text:
State v. Johnston, 618 S.E.2d 807 (N.C. Ct. App. 2005)
Court of Appeals of North Carolina
Filed: September 20th, 2005
Precedential Status: Precedential
Citations: 618 S.E.2d 807
Docket Number: COA04-1283
Author: Robert C. Hunter Jr.

618 S.E.2d 807 (2005)
STATE of North Carolina
v.
Cynthia JOHNSTON.

No. COA04-1283.
Court of Appeals of North Carolina.

September 20, 2005.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General William P. Hart and Assistant Attorney General Caroline Farmer, for the State.

Jeffrey Evan Noecker, Wilmington, for defendant-appellant.

*808 HUNTER, Judge.

Cynthia Johnston ("defendant") presents the following issues for our consideration: Did the trial court err by (I) failing to instruct the jury regarding an essential element of felonious damage to computers; (II) denying her motion to dismiss; and (III) entering judgment on a fatally flawed indictment. After careful review, we vacate the judgment of the trial court and remand this case for entry of judgment and sentence on the misdemeanor offense of damaging computers.

The State presented evidence at trial tending to show the following: Dr. Thomas Kirby ("Dr. Kirby") is an optometrist with a practice located in four cities in New Hanover, Pender, and Brunswick Counties. Dr. Kirby and two other optometrists rotated through these four locations.

Prior to 1998, Dr. Kirby's insurance billing procedure consisted of completing a standardized health claim insurance form by hand and mailing the form to the insurance company via standard United States mail. In order to improve efficiency, he contracted with defendant, a representative with Island Automated Medical Systems, in February of 1998 to computerize his billing system. Defendant thereafter purchased billing software and uploaded the software onto Dr. Kirby's office computers at all four locations. As payment, defendant and Dr. Kirby agreed that defendant would receive five percent (5%) of all insurance claims received from the insurance companies. Dr. Kirby testified that the computer program software was owned by defendant. Dr. Kirby also hired defendant as his data entry processor, for which he paid defendant an hourly salary in addition to the five percent (5%) portion of the insurance claims. Defendant was responsible for filing the insurance claims.

Dr. Kirby's and defendant's business relationship worked well until the end of 2000, when defendant's work quality declined due to personal problems. Defendant was absent from work without explanation, and while at work she handled personal business. As a result, a backlog developed in the number of claims processed.

On 20 October 2000, Dr. Kirby had a "counseling" meeting with defendant, during which he discussed defendant's work quality and gave defendant several warning notices. After the meeting, defendant left Dr. Kirby's office and went to her vehicle parked outside. Before getting into her car, however, defendant "spun around and came back in the office." She sat down at her desk and "did something on the [computer] keyboard." Defendant then removed a box of computer diskettes from her desk and left the building. Defendant appeared to be angry and "was mumbling something about not having to put up with this."

Dr. Kirby and two other individuals immediately checked the computer and noticed the program icon for the billing program was no longer on the computer screen. Prior to the meeting, an employee had observed the billing program up and running on the computer. Dr. Kirby testified that all of the patient and appointment information was missing. The patient information consisted of demographic data, patient demographics, names, addresses, insurance type, insurance numbers, and past claims. He testified this information was not part of defendant's software, but was stored on the hard drive. Dr. Kirby testified that the software was owned by defendant; however, the data was his property. Defendant removed the software program from the Wilmington location only. The three other locations retained the software and data.

*809 As a result of defendant's removal of the software, Dr. Kirby purchased a new software program that was ultimately incompatible with his computers. Dr. Kirby purchased a new computer system and hired Patricia Payne ("Payne") to attempt to rebuild the lost insurance claims. Payne reviewed the patient files, spoke with patients, and re-filed several claims. Dr. Kirby agreed to pay Payne twenty percent (20%) of anything he received from her insurance filings with insurance companies. No testimony was given regarding the amount of the lost claims.

Defendant presented no evidence. Upon review of the evidence, the jury found defendant guilty of damaging a computer. The trial court sentenced defendant to a suspended sentence of ten to twelve months imprisonment and placed her on supervised probation for thirty-six months. The trial court also ordered defendant to pay costs and restitution in the amount of $1,766.00. Defendant appeals.

Defendant argues the trial court erred by (I) failing to instruct the jury regarding an essential element of felonious damage to a computer; (II) failing to dismiss the charge of felonious damage to a computer as there was insufficient evidence that defendant acted without authorization or that her actions amounted to alteration, damage, or destruction; and (III) entering judgment on a fatally flawed indictment.

I. Jury Instructions

Defendant argues the trial court erroneously failed to instruct the jury regarding an essential element of the crime of felonious damage to a computer. Specifically, defendant contends the trial court did not instruct the jury that the computer damage must exceed $1,000.00 in order to constitute a felony.

As an initial matter, we address the State's contention that this issue is not preserved for appellate review because defendant failed to object to the trial court's instruction during the charge conference or after the charge was given to the jury. Pursuant to Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure:

A party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection; provided, that opportunity was given to the party to make the objection out of the hearing of the jury, and, on request of any party, out of the presence of the jury.
N.C.R.App. P. 10(b)(2). Defendant did not object to the jury instruction in this case. Therefore, we can only review this issue for plain error. See N.C.R.App. P. 10(c)(4); State v. Odom, 307 N.C. 655, 659, 300 S.E.2d 375, 378 (1983). Defendant, however, has not alleged plain error and, therefore, this issue is not properly preserved for appellate review. See State v. Moore, 132 N.C.App. 197, 201, 511 S.E.2d 22, 25, disc. review denied, 350 N.C. 103,  525 S.E.2d 469 (1999).

However, under Rule 2 of the Appellate Rules:

To prevent manifest injustice to a party, or to expedite decision in the public interest, either court of the appellate division may, except as otherwise expressly provided by these rules, suspend or vary the requirements or provisions of any of these rules in a case pending before it upon application of a party or upon its own initiative, and may order proceedings in accordance with its directions.
N.C.R.App. P. 2.

