State v. Rowell
| Decision Date | 16 March 1995 |
| Docket Number | No. 15365,15365 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Donald Morris ROWELL, a/k/a Jimmie Carrol Rowell, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Between September 18, 1992 and September 22, 1992, residents of the New Mexico communities of Clovis, Raton, and Carlsbad each received virtually identical telephone calls from a man claiming to be a Nevada attorney named either Sam or Jim Odem. Odem informed at least two of the New Mexico residents that he was awarding money from a lawsuit to customers of a fraudulent telemarketing company. Although the third resident could not recall Odem's exact reasons, she believed that his promise of a monetary award stemmed from her prior dealings with a telemarketing company. Odem told each of the three New Mexico residents that before they could collect their refund, they would have to send a court referee in Florida ten percent of the amount owed to them for fees or court costs. Upon receiving these phone calls, each resident notified the authorities.
A Curry County grand jury indicted Defendant, as the caller identified as Odem, on one count of computer access with intent to commit fraud over $250, a fourth degree felony in violation of NMSA 1978, Section 30-45-3 (Repl.Pamp.1989), and one count of attempt to commit fraud over $250, a misdemeanor under NMSA 1978, Sections 30-16-6 and 30-28-1 (Repl.Pamp.1994). A jury convicted Defendant on both counts.
On appeal, Defendant raises nine challenges to the jury verdict. We affirm on all issues except Defendant's conviction under Section 30-16-6.
Alan Isbell, a Clovis resident, testified that on September 21, 1992, he received a telephone call from a person who identified himself as Sam Odem. Odem said he was an attorney calling from Las Vegas, Nevada and that he was in the process of awarding a legal settlement from a disreputable telemarketing company. Odem told Isbell that, as a prior customer of the company, he was entitled to receive a cashier's check for $2200, but first Isbell would have to pay $220 in court costs. Odem advised Isbell to use Western Union to forward a $220 cash advance to the court referee, Jason Daniels, in St. Petersburg, Florida. Isbell became suspicious and asked Odem to call back the next day. In the meantime, Isbell contacted Jim Skinner, an investigator with the Curry County District Attorney's office. Skinner connected a recording device to Isbell's telephone and made arrangements for a money transfer.
On September 22, 1992, Odem again called Isbell. The district attorney's office recorded those calls and played the recordings for the jury at Defendant's trial. Using the mechanism set up by Skinner, Isbell wired $220 to Florida as instructed by Odem. Isbell, however, never received any money from Odem's telemarketing settlement.
Marie Butt of Raton testified that she received a similar call from Sam Odem directing her to wire money to court referee Daniels in Clearwater, Florida. She became suspicious, refused to transfer the funds requested by Odem, and contacted the New Mexico Attorney General's office.
Toni Grey of Carlsbad also received a telephone call from a man identified as Jim Odem. Odem told Grey that he was a Las Vegas attorney who was contacting her because she had been awarded money in a class action suit. Odem instructed Grey to wire $100 to Florida. Grey became suspicious and did not follow Odem's instructions. Instead, she called the Carlsbad Police Department and later the New Mexico Attorney General's office.
A Port Richey, Florida law enforcement officer arrested Daniels on September 22, 1993. At trial, the officer identified a Western Union money order form showing a $220 cash advance from Isbell to Daniels. Following questioning by the Port Richey Police Department and the United States Secret Service, Daniels implicated one William Thurston and a man named "Jim." Police later located Thurston, who informed them that "Jim" might be found at a lounge named the Stumble Inn. Police proceeded to the lounge where Thurston pointed out "Jim." In court, the Port Richey police officer, as well as a United States Secret Service agent, identified "Jim" as Defendant.
After his arrest, Defendant consented to a search of his rooms at the Gulf Sands Motel. From those rooms, law enforcement officers seized "numerous telemarketing materials," including telephone bills, calling cards in the name of Calvin Root, and a four-page handwritten script describing the class action settlement against the Las Vegas telemarketers.
