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Defense, Sentencing Argument

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by: Ryan • November 21, 2011 • no comments

There are five ways to commit computer crime under ORS 163.377. Three of them involve using a computer and:

(a) Devising or executing any scheme or artifice to defraud;

(b) Obtaining money, property or services by means of false or fraudulent pretenses, representations or promises; or

(c) Committing theft, including, but not limited to, theft of proprietary information.

You have a pre-trial challenge to (a) above. See the demurrer at this post. The basis for the demurrer can be summed up in these two sentences from the demurrer:

In State v. Moeller, 105 Ore. App. 434, 440 (1991), the court of appeals held the phrase "scheme or network" to be unconstitutionally vague. The same holding would seem appropriate here, where the language of the statute is "scheme or artifice."

But let's assume the state charges under (c) instead. Assume somehow your client was able to use a computer to commit twenty small thefts. He is charged with 20 counts of felony computer crime under (c) and one, two or three counts of felony Theft (following the state's aggregation of the smaller thefts into bigger ones).

Would all of the computer crimes merge into the Theft, for the same reason that - under the recent State v. Earls decision - 12 counts of Negotiating a Bad Check merge into a much smaller number of thefts? See this post on the significance of Earls.