State v. Azar

                                      724

     Argued and submitted December 15, 2020; reversed and remanded on
         Counts 30, 35, 36, and 37, otherwise affirmed April 6, 2022


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                       RAJI AFIFE AZAR,
                      Defendant-Appellant.
                 Multnomah County Circuit Court
                      18CR28295; A170612
                                  

     In this criminal case, defendant repeatedly bought property that he believed
to be stolen and then, using a computer and the internet, he sold that property
on eBay. For that and other related conduct, defendant was convicted of, among
other crimes, computer crimes under ORS 164.377(2). On appeal, he contends
that the trial court erred by (1) denying his motions for judgment of acquittal
as to several computer crime counts, (2) instructing the jury that it could return
nonunanimous guilty verdicts, and (3) accepting nonunanimous guilty verdicts
on Counts 30, 35, 36, and 37. As to the denial of his motions for judgment of
acquittal, he argues that the computer crime statute did not apply to his conduct, because that statute was originally intended to combat computer hacking,
not the incidental use of a computer to commit theft. He also argues that, if the
statute was construed to reach his conduct, such construction would render the
statute unconstitutionally vague. Held: The trial court’s acceptance of nonunanimous guilty verdicts on Counts 30, 35, 36, and 37 required reversal and remand
of those counts. Defendant was not, however, entitled to reversal on the remaining counts, which were based on unanimous verdicts. The Court of Appeals also
concluded that the legislature intended for the computer crime statute to reach
defendant’s conduct, and that the statute was not rendered unconstitutionally
vague by that construction. Thus, the trial court did not err in denying defendant’s motions for judgment of acquittal.
    Reversed and remanded on Counts 30, 35, 36, and 37; otherwise affirmed.



    Kenneth R. Walker, Judge.
   Zachary Lovett Mazer, Deputy Public Defender, argued
the cause for appellant. Also on the brief was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
   Patrick M. Ebbett, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Cite as 

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  Before Mooney, Presiding Judge, and Pagán, Judge, and
DeVore, Senior Judge.*
   MOONEY, P. J.
   Reversed and remanded on Counts 30, 35, 36, and 37;
otherwise affirmed.
   Pagán, J., concurring in part, dissenting in part.




______________
   * Pagán, J., vice DeHoog, J. pro tempore.
726                                             State v. Azar

        MOONEY, P. J.
         Defendant repeatedly bought property that he
believed to be stolen and then, using a computer and
the internet, he sold that property on eBay. For that and
other related conduct, defendant was convicted of multiple
counts of attempted first-degree theft, ORS 161.405 and
ORS 164.055, and computer crime, ORS 164.377, as well
as laundering a monetary instrument, ORS 164.170, and
conspiracy, ORS 161.450. On appeal, he contends that the
trial court erred by (1) denying his motions for judgment
of acquittal on the computer crime counts, (2) instructing
the jury that it could return nonunanimous verdicts, and
(3) accepting nonunanimous guilty verdicts on four of the
counts with which he was charged. For the reasons that follow, we reverse defendant’s four convictions that were based
on nonunanimous verdicts, but otherwise affirm.
            I. NONUNANIMOUS VERDICTS
         We begin with assignments of error four through 12
in which defendant challenges the court’s instruction to the
jury that it could convict defendant on nonunanimous verdicts, the court’s acceptance of nonunanimous verdicts on
Counts 30, 35, 36, and 37, and its entry of convictions on
those counts. The state properly concedes the instructional
error under Ramos v. Louisiana, 

, 

,

 (2020). Accepting the jury’s nonunanimous
verdicts on Counts 30, 35, 36, and 37 requires reversal and
remand of those counts. 

 Defendant is not, however, entitled to reversal on the remaining counts, which were based
on unanimous verdicts. State v. Flores Ramos, 

,

 (2020); see also State v. Ciraulo, 

, 

 (2020), cert den, ___ US ___, 

 (2021).
        Because Counts 30, 35, 36, and 37 are to be remanded
for a new trial, we turn to defendant’s first three assignments of error in which he assigns error to the court’s denial
of his motion for judgment of acquittal as to those computer
crime counts. See generally State v. Witt, 

, 

 (2021) (considering whether the trial court erred
in denying the defendant’s motion for judgment of acquittal notwithstanding the trial court’s error in accepting a
nonunanimous jury verdict).
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                   II. STANDARD OF REVIEW
         When, as here, denial of a defendant’s motion for
judgment of acquittal (MJOA) “centers on the meaning of
the statute defining the offense,” we review the trial court’s
interpretation of that statute for legal error. State v. Hunt,