In Viar v. N.C. Dep't of Transp., 359 N.C. 400, 610 S.E.2d 360 (2005), our Supreme Court stated "[i]t is not the role of the appellate courts . . . to create an appeal for an appellant." Id. at 402, 610 S.E.2d at 361. In Viar, the majority opinion addressed an issue not raised or argued by the plaintiff which was the basis of the Industrial Commission's decision, namely, the reasonableness of the defendant's decision to delay installation of median barriers at a dangerous location. Id. By addressing an issue not raised by either party, the appellee did not have notice of the issue and did not address the issue in its brief. Our Supreme Court stated "[a]s this case illustrates, the Rules of Appellate Procedure must be consistently applied; otherwise, the Rules become meaningless, and an *810 appellee is left without notice of the basis upon which an appellate court might rule." Id.

In this case, we choose to invoke Rule 2 upon our own initiative to "expedite decision in the public interest"[1] for the following reasons. First, our review of the record indicates the trial court failed to instruct on an essential element of the crime of felonious damage to computers, to wit: the damage must exceed $1,000.00. A pattern jury instruction does not exist for this statutory crime, and the lack of a pattern jury instruction may have facilitated the error in this case. Additionally, there are no cases interpreting, analyzing, citing, or explaining Article 60 "Computer-Related Crime" of Chapter 14 of our General Statutes. Specifically, section 14-455 of our General Statutes has never been addressed by our appellate courts. Thus, even if a trial court was inclined to fashion a jury instruction from the applicable case law, no applicable case law exists. Finally, the trial court utilized the incorrect statutory version of section 14-455 to charge the jury in this case. Notably, unlike the situation in Viar, the parties have addressed these issues in their briefs and at oral argument.

We also find that an invocation of Rule 2 is consistent with the purpose of Rule 2. Rule 2 was enacted in 1975. In explaining the rationale of Rule 2, the drafting committee included the following commentary in our appellate rules:

This Rule expresses an obvious residual power possessed by any authoritative rule-making body to suspend or vary operation of its published rules in specific cases where this is necessary to accomplish a fundamental purpose of the rules. The power does not of course depend upon its express reservation by the Court in the body of the Rules. It is included here as a reminder to counsel that the power does exist, and that it may be drawn upon by either appellate court where the justice of doing so or the injustice of failing to do so is made clear to the court. The phrase "except as otherwise expressly provided" refers to the provision in Rule 27(c) that the time limits for taking appeal laid down in these Rules . . . may not be extended by any court.
N.C.R.App. P. 2, Commentary (1977). We therefore address the merits of defendant's argument in order to clarify the law of computer related crime in North Carolina. See, e.g., State v. Hudson, 345 N.C. 729, 732, 483 S.E.2d 436, 438 (1997) (stating that, "[n]evertheless, we deny the State's request that we refuse to review the issue now. The Court of Appeals exercised its discretion pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure to consider this issue; we likewise exercise our discretion pursuant to N.C.G.S. § 7A-31 to review the Court of Appeals' decision so that the law pertaining to this issue in this jurisdiction will be consistent and clear").

Defendant argues the trial court erred by failing to instruct the jury regarding the amount of damages. Under N.C. Gen.Stat. § 14-455(a) (1999), the statute in effect on 20 October 2000:

It is unlawful to willfully and without authorization alter, damage, or destroy a computer, computer system, computer network, or any part thereof. A violation of this subsection is a Class G felony if the damage caused by the alteration, damage, or destruction is more than one thousand dollars ($1000). Any other violation of this subsection is a Class 1 misdemeanor.
Id. Under this statute, if the computer damage does not exceed $1,000.00, the alleged perpetrator is guilty of a Class 1 misdemeanor, and not a Class G felony.

In order to convict defendant of felonious damage to a computer, the State was therefore required to prove beyond a reasonable doubt, and the jury was required to so find, that the damages in this case exceeded $1,000.00. Compare N.C. Gen.Stat. § 14-72(a) (2003) (providing that "[l]arceny of goods of the value of more than one thousand *811 dollars ($1,000) is a Class H felony"); State v. Jones, 275 N.C. 432, 436, 168 S.E.2d 380, 383 (1969) (emphasis omitted) (stating that, in order "to convict of the felony of larceny, it is incumbent upon the State to prove beyond a reasonable doubt that the value of the stolen property was more than two hundred dollars [now $1,000.00]; and, value in excess of two hundred dollars being an essential element of the offense, it is incumbent upon the trial judge to so instruct the jury"). As such, the trial court was required to instruct the jury regarding valuation of damages in excess of $1,000.00. See Jones, 275 N.C. at 436-437, 168 S.E.2d at 383 (stating that, "[t]he basis for this requirement is the elementary proposition that the credibility of the testimony, even though unequivocal and uncontradicted, must be passed upon by the jury").

The trial court here, however, failed to instruct the jury regarding the essential element of valuation. Absent such instruction, the jury did not fix the value of the damages as in excess of $1,000.00. Hence, the jury verdict did not establish defendant was guilty of the felony of damaging computers of a value in excess of $1,000.00. See id. (holding that, as the trial court did not instruct on the essential element of valuation for the crime of felonious larceny, the jury failed to find that the larceny of which the defendant was convicted related to property of a value of more than $200.00 (now $1,000.00), and the verdict had to therefore be considered a verdict of guilty of larceny of personal property of a value of $200.00 (now $1,000.00) or less); State v. Holloway, 265 N.C. 581, 583,  144 S.E.2d 634, 635 (1965) (holding that, where no instructions are given on value, a judgment of felonious larceny must be vacated); State v. Cooper, 256 N.C. 372, 381, 124 S.E.2d 91, 98 (1962) (same); State v. Keeter, 35 N.C.App. 574, 575, 241 S.E.2d 708, 709 (1978) (noting that "although the judgment of felonious larceny must be vacated where no instructions were given on value, the verdict will stand, and the case is to be remanded for entering a sentence consistent with a verdict of guilty of misdemeanor larceny").

Moreover, the State presented no evidence that the damage caused by defendant to Dr. Kirby's computer exceeded $1,000.00. Neither Dr. Kirby nor Payne testified regarding the amount of any lost claims. Nor was evidence presented regarding the value of Payne's services in recovering any lost data. Although the indictment against defendant alleged economic harm in the amount of thirty thousand dollars, the State failed to introduce evidence at trial to support such a finding by the jury. We must therefore vacate defendant's judgment and remand this case for entry of judgment and sentencing on the misdemeanor of damaging computers.

