People v. Rice, No. 05CA0931.

Docket NºNo. 05CA0931.
Citation198 P.3d 1241
Case DateMay 15, 2008
CourtCourt of Appeals of Colorado
198 P.3d 1241
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Nina B. RICE, Defendant-Appellant.
No. 05CA0931.
Colorado Court of Appeals, Div. III.
May 15, 2008.
Rehearing Denied July 10, 2008.

[198 P.3d 1242]

John W. Suthers, Attorney General, Deborah Isenberg Pratt, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Jason C. Middleton, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge LOEB.


Defendant, Nina B. Rice, appeals from the judgment of conviction entered upon a jury verdict finding her guilty of computer crime. We reverse and remand for a new trial.

I. Background

Evidence at trial established that, in 2003, defendant filed for unemployment compensation

198 P.3d 1243

benefits with the Colorado Department of Labor and Employment. To do so, she utilized the Department's CUBLine, an interactive computer system with which unemployment claimants communicate over the telephone.

For over five months, defendant contacted the CUBLine to make biweekly claims for unemployment benefits. Each time she contacted the CUBLine, the computer system asked defendant if she had worked during the week for which she claimed unemployment benefits. Each time, she pressed the number on her telephone corresponding to an answer of "no." In fact, she was employed at the time, and she concedes that she lied in her CUBLine responses.

Defendant was charged by information with the crimes of theft and computer crime. The theft count alleged that defendant intended to permanently deprive the Department of money, and the computer crime count alleged that she accessed a computer for the purpose of obtaining money from the Department or committing theft. At trial, she testified that she believed the money she received from her unemployment claims belonged to her and had been withheld from her paychecks issued by her previous employer.

The jury was unable to reach a verdict on the theft count and found defendant guilty of computer crime. The jury also convicted defendant of false swearing, a lesser nonincluded offense submitted to the jury at defendant's request. Defendant was subsequently sentenced to five years probation. This appeal followed.

II. Sufficiency of the Evidence

Defendant contends the evidence was insufficient to support the jury's verdict of guilty on the computer crime count. Specifically, she contends the evidence was insufficient to establish that she "accessed" a computer or computer system within the meaning of the term "access" as used in section 18-5.5-102(1)(c)-(d), C.R.S.2007. We disagree.

When the sufficiency of the evidence is challenged on appeal, the reviewing court must determine whether any rational trier of fact might accept the evidence, taken as a whole and in the light most favorable to the prosecution, as sufficient to support a finding of guilt beyond a reasonable doubt. People v. Sprouse, 983 P.2d 771, 777 (Colo.1999); Kogan v. People, 756 P.2d 945, 950 (Colo. 1988); People v. Jaramillo, 183 P.3d 665, 670 (Colo.App.2008). We must give the prosecution the benefit of every reasonable inference fairly drawn from the evidence. Further, the determination of the credibility of the witnesses is solely within the province of the fact finder. Kogan, 756 P.2d at 950; Jaramillo, 183 P.3d at 670.

The prosecution charged defendant with computer crime pursuant to subsections (c) and (d) of section 18-5.5-102(1). Under those subsections,

A person commits computer crime if the person knowingly:

...

(c) Accesses any computer, computer network, or computer system, or any part thereof to obtain, by means of false or fraudulent pretenses, representations, or promises, money; property; services; passwords or similar information through which a computer, computer network, or computer system or any part thereof may be accessed; or other thing of value; or

(d) Accesses any computer, computer network, or computer system, or any part thereof to commit theft....

§ 18-5.5-102(1)(c)-(d).

Here, the prosecution presented evidence that defendant made biweekly unemployment benefits claims by calling an automated phone system, the CUBLine, maintained by the Department. An employee of the Department testified that the CUBLine is a "computerized system, which uses interactive voice response technology." She further testified that an unemployment benefits claimant identifies himself or herself by entering a Social Security number and a personal identification number using numbers on a telephone when prompted by the system. The system then asks the claimant a number of questions related to "weekly eligibility requirements, such as ... did you work during the weeks you are claiming?" The claimant

198 P.3d 1244

responds by pressing "1" for "yes" and "9" for "no." This procedure is described in a brochure that was admitted into evidence at trial and, according to the record, was given to defendant to review before she made her first biweekly claim. When the computer system determines a claimant is eligible for unemployment benefits, a computer prints a check that is automatically sent to the claimant. Typically, an eligible claimant completes a claim and receives a check without interacting with a person.

The evidence showed that defendant used the CUBLine to make biweekly claims for unemployment benefits. Each time the computer system asked if she worked during the week for which she was claiming benefits, defendant entered "9" for "no," even though she was, in fact, working.

Defendant contends that she did not "access" a computer within the meaning of section 18-5.5-102(1)(c)-(d) by making a phone call and pressing telephone buttons in response to the CUBLine questions. We disagree.

Statutory interpretation is a question of law we review de novo. Bostelman v. People, 162 P.3d 686, 689 (Colo.2007).

