Ducom v. State

• Decision Date: 26 November 2007
• Docket Number: No. A07A1270.,A07A1270.
• Citation: 288 Ga. App. 555,654 S.E.2d 670
• Parties: DuCOM v. The STATE.
• Court: Georgia Court of Appeals

654 S.E.2d 670

288 Ga. App. 555

DuCOM v. The STATE.

No. A07A1270.

Court of Appeals of Georgia.

November 26, 2007.

Bouhan, Williams & Levy, Walter C. Hartridge, David B. Dennison, Savannah, Alan D. Tucker, Brunswick, for appellant.

Stephen D. Kelley, District Attorney, Jonathan R. Miller III, Assistant District Attorney, for appellee.

ELLINGTON, Judge.

A Glynn County jury found Shan DuCom guilty of theft of a trade secret, OCGA § 16-8-13; theft by taking, OCGA § 16-8-2; and computer theft, OCGA § 16-9-93(a). DuCom appeals from the judgment of conviction, raising the general grounds and contending the court erred in charging the jury and in calculating the amount of restitution owed. Finding no error, we affirm the convictions. However, we vacate DuCom's felony sentence for theft by taking and remand for resentencing as explained in Division 3.

When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 318-319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The jury, not this Court, resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from basic facts to ultimate facts. Id. "As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld." (Citation and punctuation omitted.) Miller v. State, 273 Ga. 831, 832, 546 S.E.2d 524 (2001). Viewed in this light, the record reveals the following facts.

Culver and DeLoach ("C & D"), a real estate brokerage, development, and property management business located on St. Simon's Island, hired Shan DuCom in 1998 to run the property management division. Business partners Edward "Pete" Culver, Jr., and Frank DeLoach were the only owners of C & D. C & D hired DuCom as a salaried employee and structured her pay to include commissions and bonuses based upon the profits she generated for the property management division. C & D paid all the expenses of the division and controlled the hiring decisions. The partners entrusted DuCom, a licensed real estate agent, with the division's business and gave her wide latitude to develop it. Under DuCom's direction, the property management division grew from about 15 clients in 1998 to over 100 in 2003, with an estimated value of $200,000 to $225,000. In 2003, DuCom earned about $130,000 in salary, commissions, and bonuses.

The State adduced evidence from which the jury could infer that DuCom, as a licensed real estate agent, owed a duty of loyalty to her broker, C & D. DuCom, however, treated the property management division as her own and believed she was entitled to take C & D property and business with her when she left the firm. DuCom testified that she was a partner in a joint venture and believed she had at least a 60 per cent ownership interest in the property management division. She referred to C & D's property division master client list as "my owner's list." The State demonstrated that DuCom acted on that belief and in 2003 she began executing a plan to convert C & D's property management division into her own company.

In the fall of 2003, DuCom studied to obtain her real estate broker's license. During those classes, she told a fellow realtor that she planned to leave C & D. In September 2003, DuCom photographed a building on Ocean Boulevard that she intended to buy and which eventually housed Real Escapes, Inc., the property management firm DuCom shortly thereafter formed and ultimately incorporated on January 8, 2004. On October 19, 2003, DuCom created a document on her C & D computer outlining a plan for Real Escapes, Inc., to "retain all current business" from C & D. On November 18, 2003, DuCom signed a contract to purchase the Ocean Boulevard property. She closed on the sale of that property in January 2004. In November 2003, DuCom contacted a former C & D property manager and asked her how she was able to take some C & D clients with her and what the consequences of that were. The former manager advised DuCom that the clients belonged to the broker. On December 3, 2003, DuCom met with the property management staff about her new company and discussed whether the staff would collectively or individually inform C & D that they had agreed to go with DuCom to Real Escapes, Inc.

During January 2004, DuCom, using C & D computers, created a number of documents for the benefit of Real Escapes, Inc., including the company letterhead and logos, press releases, solicitation postcards, and various "to do" lists. DuCom was not authorized to use C & D computers for her personal use. One of DuCom's lists noted "Entech," as a "to do" item.

