State v. Wolfe, 2009 WL 1099258 (Ohio Ct. App. Apr. 28. 2009) (full-text).
Factual Background Edit
On or about April 21, 2006, the Superintendent of the Shelby City Wastewater Treatment Plant came across nude pictures of one of his employees, Richard Lee Wolfe, while cleaning out old files from a city-owned computer. The Superintendent took the computer to the local police station the following week and the officer assigned to the case contacted Wolfe about his activities on the city computer. Wolfe admitted to joining a site called "Adult Friend Finder" in January 2006 to meet woman, and to purchasing a digital camera to take and send pictures of himself through the site. In addition, Wolfe admitted to visiting various pornographic websites and to violating work procedures, but not to committing a crime.
During the course of an investigation, 703 pornographic photos were located in the computer's temporary files as well as several sexually explicit emails in which Wolfe was soliciting services from a dominatrix. The dates and times Wolfe accessed the pictures and emails were compared to City time sheets to determine that Wolfe was on the clock at the time. Wolfe estimated that he spent over 100 hours on the internet for personal business when he should have been working (for which he was paid approximately $2,392.00).
Trial Court Proceedings Edit
Wolfe was indicted by the Richland County Grand Jury on one count of theft in office, with a specification that the value of the property or services stolen was more than $500 and less than $5000, in violation of R.C. 2921.41(A)(2), a fourth degree felony; one count of unauthorized access to a computer, with a specification that the value of the property or services stolen was more than $500 and less than $5000, in violation of R.C. 2913.04(B), a fifth degree felony; one count of unauthorized use of property, in violation of R.C. 2913.04(A), a fourth degree misdemeanor; and one count of solicitation, in violation of R.C. 2907.24(A), a third degree misdemeanor.
Wolfe was found guilty of theft in office, the felony unauthorized access to a computer charge, and soliciting prostitution. He was found not guilty of the [[misdemeanor] count of unauthorized use of property. As a result of his convictions, the trial court sentenced Wolfe to 15 months in prison on the two felony counts, and fined him $5,000.00. The trial court also ordered Wolfe to pay restitution in the amount of $2,392.00 to the City of Shelby. On the misdemeanor count of soliciting prostitution, the trial court sentenced Wolfe to sixty (60) days in jail, to run concurrent to his felony sentence, and a $500.00 fine.
Appellate Court Proceedings Edit
After careful review of the record the Appellate Court found sufficient evidence to support a conviction for solicitation and therefore upheld Wolfe's conviction on the charge for unauthorized access to a computer. Under the relevant statute:
|“|| (A) No person shall knowingly use or operate the property of another without the consent of the owner or person authorized to give consent.
(B) No person, in any manner and by any means, including, but not limited to, computer hacking, shall knowingly gain access to, attempt to gain access to, or cause access to be gained to any computer, computer system, computer network, cable service, cable system, telecommunications device, telecommunications service, or information service without the consent of, or beyond the scope of the express or implied consent of, the owner of the computer, computer system, computer network, cable service, cable system, telecommunications device, telecommunications service, or information service or other person authorized to give consent.
The Court agreed with the basis of the State's claim, which was that Wolfe's conduct was "beyond the scope of the express or implied consent" of the City and therefore a violation of the statute.
The Court, however, did not agree that Wolfe's actions constituted criminal theft in office. While Wolfe admitted to spending approximately 100 hours over a five month-period using the City’s internet to access websites for his personal ends, there was no evidence presented that his job performance suffered in any way or that he failed to perform his job duties. Absent such evidence there could be no basis for theft and that conviction was vacated.