Commonwealth of Kentucky v. Chasity Shirley

RENDERED: SEPTEMBER 22, 2022
TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0254-DG
COMMONWEALTH OF KENTUCKY APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. NO. 2020-CA-0373
PULASKI CIRCUIT COURT NO. 19-CR-00071
CHASITY SHIRLEY APPELLEE
OPINION OF THE COURT BY JUSTICE HUGHES
AFFIRMING
Chasity Shirley used the self-scanner at the Walmart in Somerset to
purchase two items, paying $80.80 less than she should have paid based on
the prices at which the items were offered for sale. She accomplished this by
exchanging the barcodes on the two items she purchased with barcodes on two
less expensive items. While Shirley clearly committed a criminal act, the novel
issue before us is whether her conduct justifies conviction for unlawful access
to a computer in the first degree, a Class C felony. Kentucky Revised Statute
(KRS) 434.845 sets forth the elements necessary to establish unlawful access
to a computer in the first degree. One of the elements is that the person must
not have the “effective consent” of the owner when accessing the computer.
While a person may have “effective consent” to begin with, it is lost if the
consent is “[u]sed for a purpose other than that for which the consent is given.”
KRS 434.840(9)(d). In this case of first impression, this Court is required to
construe “purpose” in KRS 434.840(9)(d) and more specifically whether
purpose refers to an unauthorized computer-related purpose or a broader
fraudulent purpose. Based upon our conclusion that KRS 434.840(9)(d) refers
to a computer-related purpose, we ultimately conclude, like the Court of
Appeals, that the circuit court improperly denied Appellee Chasity Shirley a
directed verdict on the unlawful access to a computer in the first-degree
charge. Accordingly, we affirm the Court of Appeals’ reversal of the circuit
court’s denial of the directed verdict and remand this case to the Pulaski
Circuit Court for proceedings consistent with this Opinion.
FACTUAL AND PROCEDURAL BACKGROUND
On October 5, 2018, Chasity Shirley shopped at a Walmart store in
Somerset, Pulaski County, Kentucky, with her mother and daughter. Shirley
checked out using a self-checkout register. Loss prevention personnel, using
security cameras, observed Shirley using the register. Specifically, they
observed Shirley moving a rug and a couch slipcover across the register’s
scanner. However, the computer monitoring the register indicated that Shirley
was purchasing other less expensive items, a toothbrush or toothbrush holder.
The total difference in the price was $80.80.
As Shirley left the store, the loss prevention personnel approached
Shirley and escorted her to a nearby office to discuss her purchases. Shirley
remained in the office for a short period after her mother left with Shirley’s
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restless child. When Shirley later left, she allegedly pushed and elbowed the
loss prevention manager as she hurriedly exited the store.
Shirley was charged with unlawfully accessing a computer in the first
degree and second-degree robbery. The robbery charge was amended to
fourth-degree assault prior to trial. The jury found Shirley not guilty on the
assault charge but guilty of first-degree unlawful access to a computer.
At trial, Shirley moved for a directed verdict on the charge that she
unlawfully accessed a computer in the first degree. She argued that the
Commonwealth failed to show that she lacked effective consent to access
Walmart’s self-checkout register, an undisputed computer. Shirley argued that
she had effective consent to use Walmart’s self-checkout register and despite
scanning a barcode not reflective of the item with which it was paired and thus
engaging in theft behavior, effective consent was maintained because she did
not use the register for a purpose other than that for which consent was
given—she scanned barcodes and while not paying full price for the items, paid
something. The Commonwealth responded that Walmart invites and gives
consent to customers to scan and pay for all items, not to scan and pay for
some items, and Walmart cannot consent for someone to commit a crime as
Shirley did when she paid less than the full price. The circuit court denied
Shirley’s motion for a directed verdict.
After the jury found Shirley guilty of first-degree unlawful access to a
computer, a Class C felony with a minimum sentence of five years, Shirley
waived jury sentencing, accepting the Commonwealth’s recommendation of a
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five-year sentence pending presentence investigation. After spending 203 days
in jail, Shirley was sentenced to five years in prison, but the sentence was
suspended, and Shirley was placed on conditional discharge for a period of
thirty days.1
On Shirley’s appeal, the Court of Appeals in a 2-1 decision reversed the
circuit court’s denial of the directed verdict. This Court granted the
Commonwealth’s motion for discretionary review.