, 

 (2015). We review the
sufficiency of the evidence by reviewing the facts in the light
most favorable to the state to determine whether a rational
juror could have found the essential elements of the crime
beyond a reasonable doubt. State v. Tecle, 

, 

 (2017).
                    III.    FACTUAL BACKDROP
         Defendant was convicted of numerous crimes following a retail theft investigation conducted initially by
private investigators and then law enforcement personnel.
In January 2018, investigators for Fred Meyer and Safeway
observed defendant buy merchandise that he believed to be
stolen, but that was not stolen, because one of the investigators provided the merchandise to a known shoplifter
to sell to defendant in order to gather evidence on defendant’s fencing operation. Over the next months, undercover
investigators for Fred Meyer developed a relationship with
defendant and conducted a series of transactions in which
undercover employees sold merchandise to defendant under
the pretense that the merchandise had been shoplifted or
otherwise stolen.1
         Around the same time, it was suspected that defendant was using eBay to sell the stolen items that he had purchased in the undercover transactions. Investigators identified an eBay account with the name “ellabellesbotique”
associated with the same location and selling the same kind
of property that the Fred Meyer investigators had been selling to defendant. The investigators purchased items from
that account, some of which had the same invisible ink
marks with which they had marked the items before selling
them to defendant.

    1
      For the purposes of this appeal, we need not, and do not, provide a detailed
recitation of the factual circumstance surrounding those transactions.
728                                                        State v. Azar

         eBay is a website that allows people to buy or sell
items on the internet. To sell items, a person must create
a profile on eBay by accessing the website and creating an
account. Each account requires a unique username and
password. Once an account is set up, users can sell items on
any computer or mobile device and upload pictures of their
items for sale. eBay processes payments for items through
a platform called PayPal. A buyer may pay for an item
through PayPal or pay directly by using a credit or debit
card. In order to use PayPal, the buyer and seller must each
have an account with PayPal. Once a buyer’s payment is
processed through PayPal, the funds are transferred to the
seller’s PayPal account. The seller is then able to transfer
those funds to a personal bank account by linking the seller’s PayPal account and the personal account.
          Eventually, the investigation into defendant’s fencing operation was turned over to law enforcement. Detective
Fields of the Portland Police Bureau arranged another
undercover transaction with defendant, and defendant was
arrested after the transaction. Fields obtained a search
warrant for defendant’s home. At the house, Fields and other
officers found “just mountains of” the type of property that
had been sold to defendant by the investigators. They also
found shipping materials. Police had to use multiple vans to
remove the property from the home.
         Defendant was interviewed by Fields after the
search. Defendant described in detail how he worked with
different people he knew to be thieves to purchase stolen property, used eBay to resell the property on his sister’s account
because his own account had been blocked, and forwarded
the proceeds in her account to his own PayPal account and
then transferred it to his personal bank account. He told the
detective that he had “been doing this a long time.”
               IV. PROCEDURAL BACKDROP
         Defendant was indicted on multiple crimes, including 17 counts of felony computer crime under ORS 164.377(2).2
   2
     ORS 164.377(2) provides:
       “Any person commits computer crime who knowingly accesses, attempts
   to access or uses, or attempts to use, any computer, computer system, computer network or any part thereof for the purposes of:
Cite as 

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The computer crime counts alleged that, on various occasions, defendant
    “did unlawfully and knowingly access and use a computer,
    computer system, and computer network for the purpose of
    committing theft of property by receiving/selling[.]”
Defendant’s case was tried to a jury.
        At the close of the state’s evidence, the trial court
granted defendant’s MJOA on 14 of defendant’s computer
crime counts. As to the remaining computer crime counts,
defendant moved for judgment of acquittal on the grounds
that the state failed to establish that he had used and
accessed a computer system for the purposes of committing
theft within the meaning of ORS 164.377(2).3 He argued
that the legislature enacted that statute to combat computer hacking and that, because there was no evidence that
he hacked into any computer system, no reasonable juror
could conclude that he violated the statute. The court denied
the motion, and defendant was ultimately found guilty of,
among other crimes, three counts of felony computer crime.
         On appeal, defendant argues that the trial court
erred in denying his MJOA. He argues that ORS 164.377(2)
does not apply to his conduct, because the legislature
enacted the statute to combat computer hacking, and there
is no evidence that he engaged in computer hacking. He contends that the legislature did not intend for ORS 164.377(2)
to apply to his “use of a publicly accessible website for its
intended purpose”—the buying and selling of merchandise—
even if the object was to commit theft. In support of his
argument, defendant relies on the statute’s plain text and
legislative history, arguing that application of the statute
to his conduct would require an expansive construction of

