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

509 P3d 668

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 con-

duct, 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 nonunan-

imous 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 remain-

ing 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 defen-

dant’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 318 Or App 724 (2022) 725

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 fol-

low, 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 ver-

dicts, 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, 590 US ___, 140 S Ct 1390,

206 L Ed 2d 583 (2020). Accepting the jury’s nonunanimous

verdicts on Counts 30, 35, 36, and 37 requires reversal and

remand of those counts. Id. Defendant is not, however, enti-

tled to reversal on the remaining counts, which were based

on unanimous verdicts. State v. Flores Ramos, 367 Or 292,

478 P3d 515 (2020); see also State v. Ciraulo, 367 Or 350, 478

P3d 502 (2020), cert den, ___ US ___, 141 S Ct 2836 (2021).

Because Counts 30, 35, 36, and 37 are to be remanded

for a new trial, we turn to defendant’s first three assign-

ments 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, 313 Or App 479, 493

P3d 543 (2021) (considering whether the trial court erred

in denying the defendant’s motion for judgment of acquit-

tal notwithstanding the trial court’s error in accepting a

nonunanimous jury verdict).

Cite as 318 Or App 724 (2022) 727

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,

270 Or App 206, 210, 346 P3d 1285 (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, 285 Or App 384,

386, 396 P3d 955 (2017).

III. FACTUAL BACKDROP

Defendant was convicted of numerous crimes fol-

lowing 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 inves-

tigators provided the merchandise to a known shoplifter

to sell to defendant in order to gather evidence on defen-

dant’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 defen-

dant was using eBay to sell the stolen items that he had pur-

chased in the undercover transactions. Investigators iden-

tified 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 sell-

ing 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 sell-

er’s PayPal account and the personal account.

Eventually, the investigation into defendant’s fenc-

ing 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 prop-

erty, 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, includ-

ing 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, com-

puter network or any part thereof for the purposes of:

Cite as 318 Or App 724 (2022) 729

The computer crime counts alleged that, on various occa-

sions, 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 com-

puter 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 con-

tends 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 fraud-

ulent 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 constitu-

tional 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 legisla-

ture’s intent. State v. Gaines, 346 Or 160, 171, 206 P3d 1042

(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. Id. at 171-72.

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 prom-

ises; 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 318 Or App 724 (2022) 731

Dictionary 1598 (unabridged ed 2002). The common defini-

tions 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 com-

puter 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. 285 Or App at 386-

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 pur-

poses of the statute. Id. at 387. Engaging in our traditional

method of statutory construction, we concluded that the leg-

islature “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 manip-

ulate the computer.” Id. at 392-93. 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 pur-

poses 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, exer-

tion, or operation: design.” Webster’s at 1847. Thus, defen-

dant must have directly accessed or used a computer for the

end or aim of “[d]evising or executing any scheme or arti-

cle 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 infor-

mation 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 “com-

mitting 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 some-

thing from a computer that exists in that computer,” the leg-

islature 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, 361 Or 352, 365, 393 P3d 1122 (2017) (Gordon)

(quoting Goodwin v. Kingsman Plastering, Inc., 359 Or 694,

702, 375 P3d 463 (2016)). Gordon is instructive regard-

ing 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 exam-

ined the meaning of “unconscionable tactics,” and then

Cite as 318 Or App 724 (2022) 733

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 mean-

ing,” 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” pro-

vided 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 con-

cluded 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 enforc-

ing 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, 361 Or at 366.

Engaging in a similar analysis as we construe ORS

164.377(2)(c), we conclude that “theft of proprietary informa-

tion” 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 mean-

ing.” Gordon, 361 Or at 361. “[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, how-

ever, 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 accom-

plish the theft.

Turning to the context in which ORS 164.377(2)

resides, we note that the two examples of theft in that pro-

vision include “theft of proprietary information” and “theft

of an intimate image.” ORS 164.377(2)(c). “Proprietary infor-

mation” means

“any scientific, technical or commercial information includ-

ing any design, process, procedure, list of customers, list of

suppliers, customers’ records or business code or improve-

ment 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 pho-

tograph, 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 com-

puter 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 some-

where 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 318 Or App 724 (2022) 735

reject defendant’s argument that “committing theft” is lim-

ited 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 per-

mitted 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 sub-

section 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, 365 Or 488, 495, 446

P3d 1273 (2019) (quoting Lane County v. LCDC, 325 Or 569,

578, 942 P2d 278 (1997)). That means, in examining context,

we look to “other provisions of the same statute.” Wetherell v.

