State v. Rowell

• Decision Date: 06 December 1995
• Docket Number: No. 22821,22821
• Parties: STATE of New Mexico, Plaintiff-Respondent, v. Donald Morris ROWELL, a/k/a Jimmie Carrol Rowell, Defendant-Petitioner.
• Court: New Mexico Supreme Court

Page 1379

908 P.2d 1379

121 N.M. 111

STATE of New Mexico, Plaintiff-Respondent, v. Donald Morris ROWELL, a/k/a Jimmie Carrol Rowell Defendant-Petitioner.

No. 22821.

Supreme Court of New Mexico.

Dec. 6, 1995.

[121 N.M. 112] Tom Udall, Attorney General and Richard J. Klein, Assistant Attorney General, Santa Fe, for Respondent.

Sammy J. Quintana, Chief Public Defender and Christopher Bulman, Assistant Appellate Defender, Albuquerque, for Petitioner.

OPINION

RANSOM, Justice.

1. Donald Morris Rowell was convicted on one count of computer access with intent to defraud over $250 under NMSA 1978, Section 30-45-3(C) (Repl.Pamp.1989), and one count of attempt to commit fraud over $250 under NMSA 1978, Section 30-16-6 (Repl.Pamp.1994) & -28-1(C) (Repl.Pamp.1994). The computer-fraud conviction carries a basic sentence of eighteen months. NMSA 1978, § 31-18-15(A)(6) (Repl.Pamp.1994). Attempted fraud, a misdemeanor, carries less than one year. NMSA 1978, § 31-19-1(A) (Repl.Pamp.1994). Rowell admitted to having been convicted of four prior felonies and conceded to habitual offender status. See NMSA 1978, § 31-18-17 (Repl.Pamp.1994). As a habitual offender, Rowell was subject to a mandatory eight-year increase in his basic sentence for computer fraud, a fourth degree felony. Section 31-18-17(D). He was sentenced to nine and one-half years imprisonment on the computer-fraud conviction, with the basic one and one-half years suspended, and to a 364-day suspended sentence on the attempted-fraud 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 committing both a completed offense and an attempted offense based on the same set of facts. Id. at 721, 895 P.2d at 243. We granted Rowell's petition for certiorari pursuant to NMSA 1978, Section 34-5-14 (Repl.Pamp.1990) and SCRA 1986, 12-502 (Repl.Pamp.1992). State v. Rowell, 119 N.M. 514, 892 P.2d 961 (1995).

3. This case presents two issues: (1) Whether the use of a telephone network that employs computerized switches constitutes the access of a computer under the New Mexico computer-fraud statute; and (2) Whether multiple misdemeanor larcenies committed against multiple victims in different locations and at different times can be a single larceny amounting to a felony? We hold that the use of a telephone network consisting in part of computerized switches to make a long-distance call does not constitute the "accessing" of a "computer" within the meaning of the computer-fraud statute. We further hold that the single-larceny doctrine does not apply to situations involving multiple victims, locations, and time periods. We therefore reverse Rowell's conviction on the charge of computer access with intent to commit fraud over $250, and in light of this opinion remand to the Court of Appeals for reconsideration of its ruling on the attempted-fraud conviction.

4. Facts. A man identifying himself as Jim Odem telephoned Toni Gray of Carlsbad on September 18, 1992, explaining that he was an attorney from Las Vegas, Nevada, and that Gray was entitled to a $1000 award from a class action against fraudulent telemarketers in Nevada. Gray was instructed to wire $100 to Florida for court costs, but Gray did not wire the money. She instead contacted the Carlsbad Police Department and the Attorney General. Three days later a man identifying himself as Sam Odem telephoned Alan Isbell of Clovis, explaining that he was an attorney from Las Vegas, Nevada, and that Isbell was entitled to a $2200 settlement award from a telemarketing company. Isbell was told to first forward a $220 cash advance for court costs through Western Union to Jason Daniels in St. Petersburg, Florida. Isbell asked Odem to call him again the next day. He then notified the Curry County District Attorney. A recording device was connected to Isbell's phone, and Odem's call on the next day was recorded by the District Attorney's office. Isbell then wired the $220 to Daniels, but he did not receive any money in return. Sam Odem also telephoned Marie Butt of Raton during the same time period, informing her that she was entitled to $1500. To receive the money, however, Butt would have to wire transfer $150 to court referee Sean Jason Daniels in Clearwater, Florida. Butt also became suspicious, refused to wire the money, and informed the Attorney General.

