State v. Adam Jilling, Gary Gagne, Daniel Anton, George Quintal ( 2022 )

June 16, 2022
June 16, 2022
Supreme Court
State : No. 2020-200-C.A.
(N2/18-350D)
v. :
Adam Jilling. :
State : No. 2020-201-C.A.
(N2/18-350C)
v. :
Gary Gagne. :
State : No. 2020-205-C.A.
(N2/18-350B)
v. :
Daniel Anton. :
State : No. 2020-208-C.A.
(N2/18-350A)
v. :
George Quintal. :
NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone (401) 222-3258 or
Email: opinionanalyst@courts.ri.gov, of any
typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
State : No. 2020-200-C.A.
(N2/18-350D)
v. :
Adam Jilling. :
State : No. 2020-201-C.A.
(N2/18-350C)
v. :
Gary Gagne. :
State : No. 2020-205-C.A.
(N2/18-350B)
v. :
Daniel Anton. :
State : No. 2020-208-C.A.
(N2/18-350A)
v. :
George Quintal. :
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
OPINION
Justice Goldberg, for the Court. These cases came before the Supreme
Court on May 12, 2022, pursuant to orders directing the parties to appear and show
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cause why the issues before us should not be summarily decided.1 The State of
Rhode Island appeals from the orders and decisions of the Superior Court granting
motions to dismiss pursuant to Rule 9.1 of the Superior Court Rules of Criminal
Procedure brought by the defendants, Adam Jilling, Gary Gagne, Daniel Anton,
and George Quintal (collectively defendants). The Superior Court dismissed
several counts of the criminal information against them alleging accessing a
computer system for fraudulent purposes, in violation of G.L. 1956 § 11-52-2, and
conspiracy. On appeal, the state argues that the trial justice erred when he
conducted what the state contends was an erroneous statutory analysis and
overlooked material facts in the criminal information that established probable
cause to believe that the defendants committed these crimes. We affirm the
decisions in all respects.
Facts and Travel
The following facts derive from the criminal information and the attached
supporting documents. In May 2018, the Rhode Island State Police began
investigating a complaint that employees at Flint Audio and Video (Flint), an
electronics and repair store and certified Apple retailer in Middletown, Rhode
1
Although these cases were appealed separately, these are related matters with
substantially similar issues. The defendants were charged in the Superior Court as
codefendants in a single criminal information, and their cases were heard and
decided together. Similarly, oral arguments were heard simultaneously. In the
interest of judicial economy and simplification, these cases are consolidated for
this opinion.
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Island, were improperly accessing the electronic devices of female customers in
order to obtain private photographs and videos. All defendants were current or
former Flint employees: Gagne was the owner; Quintal was the sales associate
manager; Anton was a sales associate2; and Jilling was a former sales associate and
manager.
The complaint was reported by a female Flint employee who observed nude
images of Flint customers in an e-mail from Quintal to Gagne and Anton. The
employee also recounted similar incidents when Quintal would deliberately target
attractive female customers and intercept them as they entered the store, in order to
personally handle their electronic devices and then search the equipment for nude
photographs. Another witness, a former Flint employee, reported having observed
Quintal accessing the customers’ devices and disseminating nude pictures and
videos to the other defendants. This information ultimately led to the discovery of
thirteen of Flint’s female customers whose electronic devices were improperly
accessed by Quintal, and whose nude images and videos were distributed to other
Flint employees.
Arrest and search warrants were obtained, and Quintal was charged with
access to a computer for fraudulent purposes and computer trespass, in violation of
2
In a police narrative included in the criminal information package, Anton was
represented to be the co-owner of Flint; he has disputed this with extrinsic
evidence presented to the Superior Court. Notwithstanding, this issue has no
bearing on our resolution of these cases.