II. Motion to Dismiss

By further assignment of error, defendant contends the trial court erred in denying her motion to dismiss on the ground that the State failed to present evidence that she acted without authorization or that she damaged Dr. Kirby's computer. We disagree.

Defendant contends the State failed to present evidence that she acted without authorization when she removed the software from Dr. Kirby's computer. For computer-related crimes, "authorization" is defined as "having the consent or permission of the owner, or of the person licensed or authorized by the owner to grant consent or permission to access a computer, computer system, or computer network in a manner not exceeding the consent or permission." N.C. Gen.Stat. § 14-453(1a) (1999) (emphasis added). Defendant argues that, as the computer software belonged to her, she acted within her authority in removing it. Dr. Kirby testified, however, that defendant's actions in removing the software also resulted in a loss of all of his patient data stored on his computer's hard drive. Both the data and the computer hard drive were the property of Dr. Kirby. Although defendant was certainly authorized to access the computer, Dr. Kirby employed defendant to enter patient data onto his computer, not to delete such files. Such action clearly "exceeded the consent or permission" of Dr. Kirby, the owner of the computer, and thereby violated the statute. The trial court did not err in denying defendant's motion to dismiss.

Defendant also contends the State failed to prove that she damaged the computer *812 because there was no evidence that she introduced a computer virus into Dr. Kirby's computer system. The version of section 14-455 of our General Statutes in effect on 20 October 2000 provided that:

(a) It is unlawful to willfully and without authorization alter, damage, or destroy a computer, computer system, computer network, or any part thereof. A violation of this subsection is a Class G felony if the damage caused by the alteration, damage, or destruction is more than one thousand dollars ($1,000). Any other violation of this subsection is a Class 1 misdemeanor.
(b) This section applies to alteration, damage, or destruction effectuated by introducing, directly or indirectly, a computer program (including a self-replicating or a self-propagating computer program) into a computer, computer system, or computer network.
N.C. Gen.Stat. § 14-455 (1999). Defendant contends subsection (b) of section 14-455 in effect modifies subsection (a) to limit the crime of damage to computers to damages caused by computer viruses only. This argument has no merit. As the State notes, defendant erroneously asserts that the term "`applies to'" means "`is defined as.'" Under defendant's reasoning, both subsections refer to the same crime. We agree with the State that, rather than limiting subsection (a), subsection (b) creates a new separate offense relating to a computer virus. We overrule this assignment of error.

III. Indictment

Finally, defendant argues that the charges against her should have been dismissed in that the indictment against her was fatally flawed. The indictment against defendant charged she damaged computers by "unlawfully, willfully and feloniously . . . entering a controlled computer system from an outside line without the knowledge or consent of the owner . . . for the purpose of damaging the system by deleting operational and system files causing a loss . . . of $30,000.00." Defendant contends the indictment nowhere alleges she "`altere[d], damage[d] or destroy[ed]'" a computer and that a fatal variance therefore exists between the indictment and the evidence adduced at trial. We disagree.

"An indictment charging a statutory offense must allege all of the essential elements of the offense." State v. Snyder, 343 N.C. 61, 65, 468 S.E.2d 221, 224 (1996).

"An indictment is sufficient in form for all intents and purposes if it expresses the charge in a plain, intelligible and explicit manner. It will not be quashed `by reasons of any informality or refinement, if[,] in the bill or proceeding, sufficient matter appears to enable the court to proceed to judgment.' [State v. Russell, 282 N.C. 240, 244, 192 S.E.2d 294, 296 (1972)]. It is generally held that the language in a statutorily prescribed form of criminal pleading is sufficient if the act or omission is clearly set forth so that a person of common understanding may know what is intended."
Id. at 66, 468 S.E.2d at 224 (citations omitted) (quoting State v. Coker, 312 N.C. 432, 434-35, 323 S.E.2d 343, 346 (1984)).

Here, the indictment was sufficiently plain and intelligible and charged defendant with all of the essential elements of the crime of damaging computers. The indictment alleged that defendant (1) "unlawfully, willfully and feloniously"; (2) "without the knowledge or consent of the owner"; (3) "enter[ed] a controlled computer system . . . for the purpose of damaging the system by deleting operational and system files"; thereby (4) "causing a loss." The State presented evidence at trial from which the jury could find defendant damaged Dr. Kirby's computer by deleting important patient and other data from the hard drive without authority or consent. The indictment against defendant was therefore not fatally flawed, and we overrule this assignment of error.

In conclusion, we hold the trial court erred in failing to instruct the jury on an essential element of the crime of felonious damage to computers. In light of our decision, we need not address defendant's remaining assignment of error. We vacate the judgment of the trial court and remand this case for entry *813 of judgment and sentence on the misdemeanor crime of damaging computers.

Vacated and remanded.

Judges HUDSON and GEER concur.

NOTES

[1] Because we conclude invocation of Rule 2 is in the public interest, the present case is unlike that of State v. Buchanan, ___ N.C.App. ___, ___,  613 S.E.2d 356, 358 (2005), where this Court determined that the defendant's failure to preserve any issue for appeal did not create a "manifest injustice" and therefore declined to invoke Rule 2.

