Susie M. Plasters v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia
SUSIE M. PLASTERS
MEMORANDUM OPINION * BY
v. Record No. 1870-99-3 JUDGE RUDOLPH BUMGARDNER, III
JUNE 27, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALLEGHANY COUNTY
Duncan M. Byrd, Jr., Judge
Terry N. Grimes (King, Fulghum, Snead, Nixon
& Grimes, P.C., on brief), for appellant.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
The trial court convicted Susie M. Plasters of five counts
of computer invasion of privacy in violation of Code
§ 18.2-152.5. She contends the evidence was insufficient to
support her convictions. One count charged that she committed
computer invasion of privacy against Catherine Humphries on
July 16, 1998 by accessing personal information about her from a
computer terminal in West Virginia. The Commonwealth concedes
the evidence was insufficient to prove the defendant accessed a
computer terminal in West Virginia. Accordingly, we reverse
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
that conviction, but we conclude the evidence is sufficient to
support the other four convictions.
When the sufficiency of the evidence is challenged on
appeal, we view the evidence and all reasonable inferences
fairly deducible therefrom in the light most favorable to the
Commonwealth. See Commonwealth v. Presley, 256 Va. 465, 466,
507 S.E.2d 72, 72 (1998). The statement of facts established
that the defendant worked as a part-time dispatcher for the
Covington Police Department from February 1995 through January
1999. She was trained and certified to use the Virginia
Criminal Information Network (VCIN) in February 1995 and again
in October 1997 when she received the highest possible grade.
As a dispatcher, the defendant could obtain confidential
personal information only by entering her individual
user-identification number which her employer had provided.
Each time the network was accessed, the following notice
appeared on the computer screen: "Information obtained from
VCIN may be used for criminal justice purposes only."
The defendant worked as a dispatcher on each of the dates
specified in the indictments. Her unique identification number
was used to access restricted information from VCIN using a
computer terminal at the Covington Police Department. To obtain
personal information about a particular person, the operator had
to enter either the name or social security number of that
person. The defendant concedes she "understood that dispatchers
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could not use the VCIN computer to access criminal histories of
persons without prior authorization or pursuant to a formal
request."
"A person is guilty of the crime of computer invasion of
privacy when he uses a computer or computer network and
intentionally examines without authority any employment, salary,
credit or any other financial or personal information relating
to any other person." Code § 18.2-152.5(A). The evidence must
establish the offender viewed the information after she knew or
should have known she was unauthorized to do so. See id.
The defendant concedes she accessed the information
alleged, but contends she did not know she was unauthorized to
do so because it was personal, not criminal history,
information. This argument is without merit for two reasons.
First, the defendant knew she was unauthorized to access
criminal information from the VCIN computer without proper
authorization. The records she accessed on the four dates
alleged in the indictment contain criminal history information.
On May 10, 1998, the information she obtained on Barry Dean
Abshire included "Previous DWI: 01 10." On October 2, 1998, the
defendant retrieved information on Clayton Wayne Gaylor which
included "Previous DWI: 01 06" and "driver license status
- suspend[ed]/habitu[al]." On October 24, 1998, the defendant
also received information that Gaylor was a "wanted person" for
"failure to appear" for a DUI charge. On April 10, 1998, she
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obtained information on Terri Lynn Carper that included
"Previous DWI: 00." This information, which the defendant
concedes she accessed, clearly constitutes criminal history
information. As to the invasion of Carper's privacy, we find
that even though she did not have a DWI record, that data is
still criminal history information.
Additionally, the VCIN warning indicates that any
"information obtained from VCIN may be used for criminal justice
purposes only." VCIN's restriction on the use of its data is
not limited to criminal history information. Thus, even if the
defendant accessed personal information alone, her use, unless
properly authorized or requested, would be unlawful.
Finally, it does not matter that the defendant did not know
accessing personal information was a crime. The training the
defendant received did not specifically address Code
§ 18.2-152.5, but "ignorance of the law is no excuse." See
Miller v. Commonwealth, 25 Va. App. 727, 731-32, 492 S.E.2d 482,
485 (1997) ("Although leading at times to seemingly 'unfair'
results, rigid application of the rule promotes the policy it
serves: 'to encourage people to learn and know the law.'"
(citations omitted)). See Shea v. Virginia State Bar, 236 Va.
442, 444, 374 S.E.2d 63, 64 (1988) (all attorneys are
responsible for knowing disciplinary rules).
The defendant was using the VCIN computer to access data
without authorization and without any request for the
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information. Each time the defendant accessed VCIN, the
terminal displayed the warning that use of any information was
limited to criminal justice purposes only. Her duties as a
dispatcher provide no separate reason to need or use the data.
She was not using the computer for any criminal justice purpose.
We conclude the evidence is sufficient to prove beyond a
reasonable doubt that the defendant intentionally used the VCIN
terminal to examine criminal history and other personal
information of other persons after she knew or should have known
she lacked any authority to do so. Accordingly, we affirm the
convictions other than the one for which the Commonwealth
confessed error.
Affirmed in part,
reversed in part.
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Benton, JR., dissenting.
I concur in reversing the conviction for computer invasion
of privacy concerning Catherine Humphries. I dissent, however,
from the holding that the evidence was sufficient to prove Susie
Plasters committed the other computer invasion of privacy
offenses.
Plasters was convicted of violating the following statute:
A person is guilty of the crime of computer
invasion of privacy when he uses a computer
or computer network and intentionally
examines without authority any employment,
salary, credit or any other financial or
personal information relating to any other
person. "Examination" under this section
requires the offender to review the
information relating to any other person
after the time at which the offender knows
or should know that he is without authority
to view the information displayed.