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§ 11-52-2 and § 11-52-4.1, respectively. Several items were seized, including
electronic and storage devices containing numerous media files of images and
videos that were suspected to be of Flint customers, and electronic
communications between Quintal and other Flint employees depicting the
dissemination of those files were uncovered. The discovery of these
communications resulted in the arrests of five other Flint employees, including
defendants Gagne, Anton, and Jilling, who were parties to these communications.3
The criminal information contained ten counts against defendants: five
counts charged violations of § 11-52-2, and the remaining counts alleged
conspiracy. Count one was voluntarily dismissed, based on the statute of
limitations. The individual defendants were charged in the information as follows:
Jilling was charged with one count of conspiracy; Gagne and Anton were each
charged with one count of computer fraud under § 11-52-2 and a conspiracy count;
and Quintal was charged with all counts in the criminal information. Motions to
dismiss for lack of probable cause, in accordance with Rule 9.1, subsequently were
3
The criminal information package revealed that Gagne and Jilling actively
engaged in these conversations and requested nude images of customers from
Quintal, but that Anton was only a recipient to these communications and did not
actively engage in these conversations or request photographs.
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filed by defendants.4 The trial justice granted the motions based on his
interpretation of § 11-52-2 and lack of probable cause, concluding that defendants’
conduct did not fall within the ambit of the statute and, therefore, defendants
similarly could not be charged with conspiracy to violate § 11-52-2. The orders
dismissing the criminal charges entered on June 26, 2020. The state filed timely
appeals.
Standard of Review
“This Court reviews questions of statutory construction de novo.” State v.
Peters, 172 A.3d 156, 159 (R.I. 2017). Typically, “[i]n accordance with our well-
settled practice of statutory construction, we first determine whether these statutory
definitions, by their plain language, are clear and unambiguous.” Id. at 160.
Nevertheless, “this [C]ourt has the responsibility of effectuating the intent of the
Legislature by examining a statute in its entirety[.]” State v. Smith, 662 A.2d 1171,
1175 (R.I. 1995) (quoting In re Falstaff Brewing Corporation Re: Narragansett
Brewery Fire, 637 A.2d 1047, 1049 (R.I. 1994)); see State v. Hazard, 68 A.3d 479,
485 (R.I. 2013) (“However, * * * even when confronted with a clear and
unambiguous statutory provision, ‘it is entirely proper for us to look to the sense
and meaning fairly deducible from the context.’”) (quoting In re Brown, 903 A.2d
4The lack of clarity in the criminal information also triggered defendants’ motions
for a bill of particulars and motions to compel more responsive answers to the bill
of particulars, which answers, defendants contend, are not sufficient.
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147, 150 (R.I. 2006)). “Additionally, we remain mindful that ‘ambiguities in penal
statutes must be strictly construed in favor of the party upon whom a penalty is to
be imposed.’” Hazard, 68 A.3d at 485 (brackets omitted) (quoting State v. Clark,
974 A.2d 558, 571 (R.I. 2009)); see Smith, 662 A.2d at 1175 (“[U]nder the rules of
statutory construction, a penal statute is subject to strict and narrow
construction.”). “[T]his Court will not construe a statute to reach an absurd result.”
Long v. Dell, Inc., 984 A.2d 1074, 1081 (R.I. 2009) (brackets omitted) (quoting
Shepard v. Harleysville Worcester Insurance Co., Inc., 944 A.2d 167, 170 (R.I.
2008)).
“When reviewing a decision on a motion to dismiss, this Court accords great
weight to a trial justice’s probable-cause findings; we will not set them aside
‘unless they are clearly erroneous or fail to do justice between the parties.’” State
v. Reed, 764 A.2d 144, 146 (R.I. 2001) (quoting State v. Aponte, 649 A.2d 219,
222 (R.I. 1994)). “In determining a motion to dismiss an information for lack of
probable cause, ‘the trial justice must examine the information and the attached
exhibits to determine whether there is probable cause to believe that the offense
charged was committed and that the accused had committed it.’” Peters, 172 A.3d
at 158 (brackets omitted) (quoting Reed, 764 A.2d at 146). It is well settled that
“[a] trial justice[’s] review of whether probable cause exists is limited to ‘the four
corners of the information package.’” Id. (quoting State v. Young, 941 A.2d 124,
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128 (R.I. 2008)). “In performing this function, the trial justice should grant the
state ‘the benefit of every reasonable inference’ in favor of a finding of probable
cause.” Young, 941 A.2d at 128 (quoting State v. Jenison, 442 A.2d 866, 876 (R.I.
