838 S.E.2d 557
Va. Ct. App.2020Background:
- In 2015–2016 Brewer used a smartphone (an iPhone) and the Capital One mobile app to transfer at least $6,000 from his grandmother Margaret Peade’s SunTrust account into his accounts.
- Peade did not use mobile banking, did not authorize the transfers, and reported them as unauthorized.
- Brewer admitted downloading the Capital One app and entering Peade’s routing/account information; police found a voided check from Peade at Brewer’s residence.
- SunTrust records labeled the transfers as “mobile payments”; a bank employee testified such transfers require a mobile electronic device, an app, and online access.
- Brewer was convicted under Va. Code § 18.2-152.3 (computer fraud). He appealed only the sufficiency issue that his cellphone was not a “computer” under Va. Code § 18.2-152.2.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the smartphone Brewer used is a “computer” under Va. Code § 18.2-152.2 | Commonwealth: The phone accepted digital information and, using an app and Internet access, manipulated it to transfer funds — it meets the statutory definition | Brewer: A cellular telephone is not a “computer” within the statute’s definition | Court: Affirmed — the iPhone, loaded with the banking app and used to access the Internet and transfer funds, fit the statute’s definition of a computer |
| Whether the Court should construe the Act in light of other statutes that treat “telephone” separately | Commonwealth: The Act defines “computer” clearly; no need to resort to other statutes | Brewer: Legislative scheme (harassment provisions distinguishing computers and telephones) implies phones should be treated differently | Court: Rejected — where the Act supplies an unambiguous definition, the court applies that plain language without comparing separate statutes |
| Whether Internet access is required for a device to be a “computer” under the Act | Commonwealth: Internet access and app use here show the device functioned as a computer | Brewer: Implied challenge that non‑Internet phone functions should not be treated as a computer | Court: Internet access is not a statutory prerequisite, but use of the Internet/app was a relevant factor here; a device need not always be connected to meet the definition |
Key Cases Cited
- Riley v. California, 573 U.S. 373 (smartphones are effectively minicomputers with broad computing and storage capacities)
- Barson v. Commonwealth, 284 Va. 67 (applied the Virginia Computer Crimes Act in an e‑mail harassment case without contesting the computer element)
- Stickle v. Commonwealth, 68 Va. App. 321 (recognized that devices like smartphones access the Internet and enable two‑way communication)
- United States v. Kramer, 631 F.3d 900 (8th Cir.) (holding text‑messaging from a cell phone can constitute use of a computer under a federal statute)
- United States v. Hill, 783 F.3d 842 (11th Cir.) (approving Kramer’s reasoning)