State v. McGraw
480 N.E.2d 552, 1985 Ind. LEXIS 904, 51 A.L.R. 4th 963 (1985)
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Rule of Law:
Under Indiana's theft statute, the element of "intent to deprive" cannot be inferred from the unauthorized use of property alone; the prosecution must show that the owner was deprived of some part of the property's value or use, or that such deprivation was a natural and usual consequence of the defendant's conduct.
Facts:
- The City of Indianapolis employed McGraw as a computer operator.
- The City leased its computer services at a fixed flat rate, meaning the cost did not change based on the amount of use.
- McGraw was assigned a computer terminal and a portion of the computer's storage capacity, a 'private library,' for his work duties.
- McGraw started a private sales venture and used a small portion of his assigned computer storage to maintain records for his business.
- McGraw's use of the computer for his business did not interfere with the City's use of the system, nor did it incur any additional cost for the City, as the computer's capacity was never close to being reached.
- McGraw was reprimanded for conducting his private business during office hours but was never specifically told not to use the computer for it.
- The City eventually discharged McGraw for unsatisfactory job performance and continuing his personal business activities during office hours.
- After his discharge, McGraw asked a former co-worker to retrieve his business data from the computer, which led to the discovery of his activities and the subsequent criminal charges.
Procedural Posture:
- The State of Indiana charged McGraw with nine counts of theft in the trial court.
- Following a trial, a jury convicted McGraw on two counts of theft.
- After the verdict, McGraw filed a renewed motion to dismiss, which the trial court granted, citing insufficient evidence and effectively acquitting him.
- The State of Indiana, as appellant, appealed the dismissal to the Indiana Court of Appeals (First District).
- The Court of Appeals reversed the trial court's decision and ordered the reinstatement of the jury's guilty verdicts.
- McGraw, as petitioner, petitioned for transfer to the Supreme Court of Indiana.
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Issue:
Does the unauthorized use of an employer's computer for personal monetary gain constitute theft under Ind. Code § 35-43-4-2 if the employer is not deprived of any part of the computer's value or use?
Opinions:
Majority - Prentice, J.
No, the unauthorized use of an employer's computer for personal monetary gain does not constitute theft if the employer suffers no deprivation of value or use. The Indiana theft statute requires an 'intent to deprive the other of any part of its value or use.' The harm the statute seeks to prevent is a deprivation suffered by the owner, not a benefit gained by the user that harms no one. In this case, the City was not deprived of anything; its costs were fixed, and its computer use was unimpeded. Because no deprivation occurred and none was a natural consequence of McGraw's actions, the essential element of 'intent to deprive' cannot be inferred from his conduct. The court analogized McGraw's actions to using an employer's telephone for a toll-free call, which is more akin to a de minimis trespass or the lesser crime of criminal conversion, which does not require the intent to deprive.
Dissenting - Pivarnik, J.
Yes, the unauthorized use of an employer's computer for personal gain does constitute theft. The dissent argues that the majority incorrectly defines the 'property' at issue. The very 'time and use' of the computer system are valuable property owned by the City. When McGraw used the computer system for his private business, he was taking the City's property—its time and use—and converting it for his own benefit, thereby depriving the City of that property's use and value, regardless of whether it incurred extra financial cost. The intent to deprive was clearly shown by the fact that McGraw knowingly used the City's computer system for his personal business without authorization.
Analysis:
This case significantly narrows the scope of theft statutes as applied to the unauthorized use of intangible property like computer services. It establishes the principle that a tangible loss or interference with the owner's use is necessary to prove the 'intent to deprive' element of theft. The decision creates a clear distinction between theft, which requires this specific intent to cause a loss, and the lesser offense of criminal conversion, which only requires unauthorized control. This precedent makes it more difficult for prosecutors to charge unauthorized use of employer resources as theft where the employer cannot demonstrate a concrete deprivation of value or use, thus protecting individuals from felony charges for what might be considered minor workplace infractions.
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