{ "id": 1561266, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Donald Morris ROWELL, a/k/a Jimmie Carrol Rowell, Defendant-Appellant", "name_abbreviation": "State v. Rowell", "decision_date": "1995-03-16", "docket_number": "No. 15365", "first_page": "710", "last_page": "721", "citations": [ { "type": "official", "cite": "119 N.M. 710" }, { "type": "parallel", "cite": "895 P.2d 232" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "494 U.S. 1088", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5247, 4930, 5254, 5293, 5053, 5040, 5139, 5045, 4919, 5080, 5371, 4861, 5246, 5407 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/494/1088-14", "/us/494/1088-01", "/us/494/1088-04", "/us/494/1088-09", "/us/494/1088-13", "/us/494/1088-06", "/us/494/1088-05", "/us/494/1088-12", "/us/494/1088-08", "/us/494/1088-07", "/us/494/1088-03", "/us/494/1088-11", "/us/494/1088-02", "/us/494/1088-10" ] }, { "cite": "498 U.S. 1014", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6539490, 6539171, 6539269, 6539365, 6538954, 6539312, 6538897, 6538994, 6539698, 6539039, 6539097, 6539231, 6539550, 6539423 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/498/1014-12", "/us/498/1014-06", "/us/498/1014-08", "/us/498/1014-10", "/us/498/1014-02", "/us/498/1014-09", "/us/498/1014-01", "/us/498/1014-03", "/us/498/1014-14", "/us/498/1014-04", "/us/498/1014-05", "/us/498/1014-07", "/us/498/1014-13", "/us/498/1014-11" ] }, { "cite": "503 U.S. 976", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6413473, 6413898, 6414987, 6414444, 6414858, 6413803, 6413679, 6414576, 6414735, 6414229, 6413334, 6414135, 6415062, 6414330, 6414012, 6413566 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/us/503/0976-02", "/us/503/0976-06", "/us/503/0976-15", "/us/503/0976-11", "/us/503/0976-14", "/us/503/0976-05", "/us/503/0976-04", "/us/503/0976-12", "/us/503/0976-13", "/us/503/0976-09", "/us/503/0976-01", "/us/503/0976-08", "/us/503/0976-16", "/us/503/0976-10", "/us/503/0976-07", "/us/503/0976-03" ] }, { "cite": "110 N.M. 323", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716913 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "327" }, { "page": "1019" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0323-01" ] }, { "cite": "117 N.M. 751", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552598 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "755" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0751-01" ] }, { "cite": "116 N.M. 309", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727696 ], "weight": 3, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0309-01" ] }, { "cite": "113 N.M. 335", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723284 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "338" }, { "page": "1248" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0335-01" ] }, { "cite": "105 N.M. 788", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1598983 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "794" }, { "page": "1171" } ], "opinion_index": 0, "case_paths": [ "/nm/105/0788-01" ] }, { "cite": "726 P.2d 856", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1986, "opinion_index": 0 }, { "cite": "104 N.M. 702", "category": "reporters:state", "reporter": "N.M.", "year": 1986, "opinion_index": 0 }, { "cite": "105 N.M. 27", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1598982 ], "weight": 2, "pin_cites": [ { "page": "35-36" }, { "page": "1350-51" } ], "opinion_index": 0, "case_paths": [ "/nm/105/0027-01" ] }, { "cite": "100 N.M. 210", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588539 ], "weight": 2, "pin_cites": [ { "page": "215" }, { "page": "331" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0210-01" ] }, { "cite": "852 P.2d 682", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1993, "opinion_index": 0 }, { "cite": "115 N.M. 409", "category": "reporters:state", "reporter": "N.M.", "year": 1993, "opinion_index": 0 }, { "cite": "115 N.M. 372", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725421 ], "weight": 2, "pin_cites": [ { "page": "381" }, { "page": "503" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0372-01" ] }, { "cite": "113 N.M. 780", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723308 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "784" }, { "page": "1150" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0780-01" ] }, { "cite": "117 N.M. 756", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552662 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "759" }, { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0756-01" ] }, { "cite": "108 L.Ed.2d 958", "category": "reporters:federal", "reporter": "L. 