State v. Rupnick

• Decision Date: 16 December 2005
• Docket Number: No. 92,193.,92,193.
• Citation: 125 P.3d 541
• Parties: STATE of Kansas, Appellee, v. Joseph "Zeke" RUPNICK, Appellant.
• Court: Kansas Supreme Court

Page 541

125 P.3d 541

STATE of Kansas, Appellee, v. Joseph "Zeke" RUPNICK, Appellant.

No. 92,193.

Supreme Court of Kansas.

December 16, 2005.

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Michael C. Hayes, of Oskaloosa, argued the cause and was on the brief for appellant.

Andrew D. Bauch, assistant attorney general, argued the cause, and Phill Kline, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by BEIER, J.:

Defendant Joseph "Zeke" Rupnick was charged with three violations of K.S.A.2004 Supp. 21-3755(b)(1)(C), felony computer crime. The jury found him guilty of lesser included misdemeanor computer trespass under K.S.A.2004 Supp. 21-3755(d) on Counts I and II and guilty as charged on Count III. Rupnick appeals these convictions. His case was transferred from the Court of Appeals by this court pursuant to K.S.A. 20-3018(c).

Defendant worked for Harrah's Prairie Band Casino in Mayetta from September 1997 until January 2000 and then for Harrah's North Kansas City Casino (Harrah's) in Missouri from February 2000 until January 2001. After leaving Harrah's, defendant began working for the Sac & Fox Casino (Sac & Fox) in Brown County on September 24, 2001.

Before defendant came to work for Sac & Fox, the casino removed all "A" drives for floppy disks from its employee's computers. Thereafter, if employees needed access to work-related data from floppy disks, Sac & Fox computer technicians would load the data onto the Sac & Fox computer system.

Soon after defendant started work with Sac & Fox, agent Darin Altenburg of the Kansas State Gaming Agency was told defendant had asked computer technicians Terry Koppa and Dale Lowe to download suspicious data contained on two floppy disks. Koppa and Lowe scanned the disks to check for computer viruses. During this process, they discovered the disks contained documents labeled as property of Harrah's. The technicians also were able to determine that defendant had not created the documents. They therefore refused to download the data.

Koppa and Lowe reported their findings to their supervisor, Brenda Adkins. Adkins in turn reported the incident to her supervisor, Bill Kendrick, the general manager at Sac & Fox. After the technicians refused to download the data, they noticed that defendant began to bring his personal laptop computer to Sac & Fox.

Altenburg interviewed Adkins about the incident. Adkins told the agent that defendant had also come to her with a black binder containing Harrah's accounting procedures, accounting checklists, policies, and other documents and forms. Adkins said defendant told her to look at the binder and make copies of anything she could use. Altenburg did not know whether the documents contained in the notebook were marked confidential.

Kendrick told Altenburg defendant had said Sac & Fox could benefit from the use of some of Harrah's internal controls. Defendant then passed out copies of Harrah's internal controls to all Sac & Fox department heads. Defendant also showed Kendrick a copy of a confidentiality agreement he had signed at Harrah's and suggested Sac & Fox institute a similar agreement.

The confidentiality agreement defendant had signed at Harrah's contained the following statements:

"I agree that any work, invention, innovation, idea or report that I produce in connection with my work for the Company, or which results from or is suggested by the work I do for or on behalf of the Company is a `work for hire,' and will be the sole property of the Company.

"I will not at any time, directly or indirectly, either during my employment or for two years thereafter, disclose to any person, corporation or other entity which offers any product or service which is, in any way, in competition with any product or service offered by the Company, or use in competition with the Company, any of the Company's confidential or proprietary information.

"Upon the termination of my employment for any reason whatsoever, I will promptly deliver to the Company all documents, computer software, files, databases, drawings, prints, prototypes, models, manuals, letters, lists, notes, notebooks, reports and copies thereof, whether prepared by me or others, all other material of a secret, confidential or proprietary nature relating to the Company's business, and any other document relating or referring to such material."

Altenburg interviewed defendant at Sac & Fox. When Altenburg and another agent, Randy Evans, approached defendant, defendant requested that they speak in defendant's office. Defendant also requested that the agents close the door. Altenburg noticed that a laptop was on defendant's desk; the laptop was connected to a printer, and the printer was printing documents.