ANALYSIS
Kentucky Revised Statutes Chapter 434, titled “Offenses Against Property
by Fraud,” contains a section dealing with unlawful access to a computer. This
section includes: 1) KRS 434.840 Definitions (codified in 1984 and revised in
2002); 2) KRS 434.845 Unlawful access to a computer in the first degree
(same);2 3) KRS 434.850 Unlawful access to a computer in the second
1 Former Justice Venters, serving as a special judge after the prior judge left the
circuit court, entered the final judgment and sentence.
2 When codified in 1984, KRS 434.845 stated:
(1) A person is guilty of unlawful access to a computer in the first degree
when he knowingly and willfully, directly or indirectly accesses, causes to
be accessed, or attempts to access any computer software, computer
program, data, computer, computer system, computer network, or any
part thereof, for the purpose of:
(a) Devising or executing any scheme or artifice to defraud; or
(b) Obtaining money, property, or services for themselves or another by
means of false or fraudulent pretenses, representations, or promises; or
(c) Altering, damaging, destroying, or attempting to alter, damage, or
destroy, any computer, computer system, or computer network, or any
computer software, program, or data.
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degree (same);3 4) KRS 434.851 Unlawful access in the third degree (codified in
2002);4 5) KRS 434.853 Unlawful access in the fourth degree (codified in
(2) Accessing, attempting to access, or causing to be accessed any
computer software, computer program, data, computer, computer
system, computer network, or any part thereof, even though fraud, false
or fraudulent pretenses, representations, or promises may have been
involved in the access or attempt to access shall not constitute a
violation of this section if the sole purpose of the access was to obtain
information and not to commit any other act proscribed by this section.
(3) Unlawful access to a computer in the first degree is a Class C felony.
3 When codified in 1984, KRS 434.850 stated:
(1) A person is guilty of unlawful access to a computer in the second
degree when he without authorization knowingly and willfully, directly or
indirectly accesses, causes to be accessed, or attempts to access any
computer software, computer program, data, computer, computer
system, computer network, or any part thereof.
(2) Unlawful access to a computer in the second degree is a Class A
misdemeanor.
KRS 434.850 currently states:
(1) A person is guilty of unlawful access to a computer in the second
degree when he or she, without the effective consent of the owner,
knowingly and willfully, directly or indirectly accesses, causes to be
accessed, or attempts to access any computer software, computer
program, data, computer, computer system, computer network, or any
part thereof which results in the loss or damage of three hundred dollars
($300) or more.
(2) Unlawful access to a computer in the second degree is a Class D
felony.
4 KRS 434.851 states:
(1) A person is guilty of unlawful access in the third degree when he or
she, without the effective consent of the owner, knowingly and willfully,
directly or indirectly accesses, causes to be accessed, or attempts to
access any computer software, computer program, data, computer,
computer system, computer network, or any part thereof, which results
in the loss or damage of less than three hundred dollars ($300).
(2) Unlawful access to a computer in the third degree is a class A
misdemeanor.
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2002);5 6) KRS 434.855 Misuse of computer information (codified in 1984 and
revised in 2002); and 7) Venue (same). See 2002 Ky. Acts ch. 350 §§ 1-7; 1984
Ky. Acts ch. 210 §§ 1-5.6 The 2002 revisions and newly-enacted statutes
followed the Court of Appeals’ decision in Commonwealth v. Cocke, 58 S.W.3d
891 (Ky. App. 2001). In Cocke, the Court of Appeals affirmed the Jefferson
Circuit Court’s decision declaring then KRS 434.845(1)(c) void for vagueness.7
When amending KRS 434.845 and KRS 434.850 and enacting KRS
434.851 and KRS 434.853 in 2002, the General Assembly made the lack of
effective consent by the computer’s owner an element of each degree of
5 KRS 434.853 states:
(1) A person is guilty of unlawful access in the fourth degree when he or
she, without the effective consent of the owner, knowingly and willfully,
directly or indirectly accesses, causes to be accessed, or attempts to
access any computer software, computer program, data, computer,
computer system, computer network, or any part thereof, which does not
result in loss or damage.
(2) Unlawful access to a computer in the fourth degree is a class B
misdemeanor.
6 Unless context indicates otherwise, “computer” is used to refer to “computer
software, computer program, data, computer, computer system, computer network, or
any part thereof,” which all four degrees of unlawful access to a computer identify as
accessible.