        “(a) Devising or executing any scheme or article 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 or theft of an intimate image.”
    3
      Defendant did not contest that the evidence was sufficient to prove that his
conduct involved a computer, computer system, and computer network, and he
does not make that argument on appeal. Thus, for the sake of brevity, we refer to
those three things collectively as a “computer system.”
730                                                  State v. Azar

ORS 164.377(2) which would, in turn, result in constitutional vagueness problems. The state responds that the trial
court did not err in denying defendant’s motion, because the
statute was intended to criminalize the direct use or access
of a computer system for specific, unlawful purposes and,
further, that that construction does not render the statute
void for vagueness.
                          V.   ANALYSIS
         Our task is to determine whether the legislature
intended the phrase, “accesses, attempts to access or uses”
a computer or computer system, in ORS 164.377(2), to apply
to defendant’s conduct. Our goal is to determine the legislature’s intent. State v. Gaines, 

, 

(2009). We do that by examining the text and context of the
statute, as well as legislative history if it is useful to our
analysis. 

.
A.    The plain text does not support defendant’s position.
          We start with the text of ORS 164.377(2), beginning
with
        “Any person commits computer crime who knowingly
     accesses, attempts to access or uses, or attempts to use,
     any computer, computer system, computer network or any
     part thereof for the purposes of:
        “(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 or theft of an intimate
     image.”
(Emphases and boldface added.) “[A]ccess” is defined as
     “to instruct, communicate with, store data in, retrieve data
     from or otherwise make use of any resources of a computer,
     computer system or computer network.”
ORS 164.337(1)(a). “Otherwise” is commonly defined as
“in a different way or manner.” Webster’s Third New Int’l
Cite as 

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Dictionary 1598 (unabridged ed 2002). The common definitions of “make” include “to bring about,” “cause to happen,”
and “cause to exist, occur, or appear.” Id. at 1363. Thus,
the phrase “otherwise makes use of,” means that a person
“access[es],” a computer by “caus[ing]” the “use” of the computer to happen in a “way or manner” different from one of
the specific examples listed in the definition.

         Although the legislature did not define the word
“use” for purposes of ORS 164.377(2), we considered its
meaning in Tecle. That case concerned a defendant who
was convicted of computer crimes under ORS 164.377(2)
for giving false information to various bank employees who
entered that false information into the computer systems of
two banks to create bank accounts for the defendant from
which funds were illegally withdrawn. 

-
87. ORS 164.377(2) was applied to the defendant’s conduct
on the theory that, by inducing the bank employees to enter
the banks’ computer database, he “used” a computer for purposes of the statute. 

. Engaging in our traditional
method of statutory construction, we concluded that the legislature “did not intend to turn ordinary theft or fraud into
a computer crime merely when the victim’s employee made
authorized use of a computer, doing ordinary data entry,
and when the perpetrator did not directly access or manipulate the computer.” 

. We, thus, reversed the
defendant’s computer crime convictions.

         We need not repeat the Tecle analysis in detail here,
because there is no dispute that defendant personally and
directly “used” a computer to sell goods on eBay. Of course,
defendant’s “use” of a computer must have been “for the purposes of” one of the objectives identified in ORS 164.377(2)(a)
through (c). “Purpose” is commonly defined as “something
that one sets before himself as an object to be attained: an
end or aim to be kept in view in any plan, measure, exertion, or operation: design.” Webster’s at 1847. Thus, defendant must have directly accessed or used a computer for the
end or aim of “[d]evising or executing any scheme or article to defraud; … [o]btaining money, property or services
by means of false or fraudulent pretenses, representations
or promises; or … [c]ommitting theft, including, but not
732                                               State v. Azar

limited to, the theft of proprietary information or theft of an
intimate image.” ORS 164.377(2)(a) - (c).
         Defendant argues that the phrase “committing
theft, including, but not limited to, theft of proprietary information and theft of an intimate image” in ORS 164.377(2)(c)
supports his position that the statute excludes his use of a
computer from the definition of computer crime. He asserts
that the two examples of theft inform the meaning of “committing theft” as used in that provision. He reasons that,
because “theft of proprietary information” and “theft of an
intimate image” have in common the idea of “taking something from a computer that exists in that computer,” the legislature intended for the statute to only reach conduct that
involves “taking” or “extracting” proprietary information
or an intimate image from the computer and “turning it to
[one’s] own purpose.” He therefore argues that, because he
did not extract information from eBay, his conduct does not
fall within the meaning of the statute as intended by the
legislature.
           Defendant’s argument invokes the interpretive
principle of noscitur a sociis, which means “it is known by its
associates,” sometimes colloquially referred to as “birds of a
feather,” see Antonin Scalia and Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 195 (2012), and refers
to the concept that “the meaning of words in a statute may
be clarified or confirmed by reference to other words in
the same sentence or provision.” Daniel L. Gordon, PC v.
Rosenblum, 