1982)).
Analysis
Statutory Construction
The state claims that the trial justice misinterpreted § 11-52-2 and conducted
an erroneous analysis.5 The state specifically contends that the trial justice erred in
beginning his statutory analysis “by exploring the legislative intent behind the
statutory scheme[,]” rather than “by examining the plain language of the statute,”
and by failing to “mak[e] an express finding that the language of § 11-52-2 was
ambiguous.” Even though the trial justice began with a discussion of the
legislative history of chapter 52 of title 11, we cannot fault him for addressing the
legislative background of a developing area of the law since the advent of
computers, personal electronic devices, and other technological innovations.
Although our preference generally has been to look to the statute’s plain language,
our primary focus in statutory interpretation is to remain faithful to the intent of the
Legislature, a task that sometimes calls for an initial review of the legislative
5
The state directs this Court to federal statutes with similar language as instructive
to our interpretation of G.L. 1956 § 11-52-2. We decline to consider federal law
when our own jurisprudence contains sufficient guidance for our analysis.
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history. See, e.g., State v. Jordan, 528 A.2d 731, 732 (R.I. 1987) (beginning its
statutory-interpretation analysis with an examination of the development and
legislative history of the sexual-assault statutory scheme); State v. Lussier, 511
A.2d 958, 959-60 (R.I. 1986) (same, relating to the development of the driving-
under-the-influence statutory scheme).
This Court has not had the occasion to interpret § 11-52-2, which provides,
in relevant part, as charged in the criminal information:
“Whoever directly or indirectly accesses or causes to be
accessed any * * * computer system * * * for the purpose
of * * * obtaining * * * property * * * by means of false
or fraudulent pretenses, representations, or promises
* * * shall be guilty of a felony and shall be subject to the
penalties set forth in § 11-52-5.”
Although our jurisprudence surrounding § 11-52-2 is limited, it is noteworthy that
prior cases pertaining to financial fraud have arisen. See Retirement Board of
Employees’ Retirement System v. Randall, 249 A.3d 629, 631 (R.I. 2021) (“[The]
defendant was charged by way of criminal information with felony embezzlement,
* * * and access to a computer for fraudulent purposes, in violation of G.L. 1956
§§ 11-52-2 and 11-52-5.”); see also State v. Tatro, 659 A.2d 106, 109 (R.I. 1995)
(involving a “wide-ranging credit card fraud scheme” and “twenty-five counts of
computer crime under G.L. 1956 (1981 Reenactment) § 11-52-2”).
The central issue in the cases before us is whether the property—that is, the
nude photographs and videos of Flint customers—was obtained “by means of false
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or fraudulent pretenses, representations, or promises[.]” Section 11-52-2. Because
this is the sole element upon which the trial justice based his decisions, we limit
our review to this element of § 11-52-2. Our resolution of this issue applies
equally to all defendants and also settles the remaining counts in the criminal
information.
Section 11-52-2 prohibits access to a computer system for the purpose of
obtaining property “by means of false or fraudulent pretenses, representations, or
promises[.]” Section 11-52-2. Although chapter 52 of title 11 is devoid of any
definition of the term “false or fraudulent pretenses,” the offense of obtaining
property by false pretenses is a form of larceny.
The crime of obtaining property by false pretenses is set forth in G.L. 1956
§ 11-41-4, which provides that “[e]very person who shall obtain from another
designedly, by any false pretense or pretenses, any * * * property, with intent to
cheat or defraud, * * * shall be deemed guilty of larceny.” Under § 11-41-4, “a
false pretense may be a misrepresentation of a past or existing fact [or a] promise
to perform a future act[.]”6 State v. Letts, 986 A.2d 1006, 1011 (R.I. 2010). “[T]he
crime is complete when the defendant intentionally uses false pretenses to induce
another to alter or terminate any of that person’s rights or powers concerning the
6
This definition clearly encompasses the whole phrase “false or fraudulent
pretenses, representations, or promises” found in § 11-52-2.