In construing a statute, our primary purpose is to ascertain and give effect to the intent of the General Assembly. People v. Weiss, 133 P.3d 1180, 1184 (Colo.2006). We look first to the language of the statute itself, giving words and phrases their plain and ordinary meaning. Vigil v. Franklin, 103 P.3d 322, 327 (Colo.2004). We read words and phrases in context, and construe them according to their common usage. Bostelman, 162 P.3d at 690; Klinger v. Adams County Sch. Dist. No. 50, 130 P.3d 1027, 1031 (Colo.2006). When the statutory language is clear and unambiguous, there is no need to resort to interpretive rules and statutory construction. Jones v. Cox, 828 P.2d 218, 221 (Colo.1992).

"Access" is not defined in the Colorado Criminal Code. However, it is a term of common usage, and persons of ordinary intelligence need not guess at its meaning. We, therefore, begin with the dictionary definition in determining the plain and ordinary meaning of "access." See People v. Janousek, 871 P.2d 1189, 1196 (Colo.1994); Jaramillo, 183 P.3d at 671. Black's Law Dictionary 14 (8th ed.2004) defines the word "access" as "[a]n opportunity or ability to enter, approach, pass to and from, or communicate with."

Viewing the evidence in the light most favorable to the prosecution, Sprouse, 983 P.2d at 777, we conclude defendant accessed, within the ordinary meaning of the term, a computer system, because she communicated with the CUBLine by inputting data in response to computer-generated questions. Also, the CUBLine was described in testimony at trial sufficient to support a finding that it was a "computer system" as that term is defined in section 18-5.5-101(6), C.R.S.2007.

We reject defendant's contention that we must go beyond the ordinary meaning of the term "access" to interpret section 18-5.5-102(1)(c)-(d). We need not consider other rules of statutory interpretation because the term "access," as used in section 18-5.5-102(1)(c)-(d), is clear and unambiguous under the facts of this case. See Jones, 828 P.2d at 221.

In any event, we disagree...

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24 practice notes
  • People v. Vigil, Court of Appeals No. 12CA0015
    • United States
    • Colorado Court of Appeals of Colorado
    • July 2, 2015
    ...charges rather than one. Because Vigil did not suffer prejudice from the simple variance, reversal is not warranted. See People v. Rice, 198 P.3d 1241, 1246 (Colo.App.2008) ("A simple variance is not a ground for reversal unless it is ... prejudicial to the defendant.").IV. Modified Unanimi......
  • People v. Scheffer, No. 06CA0780.
    • United States
    • Colorado Court of Appeals of Colorado
    • April 2, 2009
    ...determining whether the district court erroneously instructed the jury, we review the district court's decision de novo. People v. Rice, 198 P.3d 1241, 1244 (Colo.App.2008). Section 18-18-405(1)(a), C.R.S.2008, states, as relevant here, that "it is unlawful for any person knowingly to ... p......
  • Marks v. Gessler, Court of Appeals No. 12CA0549
    • United States
    • Colorado Court of Appeals of Colorado
    • August 1, 2013
    ...by a court.” Id. at 1408. Thus, the plain meaning of “administrative remedy” does not include a judicial remedy. See People v. Rice, 198 P.3d 1241, 1244 (Colo.App.2008) (using a dictionary definition to determine the plain and ordinary meaning of a statutory term).¶ 41 Our interpretation is......
  • People v. Wittrein, No. 08SC588.
    • United States
    • Colorado Supreme Court of Colorado
    • December 14, 2009
    ...to quash the subpoena but based its decision on its own in camera review instead of the psychologist-patient privilege.5 Wittrein, 198 P.3d at 1241. The court of appeals determined that nothing in the mental health records "would have changed the outcome of the defendant's trial." Id. Wittr......
  • Request a trial to view additional results
24 cases
  • People v. Vigil, Court of Appeals No. 12CA0015
    • United States
    • Colorado Court of Appeals of Colorado
    • July 2, 2015
    ...charges rather than one. Because Vigil did not suffer prejudice from the simple variance, reversal is not warranted. See People v. Rice, 198 P.3d 1241, 1246 (Colo.App.2008) ("A simple variance is not a ground for reversal unless it is ... prejudicial to the defendant.").IV. Modified Unanimi......
  • People v. Scheffer, No. 06CA0780.
    • United States
    • Colorado Court of Appeals of Colorado
    • April 2, 2009
    ...determining whether the district court erroneously instructed the jury, we review the district court's decision de novo. People v. Rice, 198 P.3d 1241, 1244 (Colo.App.2008). Section 18-18-405(1)(a), C.R.S.2008, states, as relevant here, that "it is unlawful for any person knowingly to ... p......
  • Marks v. Gessler, Court of Appeals No. 12CA0549
    • United States
    • Colorado Court of Appeals of Colorado
    • August 1, 2013
    ...by a court.” Id. at 1408. Thus, the plain meaning of “administrative remedy” does not include a judicial remedy. See People v. Rice, 198 P.3d 1241, 1244 (Colo.App.2008) (using a dictionary definition to determine the plain and ordinary meaning of a statutory term).¶ 41 Our interpretation is......
  • People v. Wittrein, No. 08SC588.
    • United States
    • Colorado Supreme Court of Colorado
    • December 14, 2009
    ...to quash the subpoena but based its decision on its own in camera review instead of the psychologist-patient privilege.5 Wittrein, 198 P.3d at 1241. The court of appeals determined that nothing in the mental health records "would have changed the outcome of the defendant's trial." Id. Wittr......
  • Request a trial to view additional results

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