Altenburg informed defendant that he and Evans were conducting an investigation. Defendant responded, "Oh, yeah. I heard from somebody that you were investigating me."

When questioned about the computer disks given to the technicians, defendant said he did not have any disks containing Harrah's information. Defendant also maintained that he had not asked the technicians to install such information on the Sac & Fox system. Defendant said he had asked the technicians to install a compact disk containing only minimum internal controls for Indian gaming, which are available to the public on the gaming agency's website. Defendant continued to deny requesting the installation of Harrah's information after Altenburg said he had spoken to the computer technicians personally. Altenburg then asked specifically whether defendant had given the technicians two floppy disks to install. Defendant said he had given them a couple of disks, but the technicians refused to install the data they contained. Defendant stated the technicians told him "it would be an electronic crime or something." When asked why it would be an electronic crime, defendant responded, "I don't know. Something about it was illegal for me to have these disks."

Altenburg then returned to the topic of the information contained on the two disks. Defendant responded that the disks contained information he received while working for Harrah's, including policies and procedures and operation plans. Defendant also stated that he helped design the minimum internal controls and that he had maintained copies of those documents at his personal residence. Altenburg asked defendant if he remembered signing a confidentiality agreement with Harrah's. Defendant said he did not remember signing such an agreement.

Altenburg then asked defendant if there was any proprietary information belonging to Harrah's on the laptop in defendant's office. Defendant responded, "I'm not going to lie to you guys, I have a lot of shit on my computer from Harrah's. I created a lot of databases when I worked for Harrah's Prairie Band when I was the Surveillance Director, I still have all of those databases. I made them, so in my opinion, they belong to me." When asked what "a lot of shit" meant, defendant replied, "I just have a lot of shit from Harrah's. Some of it's promotional shit, and some of it's maybe stuff I shouldn't have."

Defendant denied Altenburg access to his laptop, stating he did not use the laptop for work purposes. He later admitted, however, that he did use it for work. When asked again, defendant again denied access to his laptop, stating there was information on the laptop that defendant did not want Altenburg to see. Altenburg left defendant's office, contacted his superior, and decided to seize the laptop immediately. Altenburg thought the information contained on the laptop could be destroyed easily and might never be recovered if he did not act quickly.

When Altenburg returned to defendant's office, defendant was on the telephone with an attorney for the casino. Defendant informed the attorney that the agents wanted to take the laptop. The attorney asked why, and defendant responded, "Well, I have stuff from Harrah's on it." The attorney asked, "You have stuff from Harrah's on your personal laptop?" Defendant responded, "I have a lot of shit from Harrah's on my laptop. I have a lot of numbers and everything else."

At that point, Altenburg seized the computer, two compact disks, and a floppy disk, which was not one of the floppy disks defendant had given to the technicians. The laptop was transported to Shawnee County. Altenburg obtained a search warrant to search the contents of the laptop from a magistrate judge who is a resident of Wabaunsee County, and the search warrant was executed in Shawnee County. Captain Gaylon Thompson of the computer crime unit in Shawnee County reported to Altenburg that he retrieved several dozen documents proprietary to Harrah's from defendant's laptop. The two compact disks and the floppy disk seized with the laptop did not contain information from Harrah's.

The director of finance at Harrah's testified at Rupnick's trial that two of the documents found on the laptop were confidential and that Rupnick would not be allowed to leave Harrah's with similar documents in his possession if his employment were terminated, even if he had created the documents originally. A Harrah's controller testified that player lists and financial information found on defendant's laptop were confidential. This was true, she said, although the documents were not marked "confidential" or "proprietary."

The State charged defendant with three felony counts of computer crime under K.S.A.2004 Supp. 21-3755(b)(1)(C). Counts I and II were based on the information contained on each of the floppy disks given to the technicians. Count III was based on the data found on the laptop.

The defendant unsuccessfully challenged the district court's territorial jurisdiction, claiming there was no evidence he had accessed the computer files in Kansas. Defendant also sought suppression of the statements he had made to Altenburg. The district court rejected defendant's motion...