379 P.3d 484
Or.2016Background
- Defendant Nascimento, a deli clerk at Tiger Mart, used the store’s networked Oregon State Lottery touchscreen terminal to print Keno tickets and took some without paying; she was also convicted of aggravated first‑degree theft (not challenged here).
- The terminal required a manager to sign in each day but did not require individual employee authentication; deli clerks were trained and routinely authorized by their supervisor to use the terminal to print tickets for customers.
- Store policy prohibited employees from purchasing or redeeming lottery tickets for themselves while on duty.
- The indictment’s caption cited ORS 164.377(2) (use for theft/fraud), but the body charged conduct under ORS 164.377(4) (knowingly and without authorization uses or accesses a computer).
- At trial the prosecutor conceded that Nascimento had supervisory authorization to use the terminal but argued her use became unauthorized because she used it to commit theft; the jury convicted under the subsection (4) wording.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Nascimento) | Held |
|---|---|---|---|
| Whether using an employer‑provided computer for an impermissible purpose constitutes use "without authorization" under ORS 164.377(4) | An employee’s authorized physical access becomes "without authorization" when used for purposes prohibited by the employer (i.e., printing tickets for self and not paying). | Authorized access remains authorized even if used for an impermissible purpose; subsection (4) targets persons who lack any authorization to access the computer. | The court held that ORS 164.377(4) does not criminalize authorized use for an impermissible purpose; conviction under (4) reversed. |
Key Cases Cited
- State v. Walker, 356 Or 4 (discussing standard for judgment of acquittal review)
- State v. Burgess, 352 Or 499 (unfairness in sustaining conviction on a new factual and legal theory on appeal)
- Outdoor Media Dimensions, Inc. v. State of Oregon, 331 Or 634 (appellate discretion to affirm on alternative grounds when record supports them)
- United States v. Nosal, 676 F.3d 854 (9th Cir.) (construing similar federal "without authorization" language not to reach violations of employer use policies)
- State v. Dickerson, 356 Or 822 (rejecting state's alternative factual theory on appeal)