7 Note 2, supra, contains the text of KRS 434.845, codified in 1984, at issue in
Cocke. In Cocke, the defendant, a computer programmer, after his employment
terminated and he had no authority to do so, allegedly used the modem on his home
computer to access his former employer’s computer system and then to delete certain
data from the system, stop an accounting program in progress, and change a
password. Id. at 892. The defendant argued primarily that KRS 434.845(1)(c) was too
broad in that a prosecutor could indict any person for most normal activities that are
conducted on a computer. Id. The Court of Appeals concluded: “Clearly, the statute
is void for vagueness as an authorized user cannot, from a reading of the statute,
ascertain specifically what alteration, damage or destruction is prohibited.” Id. at 894.
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unlawful access to a computer.8 Thus in addressing this case we are required
to determine whether Shirley acted without the effective consent of Walmart
when she accessed the Walmart self-scan register.
As amended in 2002 and unchanged since, KRS 434.845 reads:
(1) A person is guilty of unlawful access to a computer in the first
degree when he or she, without the effective consent of the
owner,[9] knowingly and willfully, directly or indirectly accesses,[10]
causes to be accessed, or attempts to access any computer
software,[11] computer program,[12] data,[13] computer,[14] computer
system,[15] computer network,[16] or any part thereof, for the
purpose of:
(a) Devising or executing any scheme or artifice to defraud; or
(b) Obtaining money, property, or services for themselves or
another by means of false or fraudulent pretenses, representations,
or promises.
8 Along with revising KRS 434.845 by omitting subsection (1)(c) and then
section (2), see n.2, supra, but maintaining the other prohibited purposes in
subsections (1)(a) and (b), the General Assembly distinguished unlawful access to a
computer in the first degree from unlawful access in the second, third, and fourth
degree by not including within the lesser degrees the fraudulent purpose requirement
described in KRS 434.845(1)(a) and (b) and respectively defining the amount of loss or
damage (KRS 434.840(12) defines “loss or damage”) caused by the unlawful access to
a computer as three hundred dollars or more (a Class D felony), less than three
hundred dollars (a Class A misdemeanor), and no loss or damage (a Class B
misdemeanor). See nn. 3-5, supra.
9 KRS 434.840(13) defines “owner.”
10KRS 434.840(1) defines “access” as “to approach, instruct, communicate with,
manipulate, store data in, retrieve or intercept data from, or otherwise make use of
any resources of, a computer, computer system, or computer network.” The General
Assembly amended KRS 434.840(1) in 2002 by adding “manipulate” to the definition.
2002 Ky. Acts ch. 350 § 1.
11 KRS 434.840(5) defines “computer software.”
12 KRS 434.840(4) defines “computer program.”
13 KRS 434.840(7) defines “data.”
14 KRS 434.840(2) defines “computer.”
15 KRS 434.840(6) defines “computer system.”
16 KRS 434.840(3) defines “computer network.”
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(2) Unlawful access to a computer in the first degree is a Class C
felony.
(Emphasis added.)
“Effective consent” is defined as “consent by a person legally authorized
to act for the owner.” KRS 434.840(9). The statute further states, however,
that consent is not effective if it is:
(a) Induced by deception or coercion;
(b) Given by a person who the actor knows is not legally authorized
to act for the owner;
(c) Given by a person who by reason of age, mental disease or
defect, or intoxication is known by the actor to be unable to
make responsible property or data dispositions; or
(d) Used for a purpose other than that for which the consent is
given.
Id.
This case presents us with the first statutory interpretation issue for KRS
434.845 since its amendment in 2002.17 Given the facts presented, we focus
particularly on the “used for a purpose other than that for which the consent is
given” language used in KRS 424.840(9)(d), part of the definition of “effective
consent.”
The Commonwealth contends that the Court of Appeals incorrectly
interpreted “effective consent” as defined in KRS 434.840 when it concluded
17 Since KRS 434.845’s amendment, prior to this case, it has only been
considered by the Court of Appeals in the context of whether a conviction both for
first-degree robbery and for first-degree unlawful access to a computer violates double
jeopardy. See Day v. Commonwealth, 367 S.W.3d 616 (Ky. App. 2012).