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* * * property with the intent to cheat or defraud that person.” State v. Fiorenzano,
690 A.2d 857, 859 (R.I. 1997) (emphasis added).7
The precise thrust of the state’s interpretation of § 11-52-2 in the context of
this criminal information is difficult to discern. What is clear, however, is that the
state insists that the criminal conduct was the access to a computer, rather than its
use. We are of the opinion that § 11-52-2 prohibits direct or indirect access to a
computer in order to obtain the property of another by means of false or fraudulent
pretenses. The gravamen of the statute is the purpose for which the computer is
being used: to commit a larcenous act—rather than the unlawful access itself. The
larceny occurs after the accused has accessed the computer as the means to
perpetrate the crime of obtaining property by false or fraudulent pretenses. Where
false or fraudulent pretenses are employed to access the computer in the first
7
Different from § 11-52-2, G.L. 1956 § 11-41-4 requires an “intent to cheat or
defraud”; nevertheless, the definition of “obtaining * * * property * * * by means
of false * * * pretenses” in § 11-52-2 remains the same as that in § 11-41-4
because of the terms “for the purpose of” and “fraudulent pretenses” in § 11-52-2,
which is the equivalent of the intent-to-defraud requirement found in § 11-41-4.
See Black’s Law Dictionary 746 (11th ed. 2019) (defining “false pretenses” as
“[t]he crime of knowingly obtaining title to another’s personal property by
misrepresenting a fact with the intent to defraud. * * * Also termed obtaining
property by false pretenses; fraudulent pretenses; larceny by false pretenses”); see
also Catherine Palo, J.D., L.L.M., 70 Am. Jur. Trials 435 § 18 (originally
published in 1999) (“The use of the word ‘purpose’ in computer crime laws
requires proof that the person charged under those laws had a specific intent to
commit a certain type of crime.”).
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instance, § 11-52-2 does not create a felony; the false or fraudulent pretenses must
be intended as the means employed to obtain the property.
“[I]t is well settled that a legislature is presumed to know of prior legislation
on the same subject matter.” State v. Lewis, 91 R.I. 110, 116, 161 A.2d 209, 213
(1960). “[I]n construing the provisions of statutes that relate to the same or to
similar subject matter, the court should attempt to harmonize each statute with the
other so as to be consistent with their general objective scope.” Billington v.
Fairmount Foundry, 724 A.2d 1012, 1013-14 (R.I. 1999) (quoting Kaya v.
Partington, 681 A.2d 256, 261 (R.I. 1996)). “This [C]ourt must assume that the
Legislature intended that statutes relating to the same subject matter be construed
together to be consistent and to effectuate the policy of the law.” Jordan, 528 A.2d
at 734.
Whether or not there was a finding that § 11-52-2 is ambiguous, an
examination of the legislative history of the statutory scheme surrounding
computer fraud is significant in our interpretation of § 11-52-2. Section 11-52-2
was first enacted in 1979 to outlaw direct or indirect access to a computer or
computer system for fraudulent purposes. See P.L. 1979, ch. 217, § 1. In that same
session, the Legislature enacted § 11-52-3, which prohibits the intentional and
unauthorized access, alteration, damage, or destruction of a computer, also as a
felony offense. See id. Subsequently, in 1983 the General Assembly added
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§ 11-52-4, prohibiting computer theft, including the theft of “data contained in a
computer[.]”8 See P.L. 1983, ch. 246, § 2. In 1999 the Legislature adopted
§ 11-52-4.1, which prohibits computer trespass.9 See P.L. 1999, ch. 421, § 2.
8
Section 11-52-4 states,
“Whoever, intentionally and without claim of right,
takes, transfers, conceals or retains possession of any
computer, computer system, computer network,
computer software, computer program, or data contained
in a computer, computer system, computer program, or
computer network with a value in excess of five hundred
dollars ($500) shall be guilty of a felony and shall be
subject to the penalties set forth in § 11-52-5. If the value
is five hundred dollars ($500) or less, then the person
shall be guilty of a misdemeanor and may be punishable
by imprisonment for a term not exceeding one year or by
a fine of not more than one thousand dollars ($1,000), or
both.”
9
Section 11-52-4.1 states, in pertinent part,
“(a) It shall be unlawful for any person to use a computer
or computer network without authority and with the
intent to:
“* * *
“(6) Make or cause to be made an unauthorized copy, in
any form, including, but not limited to, any printed or
electronic form of computer data, computer programs, or
computer software residing in, communicated by, or
produced by a computer or computer network[.]
