State v. Novick

196 Wash.App. 513

384 P.3d 252

State of Washington, Respondent,

v.David A. Novick, Appellant.

No. 47688–6–II

Court of Appeals of Washington, Division 2.

October 25, 2016

Brian A. Walker, Brian Walker Law Firm, P.C., 900 Washington St., Ste. 790, Vancouver, WA, 98660–3409, David B. Zuckerman, Attorney at Law, 705 2nd Ave., Ste. 1300, Seattle, WA, 98104–1797, for Appellant.

Rachael Rogers Probstfeld, Clark County Prosecuting Attorney's Office, P.O. Box 5000, Vancouver, WA, 98666–5000, for Respondent.

Worswick, J.¶1 David Novick appeals his convictions for eight counts of first degree computer trespass and eight counts of recording private communications after he installed a spying application on his girlfriend's mobile phone. Novick argues that the State failed to provide sufficient evidence that he intentionally recorded a private communication. Novick also argues that entry of eight convictions of each crime violated his right against double jeopardy because the correct unit of prosecution covers the entire course of conduct. We disagree and affirm Novick's convictions.

FACTS

¶2 David Novick and Lisa Maunu began dating in December 2013. At the beginning of their relationship, Maunu used an old mobile phone. When Maunu's phone started to malfunction, Novick bought her a new mobile phone on March 11, 2014, and set it up for her.

¶3 Unbeknownst to Maunu, Novick had installed an application called Mobile Spy on Maunu's new phone. The application allowed a person to log onto the Mobile Spy website and monitor the phone on which the application was installed. From the Mobile Spy website, a user could access all the information stored on the monitored phone, including text messages, call logs, and e-mails. The versions of Mobile Spy used on Maunu's phone, versions 6.5 and 6.6, also permitted a user to send commands to the phone from a “live control panel” on the website. Verbatim Report of Proceedings (VRP) at 416. One such command allowed a user to activate the phone's microphone and recording feature and record audio into a file that could then be downloaded from the website.

¶4 In July, the relationship between Novick and Maunu soured, and Maunu noticed that her new phone was acting strangely. The phone would light up periodically, send text messages and emails without her knowledge, and frequently “lock up.” VRP at 212. About the same time, Maunu became concerned because Novick expressed specific knowledge about Maunu's health conditions, medications, doctors' appointments, and private conversations. Maunu then contacted Kaiser Permanente, where she received her health care and also where Novick worked, because she was concerned Novick was accessing her medical records at his work.

¶5 A compliance investigator for Kaiser ordered a forensic review of Novick's work computer use. The forensic review was conducted by Robert Monsour. During his investigation, Monsour reviewed the records associated with Novick's password-protected user account. Kaiser computers keep records of every URL¹ visited on an employee's work computer and the date and time of each visit. Monsour found a pattern of Novick accessing websites associated with Mobile Spy from Novick's computer account at Kaiser. In addition to the Mobile Spy websites, Monsour found evidence that Novick had downloaded over 500 audio files from Mobile Spy, searched for GPS (global positioning system) locations, and searched for particular telephone numbers.

¶6 The State charged Novick with eight counts of first degree computer trespass² and eight counts of recording private communications³ based on Novick's use of Mobile Spy to record Maunu's conversations on March 30, April 4, June 5, and June 6.⁴

¶7 During trial, Monsour testified about his investigation into Novick's computer records. To understand how Mobile Spy operated, Monsour read all of the available documentation, focusing on versions 6.5 and 6.6—the versions of Mobile Spy available on the dates in question.⁵ Monsour also explored an available demo feature of version 7.01 of the program. Version 7.01 of Mobile Spy removed the surround recording feature, among other slight variations.

¶8 According to the user guides Monsour read, in order to begin a recording through Mobile Spy, a user had to go to a “live control panel” on their website and affirmatively send a command through the control panel to the monitored phone. Monsour described the process as similar to “pushing a record button on a tape recorder but you're able to do it from anywhere where you can get on the internet.” VRP at 416. In an attempt to confirm this process for beginning a recording, Monsour contacted Mobile Spy's technical support. Monsour asked the technical support staff whether a recording had to be started manually or if there was some way to automate it so the phone would keep recording repeatedly. The technical support staff confirmed that a user had to manually start a recording every time.

