-mails. So, there was sufficient evidence
presented at trial to support the jury’s finding that Kinslow used a
“computer or computer network with knowledge that such use [was]
without authority.” OCGA § 16-9-93 (b) (2). See Jackson v. Virginia,
24
443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
(b) There was also sufficient evidence that Kinslow’s use of the
City’s computer network was done with the intention of
“obstructing, interrupting, or in any way interfering with the use of”
a computer program or data. Because OCGA § 16-9-93 (b) (2) lists
these three actions in the disjunctive, any one of them may be
sufficient to support a verdict of computer trespass. See Gearinger
v. Lee, 266 Ga. 167, 168 (2) (465 SE2d 440) (1996) (“The natural
meaning of ‘or,’ where used as a connective, is to mark an alternative
and present choice, implying an election to do one of two things.”)
(citation and punctuation omitted.). See also Reiter v. Sonotone
Corp., 442 U. S. 330, 339 (99 SCt 2326, 60 LE2d 931) (1979) (“Canons
of construction ordinarily suggest that terms connected by a
disjunctive be given separate meanings, unless the context dictates
otherwise.”).
(i) It is simplest here to consider the meaning of “in any way
interfering.” In doing so,
we apply the fundamental rules of statutory construction
25
that require us to construe the statute according to its
terms, to give words their plain and ordinary meaning,
and to avoid a construction that makes some language
mere surplusage. We must also seek to effectuate the
intent of the Georgia legislature. OCGA § 1-3-1 (a). In this
regard, in construing language in any one part of a
statute, a court should consider the entire scheme of the
statute and attempt to gather the legislative intent from
the statute as a whole.
Coates v. State, 304 Ga. 329, 330 (818 SE2d 622) (2018).9
Both before and after the enactment of OCGA § 16-9-93 (b) (2),
the definition of “interfere” has been consistent. “Interfere” has been
defined as “to come in or between for some purpose; to intervene . . .
9 OCGA § 16-9-91 provides the following as the legislative intent behind
creating the computer crimes involved in this case:
The General Assembly finds that:
(1) Computer related crime is a growing problem in the
government and in the private sector; (2) Such crime occurs at
great cost to the public, since losses for each incident of computer
crime tend to be far greater than the losses associated with each
incident of other white collar crime; (3) The opportunities for
computer related crimes in state programs, and in other entities
which operate within the state, through the introduction of
fraudulent records into a computer system, unauthorized use of
computer facilities, alteration or destruction of computerized
information files, and stealing of financial instruments, data, or
other assets are great; (4) Computer related crime operations have
a direct effect on state commerce; (5) Liability for computer crimes
should be imposed on all persons, as that term is defined in this
title; and (6) The prosecution of persons engaged in computer
related crime is difficult under previously existing Georgia
criminal statutes.
26
to intermeddle; to enter without invitation or right into the concerns
of others,” Webster’s New Twentieth Century Dictionary (2d ed.
1983); “to interpose in a way that hinders or impedes: come into
collision or be in opposition . . . to enter into or take a part in the
concerns of others,” Webster’s Ninth New Collegiate Dictionary (9th
ed. 1985); and “to come between so as to be a hindrance or an
obstacle . . . to intervene or intrude in the affairs of others; meddle.”
The American Heritage Dictionary of the English Language (3d ed.
1992). Black’s Law Dictionary (11th ed. 2019) primarily defines
“interfere” as “[t]he act or process of obstructing normal operations
or intervening or meddling in the affairs of others.” And, in addition,
OCGA § 16-9-93 (b) (2) provides that it is triggered when one “in any
way” interferes with computer data, thereby plainly stating that
“interfering” should be given broad meaning.
Here, the evidence showed that Kinslow, knowing that he
lacked authority to do so, accessed the City’s computer network and
27
altered the City’s computer program 10, thereby causing Cothran’s e-
mails to be duplicated and the duplicates to be diverted to Kinslow’s
personal e-mail account outside of the City’s network. Kinslow’s
actions satisfied the plain meaning of “interfering.” By manipulating
the data stream to give himself access to Cothran’s e-mails, Kinslow
intermeddled in the affairs of others and the data intended to go to
others with neither authority nor invitation. As such, there was
sufficient evidence to support a finding that Kinslow interfered with
the use of the City’s computer program and its data. See Jackson,
supra, 443 U. S. at 319 (III) (B).