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that Shirley retained the effective consent of Walmart when she used the self-
checkout register for its intended purpose, i.e., to scan barcodes and to buy
items. The Commonwealth argues that the Court of Appeals expanded the
definition of “effective consent” to include not only Walmart’s consent to use
self-checkout registers to purchase items at the listed price, but also for sales
as a result of admitted retail fraud. As before the trial court, Walmart
emphasizes that it cannot and does not consent to customers using self-
checkout registers to commit fraud and steal merchandise.
While review of a directed verdict decision often only entails reviewing the
evidence to determine if it would be clearly unreasonable for a jury to find guilt,
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991), this case first
requires the Court to determine as a matter of law the meaning of statutory
language, a de novo review. See Commonwealth v. Montaque, 23 S.W.3d 629,
631 (Ky. 2000); Neurodiagnostics, Inc. v. Kentucky Farm Bureau Mut. Ins. Co.,
250 S.W.3d 321, 325 (Ky. 2008). Specifically, we must discern the meaning of
KRS 434.840(9)(d), the provision the Commonwealth relied on as establishing
that Shirley acted “without the effective consent” of Walmart when she used the
store’s self-checkout register.18
When dealing with a question of statutory construction, we begin with
the plain text. “The cardinal rule in construing statutes is, if possible, to
18 While the Commonwealth’s brief suggests that KRS 434.840(9)(a) is another
basis for finding Shirley did not have effective consent to access Walmart’s self-
checkout register, KRS 434.840(9)(a) has not been at issue in this case.
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ascertain the meaning of the Legislature from the language used, and if that be
plain, clear, and unambiguous, resort to collateral rules of construction is
unnecessary.” Mills v. City of Barbourville, 117 S.W.2d 187, 188 (Ky. 1938).
“Our ultimate goal when reviewing and applying statutes is to give effect to the
intent of the General Assembly. We derive that intent from the language the
General Assembly chose, either as defined by the General Assembly or as
generally understood in the context of the matter under consideration.”
Commonwealth v. Wright, 415 S.W.3d 606, 609 (Ky. 2013). When a statute is
plain and unambiguous on its face, we are not at liberty to construe the
language otherwise. Whittaker v. McClure, 891 S.W.2d 80, 83 (Ky. 1995). “The
statute must be read as a whole and in context with other parts of the law. All
parts of the statute must be given equal effect so that no part of the statute will
become meaningless or ineffectual.” Lewis v. Jackson Energy Co-op. Corp., 189
S.W.3d 87, 92 (Ky. 2005). We presume the legislature did not intend an
absurd result. Commonwealth, Cent. State Hosp. v. Gray, 880 S.W.2d 557, 559
(Ky. 1994). With these principles in mind, we consider the meaning of KRS
434.840(9)(d).
When reading KRS 434.840(9)(d) alone, the language “used for a purpose
other than that for which the consent is given” appears ambiguous. Shirley
advocates that the meaning of “purpose” is limited to a computer context and
in this case refers to using the computer to scan barcodes and pay for
merchandise―the purpose for which Walmart made the self-scanner available
to shoppers. The Commonwealth advocates that “purpose” refers to the
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purpose for which the defendant used the scanner―fraudulent activity. The
meaning of “purpose” within KRS 434.840(9)(d) becomes clearer when
considering the “effective consent” definition in KRS 434.840(9)(d) within the
context of KRS 434.845(1) as a whole.
Incorporating KRS 434.840(9)(d) into KRS 434.845 results in KRS
434.845(1) reading as follows:
A person is guilty of unlawful access to a computer in the first
degree when he or she, without the effective consent of the owner
[due to the computer being “used for a purpose other than that for
which the consent is given”], knowingly and willfully, directly or
indirectly accesses, causes to be accessed, or attempts to access
any computer software, computer program, data, computer,
computer system, computer network, or any part thereof, for the
purpose of:
(a) Devising or executing any scheme or artifice to defraud; or
(b) Obtaining money, property, or services for themselves or
another by means of false or fraudulent pretenses, representations,
or promises.
(Emphasis added.)
The incorporation of KRS 434.840(9)(d)’s text into KRS 434.845(1)
highlights the two express instances in which “purpose” is relevant to proving
that a person is guilty of unlawful access to a computer in the first degree―one
being the computer-related purpose consented to by the owner (part of the
concept of “effective consent”) and the other being the fraudulent purpose
intended by the criminal actor (the second use of “purpose” in the above quote,
the purpose of devising or executing a scheme or obtaining something of value
by false or fraudulent means). With the parties to this case focusing on
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“purpose” in KRS 434.840(9)(d), the “purpose” described in KRS 434.845(1),
the fraudulent purpose for which a person must access a computer in order to
be found guilty of unlawful access to a computer in the first degree, has been
largely ignored. Shifting our attention back to consideration of the statute as a
whole brings the Commonwealth’s argument into proper perspective.
