The number of computer fraud charges are increasing as more people than ever before are using computers in their daily lives to connect with their family and friends, pay bills and conduct their banking. Most states, including Virginia, have enacted statutes which make using a computer unlawfully a crime. Computer fraud is defined in Virginia Code Section 18.2-152.3.
How is computer fraud defined in Virginia?
A person is guilty of computer fraud in Virginia if he or she “uses a computer or computer network without authority” and:
- Obtains property or services by false pretenses; or
- Embezzles or commits larceny; or
- Converts the property of another.
Using a computer network is a broad term that may include crimes committed on devices other than a computer which has many of the same capabilities as a computer, such as a cell phone or tablet.
False pretenses are a material representation of past or present facts known by the wrongdoer to be false and made with the intent to defraud the victim. A representation about a future fact does not constitute criminal false pretenses. A truthful statement that causes a person to give up property or services is not the same as false pretenses.
False pretenses may involve the wrongdoer alleging that they have the authority that they do not actually possess. For example, if a person places an online ad offering a home for rent that they do not actually own and obtain a payment for a person who was induced to believe that the person owned the property and had the authority to place the ad offering the home for rent, the individual who placed the ad might be charged with computer fraud on the basis of false pretenses.
Embezzlement or Larceny
Larceny is a legal term for theft, while embezzlement is taking of property while in a position of trust, such as in an employer-employee relationship. More employers than ever are relying on computers for everyday business transactions. An employee who takes money from an employer by wiring funds from a computer to his or her own personal account may be guilty of computer fraud.
In some cases, a prosecutor may charge a defendant with more than one charge if the elements of the charges are overlapping, such as charging a defendant with both computer fraud and embezzlement.
Conversion is similar to theft or larceny, except that the defendant does not necessarily need to have the intent to take a victim's property at the time that he or she takes possession of it. Conversion is a broader term than larceny and generally includes any unauthorized possession of a lawful owner's property that deprives the owner's use or enjoyment of the property.
An example would be cutting down a landowner's timber and converting the wood to lumber. In the computer fraud context, this example would involve the perpetrator using a computer or computer network without authority in furtherance of the commission of the crime.
What are the penalties for computer fraud in Virginia?
If the value of the property or services taken is $500 or more, computer fraud is punishable as a Class 5 felony. If the value is less than $500, computer fraud is punishable as a Class 1 misdemeanor. A person convicted of a Class 5 felony may be punished by not less than one year and not more than ten years in a state correctional facility or, in the discretion of the court or jury, up to a year in jail or a $2,500 fine or both. A Class 1 misdemeanor is punishable by confinement of up to a year in jail and a fine of up to $2,500 or both.
Since sentencing is within the discretion of the court or jury, factors such as the defendant's previous criminal history may be considered. A defendant in a computer fraud case may testify but is not required to do so since the state has the burden of proof. A jury may consider any mitigating or aggravating factors during deliberation on sentencing.
For example, some jurors may feel that a person who has abused the trust of a close relative or friend has committed a worse act than a person who has committed computer fraud against a stranger and may recommend that the defendant is punished accordingly. An example of a mitigating factor would be if the defendant was cooperative with investigators. However, it is important not to cooperate with investigators before speaking to a lawyer, since this can be damaging to your case.
In some cases, a defendant may be allowed to plead to a lesser charge or sentence pursuant to a plea bargain. A plea bargain is an agreement with the prosecuting attorney where a defendant agrees to plead guilty and forego a trial by judge or jury in exchange for a lesser sentence than he or she may have received if the case had proceeded to trial.
What are possible defenses to computer fraud?
The Commonwealth must prove each and every element of the crime charged to obtain a conviction. If the Commonwealth fails to prove its case beyond a reasonable doubt, the defendant must be found not guilty. Reasonable doubt about one element of the crime charged is enough to sustain a not guilty verdict.
If there is a problem with one or more of the elements of computer fraud, this can lead to a dismissal of the case or a not guilty verdict. The prosecution must prove that the defendant charged is the person who committed the crime. In some cases, this can be difficult, especially if the crime was committed on a computer multiple people used and is not otherwise traceable to the defendant.
Law enforcement is always looking for new ways to catch criminals who use computers to commit their crimes. It is sometimes possible to trace computer activity to a specific individual or address through the computer's IP address. This is a unique number assigned to a particular device. Police may track crime back to a certain individual on social networks. In some cases of mistaken identity, a person wrongfully accused of computer fraud may also be a victim if his or her identity was used to commit a crime.
Lack of Intent
The state must prove that the defendant used a computer or computer network “without authority” to sustain a conviction for computer fraud in Virginia. If you reasonably believed that you had authority to carry out the acts that led to a computer fraud charge, the state may not be able to demonstrate that you had the intent to commit the crime.
What should I do if I have been charged with computer fraud in Virginia?
If you have been accused of computer fraud, it is important to contact a criminal defense attorney right away. If you have been asked to talk to the police, do not do so without first contacting a lawyer. Bryan J. Jones is an experienced defense lawyer who will fight to defend your case. Contact us online or call (434)260-7899 to schedule a consultation.