, 

 (2017) (Gordon)
(quoting Goodwin v. Kingsman Plastering, Inc., 

, 

 (2016)). Gordon is instructive regarding the application of that principle. In Gordon, one of the
issues was whether ORS 646.607(1), which prohibited the
use of “unconscionable tactic[s]” to collect debts, applied to
the plaintiff’s debt collection activities. Id. at 354. The term
“unconscionable tactic,” as used in that subsection, was
defined by another statute, ORS 646.605(9), which provided
that “ ‘[u]nconscionable tactics’ include, but are not limited
to, [list of four examples].” Id. at 358.
       In construing the statute, the court first examined the meaning of “unconscionable tactics,” and then
Cite as 

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determined whether the surrounding text, including the four
examples in ORS 646.605(9), clarified the meaning of that
term. Recognizing that “unconscionability” is a legal term of
art, the court looked to the term’s “established legal meaning,” which, in that case, involved consulting with Black’s
Law Dictionary and examining the term’s usage within the
context of the common law. Id. at 361-64. Having determined
that the common-law doctrine of “unconscionability” provided no basis for excluding the plaintiff’s conduct from the
statute, the court looked to determine whether the examples
in ORS 646.605(9) shared any common characteristics that
would illuminate the meaning of “unconscionable tactic[s]”
as used in the statute. Id. at 365. It observed that the first
three examples of “unconscionable tactics” were described
in the context of an “agreement or transaction,” whereas the
fourth example did not reference any sort of transaction.
Id. (internal quotation marks omitted). Thus, the court concluded that a “transaction or agreement” was not a required
characteristic of that term. Id. Finally, the court turned to
the text surrounding “unconscionable tactic,” specifically,
the language “in connection with … collecting or enforcing an obligation.” Id. at 365-66; ORS 646.607(1). The court
determined that that language suggested that the statute
applied to plaintiffs’ debt collection activities because those
activities were conducted “in connection with” an obligation.
Gordon, 

.

         Engaging in a similar analysis as we construe ORS
164.377(2)(c), we conclude that “theft of proprietary information” and “theft of an intimate image” do not limit the scope
of that provision to theft that involves taking or extracting
information from a computer.

         Theft is a legal term of art that is defined by Oregon’s
Criminal Code and thus has an “established legal meaning.” Gordon, 

. “[A] person commits theft when
… the person” either (1) “[t]akes, appropriates, obtains
or withholds” property that belongs to another person;
(2) “[c]ommits theft of property lost, mislaid, or delivered
by mistake”; (3) “[c]ommits extortion … by compelling or
inducing another person to deliver property”; (4) “[c]ommits
theft by deception”; or (5) “[c]ommits theft by receiving.”
734                                                  State v. Azar

ORS 164.015. ORS 164.015, thus, describes the different
categories of conduct that qualify as theft. It does not, however, indicate whether a person commits theft for purposes
of ORS 164.377(2)(c)—qualifying the theft as a computer
crime—only when the person takes or extracts something
from a computer, or whether one commits theft and, thus,
computer crime, by using a computer as the means to accomplish the theft.
         Turning to the context in which ORS 164.377(2)
resides, we note that the two examples of theft in that provision include “theft of proprietary information” and “theft
of an intimate image.” ORS 164.377(2)(c). “Proprietary information” means
   “any scientific, technical or commercial information including any design, process, procedure, list of customers, list of
   suppliers, customers’ records or business code or improvement thereof that is known only to limited individuals
   within an organization and is used in a business that the
   organization conducts. The information must have actual
   or potential commercial value and give the user of the
   information an opportunity to obtain a business advantage
   over competitors who do not know or use the information.”
ORS 164.377(1)(k). An “intimate image” is defined as “a photograph, film, video, recording, digital picture or other visual
reproduction of a person whose intimate parts are visible or
who is engaged in sexual conduct.” ORS 164.377(1)(h).
         In light of those definitions, we conclude that the
legislature did not intend to limit ORS 164.377(2)(c) to the
taking or extracting of information or content from a computer system. The definitions appear superficially to have
in common the characteristic that the theft must involve a
thing that exists on a computer or otherwise located somewhere in a computer network. However, a closer look at the
definition of “intimate image” suggests that the thing could
be either a digital or a physical object, evidenced by the
inclusion of “photograph” in contrast to “digital picture.” The
statute would, therefore, reach the conduct of a person who,
for example, sells stolen physical copies of intimate images
on the internet. And because the definition of “intimate
image” does not require the image to be in digital form, we
Cite as 

