State v. McGraw, 785S280

• Decision Date: 17 July 1985
• Docket Number: No. 785S280,785S280
• Citation: 480 N.E.2d 552
• Parties: STATE of Indiana, Appellant (Plaintiff Below), v. Michael McGRAW, Appellee (Defendant Below).
• Court: Indiana Supreme Court

Page 552

480 N.E.2d 552

51 A.L.R.4th 963

STATE of Indiana, Appellant (Plaintiff Below), v. Michael McGRAW, Appellee (Defendant Below).

No. 785S280.

Supreme Court of Indiana.

July 17, 1985.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Stephen Goldsmith, Pros. Atty., James M. Warden, Deputy Pros. Atty., Indianapolis, for appellant.

Donald E. Snow, Matthew F. Purol, Philip R. Melangton, Jr., Melangton, Bradford & Snow, Indianapolis, for appellee.

ON CRIMINAL PETITION FOR TRANSFER

PRENTICE, Justice.

Defendant (Appellant-Petitioner) was charged with nine counts of theft under Ind.Code Sec. 35-43-4-2 (Burns Supp.1983), by information alleging that he knowingly exerted "unauthorized control over the property of the City of Indianapolis, Indiana, to-wit: the use of computers and computer services with intent to deprive the City of Indianapolis, * * *." He was convicted upon two counts, following a trial by jury. The trial court, thereafter, granted his renewed motion to dismiss, citing, among other grounds, the insufficiency of the evidence. The Court of Appeals (First District) reversed the trial court and ordered the verdicts reinstated by decision and opinion published at 459 N.E.2d 61.

The case is before us upon Defendant's petition for transfer, which is now granted, inasmuch as the Court of Appeals erroneously regarded the cause as a single issue case and arrived at an erroneous holding that the unauthorized use of another's property for monetary benefit, without more, is a "Theft" under the above cited statute. That court's decision appears to have been clouded by the motion having been premised upon ill-conceived jurisdictional concepts and Defendant's contention that the conduct charged in the information was not proscribed by the statute. From this point of view, the trial court may have been correct in its first ruling, denying the motion, during the pleading stage of the case. We need not pass upon that point. It was, nevertheless, correct in its second ruling, granting the motion, as it was made in the light of the evidence.

The trial court's ultimate ruling was as follows:

"There is a jurisdictional impedement to the conviction of the defendant for the offenses charged in counts VIII and IX because the Court does not have jurisdiction over the facts shown by the evidence in that the theft statute does not apply to the defendant's conduct as shown by the evidence...." (R. II, 358-359) (Emphasis added.)

Thus, although it appears that counsel and the trial judge may have been confused with respect to jurisdictional considerations, it is clear that the judge had determined that, under the evidence, the Defendant was not guilty, and we regard the ruling as a judgment on the evidence under Ind.Rules of Procedure, Trial Rule 50(A)(6), and Defendant stands acquitted.

As evidenced by the following passage, the Court of Appeals did not consider the motion and ruling in context with the evidence:

"Inasmuch as the evidence clearly supports the fact that McGraw knowingly and intentionally used the city leased computer for his own monetary benefit, the only real question is whether 'use' of a computer is a property subject to theft. The sufficiency question will not be discussed separately." (Emphasis added.)

McGraw, 459 N.E.2d at 64.

From this statement, it appears that the Court of Appeals may have been persuaded of Defendant's guilt by the "monetary benefit" motivation for his conduct. However, although the unauthorized use of another's property for monetary benefit, arguably, may be morally more reprehensible than is such use for personal convenience, the theft statute does not distinguish between the two, so neither may we.

It is fundamental that penal statutes must be construed strictly against the State. They may not be enlarged by implication or intendment beyond the fair meaning of the language used and may not be held to include offenses other than those which are clearly described, notwithstanding that the court may think the legislature should have made them more comprehensive. Kelley v. State (1953), 233 Ind. 294, 298, 119 N.E.2d 322, 324; Pennington v. State (1981), Ind., 426 N.E.2d 408, 410.

Defendant was employed by the City of Indianapolis, as a computer operator. The City leased computer services on a fixed charge or flat rate basis, hence the expense to it was not varied by the extent to which it was used. Defendant was provided with a terminal at his desk and was assigned a portion of the computer's information storage capacity, called a "private library," for his utilization in performing his duties. No other employees were authorized to use his terminal or his library.

Defendant became involved in a private sales venture and began soliciting his co-workers and using a small portion of his assigned library to maintain records associated with the venture. He was reprimanded several times for selling his products in the office and on "office time," and he was eventually discharged for unsatisfactory job performance and for continuing his personal business activities during office hours.

Defendant, at the time of his being hired by the City, received a handbook, as do all new employees, which discloses the general prohibition against the unauthorized use of city property. Other city employees sometimes used the computer for personal convenience or entertainment; and although Defendant's supervisor knew or suspected that Defendant was using the computer for his business records, he never investigated the matter or reprimanded Defendant in this regard, and such use of the computer was not cited as a basis for his discharge.

Defendant, following his discharge, applied for and received unemployment compensation benefits, over the protest of the City. He requested a former fellow employee to obtain a "print-out" of his business data and then to erase it from what had been his library. Instead, the "print-out" was turned over to Defendant's former supervisor and became the basis for the criminal charges.

Assuming that Defendant's use of the computer was unauthorized and that such use is a "property" under the theft statute, there remains an element of the offense missing under the evidence. The act provides: "A person who knowingly or intentionally exerts unauthorized control over property of another person with intent to deprive the other of any part of its value or use, commits theft, a class D felony." (Emphasis added.) Ind.Code Sec. 35-43-4-2. It is immediately apparent that the res of the statute, the harm sought to be prevented, is a deprivation to one of his property or its use--not a...