Jereno Sadatrice Kinslow v. State ( 2020 )

FOURTH DIVISION
DOYLE, P. J.,
COOMER and MARKLE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
January 17, 2020
In the Court of Appeals of Georgia
A19A2460. KINSLOW v. THE STATE. DO-084 C
DOYLE, Presiding Judge.
Jereno Sadatrice Kinslow was convicted of one count of computer trespass.1
He now appeals from the denial of his motion for new trial, contending that the
conduct he was accused of and the evidence at trial showed that he did not violate the
computer trespass statute. Based on the record before us, we disagree and affirm.
Construed in favor of the verdict,2 the record shows that in 2013 Kinslow was
the sole member of the information technology (“IT”) department of the City of
Norcross. In October 2013, Greg Cothran was hired to oversee the IT department and
“help them get to the next level” by enhancing the reliability of the City’s computer
1
OCGA § 16-9-93 (b).
2
See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).
system. According to Cothran, at the time he was hired, the IT department appeared
overwhelmed with service calls, and the network suffered outages.
After a few weeks, Cothran and Kinslow began having workplace disputes, and
in November 2013, they had a particularly heated discussion over Kinslow’s job
performance that resulted in further deterioration of their relationship. Cothran
became concerned that Kinslow could damage the City’s network, so he expedited
a server move as a safeguard. Kinslow’s employment ultimately ended in June 2014,
but until that time, he maintained administrator-level (highest) control over the
network as part of his employment.
In August 2014, City Clerk Monique Lang received an unexpected “bounce-
back” email referencing an email she had sent from her work account to Cothran’s
work account as part of their normal job duties. The bounce-back notice was triggered
due to the size of her initial email message, and the notice indicated that her email
was undeliverable to an email address that was later identified to be a personal email
address set up by Kinslow on an @me.com domain.3 Lang’s message was addressed
only to Cothran’s email address, and she was unfamiliar with the @me.com address.
3
It is undisputed that the @me.com address was a personal account belonging
to Kinslow on a publicly available service offered by Apple, Inc.; we need not
reproduce Kinslow’s email address here.
2
After further investigation, the City was able to determine that a box had been
checked in the network settings that resulted in all of Cothran’s incoming email being
forwarded to Kinslow’s personal @me.com address. Cothran’s email was forwarded
from approximately December 2013 (around the time that the workplace discord
escalated) to August 2014, when it was detected two months after Kinslow’s
termination. The investigation also revealed that Kinslow routinely accessed the
@me.com account from his smart phone. At the time the forwarding started, Cothran
and Kinslow were the only people with the requisite administrator-level access to
cause Cothran’s email to be forwarded to the @me.com account.
Based on an ensuing police investigation, Cothran was charged with one count
of computer trespass by obstructing and interfering with data from a computer.
Following a jury trial, Cothran was found guilty and sentenced to ten years of
probation. He unsuccessfully moved for a new trial, giving rise to this appeal.
1. Kinslow contends that the allegations in the accusation, even if proven true,
were insufficient to establish the alleged violation of the computer trespass statute,
OCGA § 16-9-93 (b). Essentially, he argues that the accusation failed as a matter of
law to establish the essential elements of the offense.
3
As a threshold matter, we must determine whether this enumeration has been
preserved for review. Kinslow’s appellate briefing makes it clear that his challenge
is to the accusation: “The Appellant’s position is that even if the facts alleged in the
accusation were true, proof of these facts did not constitute proof that OCGA § 16-9-
93 (b) (2) was violated. As a result, the conviction should be reversed.” This amounts
to a challenge to the accusation itself, rather than the sufficiency of the trial evidence.
A challenge to an indictment [or accusation] is typically made
through a demurrer to the indictment. A demurrer . . . may be general or
special. A general demurrer challenges the very validity of the [charging
instrument] and may be raised anytime; the special objects merely to its
form or seeks more information and must be raised before pleading to
the indictment. . . . On the other hand, because a general demurrer
attacks the legality of an [accusation], it is permissible to raise this
ground after verdict by a motion in arrest of judgment even if there was
no earlier objection. . . . A motion in arrest asserts that the [accusation]
contains a defect on its face affecting the substance and real merits of
the offense charged and voiding the [accusation], such as failure to
charge a necessary element of a crime. . . .
A motion for directed verdict of acquittal is not the proper way to
contest the sufficiency of an [accusation]. A motion for a directed
verdict of acquittal . . . addresses the sufficiency of the evidence, not the
sufficiency of the underlying [accusation]. When an [accusation] is
absolutely void in that it fails to charge the accused with any act made
4
a crime by the law and, upon the trial, no demurrer to the [accusation]
is interposed and the accused is convicted under the [accusation] and
judgment is entered on the verdict, the accused’s proper remedy is a
motion in arrest of judgment or habeas corpus.
