Opinion
Case No. N2-2018-0350C
06-05-2020
STATE OF RHODE ISLAND v. GARY GAGNE
ATTORNEYS: For Plaintiff: Timothy G. Healy, Esq. For Defendant: Peter A. DiBiase, Esq.
DECISION CARNES , J. Before this Court is Defendant Gary Gagne's (Defendant or Gagne) Motion to Dismiss Charges by Information for one Count of Access to a Computer for Fraudulent Purposes in violation of G.L. 1956 § 11-52-2 and one Count of Conspiracy to Fraudulently Use a Computer in violation of § 11-1-6. Jurisdiction is pursuant to Rule 9.1 of the Superior Court Rules of Criminal Procedure.
I
Facts and Travel
The facts are drawn from the Criminal Information package at issue. In May of 2018, the Rhoda Island State Police began an investigation into allegations that several employees at Flint Audio and Video (hereinafter Flint) in Middletown were improperly accessing customers' mobile phones and computers to obtain private photographs and other private communications. (Information at 23-25.) The investigation began after a female Flint employee reported to State Police that she observed nude photographs of Flint customers in an email from co-defendant George Quintal to co-defendant Daniel Anton. Id. The investigation ultimately revealed a total of thirteen customers reported that their property was improperly accessed, and various photographs were removed and distributed to other Flint employees without those customers' authorization. On June 14, 2018, State Police identified co-defendant Quintal as the Flint employee who was physically accessing customers' equipment and viewing and removing photographs. Id. at 28.
When police arrested co-defendant Quintal, they seized his mobile telephone and searched it. Id. at 28-29. A search of co-defendant Quintal's thumb drive revealed approximately 2000 photographs of Flint customers. Id. at 29. The police also found numerous instances where Quintal had emailed or texted these photographs which had been copied from electronic equipment belonging to Flint customers. Id. at 30-33. In particular, State Police discovered that Quintal had been identifying female customers in Flint who he found to be attractive. Id. at 57. Quintal would then deliberately go to the counter to handle their transaction. Id. There are numerous text messages and emails which show Quintal's intent to intercept attractive females in the store so that he could personally handle their computer or phone equipment and search the equipment for nude photographs of the female customers. Id. at 68-72. The investigation found that Quintal would then text or email photographs to the co-defendants in this case. The police investigation demonstrates that on several occasions between August 2015 and August 2016, co-defendant Quintal sent emails and text messages containing explicit photographs of Flint customers to Defendant.
The State formally charged Defendant by Criminal Information (the Information) on December 14, 2018. Defendant filed this instant Motion to Dismiss with supporting memorandum on August 27, 2019. The State filed its objection memorandum on November 15, 2019. A motion to dismiss Count 1 based upon a statute of limitations violation was discussed by the parties in conference on October 4, 2019, at which the Attorney General agreed to file notice of dismissal as to this count, which was filed on January 17, 2020.
II
Standard of Review
Rule 9.1 of the Superior Court Rules of Criminal Procedure allows a defendant to "move to dismiss [a charge] on the ground that the information and exhibits . . . do not demonstrate the existence of probable cause to believe that the offense charged has been committed or that the defendant committed it." Super. R. Crim. P. 9.1. '"When addressing a motion to dismiss a criminal information, a [Superior Court] justice is required to examine the information and any attached exhibits to determine whether the state has satisfied its burden to establish probable cause to believe that the offense charged was committed and that the defendant committed it."' State v. Martini, 860 A.2d 689, 691 (R.I. 2004) (quoting State v. Fritz, 801 A.2d 679, 682 (R.I. 2002)) (citing State v. Aponte, 649 A.2d 219, 222 (R.I. 1994)) and G.L. 1956 § 12-12-1.7; Super. R. Crim P. 9.1). "The probable-cause standard applied to a motion to dismiss is the same as the one that is applied to determine the propriety of an arrest." State v. Reed, 764 A.2d 144, 146 (R.I. 2001) (citing Aponte, 649 A.2d at 222). "[P]robable cause to arrest exists when the facts and circumstances within the police officer's knowledge at the time of arrest and of which he or she has reasonably trustworthy information are sufficient to lead a reasonable person to conclude that a crime has been committed and that the person to be arrested committed it." Id. (citing State v. Jenison, 442 A.2d 866, 873-74 (R.I. 1982)). At the motion to dismiss, '"the trial justice is to allow the state the benefit of every reasonable inference."' State v. Baillargeron, 58 A.3d 194, 198 (R.I. 2013) (quoting Jenison, 442 A.2d at 876).