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App. Ct.", "case_ids": [ 1157126 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/mass-app-ct/26/0541-01" ] }, { "cite": "642 So.2d 138", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7441368, 7441243 ], "pin_cites": [ { "page": "140" } ], "opinion_index": 0, "case_paths": [ "/so2d/642/0138-02", "/so2d/642/0138-01" ] }, { "cite": "112 L.Ed.2d 589", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "111 S.Ct. 584", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1990, "opinion_index": 0 }, { "cite": "266 Cal.Rptr. 527", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1990, "opinion_index": 0 }, { "cite": "217 Cal.App.3d 665", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 4421871 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/cal-app-3d/217/0665-01" ] }, { "cite": "107 L.Ed.2d 48", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1989, "opinion_index": 0 }, { "cite": "110 S.Ct. 82", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1989, "opinion_index": 0 }, { "cite": "493 U.S. 823", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11356288, 11356961, 11356641, 11357640, 11356874, 11356461, 11356720, 11357457, 11356562, 11357075, 11356792, 11356383 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/us/493/0823-01", "/us/493/0823-09", "/us/493/0823-05", "/us/493/0823-12", "/us/493/0823-08", "/us/493/0823-03", "/us/493/0823-06", "/us/493/0823-11", "/us/493/0823-04", "/us/493/0823-10", "/us/493/0823-07", "/us/493/0823-02" ] }, { "cite": "539 So.2d 1222", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7565837 ], "pin_cites": [ { "page": "1224" } ], "opinion_index": 0, "case_paths": [ "/so2d/539/1222-01" ] }, { "cite": "118 L.Ed.2d 314", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1992, "opinion_index": 0 }, { "cite": "112 S.Ct. 1600", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1992, "opinion_index": 0 }, { "cite": "948 F.2d 438", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1859564 ], "pin_cites": [ { "page": "441" } ], "opinion_index": 0, "case_paths": [ "/f2d/948/0438-01" ] }, { "cite": "43 Vand.L.Rev. 453", "category": "journals:journal", "reporter": "Vand. L. Rev.", "year": 1990, "pin_cites": [ { "page": "484", "parenthetical": "\"The acts that constitute computer crimes are all common-law crimes; the only difference is that the perpetrators of computer crime use computers to accomplish their goals.\"" } ], "opinion_index": 0 }, { "cite": "461 U.S. 352", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11298570 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "357" }, { "page": "1858" } ], "opinion_index": 0, "case_paths": [ "/us/461/0352-01" ] }, { "cite": "110 N.M. 76", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716944 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "81" }, { "page": "413" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0076-01" ] }, { "cite": "846 P.2d 1365", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 6, "year": 1993, "pin_cites": [ { "parenthetical": "en banc" }, { "page": "1367-68" }, { "page": "1373" }, { "page": "1373" } ], "opinion_index": 0 }, { "cite": "121 Wash.2d 22", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 1365839 ], "year": 1993, "pin_cites": [ { "parenthetical": "en banc" } ], "opinion_index": 0, "case_paths": [ "/wash-2d/121/0022-01" ] }, { "cite": "633 A.2d 150", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 2, "year": 1993, "opinion_index": 0 }, { "cite": "535 Pa. 645", "category": "reporters:state", "reporter": "Pa.", "year": 1993, "opinion_index": 0 }, { "cite": "420 Pa.Super. 266", "category": "reporters:state", "reporter": "Pa. Super.", "case_ids": [ 920157 ], "weight": 6, "year": 1992, "pin_cites": [ { "page": "690" }, { "page": "691-93" }, { "page": "691-93" } ], "opinion_index": 0, "case_paths": [ "/pa-super/420/0266-01" ] }, { "cite": "560 N.Y.S.2d 238", "category": "reporters:state", "reporter": "N.Y.S.2d", "weight": 7, "pin_cites": [ { "page": "239" }, { "page": "241" }, { "page": "240-42" } ], "opinion_index": 0 }, { "cite": "148 Misc.2d 103", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 436626 ], "opinion_index": 0, "case_paths": [ "/misc2d/148/0103-01" ] }, { "cite": "83 N.Y.2d 123", "category": "reporters:state", "reporter": "N.Y.2d", "case_ids": [ 2354659 ], "weight": 3, "year": 1994, "pin_cites": [ { "parenthetical": "in interpreting a statute that prohibits altering a computer program, the court \"should not legislate or nullify [criminal] statutes by overstrict construction\"" }, { "page": "160", "parenthetical": "in interpreting a statute that prohibits altering a computer program, the court \"should not legislate or nullify [criminal] statutes by overstrict construction\"" }, { "page": "1039", "parenthetical": "in interpreting a statute that prohibits altering a computer program, the court \"should not legislate or nullify [criminal] statutes by overstrict construction\"" } ], "opinion_index": 0, "case_paths": [ "/ny-2d/83/0123-01" ] }, { "cite": "845 P.2d 814", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1993, "opinion_index": 0 }, { "cite": "114 N.M. 720", "category": "reporters:state", "reporter": "N.M.", "year": 1993, "opinion_index": 