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reject defendant’s argument that “committing theft” is limited to the extraction of information from a computer.4
          Moreover, the plain text of ORS 164.377(2) does not
support defendant’s position that the statute requires the
illicit use of a computer system. Nothing in the text of the
statute suggests that the “access” or “use” of a computer
must be done without authorization or permission. Indeed,
defendant’s reading of the statute would require us to insert
words that the legislature omitted, which we are not permitted to do. ORS 174.010. Accordingly, we conclude that
ORS 164.377(2) is not limited by its terms to the concept of
computer hacking. Rather, we conclude that the plain text
means that, to violate the statute, a person must “use” or
“access” a computer as the direct, necessary means by which
the person achieves one of the statute’s prohibited ends.
B.    The context of the statute confirms our understanding of
      the plain text.
         “In construing a statute, ‘we do not look at one subsection of a statute in a vacuum; rather, we construe each
part together with the other parts in an attempt to produce a
harmonious whole.’ ” State v. Carpenter, 

, 

 (2019) (quoting Lane County v. LCDC, 

, 

 (1997)). That means, in examining context,
we look to “other provisions of the same statute.” Wetherell v.
Douglas County, 

, 

 (2007).
         We now turn our attention to other relevant subsections of ORS 164.377 for additional clues about legislative
    4
      The legislative history of ORS 164.377 supports that conclusion. The legislature added “including, but not limited to, theft of proprietary information or
theft of an intimate image” in the years following the enactment of the statute.
See Or Laws 1985, ch 537, § 8 (statute as enacted); Or Laws 1989, ch 737, § 1 (“theft
of proprietary information” added); Or Laws 2015, ch 350, § 1 (“theft of an intimate image” added). A staff summary related to the “theft of an intimate image”
amendment states that, during a public hearing held by the Senate Judiciary
Committee, “there was testimony and discussion about whether Oregon’s theft
statutes prohibited the theft of digitized images. Specifically, there was discussion about the monetary ‘value’ of digitized intimate images.” Staff Measure
Summary, Senate Committee on Judiciary, SB 377 B, Apr 2, 2015. Subsequently,
the legislature modified the provision to include “theft of an intimate image.”
Thus, the legislative history of the “theft of an intimate image” amendment suggests that the legislature intended to broaden the scope of the statute by including the theft of digitalized images.
736                                              State v. Azar

intent. Subsections (3) and (4) provide the alternative definitions of computer crime:
      “(3) Any person who knowingly and without authorization alters, damages or destroys any computer, computer
   system, computer network, or any computer software, program, documentation or data contained in such computer,
   computer system or computer network, commits computer
   crime.
      “(4) Any person who knowingly and without authorization uses, accesses or attempts to access any computer,
   computer system, computer network, or any computer software, program, documentation or data contained in such
   computer, computer system or computer network, commits
   computer crime.”
Notably, both of those definitions use the term “without
authorization” to modify the conduct that is prohibited by
each subsection, and, in contrast, that term is absent from
subsection (2).
         The context of the statute demonstrates that the
legislature did not intend to require that a person engage in
“computer hacking,” or otherwise illicitly “use” or “access” a
computer, in order to transgress ORS 164.377(2). The inclusion of the term “without authorization” in subsections (3)
and (4) demonstrates that the legislature understood the
distinction between authorized and unauthorized use of a
computer or computer system. The legislature chose to omit
that term from subsection (2). That supports that the legislature did not intend that subsection (2) require proof of
“computer hacking” or other illicit use of the computer itself.
C. Our construction of the statute avoids constitutional
   vagueness.
        We turn to defendant’s vagueness argument. He
contends that a “broad construction of ORS 164.377(2)” that
extends its reach beyond “computer hacking” would render the statute unconstitutionally vague. He reasons that
a broad construction would (1) “leave it entirely to the discretion of district attorneys, judges, and juries” to decide
whether any particular “access” or “use” is prohibited by
the terms of the statute; and (2) make it “impossible for any
Cite as 