III
Analysis
A
Access to a Computer for Fraudulent Purposes
Gagne is charged in Count 2 under a portion of § 11-52-2, which makes it a felony to "directly or indirectly accesses or causes to be accessed any computer, computer system, or computer network for the purpose of: . . . (2) obtaining . . . property, . . . by means of false or fraudulent pretenses, representations, or promises." Defendant challenges the sufficiency of the Information, contending that there is no evidence that he accessed the devices brought into Flint for "fraudulent purposes." The State in its memorandum counters by asserting that the Information establishes probable cause to believe that Defendant and his co-defendants devised a scheme to encourage females to bring their devices to Flint, where Defendant would then manipulate Flint's customers' devices beyond the scope of promised repairs or service, thus violating § 11-52-2.
The instant motion presents an issue of statutory interpretation, which is a question of law. See State v. Sivo, 925 A.2d 901, 916 (R.I. 2007). '"In matters of statutory interpretation [the Court's] ultimate goal is to give effect to the purpose of the act as intended by the Legislature."' Alessi v. Bowen Court Condominium, 44 A.3d 736, 740 (R.I. 2012) (quoting Webster v. Perrotta, 774 A.2d 68, 75 (R.I. 2001)). '"[W]hen the language of a statute is clear and unambiguous, this Court must interpret the statute literally and must give the words of the statute their plain and ordinary meanings."' Id. (quoting Waterman v. Caprio, 983 A.2d 841, 844 (R.I. 2009)). However, the plain meaning approach must not be confused with "myopic literalism"; even when confronted with a clear and unambiguous statutory provision, "it is entirely proper for us to look to 'the sense and meaning fairly deducible from the context.'" In re Brown, 903 A.2d 147, 150 (R.I. 2006) (quoting In re Estate of Roche, 109 A.2d 655, 659 (N.J. 1954)); see also Mendes v. Factor, 41 A.3d 994, 1002 (R.I. 2012). "Therefore, [the Court] must 'consider the entire statute as a whole; individual sections must be considered in the context of the entire statutory scheme, not as if each section were independent of all other sections.'" Mendes, 41 A.3d at 1002 (quoting Generation Realty, LLC v. Catanzaro, 21 A.3d 253, 259 (R.I. 2011)); see also Alessi, 44 A.3d at 742; Jerome v. Probate Court of Town of Barrington, 922 A.2d 119, 123 (R.I. 2007).
However, not all statutory language is created equal; "[a]mbiguity exists . . . when a word or phrase in a statute is susceptible of more than one reasonable meaning." Drs. Pass and Bertherman, Inc. v. Neighborhood Health Plan of Rhode Island, 31 A.3d 1263, 1269 (R.I. 2011). "[W]hen we are confronted with ambiguous language, 'the primary object of the [C]ourt is to ascertain the legislative intention from a consideration of the legislation in its entirety, viewing the language used therein in the light, nature, and purpose of the enactment thereof.'" State v. Clark, 974 A.2d 558, 571 (R.I. 2009) (quoting State v. Smith, 766 A.2d 913, 924 (R.I. 2001)). Additionally, we remain mindful that "[a]mbiguities in penal statutes 'must be strictly construed in favor of the party upon whom a penalty is to be imposed.'" Id. (quoting Smith, 766 A.2d at 924).