The Commonwealth argues that effective consent is lost under KRS
434.840(9)(d) when one’s “purpose” is to commit fraud when accessing a
computer because a retailer cannot consent for a person to commit crime. The
Commonwealth’s point that a retailer cannot consent for a person to commit
crime, stemming from the foundational criminal law principle that the
government decides whether to punish an individual for an act or omission in
violation of the law, is undisputed. Indeed, as expressed in KRS 434.845(1),
the General Assembly decided to punish an individual who, with the prescribed
mental state, the method of access—directly or indirectly—being of no
consequence, accesses or attempts to access a computer without the effective
consent of the owner for a fraudulent purpose as prescribed in KRS
434.845(1)(a) and (b). While the Commonwealth views KRS 434.840(9)(d) as
encompassing the fraudulent purpose to which the owner cannot consent, a
full reading of KRS 434.845(1) reveals that KRS 434.845(1)(a) and (b) codify
that fraudulent purpose plainly. KRS 434.840(9) speaks to the purpose for
which the user was granted access to the computer, e.g., a shopper granted
access to scan items, an inventory clerk granted access to monitor inventory,
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or an accounting office employee granted access to maintain accounts
receivable.
Statutory construction principles direct that if there is an ambiguity,
“purpose” within KRS 434.845(1) and KRS 434.840(9)(d) should be read as not
creating a redundancy or an absurdity. Lewis, 189 S.W.3d at 92; Gray, 880
S.W.2d at 559. The context of this unlawful access to a computer statute leads
to the conclusion that KRS 434.840(9)(d)’s language, “used for a purpose other
than that for which the consent is given,” requires determining the computer
access purpose consented to by the owner. Although a computer owner cannot
consent to the fraudulent purpose prohibited by statute, and an interpretation
otherwise may be considered an absurdity itself, the owner can consent to
another person accessing, or making use of, see KRS 434.840(1), his computer.
The focus of KRS 434.840(9)(d), then, is the purpose for which consent to use
the computer was given.
While the General Assembly’s use of the term “purpose” within KRS
434.845(1) aids in bringing proper perspective to the arguments presented,
even if the term “purpose” were not used within KRS 434.845(1) to introduce
subsections (a) and (b) (the prohibited fraud), the Commonwealth’s point that
one cannot consent to fraud would lead to the same conclusion. So the
owner’s consent must necessarily be related to a purpose for which consent
could be given. With the context of the statute being computer access, the
owner’s consent would be related to that, not the fraudulent purpose a bad
actor desires to achieve. Consequently, if the individual accesses or makes use
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of the computer in a computer-related manner not consented to, effective
consent is lost.
With the determination that KRS 434.840(9)(d) does not refer to whether
the individual is accessing a computer to commit fraud but does refer to
whether the individual is accessing a computer in the way consented to by the
owner, we must conclude that Shirley was entitled to a directed verdict on the
charge of unlawful access to a computer in the first degree. Shirley accessed
Walmart’s self-checkout register by scanning barcodes and making payment,
access specifically created and intended for Walmart shoppers. Changing the
barcodes on certain merchandise prior to scanning it did not result in Shirley
accessing Walmart’s self-checkout register in a way to which Walmart did not
consent. She used the scanner as intended and consented to by its owner.
Our close reading of the unlawful computer access statute is not
unprecedented. Although the language in similar statutes around the country
varies, the principle we have identified―for what purpose has the computer
owner consented to its use―has surfaced in several jurisdictions. For example,
in State v. Nascimento, 379 P.3d 484 (Or. 2016), the Supreme Court of Oregon
addressed an unlawful computer access statute that used the language
“without authorization” rather than our “without effective consent.” The
defendant was convicted of theft and computer crime for using a terminal
located at her convenience store workplace and connected to the Oregon State
Lottery system to print lottery tickets for which she did not pay. In reversing
the unlawful computer access conviction, the Court stated:
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[T]he text supports defendant’s assertion that her use of the lottery
terminal to print Keno tickets—as she was trained and permitted
by her employer to do—was “authorized” use. The fact that she
printed the tickets for her own use and did not pay for them may
have violated company policies and other parts of the computer
crime statute (in addition to the theft statute), but her use was not
“without authorization” as that term is used in ORS 164.377(4)
. . . . When defendant physically accessed and used the terminal
to print Keno tickets, that access and use was authorized by her
employer. Moreover, there was, for example, no evidence that
defendant circumvented any computer security measures, misused
another employee’s password, or accessed any protected data.