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text: claims

text: Dr

text: Kirby

text: agreed

text: to

text: pay

text: Payne

text: twenty

text: percent

text: of

text: anything

text: he

text: received

text: from

text: her

text: insurance

text: filings

text: with

text: insurance

text: companies

text: No

text: testimony

text: was

text: given

text: regarding

text: the

text: amount

text: of

text: the

text: lost

text: claims

text: Defendant

text: presented

text: no

text: evidence

text: Upon

text: review

text: of

text: the

text: evidence

text: the

text: jury

text: found

text: defendant

text: guilty

text: of

text: damaging

text: a

text: computer

text: The

text: trial

text: court

text: sentenced

text: defendant

text: to

text: a

text: suspended

text: sentence

text: of

text: ten

text: to

text: twelve

text: months

text: imprisonment

text: and

text: placed

text: her

text: on

text: supervised

text: probation

text: for

text: thirty

text: six

text: months

text: The

text: trial

text: court

text: also

text: ordered

text: defendant

text: to

text: pay

text: costs

text: and

text: restitution

text: in

text: the

text: amount

text: of

text: Defendant

text: appeals

text: Defendant

text: argues

text: the

text: trial

text: court

text: erred

text: by

text: I

text: failing

text: to

text: instruct

text: the

text: jury

text: regarding

text: an

text: essential

text: element

text: of

text: felonious

text: damage

text: to

text: a

text: computer

text: II

text: failing

text: to

text: dismiss

text: the

text: charge

text: of

text: felonious

text: damage

text: to

text: a

text: computer

text: as

text: there

text: was

text: insufficient

text: evidence

text: that

text: defendant

text: acted

text: without

text: authorization

text: or

text: that

text: her

text: actions

text: amounted

text: to

text: alteration

text: damage

text: or

text: destruction

text: and

text: III

text: entering

text: judgment

text: on

text: a

text: fatally

text: flawed

text: indictment

text: I

text: Jury

text: Instructions

text: Defendant

text: argues

text: the

text: trial

text: court

text: erroneously

text: failed

text: to

text: instruct

text: the

text: jury

text: regarding

text: an

text: essential

text: element

text: of

text: the

text: crime

text: of

text: felonious

text: damage

text: to

text: a

text: computer

text: Specifically

text: defendant

text: contends

text: the

text: trial

text: court

text: did

text: not

text: instruct

text: the

text: jury

text: that

text: the

text: computer

text: damage

text: must

text: exceed

text: in

text: order

text: to

text: constitute

text: a

text: felony

text: As

text: an

text: initial

text: matter

text: we

text: address

text: the

text: State

text: s

text: contention

text: that

text: this

text: issue

text: is

text: not

text: preserved

text: for

text: appellate

text: review

text: because

text: defendant

text: failed

text: to

text: object

text: to

text: the

text: trial

text: court

text: s

text: instruction

text: during

text: the

text: charge

text: conference

text: or

text: after

text: the

text: charge

text: was

text: given

text: to

text: the

text: jury

text: Pursuant

text: to

text: Rule

text: b

text: of

text: the

text: North

text: Carolina

text: Rules

text: of

text: Appellate

text: Procedure

text: A

text: party

text: may

text: not

text: assign

text: as

text: error

text: any

text: portion

text: of

text: the

text: jury

text: charge

text: or

text: omission

text: therefrom

text: unless

text: he

text: objects

text: thereto

text: before

text: the

text: jury

text: retires

text: to

text: consider

text: its

text: verdict

text: stating

text: distinctly

text: that

text: to

text: which

text: he

text: objects

text: and

text: the

text: grounds

text: of

text: his

text: objection

text: provided

text: that

text: opportunity

text: was

text: given

text: to

text: the

text: party

text: to

text: make

text: the

text: objection

text: out

text: of

text: the

text: hearing

text: of

text: the

text: jury

text: and

text: on

text: request

text: of

text: any

text: party

text: out

text: of

text: the

text: presence

text: of

text: the

text: jury

text: N

text: C

text: R

text: App

text: P

text: b

text: Defendant

text: did

text: not

text: object

text: to

text: the

text: jury

text: instruction

text: in

text: this

text: case

text: Therefore

text: we

text: can

text: only

text: review

text: this

text: issue

text: for

text: plain

text: error

text: See

text: N

text: C

text: R

text: App

text: P

text: c

text: State

text: v

text: Odom

text: N

text: C

text: S

text: E

text: d

text: Defendant

text: however

text: has

text: not

text: alleged

text: plain

text: error

text: and

text: therefore

text: this

text: issue

text: is

text: not

text: properly

text: preserved

text: for

text: appellate

text: review

text: See

text: State

text: v

text: Moore

text: N

text: C

text: App

text: S

text: E

text: d

text: disc

text: review

text: denied

text: N

text: C

text: S

text: E

text: d

text: However

text: under

text: Rule

text: of

text: the

text: Appellate

text: Rules

text: To

text: prevent

text: manifest

text: injustice

text: to

text: a

text: party

text: or

text: to

text: expedite

text: decision

text: in

text: the

text: public

text: interest

text: either

text: court

text: of

text: the

text: appellate

text: division

text: may

text: except

text: as

text: otherwise

text: expressly

text: provided

text: by

text: these

text: rules

text: suspend

text: or

text: vary

text: the

text: requirements

text: or

text: provisions

text: of

text: any

text: of

text: these

text: rules

text: in

text: a

text: case

text: pending

text: before

text: it

text: upon

text: application

text: of

text: a

text: party

text: or

text: upon

text: its

text: own

text: initiative

text: and

text: may

text: order

text: proceedings

text: in

text: accordance

text: with

text: its

text: directions

text: N

text: C

text: R

text: App

text: P

text: In

text: Viar

text: v

text: N

text: C

text: Dep

text: t

text: of

text: Transp

text: N

text: C

text: S

text: E

text: d

text: our

text: Supreme

text: Court

text: stated

text: i

text: t

text: is

text: not

text: the

text: role

text: of

text: the

text: appellate

text: courts

text: to

text: create

text: an

text: appeal

text: for

text: an

text: appellant

text: Id

text: at

text: S

text: E

text: d

text: at

text: In

text: Viar

text: the

text: majority

text: opinion

text: addressed

text: an

text: issue

