State v. Azar

Decision Date06 April 2022
Docket NumberA170612
Parties STATE of Oregon, Plaintiff-Respondent, v. Raji Afife AZAR, Defendant-Appellant.
CourtOregon Court of Appeals

Zachary Lovett Mazer, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Patrick M. Ebbett, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Mooney, Presiding Judge, and Pagán, Judge, and DeVore, Senior Judge.*

MOONEY, P. J.

Defendant repeatedly bought property that he believed to be stolen and then, using a computer and the internet, he sold that property on eBay. For that and other related conduct, defendant was convicted of multiple counts of attempted first-degree theft, ORS 161.405 and ORS 164.055, and computer crime, ORS 164.377, as well as laundering a monetary instrument, ORS 164.170, and conspiracy, ORS 161.450. On appeal, he contends that the trial court erred by (1) denying his motions for judgment of acquittal on the computer crime counts, (2) instructing the jury that it could return nonunanimous verdicts, and (3) accepting nonunanimous guilty verdicts on four of the counts with which he was charged. For the reasons that follow, we reverse defendant's four convictions that were based on nonunanimous verdicts, but otherwise affirm.

I. NONUNANIMOUS VERDICTS

We begin with assignments of error four through 12 in which defendant challenges the court's instruction to the jury that it could convict defendant on nonunanimous verdicts, the court's acceptance of nonunanimous verdicts on counts 30, 35, 36, and 37, and its entry of convictions on those counts. The state properly concedes the instructional error under Ramos v. Louisiana , 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020). Accepting the jury's nonunanimous verdicts on counts 30, 35, 36 and 37 requires reversal and remand of those counts. Id. Defendant is not, however, entitled to reversal on the remaining counts, which were based on unanimous verdicts. State v. Flores Ramos , 367 Or. 292, 478 P.3d 515 (2020) ; see also State v. Ciraulo , 367 Or. 350, 478 P.3d 502 (2020), cert. den. , ––– U.S. ––––, 141 S. Ct. 2836, 210 L.Ed.2d 950 (2021).

Because counts 30, 35, 36 and 37 are to be remanded for a new trial, we turn to defendant's first three assignments of error in which he assigns error to the court's denial of his motion for judgment of acquittal as to those computer crime counts. See generally State v. Witt , 313 Or. App. 479, 493 P.3d 543 (2021) (considering whether the trial court erred in denying the defendant's motion for judgment of acquittal notwithstanding the trial court's error in accepting a nonunanimous jury verdict).

II. STANDARD OF REVIEW

When, as here, denial of a defendant's motion for judgment of acquittal (MJOA) "centers on the meaning of the statute defining the offense," we review the trial court's interpretation of that statute for legal error. State v. Hunt , 270 Or. App. 206, 210, 346 P.3d 1285 (2015). We review the sufficiency of the evidence by reviewing the facts in the light most favorable to the state to determine whether a rational juror could have found the essential elements of the crime beyond a reasonable doubt. State v. Tecle , 285 Or. App. 384, 386, 396 P.3d 955 (2017).

III. FACTUAL BACKDROP

Defendant was convicted of numerous crimes following a retail theft investigation conducted initially by private investigators and then law enforcement personnel. In January 2018, investigators for Fred Meyer and Safeway observed defendant buy merchandise that he believed to be stolen, but that was not stolen, because one of the investigators provided the merchandise to a known shoplifter to sell to defendant in order to gather evidence on defendant's fencing operation. Over the next months, undercover investigators for Fred Meyer developed a relationship with defendant and conducted a series of transactions in which undercover employees sold merchandise to defendant under the pretense that the merchandise had been shoplifted or otherwise stolen.1

Around the same time, it was suspected that defendant was using eBay to sell the stolen items that he had purchased in the undercover transactions. Investigators identified an eBay account with the name "ellabellesbotique" associated with the same location and selling the same kind of property that the Fred Meyer investigators had been selling to defendant. The investigators purchased items from that account, some of which had the same invisible ink marks with which they had marked the items before selling them to defendant.

eBay is a website that allows people to buy or sell items on the internet. To sell items, a person must create a profile on eBay by accessing the website and creating an account. Each account requires a unique username and password. Once an account is set up, users can sell items on any computer or mobile device and upload pictures of their items for sale. eBay processes payments for items through a platform called PayPal. A buyer may pay for an item through PayPal or pay directly by using a credit or debit card. In order to use PayPal, the buyer and seller must each have an account with PayPal. Once a buyer's payment is processed through PayPal, the funds are transferred to the seller's PayPal account. The seller is then able to transfer those funds to a personal bank account by linking the seller's PayPal account and the personal account.