“* * *
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These later provisions have relevance to the cases at bar. Lastly, although not
found in chapter 52 of title 11, we note that in 2018 the General Assembly enacted
G.L. 1956 § 11-64-3, proscribing unauthorized dissemination, by any means, of
indecent material, which is characterized in that section as a “sexually explicit
visual image of another person[.]” See P.L. 2018, ch. 27, § 2; P.L. 2018, ch. 28,
§ 2.
The later addition of these provisions to chapter 52 of title 11 demonstrates
the General Assembly’s intent to reach conduct that is different from that targeted
in § 11-52-2. Additionally, the fact that the Legislature enacted § 11-64-3 in 2018
to prohibit unauthorized dissemination of indecent material establishes that the
General Assembly saw a need to target and proscribe that type of behavior.
Because the Legislature is presumed to know the state of existing law, these
subsequent enactments address conduct different from that set forth in § 11-52-2.
An illustrative example is Jordan, where this Court was faced with a similar
issue of statutory interpretation. See Jordan, 528 A.2d at 732. In that case, the
defendant was convicted of first-degree child molestation sexual assault under G.L.
“(b) * * * Whoever violates this section shall be guilty of
a felony and shall be subject to the penalties set forth in
§ 11-52-2. If the value is five hundred dollars ($500) or
less, then the person shall be guilty of a misdemeanor and
may be punishable by imprisonment for a term not
exceeding one year or by a fine of not more than one
thousand dollars ($1,000) or both.” Section
11-52-4.1(a)(6), (b).
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1956 § 11-37-8.1, a felony offense carrying a maximum sentence of life
imprisonment within the sexual-assault statutory scheme.10 See id. at 731, 733. On
appeal, we held that § 11-37-8.1 was inapplicable to the defendant because the
victim—who was thirteen years and ten months old—was not “thirteen (13) years
of age or under” as specified in the statute. See id. at 734, 735; see also
§ 11-37-8.1, as enacted by P.L. 1984, ch. 59, § 2. In so holding, we examined the
legislative history of the sexual-assault statutory scheme and concluded that
Ҥ 11-37-8.1 applie[d] to those persons under thirteen years of age and to those
who are exactly thirteen years of age[,] * * * [and] [u]pon and after the thirteenth
anniversary of a person’s birth, he or she is ‘over thirteen’ within the meaning of
§ 11-37-6.”11 Id. at 734. This Court reasoned that:
“If we were to accept the state’s position that the
Legislature intended in its 1981 amendment of the first-
10
In 1987 the first-degree child molestation sexual assault statute, G.L. 1956
§ 11-37-8.1, titled “Definition of guilt of first degree child molestation sexual
assault,” provided, “[a] person is guilty of first degree child molestation sexual
assault if he or she engages in sexual penetration with a person thirteen (13) years
of age or under.” See P.L. 1984, ch. 59, § 2; see also § 11-37-8.2, as enacted by
P.L. 1984, ch. 59, § 2 (penalty for first-degree child molestation sexual assault of
twenty years’ imprisonment to life imprisonment).
11
Also, in 1987, § 11-37-6, titled “Definition of guilt of third degree sexual
assault,” provided, “[a] person is guilty of third degree sexual assault if he or she is
over the age of eighteen (18) years and engaged in sexual penetration with another
person over the age of thirteen (13) years and under the age of consent, sixteen
(16) years of age.” See P.L. 1979, ch. 302, § 2; see also § 11-37-7, as enacted by
P.L. 1979, ch. 302, § 2 (penalty for third-degree sexual assault of not more than
five years).
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degree sexual-assault statute to include within its
provisions not only persons who are exactly thirteen
years of age but also those persons who have passed the
date on which they attained the age of thirteen, but are
not yet fourteen, then we must also determine that the
third-degree sexual-assault statute applies only to those
persons who are fourteen years of age and over but under
sixteen. Otherwise, both statutes would proscribe sexual
assault upon persons who are older than exactly thirteen
years of age but are not yet fourteen, vesting the state’s
counsel with unfettered discretion to prosecute under
either statute, one of which carries a minimum sentence
of twenty years’ imprisonment and a potential sentence
of life imprisonment, the other carrying a maximum
penalty of five years’ imprisonment.” Jordan, 528 A.2d
at 733.
