Lund v. Commonwealth,

217 Va. 688, 232 S.E.2d 745 (1977)

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Nature of the Case

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Facts

Lund (D), was charged with the theft of keys, computer cards, computer print-outs and using 'without authority computer operation time and services at Virginia Polytechnic Institute and State University with intent to defraud, such property and services having a value of one hundred dollars or more.' D was a graduate student in statistics and a candidate for a Ph.D. degree at V.P.I. The preparation of his dissertation on the subject assigned to him by his faculty advisor required the use of computer operation time and services of the computer center personnel at the University. His faculty advisor neglected to arrange for D's use of the computer, but D used it without obtaining the proper authorization. The departments are allocated 'computer credits [in dollars] back for their use [on] a proportional basis of their [budgetary] allotments.' Each department manager receives a monthly statement showing the allotments used and the running balance in each account of his department. A 'department head' fills out a form allocating funds to a department of the University and an individual. When such form is received, the computer center assigns an account number to this allocation and provides a key to a locked post office box which is also numbered to the authorized individual and department. The account number and the post office box number are the access code which must be provided with each request before the computer will process a 'deck of cards' prepared by the user and delivered to computer center personnel. The computer print-outs are usually returned to the locked post office box. When the product is too large for the box, a 'check' is placed in the box, and it is used to receive the print-outs at the 'computer center main window.' D came under surveillance because of complaints from various departments that unauthorized charges were being made to one or more of their accounts. D initially denied that he had used the computer service, but later admitted that he had. He gave to the investigator seven keys for boxes assigned to other persons. One of these keys was secreted in his sock. He told the investigating officer he had been given the keys by another student. A large number of computer cards and print-outs were taken from D's apartment. The unauthorized sum spent out of the accounts associated with the seven post office box keys, amounted to $5,065. He estimated that on the basis of the computer cards and print-outs obtained from the defendant, as much as $26,384.16 in unauthorized computer time. The value of the cards and print-outs obtained from D was 'whatever scrap paper is worth.' D testified that he used the computer without specific authority but, because he was doing work on his doctoral dissertation, he did not consider this use excessive or that 'he was doing anything wrong.' Four faculty members testified in D's behalf. They all agreed that computer time 'probably would have been' or 'would have been' assigned to D if properly requested. Dr. Hinkleman, who replaced defendant's first advisor, testified that the computer time was essential for D to carry out his assignment. He assumed that a sufficient number of computer hours had been arranged by the prior faculty advisor. The committee which recommended the awarding of degrees was aware of the charges pending against D when he was awarded his doctorate by the University. D contends that there was no evidence that any of the articles were stolen, or that they had a value of $100 or more, and computer time and services are not the subject of larceny under the provisions of Code §§ 18.1-100 or 18.1-118. P concedes that D could not be convicted of grand larceny of the keys and computer cards because there was no evidence that those articles were stolen and that they had a market value of $100 or more. P argues that the evidence shows D violated the provisions of § 18.1-118 when he obtained by false pretense or token, with intent to defraud, the computer print-outs which had a value of over $5,000. To be guilty of the crime of larceny by false pretense, he must make a false representation of an existing fact with knowledge of its falsity and, on that basis, obtain from another person money or other property which may be the subject of larceny, with the intent to defraud.