In this case, the Court begins the interpretive task by reviewing the legislative history of Chapter 52. Section 11-52-2 was enacted in 1979 as part of an early legislative effort to cope with the phenomenon of new and powerful computers, which, through the Internet, had almost an unlimited reach. It is well-settled that in enacting statutes, the legislature is presumed to know the law and the effect thereof on its enactments. State v. Lewis, 91 R.I. 110, 115, 161 A.2d 209, 213 (1960). By its language, § 11-52-2 was intended to penalize the use of computers as a means to perpetrate fraud.
Over the ensuing years, as the use and commensurate misuse of computers increased exponentially, the General Assembly began adding sections to Chapter 52 in order to combat the variety of ways this increasingly critical component of modern life was being abused. In 1983, it adopted § 11-52-4 prohibiting the theft of computer data. In 1989, it proscribed both the transmission of false data in relation to claims for payment, and the tampering with computer source documents. Sections 11-52-7 and 11-52-8. Significantly, in 1999, the Legislature added § 11-52-4.1 which among other things made it a misdemeanor "to use a computer or computer network without authority and with the intent to: . . . [m]ake or cause to be made an unauthorized copy, . . . of computer data," where the value of the data that was affected was less than $500. Finally, in 2018, the General Assembly enacted § 11-64-3, which prohibits the unauthorized dissemination of physically intimate images.
Section 11-64-3 was enacted after the alleged misconduct occurred in this case.
The sequencing of amendments to Chapter 52 makes it clear that the General Assembly understood that § 11-52-2 did not reach the unauthorized access to and copying of computer content. If it did, there would have been no need to adopt § 11-52-4.1(a)(6) or § 11-64-3. '"[I]n construing the provisions of statutes that relate to the same or to similar subject matter, the court should attempt to harmonize each statute with the other so as to be consistent with their general objective scope.'" In re Brown, 903 A.2d at 149 (quoting Billington v. Fairmount Foundry, 724 A.2d 1012, 1013-14 (R.I. 1999)). As a general proposition, if two statutes appear to treat the same conduct inconsistently, then the last in time controls. In re Richard A., 946 A.2d 204, 213 (R.I. 2008). And where a specific provision and a general provision could be construed to reach the same subject matter, the more specific one prevails. Whitehouse v. Moran, 808 A.2d 626, 629-30 (R.I. 2002). Both of these guides to construction apply here. Following the passage of § 11-52-2, the General Assembly adopted two provisions more specifically targeting the conduct at issue here, § 11-52-4.1(a)(6) and § 11-64-3, and thereby signaled that the prior non-specific provision of § 11-52-2 did not reach the behavior at issue. This Court understands that it lacks the power to supplement or amend a statute. State v. Maxie, 187 A.3d 330, 341 (R.I. 2018). Although the conduct of Defendant was distasteful and inappropriate, it does not fit within the ambit of § 11-52-2, and the State would be unable to prove the Defendant's guilt beyond a reasonable doubt. Baillargeron, 58 A.3d at 198.
In addition to the legislative history, which shows that § 11-52-2 did not reach the behavior at issue, the Court also finds that Defendant's conduct does not fall within the language of § 11-52-2. As used in the statute, access defined within § 11-52-1 means to "instruct, communicate with, store data in, enter data in, retrieve data from, or otherwise make use of any resources of a computer, computer system, or computer network." Id. Authorization is defined to mean essentially "permission" from the person who is empowered to give permission. Section 11-52-1(15)(v). Importantly, the aforementioned definitions, which seek to give clarity to concepts of access and authorization, do not supersede well-settled definitions of "fraud" and "fraudulent pretenses." See Mendes, 41 A.3d at 1002 (holding that the Court must "consider the entire statute as a whole"). Furthermore, the Court notes that the definition section of the statute, § 11-52-1, is devoid of any definition of "false or fraudulent pretenses, representations, [or] promises."