Viewed in this context, were we to subscribe to the state’s argument, the
conduct alleged in these cases would be proscribed by more than one statute—that
is, the intentional, and without claim of right, transfer of data contained in a
computer (§ 11-52-4); or the use of a computer without authority and with the
intent to make an unauthorized copy of computer data (§ 11-52-4.1); or the offense
actually charged in the cases at bar, accessing a computer for the purpose of
obtaining property by means of false or fraudulent pretenses (§ 11-52-2). It does
not escape our attention that only the offense set forth in § 11-52-2 is a felony
crime in the context of these cases. Clearly, the Attorney General is not vested
with such unfettered discretion to prosecute from a menu of statutory enactments.
See Jordan, 528 A.2d at 733.
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Probable Cause
A
Access to Computer for Fraudulent Purposes
The state argues that the trial justice also erred when he overlooked material
facts set forth in the criminal information that provided sufficient evidence to
establish probable cause that defendants violated § 11-52-2 and conspired to
commit this crime.12 On the other hand, Quintal argues that this is a case of
“prosecutorial overreach” where a “computer trespass * * * [is] arbitrarily [being]
upgraded to a felony”; similarly, Anton argues that the state’s case “was based on
its attempt to fit a round peg—the conduct at issue—in to [sic] a square hole—the
language of § 11-52-2.”
In his decisions, the trial justice found, after a full review of the criminal
information package, that there was no evidence to suggest that defendants falsely
represented anything to Flint customers; there were no statements or exhibits
alleging that defendants made any false misrepresentations, promises, or
statements. In fact, the trial justice noted, Flint customers were not persuaded to
relinquish their devices, but rather, they voluntarily brought them to Flint for
12
During oral argument, the state also argued for the first time that defendants had
an obligation to Flint customers pursuant to an implied covenant of good faith and
fair dealing, as they were acting under a device-repair contract. Not only is this
argument proscribed by our raise-or-waive rule, but it is also wholly inapplicable
in a criminal case.
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repair. Lastly, he concluded that defendants’ “opportunistic viewing and copying
of images did not involve a misrepresentation of any fact to any of the victims.”
More specifically, with respect to Quintal—the only defendant who was
alleged to have directly accessed the devices—the trial justice found that he was
capable of performing the repairs and that “there was no indication that [Quintal]
specifically promised to limit his actions or access to a particular area within the
device.” The trial justice also determined that there was no evidence that the
repairs were not completed by Flint employees as promised. As to Gagne, Anton,
and Jilling, the trial justice found that the complainants did not communicate or
interact with these defendants, nor did these defendants access the devices or direct
anyone to access a device for the purpose of obtaining nude photographs.
We are satisfied that there is no evidence that these defendants made any
misrepresentations, fraudulent or otherwise, to Flint customers. At best, the only
evidence of false pretenses presented by the state was Quintal’s alleged request to
Flint customers for a password to facilitate his access to their devices. The state,
however, equates Quintal’s access to a customer’s device by unnecessarily
requesting their password as accessing the device for the purpose of obtaining
property “by means of false or fraudulent pretenses, representations, or
promises[.]” Yet, as discussed herein, the phrase “by means of false * * *
pretenses” in § 11-52-2 does not relate to the term access by means of false
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pretenses, but rather to the obtaining of the property by means of false pretenses.
Here, Quintal accessed the devices, but there is no evidence that false pretenses
were employed in obtaining the property once that access was achieved.
We pause to note that the conduct of these defendants can be characterized
in several ways. However, the presumption of innocence serves to preclude further
comment. Accordingly, in the context of the state’s make-it-fit approach to the
evidence in this case, we cannot conclude that defendants’ actions fell within the
purview of § 11-52-2 in order to constitute a felony. Cf. Smith, 662 A.2d at 1176(“It is clear, however, that these actions are not felonies under the criminal-
conversion statute as it reads at this time. We understand the frustration of the
state in this controversy; however, we shall not engage in judicial legislation to
reach a particular result.”).
