State v. Moran

Citation: State v. Moran, 162 Ariz. 524, 784 P.2d 730 (Ariz. App. 1989)(full-text).

Factual Background
Moran, a computer programmer, undertook to develop a computer program relating to the depreciation of company assets. When he requested a period of personal leave, his supervisor asked him to disclose his code so others could work on the project in his absence. Defendant declined to decode the program he had prepared in an encoded state.

Defendant was tried before the court without a jury on charges of computer fraud and criminal damage. He was convicted of criminal damage.

Appellate Court Proceedings
The defendant appealed, arguing that the trial court erred in denying his motion of acquittal on the charge of criminal damage.

A person commits computer fraud in the second degree by "intentionally and without authorization accessing, altering, damaging or destroying any computer, computer system, or computer network, or any computer software, program or data contained in such computer, computer system, or computer network." The defendant did not criminally damage his employer's computer program by encoding it, where he had his employer's permission to do so. The statute does not criminalize the refusal to “unalter” or decode what one has permissively altered or encoded.

Although the statute defining common criminal damage did not include language “without the express permission of the owner,” absence of property owner's permission was a necessary and implicit element of the crime. A person commits criminal damage by recklessly tampering with property of another person so as substantially to impair its function or value. Arizona law defines “tamper” as “any act of interference.” Thus, the absence of the property owner’s permission, though unstated, is a necessary and implicit element of the crime.

Criminal damage is the reckless tampering of another person so as to substantially impair its function or value. Arizona law defines “tamper” as any act of interference.” Thus, criminal damage is defined as a crime of commission, not omission. The defendant's refusal to follow his employer's directive to decode the program he had prepared in an encoded state with his employer's permission was an omission, not an act, and thus not proscribed by statute defining criminal damage as “tampering.”

Therefore, the defendant committed no crime by encoding the program with the permission of his employer and did not commit criminal damage by refusing to decode the program.