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person of ordinary intelligence to understand the scope of
what that statute prohibits.”
         We begin with defendant’s unlawful delegation
argument. A criminal statute offends the principle against
ex post facto laws under Article I, section 21, of the Oregon
Constitution, if the statute “be so vague as to permit a
judge or jury to exercise uncontrolled discretion in punishing defendants.” State v. Graves, 

, 

 (1985). Additionally, the equal privileges and immunities clause in Article I, section 20, “is also implicated when
vague laws give unbridled discretion to judges and jurors
to decide what is prohibited in a given case.” 

 To avoid
vagueness challenges under Article I, sections 20 and 21,
however, a criminal offense need not be defined “with such
precision that a person in every case can determine in
advance that a specific conduct will be within the statute”;
rather, what is required is a “reasonable degree of certainty.”

        Our construction of ORS 164.377(2) does not create
unlawful discretion issues under the state constitution. As
stated above, a person violates the statute when the person’s
use or access of a computer is the direct, necessary means
by which the person accomplishes one of the prohibited
purposes in ORS 164.377(2)(a) through (c). That interpretation provides a “reasonable degree of certainty” regarding
what is prohibited under the statute. Graves, 

.
Therefore, we conclude that ORS 164.377 is not impermissibly vague under Article I, sections 20 and 21.
         We likewise conclude that our interpretation of the
ORS 164.377(2) does not create an unlawful delegation issue
under the Due Process Clause of the Fourteenth Amendment
to the United States Constitution. Under that provision, a
criminal statute is unconstitutionally vague if it allows for
unlawful delegation or unequal or discretionary application. State v. Illig-Renn, 

, 

 (2006).
That occurs when the statute “either contains no identifiable
standard … or employs a standard that relies on the shifting and subjective judgment of the persons who are charged
with enforcing it.” 

 (internal citation omitted). For the
reasons we have stated, we conclude that our construction
738                                            State v. Azar

of ORS 164.377(2) does not create vagueness problems under
the federal due process requirement, because it provides an
“identifiable standard” of what is proscribed by the statute.

        We conclude also that our construction of ORS
164.377(2) does not render that statute vague for lack of
fair warning required by the Due Process Clause of the
Fourteenth Amendment. Our construction of ORS 164.377(2)
would allow a person of ordinary intelligence to understand
the scope of what is prohibited by that statute. And that is
constitutionally sufficient. Grayned v. City of Rockford, 

, 

, 

 (1972).
D. Defendant’s conduct violated ORS 164.337(2).
          As we have explained, to violate ORS 164.337(2),
a person must “use” or “access” a computer as the direct,
necessary means by which the person achieves one of the
prohibited ends listed in the statute. The person’s “use” or
“access” of a computer system must be more than incidental, but it does not require the act of “computer hacking” as
that term is commonly understood. The dissent expresses
the view that this was just “common theft,” and it suggests
that defendant “happened to be using an electronic device”
while committing common theft. 318 Or App at 739 (Pagán,
J., concurring in part, dissenting in part). But that is not
what happened. Defendant used his computer and the internet repeatedly for the purpose of committing theft. Defendant
operated an ongoing virtual marketplace, via eBay, designed
as the principal mechanism for his extensive fencing operation. His use of that computer network was both direct and
necessary to the accomplishment of his criminal intent. This
is not a case where defendant used a computer, or a smart
phone, incidentally to a crime. What occurred here went far
beyond exchanging texts, or email, or using a computer to
navigate, or look up information. Here, defendant’s virtual
shop was his criminal enterprise. Under ORS 164.377(2),
defendant committed computer crime. The trial court did
not err in denying defendant’s MJOA.
         Reversed and remanded on Counts 30, 35, 36, and
37; otherwise affirmed.
Cite as 

