State v. Azar

547 P.3d 788

372 Or. 163

STATE of Oregon, Respondent on Review,

v.Raji Afife AZAR, Petitioner on Review.

(CC 18CR28295) (SC S069578)

Supreme Court of Oregon.

Argued and Submitted March 3, 2023

April 11, 2024

On review from the Court of Appeals.^* (CA A170612)

Zachary Lovett Mazer, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section.

Joanna Hershey, Senior Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Flynn, Chief Justice, and Duncan, Garrett, DeHoog, Bushong and Masih, Justices, and Balmer, Senior Judge, Justice pro tempore.^**

DeHOOG, J.

₁₆₅Under the Oregon Criminal Code, a person commits the offense of "computer crime" if, in relevant part, the person accesses or uses (or attempts to access or use) a computer, computer system, or computer network for the purpose of committing theft. ORS 164.377(2)(c).¹ At issue in this case is whether defendant’s conduct fell within the scope of that provision. That is, does knowingly selling stolen property using the online auction site eBay—conduct that defendant does not dispute would constitute theft by receiving under ORS 164.095²—constitute computer crime?

The Court of Appeals, in a divided opinion, concluded that such conduct constitutes computer crime, and it upheld the trial court’s denial of defendant’s motion for judgment of acquittal as to the relevant charges against him. State v. Azar, 318 Or App 724, 738, 509 P.3d 668 (2022). As we explain below, we conclude that the legislature did not intend for the computer crime statute to reach conduct such as defendant’s, which may constitute "theft" within the meaning of the Criminal Code but neither interferes with another’s protected interests in—or electronically located on—a computer, computer system, or computer network ₁₆₆(computer),³ nor depends on computer technology as the means of gaining access to the thing that the person seeks to unlawfully obtain. Here, the conduct with which the state charged defendant involved the theft of merchandise that bore no relationship to eBay’s or anyone else’s protected interests in computers, their contents, or rights held in digital form, and defendant was not dependent on computer technology to gain access to something he sought to steal. Thus, we conclude that the trial court erred in denying defendant’s motion for judgment of acquittal and, accordingly, reverse, in part, the decision of the Court of Appeals.⁴

I. BACKGROUND

A. Facts

[1] When reviewing the denial of a motion for judgment of acquittal, "we view the evidence in the light most favorable to the state to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Hubbell, 371 Or. 340, 343, 537 P.3d 503 (2023). The Court of Appeals opinion sets forth the relevant facts—which are undisputed—in some detail. Azar, 318 Or App at 727-28, 509 P.3d 668. In brief, eBay is an internet site on which individuals can post items for sale either through an online auction or at fixed, "buy-it-now" prices. The eBay website processes purchasers’ payments using—among other services—PayPal, an online payment platform. Sellers can then transfer funds received via PayPal into their own bank accounts.

₁₆₇As part of an investigation into a series of thefts from several retail stores, undercover investigators sold defendant various items of merchandise, falsely telling him that the items had been stolen. Law enforcement officers were then able to track the "stolen" merchandise by purchasing items from an eBay account associated with defendant and confirming that those items were the ones that they had sold to defendant. Police later arrested defendant, who admitted that he had used his sister’s eBay account to sell stolen property. Defendant further admitted that he had obtained the sales proceeds by transferring the funds from his sister’s PayPal account into his own PayPal account, and from there into his bank account

B. Procedural History

As a result of that conduct, the state charged defendant with, in relevant part, three counts of "computer crime," ORS 164.377(2)(c).⁵ The state’s theory, as set out in the indictment, was that by selling merchandise on eBay that he believed to be stolen, defendant had "access[ed] and use[d] a computer, computer system, and computer network for the purpose of committing theft of property" by receiving. At trial, defendant moved for judgment of acquittal as to those counts, arguing that the state had not proved that he had engaged in "computer hacking," which, he asserted, was required to establish computer crime.⁶ Defendant further argued that, if the computer crime statute could be applied broadly enough to encompass his conduct, then it would be unconstitutionally vague. The trial court denied defendant’s ₁₆₈motion, and a nonunanimous jury convicted defendant of those counts.