¶9 Novick testified on his own behalf. Novick acknowledged his extensive use of Mobile Spy, but he contended that everything on Mobile Spy—including the surround recording feature—occurred automatically at random times.

¶10 The jury trial found Novick guilty of all counts as charged. Novick appeals.

ANALYSIS

I. SUFFICIENCY OF THE EVIDENCE

¶11 Novick argues that the evidence was insufficient to support any of his convictions. He contends that because the application automatically recorded conversations, the State failed to provide sufficient evidence that Novick intentionally recorded private communications. Viewing the evidence in the light most favorable to the State, we hold that sufficient evidence exists to support Novick's convictions. State v. Hosier , 157 Wash.2d 1, 8, 133 P.3d 936 (2006).

¶12 Sufficient evidence supports a conviction if, when viewed in the light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime proved beyond a reasonable doubt. Hosier , 157 Wash.2d at 8, 133 P.3d 936. We draw all reasonable inferences from the evidence in favor of the State and interpret them most strongly against the defendant. Hosier , 157 Wash.2d at 8, 133 P.3d 936. When reviewing evidence for sufficiency, circumstantial evidence and direct evidence carry equal weight. State v. Goodman , 150 Wash.2d 774, 781, 83 P.3d 410 (2004). We defer to the fact finder on issues of conflicting testimony, witness credibility, and persuasiveness of the evidence. State v. Thomas , 150 Wash.2d 821, 874–75, 83 P.3d 970 (2004).

¶13 First degree computer trespass occurs when a person intentionally gains access without authorization to a computer system or electronic database of another and the access is made with the intent to commit another crime. Former RCW 9A.52.110 (2011), repealed by LAWS OF 2016 ch. 164, § 14. Here, the underlying crime was recording private communications. A person commits the crime of recording private communications when he intercepts or records private communications transmitted by any device designed to record and/or transmit said communications. RCW 9.73.030.

¶14 Novick contends that the evidence is insufficient to prove he issued a command to begin audio recording from the live control panel because the computer records did not explicitly show Novick issued a command. To support his claim, Novick relies on his own refuted testimony that Mobile Spy automatically recorded the communications without a command to do so. Assuming without deciding that proof of manual commands is required to establish sufficient evidence, such proof existed. Monsour accounted for the absence of specific computer records showing a manual command was given by explaining that the records show only the activity that resulted in a new URL, and that commands could be sent within an internet program without creating a new URL.

¶15 The forensic review of Novick's computer activity revealed substantial circumstantial evidence that Novick sent the commands. Monsour testified that “every bit of information” confirmed that in order to activate the surround recording feature of the Mobile Spy program, a user must visit the Mobile Spy website and send a command through the program's live control panel. VRP 398. And the computer records showed that Novick visited the live control panel on Mobile Spy's website and subsequently downloaded audio files.

¶16 Novick characterizes the State's evidence that Novick issued commands to record from the live control panel as “flimsy” and “weak.” Br. of Appellant 10, 12. But we defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. Thomas , 150 Wash.2d at 874–75, 83 P.3d 970. The conflicting testimony from Novick and Monsour created a credibility determination, which we leave to the trier of fact. State v. Miller , 179 Wash.App. 91, 105, 316 P.3d 1143 (2014).

¶17 Viewed in the light most favorable to the State, the evidence supports a finding that Novick sent commands from the live control panel to intentionally record Maunu's private communications. Accordingly, we hold that the State presented sufficient evidence for a rational jury to conclude beyond a reasonable doubt that Novick committed the crime of recording private communications, and thus committed computer trespass.

II. DOUBLE JEOPARDY AND UNIT OF PROSECUTION

¶18 Novick argues in the alternative that his multiple convictions for computer trespass and recording private communications violate the prohibition against double jeopardy because the correct unit of prosecution for each crime covers the entire course of Novick's conduct. We disagree.

¶19 The Fifth Amendment to the United States Constitution provides that no “person be subject for the same offense to be twice put in jeopardy of life or limb.” Similarly, article I, section 9 of the Washington Constitution provides, “No person shall ... be twice put in jeopardy for the same offense.” These double...