text: not

text: raised

text: or

text: argued

text: by

text: the

text: plaintiff

text: which

text: was

text: the

text: basis

text: of

text: the

text: Industrial

text: Commission

text: s

text: decision

text: namely

text: the

text: reasonableness

text: of

text: the

text: defendant

text: s

text: decision

text: to

text: delay

text: installation

text: of

text: median

text: barriers

text: at

text: a

text: dangerous

text: location

text: Id

text: By

text: addressing

text: an

text: issue

text: not

text: raised

text: by

text: either

text: party

text: the

text: appellee

text: did

text: not

text: have

text: notice

text: of

text: the

text: issue

text: and

text: did

text: not

text: address

text: the

text: issue

text: in

text: its

text: brief

text: Our

text: Supreme

text: Court

text: stated

text: a

text: s

text: this

text: case

text: illustrates

text: the

text: Rules

text: of

text: Appellate

text: Procedure

text: must

text: be

text: consistently

text: applied

text: otherwise

text: the

text: Rules

text: become

text: meaningless

text: and

text: an

text: appellee

text: is

text: left

text: without

text: notice

text: of

text: the

text: basis

text: upon

text: which

text: an

text: appellate

text: court

text: might

text: rule

text: Id

text: In

text: this

text: case

text: we

text: choose

text: to

text: invoke

text: Rule

text: upon

text: our

text: own

text: initiative

text: to

text: expedite

text: decision

text: in

text: the

text: public

text: interest

text: for

text: the

text: following

text: reasons

text: First

text: our

text: review

text: of

text: the

text: record

text: indicates

text: the

text: trial

text: court

text: failed

text: to

text: instruct

text: on

text: an

text: essential

text: element

text: of

text: the

text: crime

text: of

text: felonious

text: damage

text: to

text: computers

text: to

text: wit

text: the

text: damage

text: must

text: exceed

text: A

text: pattern

text: jury

text: instruction

text: does

text: not

text: exist

text: for

text: this

text: statutory

text: crime

text: and

text: the

text: lack

text: of

text: a

text: pattern

text: jury

text: instruction

text: may

text: have

text: facilitated

text: the

text: error

text: in

text: this

text: case

text: Additionally

text: there

text: are

text: no

text: cases

text: interpreting

text: analyzing

text: citing

text: or

text: explaining

text: Article

text: Computer

text: Related

text: Crime

text: of

text: Chapter

text: of

text: our

text: General

text: Statutes

text: Specifically

text: section

text: of

text: our

text: General

text: Statutes

text: has

text: never

text: been

text: addressed

text: by

text: our

text: appellate

text: courts

text: Thus

text: even

text: if

text: a

text: trial

text: court

text: was

text: inclined

text: to

text: fashion

text: a

text: jury

text: instruction

text: from

text: the

text: applicable

text: case

text: law

text: no

text: applicable

text: case

text: law

text: exists

text: Finally

text: the

text: trial

text: court

text: utilized

text: the

text: incorrect

text: statutory

text: version

text: of

text: section

text: to

text: charge

text: the

text: jury

text: in

text: this

text: case

text: Notably

text: unlike

text: the

text: situation

text: in

text: Viar

text: the

text: parties

text: have

text: addressed

text: these

text: issues

text: in

text: their

text: briefs

text: and

text: at

text: oral

text: argument

text: We

text: also

text: find

text: that

text: an

text: invocation

text: of

text: Rule

text: is

text: consistent

text: with

text: the

text: purpose

text: of

text: Rule

text: Rule

text: was

text: enacted

text: in

text: In

text: explaining

text: the

text: rationale

text: of

text: Rule

text: the

text: drafting

text: committee

text: included

text: the

text: following

text: commentary

text: in

text: our

text: appellate

text: rules

text: This

text: Rule

text: expresses

text: an

text: obvious

text: residual

text: power

text: possessed

text: by

text: any

text: authoritative

text: rule

text: making

text: body

text: to

text: suspend

text: or

text: vary

text: operation

text: of

text: its

text: published

text: rules

text: in

text: specific

text: cases

text: where

text: this

text: is

text: necessary

text: to

text: accomplish

text: a

text: fundamental

text: purpose

text: of

text: the

text: rules

text: The

text: power

text: does

text: not

text: of

text: course

text: depend

text: upon

text: its

text: express

text: reservation

text: by

text: the

text: Court

text: in

text: the

text: body

text: of

text: the

text: Rules

text: It

text: is

text: included

text: here

text: as

text: a

text: reminder

text: to

text: counsel

text: that

text: the

text: power

text: does

text: exist

text: and

text: that

text: it

text: may

text: be

text: drawn

text: upon

text: by

text: either

text: appellate

text: court

text: where

text: the

text: justice

text: of

text: doing

text: so

text: or

text: the

text: injustice

text: of

text: failing

text: to

text: do

text: so

text: is

text: made

text: clear

text: to

text: the

text: court

text: The

text: phrase

text: except

text: as

text: otherwise

text: expressly

text: provided

text: refers

text: to

text: the

text: provision

text: in

text: Rule

text: c

text: that

text: the

text: time

text: limits

text: for

text: taking

text: appeal

text: laid

text: down

text: in

text: these

text: Rules

text: may

text: not

text: be

text: extended

text: by

text: any

text: court

text: N

text: C

text: R

text: App

text: P

text: Commentary

text: We

text: therefore

text: address

text: the

text: merits

text: of

text: defendant

text: s

text: argument

text: in

text: order

text: to

text: clarify

text: the

text: law

text: of

text: computer

text: related

text: crime

text: in

text: North

text: Carolina

text: See

text: e

text: g

text: State

text: v

text: Hudson

text: N

text: C

text: S

text: E

text: d

text: stating

text: that

text: n

text: evertheless

text: we

text: deny

text: the

text: State

text: s

text: request

text: that

text: we

text: refuse

text: to

text: review

text: the

text: issue

text: now

text: The

text: Court

text: of

text: Appeals

text: exercised

text: its

text: discretion

text: pursuant

text: to

text: Rule

text: of

text: the

text: North

text: Carolina

text: Rules

text: of

text: Appellate

text: Procedure

text: to

text: consider

text: this

text: issue

text: we

text: likewise

text: exercise

text: our

text: discretion

text: pursuant

text: to