Code § 18.2-152.5(A). The Commonwealth failed to prove Plasters
"review[ed] the information . . . after the time at which [she
knew] or should [have known] that [she was] without authority to
view the information displayed." Id.
The statement of facts established that Plasters and other
dispatchers for the Covington Police Department received
certification training. Plasters had last taken this training
in 1997; however, the course did not cover the prohibitions
contained in Code § 18.2-152.5. The training course instructor
"testified that course materials prepared for instruction given
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in 1999 did address Code § 18.2-152.5, and had Plasters'
employment not been terminated in January 1999, Plasters would
have received training at the 1999 certification session
addressing Code § 18.2-152.5, among other things." Indeed, the
outline for the 1999 recertification course specifically notes
that the training will include "Personal Trespass by Computer
under Code of Virginia 18.2-152.7," which is a topic that was
not included in the course's previous outline.
Plasters testified "that she understood that dispatchers
could not use the VCIN computer to access criminal histories of
persons without prior authorization or pursuant to a formal
request." (Emphasis added.) She knew this because the employee
handbook contained the following information directed toward
dispatchers:
Article 134. Criminal History Records:
Dispatchers shall not release or show any
criminal history record to any individual,
organization or company without the
expressed permission of the Chief of Police.
Under no circumstances shall any criminal
history information obtained through VCIN or
NCIC be released to other than legally
constituted Criminal Justice agencies.
Local criminal history records are not to be
released except to the above-described
agencies.
The improper release of criminal history
information could result in the termination
of VCIN and NCIC services.
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All messages seeking criminal history
records shall be recorded in the terminal
log. (Emphasis added.)
None of the fifteen articles in the handbook relating to the job
duties of dispatchers contain an admonition against viewing
personal or non-criminal history information.
Kenneth R. Lane, an officer with the Department, testified
for the Commonwealth that the information Plasters accessed "did
not include information concerning criminal histories,
employment, salary, credit or other financial information."
Clearly, if the Commonwealth's own expert witness testified that
Plasters did not access "criminal histories," Plasters could not
be expected to know the information would contain what the
majority opinion now asserts to be "information . . . [that]
constitutes criminal history." The evidence is undisputed that
Plasters did not access the Central Criminal Records Exchange
maintained by the State Police. Furthermore, no evidence in the
record establishes that Plasters knew that she was not
authorized to access Department of Motor Vehicles and
non-criminal history information on the VCIN computer. Code
§ 18.2-152.5 by its specific terms requires proof that Plasters
knew or should have known that she had no authority to review
the personal information she accessed on the computer.
I disagree with the suggestion that in this case we must
give rigid application to the rule that "ignorance of the law is
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no excuse." Miller v. Commonwealth, 25 Va. App. at 731, 492
S.E.2d at 485. As we noted in Miller, where we did not rigidly
apply that rule, "[t]he rationale underlying the rule is less
compelling for crimes that are malum prohibitum, viz., acts that
are 'wrong because prohibited,' not by virtue of their inherent
character." Id. at 731-32, 492 S.E.2d at 485 (citation
omitted). Indeed, Code § 18.2-152.5 specifically bars rigid
application of that rule to this offense. The statutory
language itself reflects the General Assembly's policy decision
that each person's level of knowledge must be considered in
applying this criminal statute.
Moreover, I do not believe it is reasonable to expect the
police department's lay employee to know that State law differs
from what she is taught in her "official training." It is clear
from the record that the Department's training course had not
covered this aspect of the Code of Virginia as it relates to
Plasters' job. Furthermore, nothing in the record establishes
that Plasters was required as a part of her employment to go
beyond her training and independently read the Code.
Thus, proof that Plasters knew she was not authorized to
"use the VCIN computer to access criminal histories" was not
sufficient to support this conviction where the evidence proved
only that she viewed personal information that was not a
criminal history. Although the VCIN system displayed a warning
that "information obtained from VCIN may be used for criminal
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justice purposes only," that warning did not state that viewing
the information was prohibited and it did not define "used."
"When a word is not defined . . . we normally construe it in
accord with its ordinary or natural meaning." Smith v. United
States, 508 U.S. 223, 228 (1993). In discussing the definition
of the term "use," the United States Supreme Court has said the
following:
Webster's defines "to use" as "[t]o convert
to one's service" or "to employ." Webster's
New International Dictionary of English
Language 2806 (2d ed. 1949). Black's Law
Dictionary contains a similar definition:
"[t]o make use of; to convert to one's
service; to employ; to avail oneself of; to
utilize; to carry out a purpose or action by
means of." Black's Law Dictionary 1541 (6th
ed. 1990). Indeed, over 100 years ago we
gave the word "use" the same gloss,
indicating that it means "'to employ'" or
"'to derive service from.'" Astor v.
Merritt, 111 U.S. 202, 213 (1884).
Smith, 508 U.S. at 228-229. Although Plasters admitted that she
viewed the information after she accessed it on her computer, no
evidence in the record proved that Plasters "used" the
information for any purpose.
Under the terms of the statute, it does matter whether
Plasters knew she was without authority to view personal
information. The Commonwealth is required to prove beyond a
reasonable doubt that she "reviewed the information . . . after
the time at which [she knew] or should [have known] that [she
was] without authority to view the information displayed." Code
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§ 18.2-152.5(A). Thus, it is significant and fatal to these
convictions that Plasters did not know she was without authority
to view personal information.
For these reasons, I would reverse all the convictions.
Therefore, I dissent.
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