Contrary to the majority opinion’s assertion, it is of no
consequence that the original e-mail made its way to Cothran’s
account. At the moment Kinslow entered into the City’s computer
program and checked the box that generated duplicate data, he had
10OCGA § 16-9-92 (4) provides:
“Computer program” means one or more statements or
instructions composed and structured in a form acceptable to a
computer that, when executed by a computer in actual or modified
form, cause the computer to perform one or more computer
operations. The term “computer program” shall include all
associated procedures and documentation, whether or not such
procedures and documentation are in human readable form.
28
committed exactly the sort of “trespass” that the statute was
intended to reach. At that point, Kinslow had improperly used the
computer to access data that he was not authorized to see. The fact
that he obtained this data from an unauthorized copy does not
diminish the crime, as trespass does not require the theft of data
from its intended recipient- it requires only that one accesses that
data from a place one is not authorized to be. The majority opinion
educates wrongdoers that they are better off from both a detection
standpoint and from prosecution as a matter of law if they simply
copy data rather than block its delivery.
Moreover, the jury was instructed on the entirety of OCGA §
16-9-93 (b) (2) without objection. As such, the jury could have
determined that there was sufficient evidence that Kinslow
interfered with either data or a computer program by checking a box
to alter his employer’s computer program in order to duplicate data
and redirect that data (in the form of an e-mail) to Kinslow’s
29
personal account. 11 The majority avoids this possible alternative
conclusion by the jury by “choosing to accept” the State’s failure on
appeal to rely on the “computer program” language of the statute.
But Jackson v. Virginia, supra, allows no such choice. Once the jury
renders its decision of guilt, the State does not have the burden on
appeal to prove that the evidence was sufficient. As such, the State
has nothing to waive, and this Court has nothing to “choose to
accept.” The State’s concession cannot relieve this Court of its duty
to independently review the transcript in the light most favorable to
the verdict. 12
11 Kinslow would not be able to avoid the crime of computer trespass
simply because a copy of Cothran’s e-mail still made its way to Cothran.
Kinslow’s act of accessing the computer system in an unauthorized manner is
the act required to commit computer trespass, not the act of preventing
Cothran from receiving his mail. This becomes even more evident when
considering the crime of computer theft, which may be committed when one
uses a computer or computer network knowingly without authority and with
the intention of taking another’s property (defined to include data under OCGA
§ 16-9-92 (13)), “whether or not with the intention of depriving the owner of
possession.” (Emphasis supplied.) OCGA § 16-9-93 (a). It is clear that Kinslow’s
unauthorized “entrance” into the computer system with the requisite intention
to interfere is all that is required for computer trespass. What happens after
that unauthorized “entrance” does not forgive the trespass that has already
occurred.
12 Tellingly, the majority cites no applicable case law supporting its
selective approach for reviewing the sufficiency of the evidence. Holt v.
30
(ii) To the extent that Kinslow contends that his actions did not
affect “data” because the definition of data under the statute must
be read to exclude e-mails, the plain language of the statute
undermines his argument. OCGA § 16-9-92 (5) provides:
“Data” includes any representation of information,
intelligence, or data in any fixed medium, including
documentation, computer printouts, magnetic storage
media, punched cards, storage in a computer, or
transmission by a computer network.
In relevant part, an “electronic communication” is defined as
any transfer of signs, signals, writing, images, sounds,
data, or intelligence of any nature transmitted in whole
or in part by a wire, radio, electromagnetic,
photoelectronic, or photo-optical system that affects
interstate or foreign commerce.
(Emphasis supplied.) OCGA § 16-9-92 (6). Thus, based on these
straightforward definitions, Kinslow’s contention that “data” must
Ebinger, 303 Ga. 804, 808 n.3 (814 SE2d 298) (2018), relied on by the majority,
ends the footnote in question with the following citation: “See Trim v. Shepard,
300 Ga. 176, 177 (794 SE2d 114) (2016) (“This Court . . . is not bound by the
litigating position of the Warden, and we have an obligation to decide for
ourselves whether the judgment of the habeas court is legally sound.”). This
“obligation to decide for ourselves” is not removed by the manner in which the
State frames its arguments, as the State, by its briefing in response to a
defendant’s sufficiency appeal, lacks the power to undo the constitutional
soundness of a jury’s verdict and alleviate an appellate court’s independent
obligation to decide the soundness of that verdict on a full record.