text: N

text: C

text: G

text: S

text: A

text: to

text: review

text: the

text: Court

text: of

text: Appeals

text: decision

text: so

text: that

text: the

text: law

text: pertaining

text: to

text: this

text: issue

text: in

text: this

text: jurisdiction

text: will

text: be

text: consistent

text: and

text: clear

text: Defendant

text: argues

text: the

text: trial

text: court

text: erred

text: by

text: failing

text: to

text: instruct

text: the

text: jury

text: regarding

text: the

text: amount

text: of

text: damages

text: Under

text: N

text: C

text: Gen

text: Stat

text: a

text: the

text: statute

text: in

text: effect

text: on

text: October

text: It

text: is

text: unlawful

text: to

text: willfully

text: and

text: without

text: authorization

text: alter

text: damage

text: or

text: destroy

text: a

text: computer

text: computer

text: system

text: computer

text: network

text: or

text: any

text: part

text: thereof

text: A

text: violation

text: of

text: this

text: subsection

text: is

text: a

text: Class

text: G

text: felony

text: if

text: the

text: damage

text: caused

text: by

text: the

text: alteration

text: damage

text: or

text: destruction

text: is

text: more

text: than

text: one

text: thousand

text: dollars

text: Any

text: other

text: violation

text: of

text: this

text: subsection

text: is

text: a

text: Class

text: misdemeanor

text: Id

text: Under

text: this

text: statute

text: if

text: the

text: computer

text: damage

text: does

text: not

text: exceed

text: the

text: alleged

text: perpetrator

text: is

text: guilty

text: of

text: a

text: Class

text: misdemeanor

text: and

text: not

text: a

text: Class

text: G

text: felony

text: In

text: order

text: to

text: convict

text: defendant

text: of

text: felonious

text: damage

text: to

text: a

text: computer

text: the

text: State

text: was

text: therefore

text: required

text: to

text: prove

text: beyond

text: a

text: reasonable

text: doubt

text: and

text: the

text: jury

text: was

text: required

text: to

text: so

text: find

text: that

text: the

text: damages

text: in

text: this

text: case

text: exceeded

text: Compare

text: N

text: C

text: Gen

text: Stat

text: a

text: providing

text: that

text: l

text: arceny

text: of

text: goods

text: of

text: the

text: value

text: of

text: more

text: than

text: one

text: thousand

text: dollars

text: is

text: a

text: Class

text: H

text: felony

text: State

text: v

text: Jones

text: N

text: C

text: S

text: E

text: d

text: emphasis

text: omitted

text: stating

text: that

text: in

text: order

text: to

text: convict

text: of

text: the

text: felony

text: of

text: larceny

text: it

text: is

text: incumbent

text: upon

text: the

text: State

text: to

text: prove

text: beyond

text: a

text: reasonable

text: doubt

text: that

text: the

text: value

text: of

text: the

text: stolen

text: property

text: was

text: more

text: than

text: two

text: hundred

text: dollars

text: now

text: and

text: value

text: in

text: excess

text: of

text: two

text: hundred

text: dollars

text: being

text: an

text: essential

text: element

text: of

text: the

text: offense

text: it

text: is

text: incumbent

text: upon

text: the

text: trial

text: judge

text: to

text: so

text: instruct

text: the

text: jury

text: As

text: such

text: the

text: trial

text: court

text: was

text: required

text: to

text: instruct

text: the

text: jury

text: regarding

text: valuation

text: of

text: damages

text: in

text: excess

text: of

text: See

text: Jones

text: N

text: C

text: at

text: S

text: E

text: d

text: at

text: stating

text: that

text: t

text: he

text: basis

text: for

text: this

text: requirement

text: is

text: the

text: elementary

text: proposition

text: that

text: the

text: credibility

text: of

text: the

text: testimony

text: even

text: though

text: unequivocal

text: and

text: uncontradicted

text: must

text: be

text: passed

text: upon

text: by

text: the

text: jury

text: The

text: trial

text: court

text: here

text: however

text: failed

text: to

text: instruct

text: the

text: jury

text: regarding

text: the

text: essential

text: element

text: of

text: valuation

text: Absent

text: such

text: instruction

text: the

text: jury

text: did

text: not

text: fix

text: the

text: value

text: of

text: the

text: damages

text: as

text: in

text: excess

text: of

text: Hence

text: the

text: jury

text: verdict

text: did

text: not

text: establish

text: defendant

text: was

text: guilty

text: of

text: the

text: felony

text: of

text: damaging

text: computers

text: of

text: a

text: value

text: in

text: excess

text: of

text: See

text: id

text: holding

text: that

text: as

text: the

text: trial

text: court

text: did

text: not

text: instruct

text: on

text: the

text: essential

text: element

text: of

text: valuation

text: for

text: the

text: crime

text: of

text: felonious

text: larceny

text: the

text: jury

text: failed

text: to

text: find

text: that

text: the

text: larceny

text: of

text: which

text: the

text: defendant

text: was

text: convicted

text: related

text: to

text: property

text: of

text: a

text: value

text: of

text: more

text: than

text: now

text: and

text: the

text: verdict

text: had

text: to

text: therefore

text: be

text: considered

text: a

text: verdict

text: of

text: guilty

text: of

text: larceny

text: of

text: personal

text: property

text: of

text: a

text: value

text: of

text: now

text: or

text: less

text: State

text: v

text: Holloway

text: N

text: C

text: S

text: E

text: d

text: holding

text: that

text: where

text: no

text: instructions

text: are

text: given

text: on

text: value

text: a

text: judgment

text: of

text: felonious

text: larceny

text: must

text: be

text: vacated

text: State

text: v

text: Cooper

text: N

text: C

text: S

text: E

text: d

text: same

text: State

text: v

text: Keeter

text: N

text: C

text: App

text: S

text: E

text: d

text: noting

text: that

text: although

text: the

text: judgment

text: of

text: felonious

text: larceny

text: must

text: be

text: vacated

text: where

text: no

text: instructions

text: were

text: given

text: on

text: value

text: the

text: verdict

text: will

text: stand

text: and

text: the

text: case

text: is

text: to

text: be

text: remanded

text: for

text: entering

text: a

text: sentence

text: consistent

text: with

text: a

text: verdict

text: of

text: guilty

text: of

text: misdemeanor

text: larceny

text: Moreover

text: the

text: State

text: presented