The crime of obtaining property by fraudulent pretenses is found in § 11-41-4 and provides that "[e]very person who shall obtain from another designedly, by any false pretense or pretenses, any money, goods, wares, or other property, with intent to cheat or defraud, . . . shall be deemed guilty of larceny." "[T]he essential elements of obtaining property by false pretenses are that the accused (1) obtain property from another designedly, by any false pretense or pretenses; and (2) with the intent to cheat or defraud." State v. Markarian, 551 A.2d 1178, 1180 (R.I. 1988). Under the statute, false pretense may be misrepresentation of a past or existing fact. State v. Aurgemma, 116 R.I. 425, 430-31, 358 A.2d 46, 49-50 (1976). A promise to perform a future act may also constitute false pretense. Id. at 431, 358 A.2d at 50. '"[I]n an action for deceit intention not to meet a future obligation is a question of fact to be submitted to the jury, and that misrepresentation of a present state of mind as to such intention is a false representation of an existing fact."' Id. (quoting State v. McMahon, 49 R.I. 107, 140 A. 359, 360 (1928)). Therefore, "the rule in this state is that a misrepresentation with regard to a future transaction, no less than one relating to an existing fact, is a false pretense within the meaning of 11-41-4." Aurgemma, 116 R.I. at 431, 358 A.2d at 50.
Using the above definitions, to be guilty under § 11-52-2, Defendant would have needed to know at the time of the false representation that it was false, and to represent it would hence be knowing, deceptive, and fraudulent. See Aurgemma, 116 R.I. at 431, 358 A.2d at 50. After reviewing the Information, this Court finds there is no evidence or information to suggest that Defendant falsely represented anything to customers at Flint. See State v. Fiorenzano, 690 A.2d 857, 859 (R.I. 1997) (holding that the crime of obtaining property by fraudulent pretenses is complete "when the defendant intentionally uses false pretenses to induce another to alter or terminate any of that person's rights or powers concerning the money or property with the intent to cheat or defraud that person.") The Court has reviewed the entire Information package including all reports, exhibits, and specifically including all printed transcripts of statements made to police by the victims in this case. There are no statements or exhibits that allege any misrepresentation, promise, or statement made by the Defendant which are false. No existing facts alleged in the transaction appear to be false. Defendant himself never accessed any device nor did he direct anyone else to access a device for the purpose of obtaining photographs.
Additionally, the State's reliance on Fiorenzano, 690 A.2d at 859, in its memorandum to argue that the Defendants devised a scheme to encourage females to bring their digital media into Flint for service so they could access and obtain their personal property is of no moment. In Fiorenzano, the defendant was convicted of obtaining money under false pretenses for obtaining over $80,000 dollars of the victim's money after asserting to the victim that he would be investing this money, which he instead kept for himself. Id. at 858. The defendant in Fiorenzano argued that he did not intend to convert or deprive the victim's funds permanently and did repay the victim the money that was taken. Id at 859. In upholding the conviction, our Supreme Court held that the "two basic elements for [§ 11-41-4 are]: (1) that the defendant obtain money from another by any false pretense or pretenses and (2) that the defendant obtained the money with the 'intent to cheat or defraud.' There is no requirement in the plain language of the statute that the defendant intend to convert or to misappropriate funds or to deprive the victim permanently of any money so obtained." Id.
The defendant in Fiorenzano did meet the elements of the crime because he did fraudulently misrepresent to the victim that he was going to invest his money, but never did. Unlike the defendant in Fiorenzano, Defendant here did not make any misrepresentations or engage in any fraudulent activity as is required by § 11-52-2. The victims were not persuaded into relinquishing their devices. Rather, they had problems with their devices and brought them to Flint for repair. Defendant's opportunistic viewing and copying of images did not involve a misrepresentation of any fact to any of the victims. See Aurgemma, 116 R.I. at 430-33, 358 A.2d at 49-50.
This Court '"will not construe a statute to reach an absurd or [unintended] result."' Hargreaves v. Jack, 750 A.2d 430, 435 (R.I. 2000) (quoting Kaya v. Partington, 681 A.2d 256, 261 (R.I. 1996)). Our Supreme Court in Kaya articulated the concern underlying this statutory construction principle: "[t]he reason to be on guard is that when legislative silence is confronted, the temptation is omnipresent for judges to label any interpretation of that silence that embodies policies with which they disagree as 'absurd' or 'creat[ing] a result not intended by the Legislature,' thereby freeing the court to intrude its own preferred policies into the law under the euphemistic banner of 'filling in a legislative gap' or 'interstitial' lawmaking." Id. at 267-68. "This Court is mindful that vigilance against such temptation similarly must be omnipresent." Heritage Healthcare Services, Inc. v. Marques, 14 A.3d 932, 938 n.13 (R.I. 2011). As previously noted herein, there is no definition of "false or fraudulent pretenses, representations, [or] promises" in § 11-52-1 or any other part of the act.