31
be interpreted to exclude e-mails is indefensible. “Data” includes
“any representation of information, intelligence, or data in any fixed
medium, including . . . transmission by a computer network.” An
“electronic communication” includes “any transfer of . . . data.” So,
based on the unambiguous text of the statute, “data” is inclusive of
e-mail communications, not exclusive. See, e.g., Deal v. Coleman,
294 Ga. 170, 173 (1) (a) (751 SE2d 337) (2013) (“[I]f the statutory
text is clear and unambiguous, we attribute to the statute its plain
meaning, and our search for statutory meaning is at an end.”)
(citations and punctuation omitted.).
(iii) Lastly, the State sufficiently proved that Kinslow intended
to interfere with the use of the City’s computer program and its data.
Evidence presented at trial shows that, prior to termination of his
employment, Kinslow evinced questionable behavior at work,
including a loud outburst directed at Cothran when he criticized
Kinslow’s job performance. In fact, Cothran testified that Kinslow’s
behavior was so alarming that Cothran believed that Kinslow might
attempt to damage the City’s computer network. And Kinslow’s act
32
of giving himself access to Cothran’s e-mails, which required
intentional acts to access the City’s computer program and check the
box required to forward Cothran’s e-mails to Kinslow’s personal
address, occurred in temporal proximity to Kinslow’s confrontation
with Cothran, indicative of a decision to interfere. Furthermore,
Kinslow’s access to Cothran’s e-mails continued after his
termination, until it was finally discovered by the City.
Though circumstantial, this evidence is sufficient to support
the jury’s verdict in this case. OCGA § 24-14-6 provides: “To warrant
a conviction on circumstantial evidence, the proved facts shall not
only be consistent with the hypothesis of guilt, but shall exclude
every other reasonable hypothesis save that of the guilt of the
accused.” However,
[w]hether an alternative hypothesis raised by the
defendant is “reasonable” is a question committed
principally to the jury, and where the jury is authorized
to find that the evidence, though circumstantial, was
sufficient to exclude every reasonable hypothesis save
that of the guilt of the accused, we will not disturb that
finding unless it is insupportable as a matter of law.
(Citation and punctuation omitted.). Smith v. State, 307 Ga. 680,
33
684 (838 SE2d 321) (2020). At trial, there was some testimony that
forwarding e-mails to a personal account outside of a company’s
server might be a convenient way to be able to quickly determine
whether the company’s server might be down. In addition, Kinslow
testified that his former boss, whom Cothran replaced, advised
Kinslow to use this method, but Kinslow’s former boss testified that
he could not recall whether he gave Kinslow any such directions.
Kinslow’s reliance on his former boss’s advice, possibly conveyed
before Cothran was hired, is not persuasive. If Kinslow only wanted
to monitor the network, as opposed to improperly accessing
Cothran’s e-mails, Kinslow could have forwarded his own e-mails,
not those of anyone else. Accordingly, we cannot say that the jury’s
decision to reject Kinslow’s explanation was not supportable as a
matter of law. See id. Moreover, “‘[i]t was for the jury to determine
the credibility of the witnesses and to resolve any conflicts or
inconsistencies in the evidence.’” (Citation omitted.) Vega v. State,
34
285 Ga. 32, 33 (673 SE2d 223) (2009). 13
3. In conclusion, when the evidence is viewed in the light most
favorable to the verdict and OCGA § 16-9-93 (b) (2) is given its plain
and ordinary meaning, the verdict in this case satisfied the
standards set forth in Jackson, supra, 443 U. S. at 319 (III) (B). It
makes no difference that Kinslow might have also been accused of
violating other subsections of the applicable statute, and, though
OCGA § 16-9-93 (b) (2), as it is currently written, might
hypothetically criminalize a wide range of behavior not currently
before us, that has no bearing on this appeal. Any decision to narrow
the application of the plain and ordinary meaning of the statute is a
matter for the General Assembly, not this Court. See State v.
Fielden, 280 Ga. 444, 448 (629 SE2d 252) (2006) (“[U]nder our
system of separation of powers this Court does not have the
13 Sitton v. Print Direction, Inc., 312 Ga. App. 365 (718 SE2d 532) (2011),
a case distinguishable on both its facts and holding, does not alter this result.
In Sitton, an employer, who was expressly held to be acting with authority to
do so pursuant to the company’s employee manual, printed e-mails from a
listing already displayed on the screen of his employee’s personal computer.
See id. at 368 (1).
35
authority to rewrite statutes.”).
I am authorized to state that Justice Ellington and Justice
LaGrua join this dissent.
36