5. Secret Service agents and a local police officer arrested Jason Daniels at a Western Union terminal in Port Richey, Florida, on September 22, 1992. Daniels implicated a taxi driver named William Thurston and a man known as "Jim". Thurston was arrested, and he identified Rowell as "Jim". Rowell and Odem were one and the same person. After his arrest, Rowell consented to the search of several rooms at the Gulf Sands Motel. Law enforcement officials seized several telemarketing materials including a four-page script describing the alleged class action against the Las Vegas telemarketers. Police also seized a telephone bill for services furnished to a fictitious person, two GTE calling cards issued to the same fictitious person, and a telephone contact sheet. At Rowell's trial, Thurston testified that he picked up money transfers from Western Union for Rowell in return for twenty percent of the face amounts. At Rowell's request, Thurston recruited other people to recover funds from Western Union. Daniels was one such recruit, and he was paid a nominal amount from Thurston's twenty percent commission.

6. Access to a computer. The long-distance calls made by Rowell were processed by various computerized switches between Florida and New Mexico. The State argued at trial that these switches perform multiple tasks, are controlled by computers, and therefore fall within the statutory definition of a computer or a computer network. Building on this premise, the State argued that Rowell violated Section 30-45-3 when he used the telephone to commit larceny. Rowell disagreed and argued that the switches were excluded from the statutory definition of computers and that the use of a telephone for the purpose of communication with another person was not intended by the legislature to constitute the crime of computer fraud.

7. -The Computer Crimes Act. Under the New Mexico Computer Crimes Act, NMSA 1978, §§ 30-45-1 to -7 (Repl.Pamp.1989 & Cum.Supp.1995), it is a crime to access a computer with the intent to commit fraud. The district court found, and the Court of Appeals agreed, that the use of a telephone to access the long-distance communications network was accessing a computer for purposes of the Act. Rowell, 119 N.M. at 715, 895 P.2d at 237. Under 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 use of any computer resources, including data or programs of a computer, computer system, computer network or database;

B. "computer" includes an electronic, magnetic, optical or other high-speed data processing device or system performing logical, arithmetic or storage functions and includes any property, data storage facility or communications facility directly related to or operating in conjunction with such device or system. The term does not include an automated typewriter or typesetter or a single display machine in and of itself, designed and used solely within itself for word processing, or a portable hand-held calculator, or any other device which might contain components similar to those in computers but in which the components have the sole function of controlling the device for the single purpose for which the device is intended....

8. The main goal of statutory construction is to give effect to the intent of the legislature. Roth v. Thompson, 113 N.M. 331, 332, 825 P.2d 1241, 1242 (1992). To do this, we look to the "object the legislature sought to accomplish and the wrong it sought to remedy." Lopez v. Employment Sec. Div. of N.M. Dep't of Labor, 111 N.M. 104, 105, 802 P.2d 9, 10 (1990). "The words of a statute ... should be given their ordinary meaning, absent clear and express legislative intention to the contrary," Whitely v. New Mexico State Personnel Bd., 115 N.M. 308, 311, 850 P.2d 1011, 1014 (1993), but "our construction must not render the statute's application absurd, unreasonable, or unjust," Aztec Well Servicing Co. v. Property & Casualty Ins. Guar. Ass'n, 115 N.M. 475, 479, 853 P.2d 726, 730 (1993). Interpretation of a statute is an issue of law, not a question of fact. State v. Romero, 119 N.M. 195, 197, 889 P.2d 230, 232 (Ct.App.1994), cert. denied, 119 N.M. 20, 888 P.2d 466 (1995); Pan Am. Petroleum Corp. v. El Paso Natural Gas Co., 77 N.M. 481, 487, 424 P.2d 397, 401 (1966). We review questions of law de novo. State v. Ogden, 118 N.M. 234, 240, 880 P.2d 845, 851, cert. denied, --- U.S. ----, 115 S.Ct. 336, 130 L.Ed.2d 294 (1994).

9. It is not clear from the language of the Computer Crimes Act whether the use of the long-distance telephone network to commit larceny does violate the statute. Section 30-45-2(A) states that access includes conduct that "make[s] use of any computer resources." Section 30-45-2(B) specifically provides, however, that the statutory definition of a computer does not include devices that "contain components similar to those in computers" which are designed for controlling the device only "for the single purpose for which the device is intended." The State has noted that the switches in question perform multiple functions, but this fact is not dispositive.¹ We must determine whether the use of these multi-function, computerized switches for the purpose of communication amounts to the access of a computer under the Act or whether such use amounts to access of computer components that merely...