Mario Crapps v. State of Florida ( 2015 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
MARIO CRAPPS, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-4569
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed December 8, 2015.
An appeal from the Circuit Court for Leon County.
Frank E. Sheffield, Judge.
Nancy A. Daniels, Public Defender, and Jennifer S. Morrissey, Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and David Campbell, Assistant Attorney
General, Tallahassee, for Appellee.
WETHERELL, J.
Appellant was convicted of violating an injunction for protection against
stalking (count I) and unauthorized computer use (count II). In this appeal, he
challenges only his conviction on count II, which we reverse for the reasons that
follow.
The undisputed evidence presented at trial established that Appellant logged
into his ex-girlfriend’s Instagram account and posted nude photographs of her
without her permission. The sole issue raised by Appellant on appeal is whether
these actions constitute a violation of section 815.06(1)(a), Florida Statutes (2013),
the statute under which he was charged. On this record, we hold that they do not.
Section 815.06 was enacted in 1978, long before the advent of the Internet
and the proliferation of social media accounts such as Instagram. The statute has
remained virtually unchanged since its original enactment, and at the time of the
events giving rise to this case, the statute provided in pertinent part that “[w]hoever
willfully, knowingly, and without authorization [a]ccesses or causes to be accessed
any computer, computer system, or computer network . . . commits an offense
against computer users.” § 815.06(1)(a), Fla. Stat. (2013). The operative terms in
the statute – “computer,” “computer system,” and “computer network” – were
defined as follows:
(2) “Computer” means an internally programmed,
automatic device that performs data processing.
* * *
(4) “Computer network” means any system that
provides communications between one or more computer
systems and its input or output devices, including, but not
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limited to, display terminals and printers that are
connected by telecommunication facilities.
* * *
(7) “Computer system” means a device or collection
of devices, including support devices, one or more of
which contain computer programs, electronic
instructions, or input data and output data, and which
perform functions, including, but not limited to, logic,
arithmetic, data storage, retrieval, communication, or
control. The term does not include calculators that are not
programmable and that are not capable of being used in
conjunction with external files.
§ 815.03, Fla. Stat. (2013).
As he did below, 1 Appellant argues on appeal that the ex-girlfriend’s
Instagram account does not fall within any of these statutory definitions. The State
responds that because the Instagram account is stored on a computer device
somewhere in the Internet, Appellant violated the statute when he uploaded the
1
The parties briefed the issue raised on appeal as if it was unpreserved. However,
after the close of the evidence and before the case was submitted to the jury,
Appellant’s trial counsel preserved the issue by arguing:
[T]he evidence shows that [Appellant] hacked into [his
ex-girlfriend’s] Instagram account and that’s a social
media website that’s in [the] Internet somewhere, Cloud
somewhere. It’s not – you can access it by computer, but
it’s not part of the computer. In light of it, Judge, I don’t
think that Count II actually can be proven by the State in
light of the fact that in this case a computer was not
accessed. We’re talking about something that’s in the
Internet. So, for that reason, Judge, I’m moving for a
judgment of acquittal.
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nude photographs to the account without his ex-girlfriend’s permission. On this
record, we agree with Appellant.
The plain language of the statutory definitions of “computer,” “computer
system,” and “computer network” refer to tangible devices, not the data and other
information located on the device. Thus, to prove a violation of section
815.06(1)(a) the State must establish that the defendant accessed one of the listed
tangible devices without authorization, not that the defendant accessed a program
or information stored on the device without authorization. See Rodriguez v. State,
956 So. 2d 1226, 1230 (Fla. 4th DCA 2007) (reversing conviction under section
815.06 because evidence only established that the defendant accessed a “computer
function” that he was not authorized to access).
Here, the charge against Appellant was based only on the unauthorized
access of his ex-girlfriend’s Instagram account, not the computer server on which
the account is presumably located. We say “presumably” because the only
evidence in the record explaining what Instagram is was the ex-girlfriend’s
testimony that it is a form of social media and “a place where you post pictures
[and] your friends get to see it.” Nothing in the record establishes or explains how
accessing an Instagram account works from a technological perspective, leaving
unanswered whether or how Appellant’s actions amounted to accessing a specific
computer, computer system, or computer network. Accordingly, in this case, the
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State failed to provide the necessary evidentiary foundation to prove that
Appellant’s actions violated section 815.06(1)(a).
We do not foreclose the possibility that the State could present sufficient
evidence to prove a violation of section 815.06 for unauthorized, sexually-explicit
Internet postings such as those in this case. However, we also note that the State
now has an additional tool to prosecute similar acts of so-called “revenge porn” or
“sexual cyberharassment” because the Legislature recently enacted section
784.049, Florida Statutes, to specifically prohibit the publication of sexually-
explicit images of a person on the Internet without his or her consent. See ch.
2015-24, Laws of Fla. (effective Oct. 1, 2015); Fla. S. Comm. on Rules, SB 538
(2015) Staff Analysis, at 2 (Apr. 9, 2015), available at http://www.flsenate.gov/
Session/Bill/2015/0538/Analyses/2015s0538.rc.PDF (explaining that this new
statute was needed because “Florida law does not specifically prohibit posting
pictures of a nude adult person on the Internet for viewing by other adults if the
picture was taken with the knowledge and consent of the person”).
In sum, for the reasons stated above, we reverse Appellant’s conviction for
count II, unauthorized computer use. In all other respects, we affirm Appellant’s
judgment and sentence.
AFFIRMED in part; REVERSED in part.
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LEWIS and MAKAR, JJ., CONCUR.
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