Douglas County, 342 Or 666, 678, 160 P3d 614 (2007).

We now turn our attention to other relevant subsec-

tions of ORS 164.377 for additional clues about legislative

4

The legislative history of ORS 164.377 supports that conclusion. The leg-

islature 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 inti-

mate 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 discus-

sion 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 sug-

gests that the legislature intended to broaden the scope of the statute by includ-

ing the theft of digitalized images.

736 State v. Azar

intent. Subsections (3) and (4) provide the alternative defini-

tions of computer crime:

“(3) Any person who knowingly and without authori-

zation alters, damages or destroys any computer, computer

system, computer network, or any computer software, pro-

gram, documentation or data contained in such computer,

computer system or computer network, commits computer

crime.

“(4) Any person who knowingly and without authori-

zation uses, accesses or attempts to access any computer,

computer system, computer network, or any computer soft-

ware, 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 inclu-

sion 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 leg-

islature 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 ren-

der the statute unconstitutionally vague. He reasons that

a broad construction would (1) “leave it entirely to the dis-

cretion 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 318 Or App 724 (2022) 737

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 punish-

ing defendants.” State v. Graves, 299 Or 189, 195, 700 P2d

244 (1985). Additionally, the equal privileges and immuni-

ties 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.” Id. 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.”

Id.

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 interpreta-

tion provides a “reasonable degree of certainty” regarding

what is prohibited under the statute. Graves, 299 Or at 195.

Therefore, we conclude that ORS 164.377 is not impermissi-

bly 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 applica-

tion. State v. Illig-Renn, 341 Or 228, 240, 142 P3d 62 (2006).

That occurs when the statute “either contains no identifiable

standard * * * or employs a standard that relies on the shift-

ing and subjective judgment of the persons who are charged

with enforcing it.” Id. (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.

Id.

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, 408

US 104, 108, 92 S Ct 2294, 33 L Ed 2d 222 (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 inciden-

tal, 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 inter-

net repeatedly for the purpose of committing theft. Defendant

operated an ongoing virtual marketplace, via eBay, designed

as the principal mechanism for his extensive fencing opera-

tion. 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 318 Or App 724 (2022) 739

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 legisla-

tive intent behind the enactment of the computer crime stat-

ute 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 regard-

ing 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 per-

son 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 prop-

erty 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 some-

one 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 his-

tory 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 convic-

tions 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 jury-

instruction 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 signi-

fied an intent to broaden the scope of the statute. The major-

ity 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 prop-

erty 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 318 Or App 724 (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 major-

ity, 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, 361

Or 352, 365, 393 P3d 1122 (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 com-

mit 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 logi-

cal 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, demon-

strates that the legislature clearly intended to broaden the

scope of the statute to, well, fencing. To support that con-

clusion, 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 pro-

ceed 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, 365 Or 535, 551, 449 P3d

492 (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, 186 Or App 175, 183, 62 P3d

818 (2003); ORS 174.020(1) (courts “shall pursue the inten-

tion 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 inti-

mate images, as those were not the concerns the legislature

dealt with in 1985. So while the majority takes the amend-

ments 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 stat-

ute to ensure crimes that were developing with new technol-

ogy were covered by the statute.3 To read otherwise, in my

opinion, makes the amendments superfluous and meaning-

less. 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 applica-

ble 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 other-

wise plain term with the accompanying list and that the list is nonexclusive. See

State v. Kurtz, 350 Or 65, 75, 249 P3d 1271 (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 318 Or App 724 (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 elec-

tronics to commit crimes.

Taking then the majority’s invitation to hypothe-

size 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 prop-

erty; (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 fac-

ing a maximum of 30 days in jail if convicted of the under-

lying 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 lan-

guage 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.