Eventually, the investigation into defendant's fencing operation was turned over to law enforcement. Detective Fields of the Portland Police Bureau arranged another undercover transaction with defendant, and defendant was arrested after the transaction. Fields obtained a search warrant for defendant's home. At the house, Fields and other officers found "just mountains of" the type of property that had been sold to defendant by the investigators. They also found shipping materials. Police had to use multiple vans to remove the property from the home.

Defendant was interviewed by Fields after the search. Defendant described in detail how he worked with different people he knew to be thieves to purchase stolen property, used eBay to resell the property on his sister's account because his own account had been blocked, and forwarded the proceeds in her account to his own PayPal account and then transferred it to his personal bank account. He told the detective that he had "been doing this a long time."

IV. PROCEDURAL BACKDROP

Defendant was indicted on multiple crimes, including 17 counts of felony computer crime under ORS 164.377(2).2

The computer crime counts alleged that, on various occasions, defendant

"did unlawfully and knowingly access and use a computer, computer system, and computer network for the purpose of committing theft of property by receiving/selling[.]"

Defendant's case was tried to a jury.

At the close of the state's evidence, the trial court granted defendant's MJOA on 14 of defendant's computer crime counts. As to the remaining computer crime counts, defendant moved for judgment of acquittal on the grounds that the state failed to establish that he had used and accessed a computer system for the purposes of committing theft within the meaning of ORS 164.377(2).3 He argued that the legislature enacted that statute to combat computer hacking and that, because there was no evidence that he hacked into any computer system, no reasonable juror could conclude that he violated the statute.

The court denied the motion, and defendant was ultimately found guilty of, among other crimes, three counts of felony computer crime.

On appeal, defendant argues that the trial court erred in denying his MJOA. He argues that ORS 164.377(2) does not apply to his conduct, because the legislature enacted the statute to combat computer hacking, and there is no evidence that he engaged in computer hacking. He contends that the legislature did not intend for ORS 164.377(2) to apply to his "use of a publicly accessible website for its intended purpose"—the buying and selling of merchandise—even if the object was to commit theft. In support of his argument, defendant relies on the statute's plain text and legislative history, arguing that application of the statute to his conduct would require an expansive construction of ORS 164.377(2) which would, in turn, result in constitutional vagueness problems. The state responds that the trial court did not err in denying defendant's motion, because the statute was intended to criminalize the direct use or access of a computer system for specific, unlawful purposes and, further, that that construction does not render the statute void for vagueness.

V. ANALYSIS

Our task is to determine whether the legislature intended the phrase, "accesses, attempts to access or uses" a computer or computer system, in ORS 164.377(2), to apply to defendant's conduct. Our goal is to determine the legislature's intent. State v. Gaines , 346 Or. 160, 171, 206 P.3d 1042 (2009). We do that by examining the text and context of the statute, as well as legislative history if it is useful to our analysis. Id. at 171-72, 206 P.3d 1042.

A. The plain text does not support defendant's position.

We start with the text of ORS 164.377(2), beginning with

"Any person commits computer crime who knowingly accesses , attempts to access or uses , or attempts to use, any computer, computer system, computer network or any part thereof for the purposes of:
"(a) Devising or executing any scheme or artifice to defraud;
"(b) Obtaining money, property or services by means of false or fraudulent pretenses, representations or promises; or
"(c) Committing theft, including, but not limited to, theft of proprietary information or theft of an intimate image."

(Emphases and boldface added.) "[A]ccess" is defined as

"to
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