State v. Joyner

• Decision Date: 30 September 1987
• Citation: 759 S.W.2d 422
• Parties: STATE of Tennessee, Appellee, v. Rita G. JOYNER, Appellant. 759 S.W.2d 422
• Court: Tennessee Court of Criminal Appeals

Page 422

759 S.W.2d 422

STATE of Tennessee, Appellee, v. Rita G. JOYNER, Appellant.

759 S.W.2d 422

Court of Criminal Appeals of Tennessee,

at Jackson.

Sept. 30, 1987.

Permission to Appeal Denied by

Supreme Court Feb. 1, 1988.

Norma Crippen Ballard, Asst. Atty. Gen., Nashville, Chris Craft, Asst. Dist. Atty. Gen., Memphis, for appellee.

James F. Schaeffer, Memphis, for appellant.

OPINION

DAUGHTREY, Judge.

The defendant, Rita G. Joyner, was charged in a one-count indictment with violation of the 1983 Computer Crimes Act, TCA Secs. 39-3-1401 et seq. She was convicted by a jury and sentenced to serve one year in the local workhouse, to be followed by a probation period of five years. She appeals, claiming (1) that the trial judge should have entered a judgment of acquittal because the indictment was "overly broad and too vague to allow the defendant and defense counsel to defend the charge brought against her," and because the statute itself is "unconstitutionally overbroad and vague"; (2) that the evidence is insufficient to support the verdict; and (3) that the jury instructions were erroneous because they did not "accurately define the offense" of computer fraud. We find no reversible error and affirm.

I. Sufficiency of the Charge

The Computer Crimes Act of 1983 was enacted for the express purpose of combatting "computer-related crime," which the legislature described as "a potential problem in business and government" with losses "far greater than [those] associated with ... other white collar crime." TCA Sec. 39-3-1402(1) and (2). The statute provides, in pertinent part, ¹ as follows:

(a) Whoever knowingly and willfully, directly or indirectly, accesses, causes to be accessed, or attempts to access any computer software, computer program, data, computer, computer system, computer network, or any part thereof, for the purpose of:

(1) Devising or executing any scheme or artifice to defraud; or

(2) Obtaining money, property, or services for themselves or another by means of false or fraudulent pretenses, representations, or promises shall, upon conviction thereof, be fined a sum of not more than fifty thousand dollars ($50,000) or imprisoned not less than three (3) nor more than ten (10) years, or both.

Certainly, the provision in subsection (a) is not artfully drawn. For one thing, it is composed of a single sentence, whose subject ("whoever") and verb ("shall be fined or imprisoned") are separated by 63 words. Among those 63 words are two enumerated clauses that appear, facially at least, to set out two separate crimes. But the clauses in (a)(1) and (2) cannot constitute independent offenses, because there is no separate penalty provision for (a)(1). Instead, we conclude that the two clauses must be read together to describe alternate means of committing a single offense, despite the use of the disjunctive "or" between clauses (a)(1) and (2). The latter interpretation makes the provisions of (a)(1) and (2) technically redundant, but it gives a fuller description of the crime. Indeed, it is this interpretation of subsection (a) that the trial judge used in his charge to the jury. See Section III, below.

Prior to trial the defendant raised no challenge to the constitutionality of the statute, nor did she allege in any fashion that the indictment was insufficient to put her on notice of what charge to defend. After the state rested its case, however, defense counsel moved to dismiss the indictment on the ground that it was "far too broad and general." The trial court declined to do so, finding the indictment clear but the statute somewhat ambiguous.