Id. at 491-92. The Oregon legislative history also reflected that the statute was
intended to criminalize use of a computer by someone with no authority to use
it, use by unauthorized third parties commonly referred to as “hackers.” Id. at
492. The Court concluded that Nascimento’s impermissible use of the
computer could lead to other criminal charges but not the unlawful access
charge. Id. at 493. Notably, her companion theft conviction for the lottery
ticket misconduct was not even challenged on appeal. See also State v.
Thompson, 135 A.3d 166 (N.J. Super. Ct. Law Div. 2014) (defendants subject to
computer theft statute because they acted “without authorization or in excess
of authorization” when they used their lawful access to police department
computer system as IT specialists, granted for the purpose of conducting
maintenance and correcting problems within email system, for a different
purpose, namely accessing and reading private emails of executive staff against
whom they had pending litigation).
“When presented with a motion for a directed verdict, a court must
consider the evidence as a whole, presume the Commonwealth’s proof is true,
15
draw all reasonable inferences in favor of the Commonwealth, and leave
questions of weight and credibility to the jury.” Acosta v. Commonwealth, 391
S.W.3d 809, 816 (Ky. 2013) (citing Benham, 816 S.W.2d at 187–88). A trial
court should deny a directed verdict when the “Commonwealth has produced
. . . more than a scintilla [of evidence] and it would be reasonable for the jury to
return a verdict of guilty based on it.” Id. “On appellate review, the standard is
slightly more deferential; the trial court should be reversed only if ‘it would be
clearly unreasonable for a jury to find guilt.’” Id.
Here, the evidence reflected that Shirley scanned barcodes, albeit
barcodes which did not reflect the items with which they were paired. The
Commonwealth did not present proof that Shirley accessed Walmart’s self-
checkout register beyond the consented-to barcode scanning for completion of
a self-checkout sales transaction. Without that proof, it was clearly
unreasonable for the jury to find Shirley guilty of unlawful access to a
computer in the first degree. The circuit court erred by denying Shirley’s
motion for a directed verdict of acquittal.
Finally, we agree with the Court of Appeals that our Penal Code has
other possibly appropriate charges for Shirley’s unlawful actions at Walmart
that day including theft by deception, KRS 514.040(1)(a), or theft by unlawful
taking, KRS 514.030(1)(a). The “fit” with both of those crimes is easily seen.19
As the appellate court also noted, considering the value of property taken in
19 As noted above, Shirley admitted to the jury that her behavior constituted a
theft.
16
this case (less than $500) either charge would constitute a misdemeanor, a
level of criminal offense far more in keeping with the offending conduct than a
Class C felony.
CONCLUSION
For the foregoing reasons, the Court of Appeals’ decision reversing the
Pulaski Circuit Court’s denial of a directed verdict on the unlawful access to a
computer in the first degree charge is affirmed.20 This case is remanded to the
Pulaski Circuit Court for proceedings consistent with this Opinion.
All sitting. All concur.
20 Because we affirm the Court of Appeals upon consideration of the primary
issue advanced in favor of a directed verdict, whether Shirley maintained effective
consent to use Walmart’s self-checkout register despite replacing the barcodes on
more expensive items with barcodes of less expensive items, we do not reach the
alternative issue Shirley advanced. She also presented the argument that the crime of
unlawful access to a computer in the first degree does not apply to cases in which the
harms are under three hundred dollars. Shirley argued that with the crimes of
unlawful access to a computer in the second, third and fourth degree being dependent
on the dollar amount of harm involved, see nn. 3-5, the first-degree charge should
only apply where the lesser offenses do not. Shirley argued that unlawful access to a
computer in the third degree, a Class A misdemeanor, applies when the loss or
damage is less than three hundred dollars.
17
COUNSEL FOR APPELLANT:
Daniel J. Cameron
Attorney General of Kentucky
Michael Robert Wajda
Assistant Solicitor General
COUNSEL FOR APPELLEE:
Steven Jared Buck
Assistant Public Advocate
18