B
Conspiracy
“A criminal conspiracy is an ‘agreement by two or more persons to commit
an unlawful act or to perform a lawful act for an unlawful purpose.’” State v.
Huntley, 171 A.3d 1003, 1006 (R.I. 2017) (quoting State v. Abdullah, 967 A.2d
469, 474-75 (R.I. 2009)). “To convict the accused of the crime of conspiracy, ‘the
prosecution must prove the existence and scope of the unlawful agreement beyond
a reasonable doubt.’” Id. (quoting Abdullah, 967 A.2d at 475). “A coconspirator is
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only vicariously liable for the actions of another coconspirator if those actions
were committed in furtherance of an existing conspiracy.” State v. Lassiter, 836
A.2d 1096, 1106 (R.I. 2003) (emphasis omitted) (citing Pinkerton v. United States,
328 U.S. 640, 647 (1946)). In fact, “[w]e, like the federal courts, tend to look with
disfavor on attempts to broaden the already pervasive and wide-sweeping nets of
conspiracy prosecution.” Id. (quoting State v. Porto, 591 A.2d 791, 796 (R.I.
1991)).
Additionally, “although the crime of conspiracy is itself a separate offense,
[conspiracy counts] should also [be] dismissed [when] * * * there [is] no
underlying crime on which to base the conspiracy charge[s].” State v. Maxie, 187
A.3d 330, 341-42 n.13 (R.I. 2018). In Maxie, we dismissed the underlying crime
of sex trafficking of a minor due to the absence of language setting forth a criminal
offense within the statute. See id. at 341. This Court noted that the conspiracy
count, which was charged under G.L. 1956 § 11-1-6, similarly should have been
dismissed because there was no underlying crime on which to base the conspiracy
offense. See id. at 341-42 n.13. In support, we cited to § 11-1-6, which penalizes
“every person who shall conspire with another to commit an offense punishable
under the laws of this state[.]” Id. at 341-42 n.13 (emphasis added); see also
§ 11-1-6. Section 11-1-6 clearly sets forth the penalty for conspiracy, and does not
define, codify, or criminalize the offense of conspiracy, which remains a common
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law crime. See State v. Donato, 414 A.2d 797, 803 (R.I. 1980) (“The crime of
conspiracy [is] still a common-law crime in Rhode Island[.]”). Therefore, a
conspiracy count under § 11-1-6 alone is not sufficient to charge conspiracy.
Here, the criminal information alleged that defendants “did agree, combine,
confederate, contrive or conspire together, to do an unlawful act(s), to wit,
fraudulently use a computer, in violation of § 11-1-6 of the General Laws of Rhode
Island[.]” (Emphasis added.) Because the trial justice correctly concluded that
defendants’ conduct did not fall within § 11-52-2—upon which the conspiracy
charges were based—and § 11-1-6 cannot be the sole basis for these counts, we are
satisfied the conspiracy counts properly were dismissed.
Conclusion
For the reasons set forth in this opinion, we affirm the orders of the Superior
Court. The papers in these cases may be returned to the Superior Court.
- 20 -
STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
OPINION COVER SHEET
State v. Adam Jilling.
State v. Gary Gagne.
Title of Case
State v. Daniel Anton.
State v. George Quintal.
No. 2020-200-C.A.
(N2/18-350D)
No. 2020-201-C.A.
(N2/18-350C)
Case Number
No. 2020-205-C.A.
(N2/18-350B)
No. 2020-208-C.A.
(N2/18-350A)
Date Opinion Filed June 16, 2022
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.
Written By Associate Justice Maureen McKenna Goldberg
Source of Appeal Newport County Superior Court
Judicial Officer from Lower Court Associate Justice William E. Carnes, Jr.
For State:
Mariana E. Ormonde
Department of Attorney General
For Defendants:
Attorney(s) on Appeal
Kevin O. Hagan, Esq.
Peter A. DiBiase, Esq.
Lauren E. Jones, Esq.
Christopher S. Gontarz, Esq.
SU-CMS-02A (revised June 2020)