For the most part the indictment tracks the language of TCA Sec. 39-3-1404(a)(1). It alleges that defendant Joyner "did unlawfully, feloniously, knowingly and willfully access the computer system of Memphis Light, Gas and Water Division, an entity owned by the City of Memphis, Tennessee, for the purpose of executing a scheme to defraud the said Memphis Light, Gas and Water Division ..." The trial court ruled that the indictment stated an offense by alleging a felonious scheme to defraud by means of computer access, in the language of subsection (a)(1), and noted that if the defendant had needed more specific information to prepare her defense, she could have filed a pretrial motion for a bill of particulars, but had not done so. ² We agree with this ruling. A criminal defendant who has failed to avail himself or herself of the self-help measure available under Rule 7(c) of the Rules of Criminal Procedure cannot later complain that the allegations in the indictment were too non-specific to permit preparation of a defense.

The indictment in this case not only sets out the charge in the language of the statute, but also alleges that the defendant acted "feloniously." In other contexts, the courts have held that this terminology embraces criminal intent. See, e.g., Young v. State, 487 S.W.2d 305, 307 (Tenn.1972); Harrell v. State, 593 S.W.2d 664, 671 (Tenn.Crim.App.1979), holding that the term "feloniously," used in connection with a charge or robbery, imputes to the defendant the intent permanently to deprive the rightful owner or possessor of the goods taken by force or violence. Similarly, we believe the use of the term "feloniously" imputes to the defendant in this case the intent to defraud by "obtaining money, property, or services for [herself] or another by means of false or fraudulent pretenses," as subsection (a)(2) provides and as the trial court ruled.

We thus conclude that the indictment was not facially deficient and that, in any event, the defendant's challenge to its sufficiency, in the absence of a timely pretrial motion to dismiss or a request for a bill of particulars, came too late to provide grounds for dismissal.

Nor do we find any merit to the belated contention that the statute is unconstitutional because it is "vague and overbroad." As the trial judge noted, Sec. 39-3-1404(a) is somewhat ambiguous in its language because of the supposedly disjunctive provisions in subsection (a)(1) and (2). But when these two clauses are read together, as the trial judge read them, the statute is sufficiently clear and specific in its definition of the offense to pass constitutional muster.

The courts are charged with upholding the constitutionality of statutes where possible. Dykes v. Hamilton County, 183 Tenn. 71, 191 S.W.2d 155, 159 (1945). This principle undoubtedly applies to provisions which are inartfully drawn, but which with reasonably unstrained interpretation can be seen to express the clear intent of the legislature. We thus decline to invalidate the provision in Sec. 39-3-1404(a) as unconstitutional.

II. Sufficiency of the Evidence

At the time of her arrest, defendant Joyner was a 13-year employee of the Memphis Light, Gas & Water Division. An investigation by MLG & W implicated her in large monetary losses, for which the utility eventually recovered $35,000 from its insurance carrier.

Intimate knowledge of MLG & W's billing practices apparently allowed the defendant to skim off large sums of cash that she received in her position as a "credit counselor" at the utility. Customers who were having difficulty paying their bills could seek assistance from MLG & W's credit counselors, who helped them develop payment plans. Partial payments would often be made on the day such plans were set up, in order to ensure uninterrupted continuation of utility services to the delinquent customer. The adjusted payments were entered on duplicate copies of the original bills. If payments were not made (or if an address became "vacant") for as long as two and one half months, the delinquent account was charged off as "bad debts."

Without detailing the extensive proof in the case, we can best summarize the scheme executed by the defendant as follows: As a "credit counselor," Joyner would use the MLG & W computer to call up a customer's account and print out a duplicate bill. She would then accept cash from the customer, making an adjustment on the duplicate bill. She apparently kept the cash and forged unpersonalized counter checks to turn in to the cashier as payment on several duplicate bills at a time.

Joyner would also use the computer to obtain account numbers from "bad debt" accounts, or to locate a vacant address or a delinquent account that would soon be written off by the utility as a "bad debt." She would then enter the number of one or more of these "bad debt" accounts on one of the forged counter checks. When the check was returned by the bank (usually because it did not carry a correct bank account number), it would then be "charged back" against the largest unpaid account listed on the check, usually a "bad debt" account, and the remainder of the listed accounts would be carried on...