539 So.2d 1222 (La. 1989), 88-WA-2459, State v. Azar

Docket Nº:88-WA-2459.
Citation:539 So.2d 1222
Party Name:STATE of Louisiana v. Paul J. AZAR, Jr., M.D.
Case Date:March 13, 1989
Court:Supreme Court of Louisiana

Page 1222

539 So.2d 1222 (La. 1989)

STATE of Louisiana


Paul J. AZAR, Jr., M.D.

No. 88-WA-2459.

Supreme Court of Louisiana.

March 13, 1989

Rehearing Denied April 20, 1989.

Page 1223

William J. Guste, Jr., Atty. Gen., Glen R. Petersen, Cynthia Killingsworth, Asst. Attys. Gen., for plaintiff-appellant.

John R. Martzell, Martzell & Thomas, New Orleans, John G. Torian, Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Bernard H. McLaughlin, Jr., Lafayette, Stockwell & Sievert, Lake Charles, for defendant-appellee.

MARCUS, Justice.

Paul J. Azar, Jr. was indicted by the grand jury for thirty-seven counts of computer fraud in violation of La.R.S. 14:73.5. Defendant filed a motion to quash on the ground that La.R.S. 14:73.5 was unconstitutionally vague and overbroad. After a hearing, the trial judge denied the motion to quash. 1 Upon application by defendant, the court of appeal granted a writ of certiorari, declared La.R.S. 14:73.5 unconstitutionally vague, reversed the ruling of the trial judge and granted the motion to quash the indictment. 2 We granted the state's

Page 1224

application and docketed the case as an appeal. 3

The sole issue presented for our consideration is whether La.R.S. 14:73.5 is unconstitutionally vague. 4

La.R.S. 14:73.5 provides in pertinent part:

  1. Computer fraud is the accessing or causing to be accessed of any computer, computer system, computer network, or any part thereof with the intent to:

    (1) Defraud; or

    (2) Obtain money, property, or services by means of false or fraudulent conduct, practices, or representations, or through the alteration, deletion, or insertion of programs or data. [Emphasis added.]

    The term "access" is defined in La.R.S. 14:73.1(1):

    (1) "Access" means to program, to execute programs on, to communicate with, store data in, retrieve data from, or otherwise make use of any resources, including data or programs, of a computer, computer system, or computer network.

    The court of appeal found the last phrase in La.R.S. 14:73.5(A)(2) and the definition of access in La.R.S. 14:73.1(1) to be unconstitutionally vague. Since the definition of access was applicable throughout La.R.S. 14:73.5, the court reasoned that the entire statute could not withstand constitutional scrutiny and must fall.

    The constitutional guarantee that an accused shall be informed of the nature and cause of the accusation against him requires that penal statutes describe unlawful conduct with sufficient particularity and clarity that ordinary persons of reasonable intelligence are capable of discerning its meaning and conforming their conduct thereto. U.S. Const.Amend. XIV, Sec. 1; La. Const., Art. I, Secs. 2, 13; Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); State v. Powell, 515 So.2d 1085 (La.1987); State v. Pierre, 500 So.2d 382 (La.1987). In determining the meaning of a statute and hence its constitutionality, penal statutes must be "given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision." La.R.S. 14:3; State v. Pierre, supra.

    Applying these standards of statutory construction, the definition of access found in La.R.S. 14:73.1(1) offers a clear and definite standard of conduct. Dr. James R. Oliver, defendant's expert in computers, testified that he did not "necessarily have problems" with the definition, although he felt it was "extremely broad and people need to understand the implications in it quite clearly." However, Dr. Oliver never testified that an ordinary man of reasonable intelligence could not readily ascertain the definition of access from a reading of the statute. The definition chosen by the legislature, although...

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