[Moreover, a] motion for new trial is not the proper method to attack the
sufficiency of an [accusation] and does not provide a basis for this Court
to review the [accusation]. Based on [this], it is clear that objections to
defects in an [accusation] can be waived, except when the defects are so
great that the accusation is absolutely void. However, when a claim that
an accusation . . . is absolutely void is not properly asserted in the trial
court, it can be reviewed on appeal only through a habeas corpus
proceeding.4
Because Kinslow did not file a general demurrer or a motion in arrest of the
judgment, his challenge to the accusation is not properly before us.
Nevertheless, even if preserved for review, and to the extent that Kinslow’s
challenge is to the sufficiency of the trial evidence, Kinslow’s argument provides no
basis for reversal. OCGA § 16-9-93 (b) (2) defines the offense of computer trespass,
in relevant part, as “us[ing] a computer or computer network with knowledge that
such use is without authority and with the intention of . . . [o]bstructing, interrupting,
4
(Citations and punctuation omitted.) McKay v. State, 234 Ga. App. 556,
559-560 (2) (507 SE2d 484) (1998).
5
or in any way interfering with the use of a computer program or data.” The accusation
charged Kinslow with committing computer trespass by “us[ing] a computer network
with knowledge that such use was without authority and with the intention of
obstructing and interfering with data from a computer, by copying Greg Cothran’s
emails and causing them to be forwarded to his own private email account. . . .”
Kinslow argues that causing Cothran’s email to be forwarded does not amount
to “obstructing and interfering” with the use of a computer program or data. As
support, he relies on Sitton v. Print Direction, Inc.,5 which held that an employer did
not, as a matter of law, commit computer trespass when “he entered [an employee’s]
office, moved the [employee’s] computer’s mouse, clicked on the e-mail listing which
appeared on the screen, and printed certain e-mails from [the employee] relating to
a job for [a competitor].”6 The computer at issue was used by the employee to conduct
his work duties, and the employer’s conduct, this Court held, did not constitute
“obstructing or interfering with the use of a computer program or data.”7
5
312 Ga. App. 365, 367 (1) (718 SE2d 532) (2011).
6
Id. at 367 (1).
7
Id.
6
Here, by contrast, the evidence showed that Kinslow altered his employer’s
computer network to cause his supervisor’s work incoming email (including sensitive
information that was considered confidential to the City) to be copied and forwarded
to Kinslow’s personal, non-official email account. Unlike this case, the conduct in
Sitton was an employer’s printing of email already displayed on an employee’s
computer used for work and subject to the employer’s computer usage policy agreed
to by the employee.8 It is undisputed that Kinslow did not have authority or
permission to forward his supervisor’s email, and the act of altering network settings
to copy and redirect his supervisor’s incoming email is distinct from that in Sitton and
amounts to conduct sufficient to constitute the offense of computer trespass, i.e.,
“[o]bstructing, interrupting, or in any way interfering with the use of a computer
program or data.” Hence, Kinslow’s reliance on Sitton is unavailing.
2. Kinslow argues that even if the facts alleged in the accusation were sufficient
to establish a computer trespass offense, there is insufficient evidence that he actually
committed the trespass. We disagree.
When an appellate court reviews the sufficiency of the evidence,
8
See id. at 368 (1).
7
the relevant question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
This familiar standard gives full play to the responsibility of the trier of
fact fairly to resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts.
Once a defendant has been found guilty of the crime charged, the
factfinder’s role as weigher of the evidence is preserved through a legal
conclusion that upon judicial review all of the evidence is to be
considered in the light most favorable to the prosecution.9
Here, there was evidence that at the relevant time frame, Kinslow was the only
City employee besides Cothran who had the requisite network access to cause
Cothran’s email to be forwarded to Kinslow. Further, Kinslow did not dispute that the
destination account was his personal account. These facts, along with the evidence
of the workplace friction between Cothran and Kinslow, authorized the jury to find
that Cothran committed the acts sufficient to establish a computer trespass violation
under OCGA § 16-9-93 (b) (2). That Kinslow may offer a different interpretation of
the evidence of is of no moment; on appeal, we must view the evidence in the light
most favorable to the factfinder’s verdict, and any inconsistencies in the evidence or
9
(Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307,
319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
8
credibility determinations are properly not revisited by this Court.10 Under this
standard, the evidence sufficed to support the jury’s finding of guilt.
Judgment affirmed. Coomer and Markle, JJ., concur.
10
See id.9