text: no

text: evidence

text: that

text: the

text: damage

text: caused

text: by

text: defendant

text: to

text: Dr

text: Kirby

text: s

text: computer

text: exceeded

text: Neither

text: Dr

text: Kirby

text: nor

text: Payne

text: testified

text: regarding

text: the

text: amount

text: of

text: any

text: lost

text: claims

text: Nor

text: was

text: evidence

text: presented

text: regarding

text: the

text: value

text: of

text: Payne

text: s

text: services

text: in

text: recovering

text: any

text: lost

text: data

text: Although

text: the

text: indictment

text: against

text: defendant

text: alleged

text: economic

text: harm

text: in

text: the

text: amount

text: of

text: thirty

text: thousand

text: dollars

text: the

text: State

text: failed

text: to

text: introduce

text: evidence

text: at

text: trial

text: to

text: support

text: such

text: a

text: finding

text: by

text: the

text: jury

text: We

text: must

text: therefore

text: vacate

text: defendant

text: s

text: judgment

text: and

text: remand

text: this

text: case

text: for

text: entry

text: of

text: judgment

text: and

text: sentencing

text: on

text: the

text: misdemeanor

text: of

text: damaging

text: computers

text: II

text: Motion

text: to

text: Dismiss

text: By

text: further

text: assignment

text: of

text: error

text: defendant

text: contends

text: the

text: trial

text: court

text: erred

text: in

text: denying

text: her

text: motion

text: to

text: dismiss

text: on

text: the

text: ground

text: that

text: the

text: State

text: failed

text: to

text: present

text: evidence

text: that

text: she

text: acted

text: without

text: authorization

text: or

text: that

text: she

text: damaged

text: Dr

text: Kirby

text: s

text: computer

text: We

text: disagree

text: Defendant

text: contends

text: the

text: State

text: failed

text: to

text: present

text: evidence

text: that

text: she

text: acted

text: without

text: authorization

text: when

text: she

text: removed

text: the

text: software

text: from

text: Dr

text: Kirby

text: s

text: computer

text: For

text: computer

text: related

text: crimes

text: authorization

text: is

text: defined

text: as

text: having

text: the

text: consent

text: or

text: permission

text: of

text: the

text: owner

text: or

text: of

text: the

text: person

text: licensed

text: or

text: authorized

text: by

text: the

text: owner

text: to

text: grant

text: consent

text: or

text: permission

text: to

text: access

text: a

text: computer

text: computer

text: system

text: or

text: computer

text: network

text: in

text: a

text: manner

text: not

text: exceeding

text: the

text: consent

text: or

text: permission

text: N

text: C

text: Gen

text: Stat

text: a

text: emphasis

text: added

text: Defendant

text: argues

text: that

text: as

text: the

text: computer

text: software

text: belonged

text: to

text: her

text: she

text: acted

text: within

text: her

text: authority

text: in

text: removing

text: it

text: Dr

text: Kirby

text: testified

text: however

text: that

text: defendant

text: s

text: actions

text: in

text: removing

text: the

text: software

text: also

text: resulted

text: in

text: a

text: loss

text: of

text: all

text: of

text: his

text: patient

text: data

text: stored

text: on

text: his

text: computer

text: s

text: hard

text: drive

text: Both

text: the

text: data

text: and

text: the

text: computer

text: hard

text: drive

text: were

text: the

text: property

text: of

text: Dr

text: Kirby

text: Although

text: defendant

text: was

text: certainly

text: authorized

text: to

text: access

text: the

text: computer

text: Dr

text: Kirby

text: employed

text: defendant

text: to

text: enter

text: patient

text: data

text: onto

text: his

text: computer

text: not

text: to

text: delete

text: such

text: files

text: Such

text: action

text: clearly

text: exceeded

text: the

text: consent

text: or

text: permission

text: of

text: Dr

text: Kirby

text: the

text: owner

text: of

text: the

text: computer

text: and

text: thereby

text: violated

text: the

text: statute

text: The

text: trial

text: court

text: did

text: not

text: err

text: in

text: denying

text: defendant

text: s

text: motion

text: to

text: dismiss

text: Defendant

text: also

text: contends

text: the

text: State

text: failed

text: to

text: prove

text: that

text: she

text: damaged

text: the

text: computer

text: because

text: there

text: was

text: no

text: evidence

text: that

text: she

text: introduced

text: a

text: computer

text: virus

text: into

text: Dr

text: Kirby

text: s

text: computer

text: system

text: The

text: version

text: of

text: section

text: of

text: our

text: General

text: Statutes

text: in

text: effect

text: on

text: October

text: provided

text: that

text: a

text: It

text: is

text: unlawful

text: to

text: willfully

text: and

text: without

text: authorization

text: alter

text: damage

text: or

text: destroy

text: a

text: computer

text: computer

text: system

text: computer

text: network

text: or

text: any

text: part

text: thereof

text: A

text: violation

text: of

text: this

text: subsection

text: is

text: a

text: Class

text: G

text: felony

text: if

text: the

text: damage

text: caused

text: by

text: the

text: alteration

text: damage

text: or

text: destruction

text: is

text: more

text: than

text: one

text: thousand

text: dollars

text: Any

text: other

text: violation

text: of

text: this

text: subsection

text: is

text: a

text: Class

text: misdemeanor

text: b

text: This

text: section

text: applies

text: to

text: alteration

text: damage

text: or

text: destruction

text: effectuated

text: by

text: introducing

text: directly

text: or

text: indirectly

text: a

text: computer

text: program

text: including

text: a

text: self

text: replicating

text: or

text: a

text: self

text: propagating

text: computer

text: program

text: into

text: a

text: computer

text: computer

text: system

text: or

text: computer

text: network

text: N

text: C

text: Gen

text: Stat

text: Defendant

text: contends

text: subsection

text: b

text: of

text: section

text: in

text: effect

text: modifies

text: subsection

text: a

text: to

text: limit

text: the

text: crime

text: of

text: damage

text: to

text: computers

text: to

text: damages

text: caused

text: by

text: computer

text: viruses

text: only

text: This

text: argument

text: has

text: no

text: merit

text: As

text: the

text: State

text: notes

text: defendant

text: erroneously

text: asserts

text: that

text: the

text: term