Accordingly, due to the legislative history of Chapter 52, as well as Defendant's conduct—the opportunistic viewing and copying files without any accompanying fraudulent statement or misrepresentation—the Court finds the Information does not sufficiently allege probable cause to establish that Defendant accessed a computer for fraudulent purposes in violation of § 11-52-2. See State v. Calise, 478 A.2d 198, 201 (R.I. 1984) (holding that "[w]e have neither the authority nor the competence to rewrite that definition in order to bring it into conformity with the state's concept of how the statute should have been drafted"). Therefore, the Court grants Defendant's motion to dismiss as to Count 2.
B
Conspiracy
Defendant is charged in Count 4 that he did "agree, combine, confederate, contrive or conspire together, to do an unlawful act(s), to wit, fraudulently use a computer, in violation of § 11-1-6." See Information. Defendant argues that there can be no conspiracy because he committed no fraudulent act with respect to the victims. The State argues that the evidence contained in the Information clearly shows a conspiracy between co-defendants to access and obtain customers' personal files without the customers' permission to do so after promising to perform service or repairs on the device.
'"Conspiracy is defined as a combination of two or more persons to commit an unlawful act or to perform a lawful act for an unlawful purpose."' State v. Cipriano, 21 A.3d 408, 422 (R.I. 2011) (quoting State v. Mastracchio, 612 A.2d 698, 706 (R.I. 1992)). A conspiracy charge is separate and distinct from the substantive offense, and once an unlawful agreement is made, the offense of conspiracy is complete. See State v. Porto, 591 A.2d 791, 795 (R.I. 1991) ("Once the agreement is made, the offense is complete, and therefore, no overt act by a defendant in furtherance of the conspiracy beyond the making of the agreement need occur for the crime to be committed.") (citing State v. Barton, 427 A.2d 1311, 1312-13 (R.I. 1981)).
However, "[a] coconspirator is only vicariously liable for the actions of another coconspirator if those actions were committed in furtherance of an existing conspiracy." State v. Lassiter, 836 A.2d 1096, 1106 (R.I. 2003) (emphasis in original). Our Supreme Court has cautioned that it '"tend[s] to look with disfavor on attempts to broaden the already pervasive and wide-sweeping nets of conspiracy prosecution."' Id. (quoting Porto, 591 A.2d at 796).
Although the crime of conspiracy is itself a separate offense, without charging § 11-52-2, there is no underlying crime on which to base the conspiracy charge. See Maxie, 187 A.3d at 338 (holding that there can be no conspiracy without an underlying crime); § 11-1-6 ("Except as otherwise provided by law, every person who shall conspire with another to commit an offense punishable under the laws of this state shall be subject to the same fine and imprisonment as pertain to the offense which the person shall have conspired to commit, provided that imprisonment for the conspiracy shall not exceed ten (10) years.") (Emphasis added). Here, since the Defendant's conduct has been held not to fit within the language of § 11-52-2, he cannot be charged with conspiracy to violate § 11-52-2. For this reason, Count 4 must be dismissed.
IV
Conclusion
The Motion to Dismiss is granted. Counsel shall prepare an appropriate order for entry.
The Court does not countenance or condone the Defendant's abhorrent activities. Notwithstanding, the Court's ruling is based upon a consideration of the precise words of the statute, the relevant case law as cited herein, and a thorough analysis and examination of all information contained within the four corners of the Information charging document. Any party before the Court is entitled to no less.
ATTORNEYS:
For Plaintiff: Timothy G. Healy, Esq. For Defendant: Peter A. DiBiase, Esq.