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         PAGÁN, J., concurring in part, dissenting in part.
         When the legislature first enacted ORS 164.377 in
1985, its members could not have foreseen the ubiquitous
nature of computers and networks in our daily lives nearly
40 years later. It is not reasonably disputed that the legislative intent behind the enactment of the computer crime statute was to address two specific things: cable television theft
and computer hacking. See Or Laws 1985, ch 537, §§ 1-8.
In this case, the appellant was charged with doing neither.
Rather, the appellant was charged with, in a word, fencing.
Fencing is otherwise known as selling stolen property, or, as
our legislature defines it: theft by receiving, ORS 164.095(1).
Theft by receiving falls under the general definition of theft
in ORS 164.015(5), and thus requires an allegation regarding circumstances, conduct, or value to determine which
degree of theft is the appropriate charge. For instance, if a
person sells less than $100 of stolen goods, then that person would be guilty of theft in the third degree, a Class C
misdemeanor, which carries a maximum jail sentence of 30
days. ORS 161.615(3); ORS 164.043. Theft in the first degree
requires more serious allegations, such as selling stolen property valued over $1,000 or specific circumstances, such as
theft occurring during a riot. ORS 164.055. Theft in the first
degree is a Class C felony, which carries a maximum prison
sentence of five years in prison. ORS 161.605(3).1 Put simply,
the majority’s decision would allow the state to charge someone with a Class C felony when the legislature intended that
person to be charged with a Class C misdemeanor. I dissent
because I conclude that the text of the statute along with
the legislative history and contextual clues indicate that the
legislature did not intend to allow the state to artificially
inflate criminal charges if the accused happened to be using
an electronic device while committing a crime.2
         There is no indication in any of the legislative history that the common crime of theft by receiving would be
    1
      Notably, theft in the first degree and computer crime are both listed as
predicate crimes in ORS 137.717(2), subjecting a defendant with multiple convictions to a presumptive minimum prison sentence under what is commonly known
as “repeat property offender” laws, or Measure 57. Theft in the third degree,
however, is not a predicate crime under ORS 137.717.
    2
      I concur with the majority’s conclusion related to defendant’s juryinstruction challenge raised in assignments of error four through 12.
740                                             State v. Azar

covered by ORS 164.377. The legislative history is replete
with discussions regarding cable television theft and some
discussions of hacking or industrial espionage. See, e.g., Tape
Recording, House Committee on Judiciary, Subcommittee 1,
HB 2795, May 6, 1985, Tape 576, Side B (statements of Dave
Overstreet and Sterling Gibson). There was no discussion
in the legislature about using computers to commit crimes
such as common theft. The statute was amended in 1989
to state the following: “Committing theft, including, but not
limited to, theft of proprietary information,” and, in 2015,
to add: “or theft of an intimate image.” ORS 164.377(2)(c)
(emphases added to highlight amendments); Or Laws 1989,
ch 737, § 1; Or Laws 2015, ch 350, § 1. The majority correctly
infers that the legislature’s addition of those phrases signified an intent to broaden the scope of the statute. The majority posits that we should view the entirety of the amended
section to be inclusive and expansive, rather than narrow,
despite how that would conflict with the narrow goal the
legislature had with the statute when it was first enacted.
But if the majority’s presumption as to the legislative intent
is correct regarding those amendments, does it not follow
that the legislature believed the statute was narrow and,
thus, needed to be expanded so that such property as may
be found in cell phones and other devices was properly
covered? Put another way, if the majority’s presumption
that the word theft should be read expansively was true
before the amendments, why were the amendments needed
at all?
         The more consistent inference to draw from the
amendments is that the legislature believed that the statute
was intended to cover a narrow range of criminal activity
that was specific to the unauthorized use of computers or
unauthorized access to computer networks, and they wanted
to ensure that particular types of theft of intellectual property or images was covered by the statute. It is reasonable
to infer that the legislature intended computer crimes to be
analogous to burglary—that is, accessing a place a person is
not allowed to be with the intention of committing a crime in
that place. In this context, the crime is to knowingly access
a computer or network for the purpose of stealing something
from that computer or network.
Cite as 

 (2022)                             741

          That conclusion is supported by the use of either
of two statutory interpretation maxims applicable here,
noscitur a sociis or ejusdem generis. As noted by the majority, noscitur a sociis is the principle of using certain terms
within a statute to assist in interpreting other terms within
the statute. See Daniel N. Gordon, PC v. Rosenblum, 

, 

 (2017). The terms at issue here
are “access” and “use” and their relation to “theft.” Standing
alone, the words could easily be inferred to mean what the
majority concludes: using any computer or network to commit any theft is a computer crime. But when you consider
that the legislature added specific terms to the concept of
theft that clarify that the access and theft entail stealing
from the computer or network themselves, it becomes more
difficult to justify that conclusion.

