STATE OF MICHIGAN

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COURT OF APPEALS

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHEDFebruary 12, 2008Plaintiff-Appellee,v No. 273858Kent Circuit CourtJAMES BENJAMIN BRUNK, JR., LC No. 05-004496-FHDefendant-Appellant.Before: Davis, P.J., and Murphy and White, JJ.PER CURIAM.Defendant appeals as of right his jury trial conviction for violation of MCL 752.795,which prohibits a person from intentionally accessing a computer network without authorizationor in excess of valid authorization to acquire property or to use the network’s services. Theprosecution proceeded under an aiding and abetting theory, MCL 767.39. Defendant wasacquitted of aiding and abetting another person in intentionally accessing a computer network toexecute a scheme with the intent to defraud, MCL 752.794. We reverse because the evidencewas insufficient to support the conviction.This case arises out of defendant’s act of accessing a state of Michigan computer network (intranet) to download a software program template from the network’s server and then emailingthe template to Andrew Felde, a vendor who operated a radio communications company. Feldeused the template to program radios for and purchased by the Walkerville Fire Department. Theprogramming of the radios through use of the template allowed the Walkerville Fire Departmentto use the radios within the Michigan Public Safety Communication System (MPSCS), which isa closed radio system that allows communication solely between MPSCS members involved inproviding police, fire, and emergency services (public safety). User or membership agreementsbetween the state and public safety departments or organizations relative to joining the systemare utilized in the process, pursuant to which the department or organization is approved formembership and recognized as a member of the MPSCS. The public safety departments ororganizations themselves purchase the radios, not yet ready for use in the MPSCS, from variouslisted manufacturers, and, after a user or membership agreement is executed, the state constructsa specific template tailored for the particular member and makes the template available on thestate’s computer network to state radio technicians; defendant is a state radio technician.Typically, a template is accessed or downloaded by a radio technician, and then the technician-1-

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uses the template to program a department’s radios, at which point the radios are ready for use inthe MPSCS.In this case, Walkerville procured a number of radios through Felde, which were rebuiltand of questionable origin, resulting in a discrepancy in serial numbers. When Walkerville’s firechief, Jerry Frick, first contacted the state about joining the MPSCS, the discrepancy between theserial numbers on the radios he had acquired and the numbers that should have been on thoseradios was brought to Frick’s attention. Frick explained that the inconsistency was due to atypographical error. Frick subsequently supplied new serial numbers that were accepted by thestate, and a template was constructed.

After the template was ready to be accessed, a work order was issued by the state to radio technician Klay Watson, directing him to access ordownload the template from the state’s computer network and to program the radios. Felde, onbehalf of Walkerville, brought the radios to Watson, and Watson began programming the radioswith the template but then stopped after discovering a problem with the serial numbers. Feldethen contacted defendant to program the radios, and defendant accessed and downloaded thetemplate from the computer network and directly provided the template to Felde via an emailattachment. Felde, using the template, then programmed the radios himself and provided them toFrick and Walkerville.

There was no work order directed to defendant to program Walkerville’sradios. There is no dispute that Walkerville was authorized by the state to be part of the MPSCSand that Felde was working as a vendor on behalf of Walkerville.Because the evidence was insufficient to support defendant’s conviction, it is unnecessaryto address the constitutional vagueness argument or defendant’s argument concerning theexclusion of evidence related to technician guidelines. We review claims of insufficient evidencede novo.

People v Lueth,

253 Mich App 670, 680; 660 NW2d 322 (2002). When ascertainingwhether sufficient evidence was presented at trial to support a conviction, this Court must viewthe evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt.

People v Wolfe

, 440 Mich 508, 515-516; 489 NW2d 748 (1992), amended 441 Mich 1201(1992). This Court will not interfere with the trier of fact’s role of determining the weight of theevidence or the credibility of witnesses.

Id.

at 514-515. Circumstantial evidence and reasonableinferences that arise from such evidence can constitute satisfactory proof of the elements of thecrime.

People v Carines,

460 Mich 750, 757; 597 NW2d 130 (1999).MCL 752.795 provides, in pertinent part:A person shall not intentionally and without authorization or by exceedingvalid authorization do any of the following:

Frick testified that he pled guilty to a misdemeanor arising out of his efforts to have the radiosprogrammed for purposes of joining the MPSCS.

Felde testified that he pled guilty to unauthorized use of a computer system or computersoftware.-2-

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(a) Access or cause access to be made to a computer program, computer,computer system, or computer network to acquire, alter, damage, delete, ordestroy property or otherwise use the service of a computer program, computer,computer system, or computer network.With respect to the elements of the crime, the jury was instructed, consistent with thestatute, that the prosecution was required to prove beyond a reasonable doubt that defendant orFelde intentionally accessed a computer network without valid authorization in order to use theservices of the network. It would appear that defendant, and not Felde, was the person whoactually accessed the state’s computer network; however, the prosecution expressly proceeded onthe theory that defendant aided and abetted Felde in accessing the network, with Felde being theperson who accessed the network without authorization.

Consistent with the instructions givenby the trial court in this case, to convict a defendant under an aiding and abetting theory, theprosecutor must present evidence showing that (1) the crime charged was committed by thedefendant or some other person, (2) the defendant performed acts or gave encouragement thatassisted the commission of the crime, and (3) the defendant intended the commission of thecrime or had knowledge that the principal intended its commission at the time aid andencouragement were provided.

Carines, supra

at 768. In light of the jury instruction giving jurors the choice to find that either defendant

Felde accessed the network withoutauthorization, we shall address the evidence under the two alternatives regardless of theprosecution’s theory. We first consider whether there was sufficient evidence to show thatdefendant lacked authority to access the network for purposes of using the services of thenetwork.Generally speaking, defendant, as a state radio technician, had authority to access thecomputer network. However, viewing it more narrowly, it must be ascertained whether therewas sufficient evidence showing that defendant lacked authority to access the network to retrievethe template for Felde and Walkerville. This, in our opinion, required the prosecution to submitevidence reflecting the existence of a framework within the Radio Programming Unit (RPU) of the Michigan Department of Information Technology (MDIT)

minimally establishingprocedures and policies concerning a radio technician’s authority and guiding a technician’sactions with respect to accessing the computer network to download templates and in regard toprogramming radios at the time of the alleged crime.

We note that, for purposes of the computer crime statutes, the term “access” is defined asmeaning “to instruct, communicate with, store data in, retrieve or intercept data from, orotherwise use the resources of a computer program, computer, computer system, or computernetwork.” MCL 752.792(1). Because Felde ultimately used the resources of the computernetwork, i.e., use of the template to program the radios, it can be contended that he “accessed”the computer network for purposes of MCL 752.795. The jury was not instructed on thedefinition of “access.” Given the manner in which the jury instruction on the crime was crafted,we can only speculate whether the jurors found that defendant or Felde, or both, accessed thecomputer network.

Testimony indicated that this department and the radio unit within it handled matters relating tothe MPSCS.-3-

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