Defendant appealed, reprising his arguments from the trial court. The Court of Appeals reversed and remanded defendant’s nonunanimous convictions for a new trial, but it otherwise affirmed. Azar, 318 Or App at 726, 509 P.3d 668. In a split decision, the majority held that "a person violates [ORS 164.377(2)] when the person’s use or access of a computer is the direct, necessary means by which the person accomplishes one of the prohibited purposes in ORS 164.377(2)(a) through (c)." Id. at 737, 509 P.3d 668. The court rejected defendant’s argument that computer crime is limited to computer hacking, as well as his contextual argument that "theft" under ORS 164.377(2)(c) is limited to taking something from a computer and does not encompass all conduct that might satisfy one of the various statutory definitions of "theft." In concluding otherwise, the court reasoned that, because "theft" has an "established legal meaning" in the Criminal Code, "theft" as used in ORS 164.377(2)(c) encompasses each of the forms of theft described in ORS 164.015, including theft by receiving, see ORS 164.015(5) (incorporating ORS 164.095 (defining that offense)). Id. at 733-34, 509 P.3d 668. As to defendant’s vagueness challenge, the court explained that, because it construed the computer crime statute to require that a defendant’s "use or access[ing]" of a computer be "more than incidental" and "the direct, necessary means" by which the defendant "accomplishes one of the prohibited purposes" identified in ORS 164.377(2)—including "[c]ommitting theft"—the statute "would allow a person of ordinary intelligence to understand the scope of what is prohibited * * Id. at 737-38, 509 P.3d 668. That, the majority opinion concluded, resolved any constitutional concerns. Id.

Judge Pagán disagreed. He reasoned that the legislative history of ORS 164.377 indicated that the statute "was intended to address the type of criminal activity we most associate with hacking or other nefarious access to networks or computers, not simply the use of electronics to commit crimes." Id. at 743, 509 P.3d 668 (Pagán, J., concurring in part and dissenting in part). Based in part on subsequent amendments to ORS 164.377(2)(c), Judge Pagán viewed the computer ₁₆₉crime statute as somewhat "analogous to burglary—that is, accessing a place a person is not allowed to be with the intention of committing a crime in that place." Id. at 740, 509 P.3d 668 (emphasis in original). Judge Pagán further reasoned that, due to the ubiquitous nature of computer technology in modern society, the majority’s understanding of the statute would encompass far more conduct than the legislature could have anticipated and would elevate any number of minor offenses to Class C felonies, which could not, in his view, have been what the legislature intended. Id. at 743, 509 P.3d 668.

Defendant sought review in this court, which we allowed.

II. DISCUSSION

Defendant argues on review that, as relevant here, computer crime under ORS 164.377(2)(c) is limited to "accessing or using another person’s computer, computer system, or computer network to commit an unauthorized taking of information or data from that computer, computer system, or computer network * * *." It follows, defendant reasons, that his conduct in utilizing eBay for the purpose of selling merchandise that he believed to be stolen—conduct that defendant appears to accept would be theft by receiving under ORS 164.095 if successfully carried out—does not constitute computer crime. More specifically, because "theft" as that term is used in ORS 164.377(2)(c) does not, in his view, encompass theft by receiving, his conduct of using or accessing eBay online to commit that offense is not "us[ing]" or "access[ing]" a computer "for the purpose of * * * [c]ommitting theft" within the meaning of that paragraph. Defendant thus concludes that the trial court erred when it denied his motion for judgment of acquittal.

A. The Text and Context of ORS 164.377(2)(c)

[2–4] "When, as here, a trial court denies a defendant’s motion for judgment of acquittal based on an interpretation of a statute, we review the denial for errors of law." State v. Haley, 371 Or. 108, 112, 531 P.3d 142 (2023). The specific statutory question in defendant’s case is whether ORS 164.377(2)(c) encompasses his undisputed conduct of selling purportedly stolen merchandise on eBay. We resolve ₁₇₀that question under the framework set out in State v. Gaines, 346 Or. 160, 206 P.3d 1042 (2009). Our goal is to determine the intent of the legislature that enacted that provision. Id. at 171, 206 P.3d 1042. In making that determination, we consider the disputed statutory text in context, together with any available legislative history that we find helpful. Id. at 172, 206 P.3d 1042. If a statute’s intended meaning remains...