          The majority concedes that the terms “proprietary
information” and “intimate image” “superficially” have the
common characteristic of existing on a computer. The logical inference from those terms, along with the focus of the
legislative history, point to a clear result: the statute was
meant to cover the crime of accessing or using a computer or
network to get something out of that computer or network.
To overcome that inference, the majority then notes that
one could imagine a scenario where someone stole intimate
images in physical form and incidentally used a computer
to sell them. That hypothetical, the majority posits, demonstrates that the legislature clearly intended to broaden the
scope of the statute to, well, fencing. To support that conclusion, the majority argues that the legislative history for
those amendments includes concerns about the difficulty
in valuing digital images, which, if correct, corroborates
its conclusion that the legislature intended for nondigital
images to be subject to the law. But that conclusion raises
another confounding question: why would the legislature
include such language in this statute if it were concerned
about whether any prosecution for digital images could proceed under current theft laws?

         The maxim of ejusdem generis leads to the same
result. Ejusdem generis is the principle that a general term
may be narrowed by more specific terms in a statute, or
742                                                                State v. Azar

vice versa. McLaughlin v. Wilson, 

, 

 (2019). When legislative intent is clear, we must employ
the maxim in a manner that avoids a result contrary to the
intent. See State v. Mayorga, 

, 

 (2003); ORS 174.020(1) (courts “shall pursue the intention of the legislature if possible”). What I gather from the
amendments is that the legislature believed the statute to
be narrow, and thus there was a need to include specific
terms lest a prosecutor believe that they lacked authority to
charge someone for stealing proprietary information or intimate images, as those were not the concerns the legislature
dealt with in 1985. So while the majority takes the amendments to mean that the legislature intended to broaden the
scope of the statute and, therefore, the scope was already
quite broad, I read it the other way: the legislature believed
the statute to be narrow, and it needed to expand the statute to ensure crimes that were developing with new technology were covered by the statute.3 To read otherwise, in my
opinion, makes the amendments superfluous and meaningless. If the majority is correct, all property is already covered
by the statute and there was no need to list, in two separate
amendments, 26 years apart, specific examples of property
protected by ORS 164.377.
         The legislature created a statute to combat two
specific things: hacking and cable television theft. As time
passed and computers became more common in households,
the legislature expanded the law to include hacking to gain
access to proprietary information (1989), and hacking to
take someone’s intimate photos off their phone or computer
(2015).4 The logical inference is that the legislature believed
     3
       That is true even if one believes that ejusdem generis should not be applied
because of the use of the phrase “including, but not limited to” in the statute. Our
courts have noted that there are times when ejusdem generis may not be applicable with the use of “including, but not limited to” before a list of specific examples,
as it may indicate that the legislature meant to broaden the meaning of an otherwise plain term with the accompanying list and that the list is nonexclusive. See
State v. Kurtz, 

, 

 (2011).
     4
       It should also be noted that the legislature specifically included the phrase
“intimate” images, indicating an awareness of the probability of one’s intimate
images being contained on a computer that easily captures such photographs:
a smartphone. That again raises a question: if digital images were a concern
because, at that point, the legislature had no methodology of providing them with
an intrinsic value to use for the theft statutes under ORS chapter 164, why would
Cite as 

 (2022)                                               743

that the law was intended to address the type of criminal
activity we most associate with hacking or other nefarious
access to networks or computers, not simply the use of electronics to commit crimes.
          Taking then the majority’s invitation to hypothesize the outcomes of its reading of the statute, one quickly
finds that the bounds of computer crime have expanded
exponentially in the last two and one-half decades. Using
the definition of “computer” in the statute—a “high speed
data processing device that performs logical, arithmetic or
memory functions”—a person commits a computer crime,
and, thus, a Class C felony, if they: (a) text someone on a
smartphone to sell a stolen item worth $30.00; (b) drive a
modern vehicle with a GPS system to a location where they
steal $30.00 worth of property; (c) use a mapping application
on a phone to assist them in stealing $30.00 worth of property; (d) use a smartwatch in any manner to assist them in
stealing $30.00 worth of property; or (e) take a picture of
$30.00 worth of stolen property with their phone in an effort
to sell it. In all of those instances, an accused would be facing a maximum of 30 days in jail if convicted of the underlying theft. After today’s opinion, the state may choose, at
its leisure, to turn a case that would likely result in days in
jail into a case where an accused is facing years in prison,
all because they possessed and used a ubiquitous device in a
way that has no relation to hacking.
           Concurring in part, dissenting in part.




the legislature so narrowly define the property as intimate and include the language in ORS 164.377, but not include such language in any other statute related
to theft? Again, a reasonable inference is that the legislature was concerned that
this narrow, but important, type of property was a likely target of the hacking
type offenses the statute was originally designed to address.