text: applies

text: to

text: means

text: is

text: defined

text: as

text: Under

text: defendant

text: s

text: reasoning

text: both

text: subsections

text: refer

text: to

text: the

text: same

text: crime

text: We

text: agree

text: with

text: the

text: State

text: that

text: rather

text: than

text: limiting

text: subsection

text: a

text: subsection

text: b

text: creates

text: a

text: new

text: separate

text: offense

text: relating

text: to

text: a

text: computer

text: virus

text: We

text: overrule

text: this

text: assignment

text: of

text: error

text: III

text: Indictment

text: Finally

text: defendant

text: argues

text: that

text: the

text: charges

text: against

text: her

text: should

text: have

text: been

text: dismissed

text: in

text: that

text: the

text: indictment

text: against

text: her

text: was

text: fatally

text: flawed

text: The

text: indictment

text: against

text: defendant

text: charged

text: she

text: damaged

text: computers

text: by

text: unlawfully

text: willfully

text: and

text: feloniously

text: entering

text: a

text: controlled

text: computer

text: system

text: from

text: an

text: outside

text: line

text: without

text: the

text: knowledge

text: or

text: consent

text: of

text: the

text: owner

text: for

text: the

text: purpose

text: of

text: damaging

text: the

text: system

text: by

text: deleting

text: operational

text: and

text: system

text: files

text: causing

text: a

text: loss

text: of

text: Defendant

text: contends

text: the

text: indictment

text: nowhere

text: alleges

text: she

text: altere

text: d

text: damage

text: d

text: or

text: destroy

text: ed

text: a

text: computer

text: and

text: that

text: a

text: fatal

text: variance

text: therefore

text: exists

text: between

text: the

text: indictment

text: and

text: the

text: evidence

text: adduced

text: at

text: trial

text: We

text: disagree

text: An

text: indictment

text: charging

text: a

text: statutory

text: offense

text: must

text: allege

text: all

text: of

text: the

text: essential

text: elements

text: of

text: the

text: offense

text: State

text: v

text: Snyder

text: N

text: C

text: S

text: E

text: d

text: An

text: indictment

text: is

text: sufficient

text: in

text: form

text: for

text: all

text: intents

text: and

text: purposes

text: if

text: it

text: expresses

text: the

text: charge

text: in

text: a

text: plain

text: intelligible

text: and

text: explicit

text: manner

text: It

text: will

text: not

text: be

text: quashed

text: by

text: reasons

text: of

text: any

text: informality

text: or

text: refinement

text: if

text: in

text: the

text: bill

text: or

text: proceeding

text: sufficient

text: matter

text: appears

text: to

text: enable

text: the

text: court

text: to

text: proceed

text: to

text: judgment

text: State

text: v

text: Russell

text: N

text: C

text: S

text: E

text: d

text: It

text: is

text: generally

text: held

text: that

text: the

text: language

text: in

text: a

text: statutorily

text: prescribed

text: form

text: of

text: criminal

text: pleading

text: is

text: sufficient

text: if

text: the

text: act

text: or

text: omission

text: is

text: clearly

text: set

text: forth

text: so

text: that

text: a

text: person

text: of

text: common

text: understanding

text: may

text: know

text: what

text: is

text: intended

text: Id

text: at

text: S

text: E

text: d

text: at

text: citations

text: omitted

text: quoting

text: State

text: v

text: Coker

text: N

text: C

text: S

text: E

text: d

text: Here

text: the

text: indictment

text: was

text: sufficiently

text: plain

text: and

text: intelligible

text: and

text: charged

text: defendant

text: with

text: all

text: of

text: the

text: essential

text: elements

text: of

text: the

text: crime

text: of

text: damaging

text: computers

text: The

text: indictment

text: alleged

text: that

text: defendant

text: unlawfully

text: willfully

text: and

text: feloniously

text: without

text: the

text: knowledge

text: or

text: consent

text: of

text: the

text: owner

text: enter

text: ed

text: a

text: controlled

text: computer

text: system

text: for

text: the

text: purpose

text: of

text: damaging

text: the

text: system

text: by

text: deleting

text: operational

text: and

text: system

text: files

text: thereby

text: causing

text: a

text: loss

text: The

text: State

text: presented

text: evidence

text: at

text: trial

text: from

text: which

text: the

text: jury

text: could

text: find

text: defendant

text: damaged

text: Dr

text: Kirby

text: s

text: computer

text: by

text: deleting

text: important

text: patient

text: and

text: other

text: data

text: from

text: the

text: hard

text: drive

text: without

text: authority

text: or

text: consent

text: The

text: indictment

text: against

text: defendant

text: was

text: therefore

text: not

text: fatally

text: flawed

text: and

text: we

text: overrule

text: this

text: assignment

text: of

text: error

text: In

text: conclusion

text: we

text: hold

text: the

text: trial

text: court

text: erred

text: in

text: failing

text: to

text: instruct

text: the

text: jury

text: on

text: an

text: essential

text: element

text: of

text: the

text: crime

text: of

text: felonious

text: damage

text: to

text: computers

text: In

text: light

text: of

text: our

text: decision

text: we

text: need

text: not

text: address

text: defendant

text: s

text: remaining

text: assignment

text: of

text: error

text: We

text: vacate

text: the

text: judgment

text: of

text: the

text: trial

text: court

text: and

text: remand

text: this

text: case

text: for

text: entry

text: of

text: judgment

text: and

text: sentence

text: on

text: the

text: misdemeanor

text: crime

text: of

text: damaging

text: computers

text: Vacated

text: and

text: remanded

text: Judges

text: HUDSON

text: and

text: GEER

text: concur

text: NOTES

text: Because

text: we

text: conclude

text: invocation

text: of

text: Rule

text: is

text: in

text: the

text: public

text: interest

text: the

text: present

text: case

text: is

text: unlike

text: that

text: of

text: State

text: v

text: Buchanan

text: N

text: C

text: App

text: S

text: E

text: d

text: where

text: this

text: Court

text: determined

text: that

text: the

text: defendant

text: s

text: failure

text: to

text: preserve

text: any

text: issue

text: for

text: appeal

text: did

text: not

text: create

text: a

text: manifest

text: injustice

text: and

text: therefore

text: declined

text: to

text: invoke

text: Rule