Thurston testified that he cashed checks for Defendant in return for twenty percent of the check amount. At some point, Defendant asked Thurston to employ other people to present the forms to Western Union, which he did. Thurston continued to retain twenty percent and paid the other people out of his portion. Thurston testified that he used Daniels in this manner approximately five or six times. Thurston also testified that, on one occasion, he had heard Defendant use the name Sam Odem.
Defendant initially challenges the sufficiency of the evidence to support the essential elements of computer access with intent to defraud under Section 30-45-3.
Prior to trial, Defendant moved to quash the indictment, arguing that lifting a telephone receiver in Florida and dialing a New Mexico phone number did not, as a matter of law, amount to "accessing a computer" within the meaning of the New Mexico Computer Crimes Act, NMSA 1978, Sections 30-45-1 to -7 (Repl.Pamp.1989). In support of his motion, Defendant presented Gary Johnston, a digital electronics programming instructor at Clovis Community College. Johnston testified that he had been an instructor for sixteen years and had spent almost ten years installing telephone switching equipment and working with electronic switching systems.
According to Johnston, an electronic switching system employs both an operations program and a translation program. Through the operations program, the computer knows how to connect a caller with other parties. The translation program stores customer information in the local office. This information includes, for example, whether the caller is entitled to services such as call waiting, call forwarding, and multiparty calling. By picking up a telephone handset, a caller can only access the services provided by the system and cannot "get into" the computer in the phone system to withdraw information or change the program. In refusing to quash the indictment, the district court ruled that it was "the province of a jury, whether or not they find that a computer, as defined in that section, was used by Mr. Rowell [Defendant] in the acts alleged here." We agree.
At trial, the State called Edward Isaacson, an investigations manager for GTE Florida, Inc. Isaacson testified that the telephone company's "switch" is based on electronic software that is "made up of numerous or multi-computers or micro-processors that are working together as a network that not only provide dial tone to the customer, but they gather the information for processing a call ... and store the information for billing purposes." The prosecution proceeded to question Isaacson as follows:
The State also called David Bailey, who had been responsible for computer security at Los Alamos National Laboratory, as an expert in the field of computer systems and networks. Bailey testified that a digital computer system is often identical to the systems businesses buy to do data processing. He stated that Bailey concluded, without objection, that in his opinion,
A person "who knowingly and willfully accesses or causes to be accessed any computer, computer system, computer network or any part thereof with the intent to obtain, by means of embezzlement or false or fraudulent pretenses, representations or promises, money, property or anything of value" is guilty of a violation of Section 30-45-3. Defendant makes no argument as to the "knowingly" and "willfully" requirements.
Defendant focuses his argument on the following statutory definitions in Section 30-45-2:
A. "access" means to program, execute programs on, intercept, instruct, communicate with, store data in, retrieve data from or otherwise make...
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State v. Villa
...a knowing or willful violation is less likely to be found vague because the jury must determine scienter." State v. Rowell, 119 N.M. 710, 718, 895 P.2d 232, 240 (Ct.App.1995), rev'd on other grounds, 121 N.M. 111, 908 P.2d 1379 (1995). We hold that Section 74-6-10.2(B) is not unconstitution......
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1997 -NMCA- 40, Gallegos v. State Bd. of Educ.
...apportioning liability, we cannot say that the trial court abused its discretion in denying a mistrial. See State v. Rowell, 119 N.M. 710, 719, 895 P.2d 232, 241 (Ct.App.) (not every misstatement made during closing argument mandates as a new trial), rev'd on other grounds, 121 N.M. 111, 90......
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State v. Rowell
...conviction. 2. Rowell appealed and the Court of Appeals affirmed his conviction on computer fraud. State v. Rowell, 119 N.M. 710, 717, 895 P.2d 232, 239 (Ct.App.1995). The Court of Appeals vacated Rowell's misdemeanor conviction for attempt, holding that Rowell could not be convicted of com......
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State v. Villa, 2003 NMCA 142 (N.M. App. 10/10/2003)
...a knowing or willful violation is less likely to be found vague because the jury must determine scienter." State v. Rowell, 119 N.M. 710, 718, 895 P.2d 232, 240 (Ct. App. 1995), rev'd on other grounds, 121 N.M. 111, 908 P.2d 1379 (1995). We hold that Section 74-6-10.2(B) is not unconstituti......