Entech is the password-protected computer software C & D purchased to manage its clients' vacation and rental properties and from which the master client list is generated. Only C & D employees were allowed to use the software, and they were not permitted to copy it for use outside the office. The general public was not allowed into the property management division unsupervised, and was not allowed access to the Entech software. The State also adduced evidence that property management division was managed by a licensed real estate agent, one who should have known that the agent owes a duty of loyalty to the broker, and who would understand that client contact information is something C & D's agents "guard like gold."

While DuCom was planning to start her own business, C & D's partners remained unaware of her intentions. Instead, as the property management division grew, the partners considered moving it and DuCom out of the C & D building into a new location, one that would require the division to pay rent, which would reduce DuCom's income. One employee, however, did notice DuCom putting files into green and white boxes. DuCom told this employee that she was moving files into storage. These boxes were later found in the offices of Real Escapes, Inc.

In late January 2004, DuCom told Pete Culver that she intended to quit and asked him to sign a document allowing her to take C & D's property management clients with her. Surprised, Culver informed DeLoach of DuCom's intentions, and DeLoach later called DuCom and discussed the possibility of selling her the property management division. On February 3, 2004, Culver informed DuCom that the property management business was worth between $200,000 and $225,000. At 2:26 p.m. that same day, someone copied C & D's property management division master client list from the C & D computer hard drive. One of C & D's employees witnessed DuCom working on the computer that afternoon. On February 4, 2004, Culver offered to sell DuCom the property management division's book of business, that is, the master client list, for $100,000; DuCom countered for $10,000 and again asked Culver to sign the agreement relinquishing C & D clients to her. That afternoon, DuCom downloaded to disks the bookkeeping and financial data pertaining to seven homeowner associations that C & D managed. About an hour later, C & D asked DuCom to leave and escorted her from the building. Shortly thereafter, the three C & D employees that DuCom managed resigned. The next day, the entire former C & D property management division reported to work at Real Escapes, Inc., on Ocean Boulevard.

The remaining C & D employees came to work the next day and found a property management office that had been left barren, "cleaned out." The computer server was turned off, the hard copies of client files were missing, the fax and credit card phone lines had been sabotaged, and office supplies and equipment were missing. When C & D finally restored its computer service, it discovered that entire databases were missing, including the computer operating files for the homeowner association clients. Even the C & D property management website had been transferred to Real Escapes, Inc.

The State's computer experts testified that DuCom copied a "massive" amount of information from C & D's hard drive onto disks on February 4, 2004, including programs such as Microsoft Access, Quicken, Excel, I-net, Quicken Books, and all of the associated data, including the homeowner association accounts owned and managed by C & D. These computer programs were registered to C & D.

On February 18, 2004, a Glynn County detective executed a search warrant at Real Escapes, Inc., and recovered many C & D documents and property management client files. The detective discovered a printout of the C & D property management master client list hidden beneath DuCom's desk. DuCom admitted taking it, albeit "mistakenly." The list was also heavily annotated, revealing that DuCom had solicited the owners. She also admitted taking the homeowner association computer files. The police seized equipment, computer disks, and computers, one of which belonged to C & D. On March 3 and 4, 2004, DuCom, through her attorney, returned additional property belonging to C & D, property which included the Entech software. Although no C & D employee testified as to the value of the entire Entech software package, DeLoach testified that it was upgraded in 2004 at a cost of $3,700.

Finally, C & D employees testified that, after DuCom took the property management division, including its employees and its main asset, the master client list, the business was "ruined" and "stigmatized" such that it lost most of its value. C & D sold the master client list for $17,500. The State also presented evidence that DuCom caused C & D to lose commissions in excess of $21,000.

1. DuCom contends the evidence adduced was insufficient to support her conviction for theft of a trade secret, the trade secret...