State Of Washington v. David Novick
196 Wash. App. 513
Wash. Ct. App.2016Background
- Novick installed Mobile Spy on his girlfriend Maunu’s phone and accessed its web control panel from his Kaiser work computer to monitor data and download audio recordings.
- Mobile Spy’s live control panel required a user to send a command to start a microphone recording; technical support confirmed recordings had to be started manually.
- Forensic review of Novick’s work account logs showed visits to Mobile Spy sites, searches for GPS and phone numbers, and over 500 audio files downloaded; Monsour testified these visits corresponded to issuing commands and downloading recordings.
- Prosecution charged Novick with eight counts of first-degree computer trespass and eight counts of recording private communications based on recordings made on four dates (March 30, April 4, June 5, June 6).
- Novick testified the app recorded automatically and denied issuing manual record commands; the jury convicted on all counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency: did State prove intentional recording? | The State: logs + expert testimony showed Novick accessed control panel and downloaded recordings; a rational jury could infer he issued manual record commands. | Novick: Mobile Spy recorded automatically; no direct record of manual command on his computer. | Affirmed — sufficient circumstantial evidence supported intent to record. |
| Unit of prosecution (double jeopardy) for computer trespass | State: unit is each unauthorized access; each recording/download is a separate offense. | Novick: his conduct was a single, continuous course of spying on one phone and should be one count. | Affirmed — statute’s focus is the access/recording act; factual analysis showed eight distinct accesses/recordings. |
Key Cases Cited
- State v. Hosier, 157 Wn.2d 1 (evidence sufficiency standard and inferences)
- State v. Hall, 168 Wn.2d 726 (unit-of-prosecution analysis; continuous conduct may be a single violation)
- State v. Reeder, 184 Wn.2d 805 (determine legislature’s intended unit of prosecution)
- State v. Jensen, 164 Wn.2d 943 (statutory interpretation first step in unit analysis)
- State v. Ose, 156 Wn.2d 140 (use of the article “a” can specify unit of prosecution)
- State v. Kinneman, 120 Wn. App. 327 (separate acts at different times can be separate thefts/units)
- State v. Boswell, 185 Wn. App. 321 (focus on the act necessary to commit crime for unit-of-prosecution inquiry)