0 }, { "cite": "114 N.M. 805", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731619 ], "weight": 2, "pin_cites": [ { "page": "808" }, { "page": "1262" } ], "opinion_index": 0, "case_paths": [ "/nm/114/0805-01" ] } ], "analysis": { "cardinality": 1572, "char_count": 35714, "ocr_confidence": 0.731, "pagerank": { "raw": 6.879044537473004e-08, "percentile": 0.41857865072442446 }, "sha256": "6e461a11bd4698a904239f068879b2952a14baaa8a861334048a83978ebc54bc", "simhash": "1:004a912077cac7e7", "word_count": 5724 }, "last_updated": "2023-07-14T22:42:52.429175+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "APODACA, C.J., and HARTZ, J., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Donald Morris ROWELL, a/k/a Jimmie Carrol Rowell, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nBLACK, Judge.\nBetween September 18, 1992 and September 22, 1992, residents of the New Mexico communities of Clovis, Raton, and Carlsbad each received virtually identical telephone calls from a man claiming to be a Nevada attorney named either Sam or Jim Odem. Odem informed at least two of the. New Mexico residents that he was awarding money from a lawsuit to customers of a fraudulent telemarketing company. Although the third resident could not recall Odem\u2019s exact reasons, she believed that his promise of a monetary award stemmed from her prior dealings with a telemarketing company. Odem told each of the three New Mexico residents that before they could collect their refund, they would have to send a court referee in Florida ten percent of the amount owed to them for fees or court costs. Upon receiving these phone calls, each resident notified the authorities.\nA Curry County grand jury indicted Defendant, as the caller identified as Odem, on one count of computer access with intent to commit fraud over $250, a fourth degree felony in violation of NMSA 1978, Section 30-45-3 (Repl.Pamp.1989), and one count of attempt to commit fraud over $250, a misdemeanor under NMSA 1978, Sections 30-16-6 and 30-28-1 (Repl.Pamp.1994). A jury convicted Defendant on both counts.\nOn appeal, Defendant raises nine challenges to the jury verdict. We affirm on all issues except Defendant\u2019s conviction under Section 30-16-6.\nFACTS\nAlan Isbell, a Clovis resident, testified that on September 21, 1992, he received a telephone call from a person who identified himself as Sam Odem. Odem said he was an attorney calling from Las Vegas, Nevada, and that he was in the process of awarding a legal settlement from a disreputable telemarketing company. Odem told Isbell that, as a prior customer of the company, he was entitled to receive a cashier\u2019s check for $2200, but first Isbell would have to pay $220 in court costs. Odem advised Isbell to use Western Union to forward a $220 cash advance to the court referee, Jason Daniels, in St. Petersburg, Florida. Isbell became suspicious and asked Odem to call back the next day. In the meantime, Isbell contacted Jim Skinner, an investigator with the Curry County District Attorney\u2019s office. Skinner connected a recording device to Isbell\u2019s telephone and made arrangements for a money transfer.\nOn September 22,1992, Odem again called Isbell. The district attorney\u2019s office recorded those calls and played the recordings for the jury at Defendant\u2019s trial. Using the mechanism set up by Skinner, Isbell wired $220 to Florida as instructed by Odem. Is-bell, however, never received any money from Odem\u2019s telemarketing settlement.\nMarie Butt of Raton testified that she received a similar call from Sam Odem directing her to wire money to court referee Daniels in Clearwater, Florida. She became suspicious, refused to transfer the funds requested by Odem, and' contacted the New Mexico Attorney General\u2019s office.\nToni Grey of Carlsbad also received a telephone call from a man identified as Jim Odem. Odem told Grey that he was a Las Vegas attorney who was contacting her because she had been awarded money in a class action suit. Odem instructed Grey to wire $100 to Florida. Grey became suspicious and did not follow Odem\u2019s instructions. Instead, she called the Carlsbad Police Department and later the New Mexico Attorney General\u2019s office.\nA Port Richey, Florida law enforcement officer arrested Daniels on September 22, 1998. At trial, the officer identified a Western Union money order form showing a $220 cash advance from Isbell to Daniels. Following questioning by the Port Richey Police Department and the United States Secret Service, Daniels implicated one William Thurston and a man named \u201cJim.\u201d Police later located Thurston, who informed them that \u201cJim\u201d might be found at a lounge named the Stumble Inn. Police proceeded to the lounge where Thurston pointed out \u201cJim.\u201d In court, the Port Richey police officer, as well as a United States Secret Service agent, identified \u201cJim\u201d as Defendant.\nAfter his arrest, Defendant consented to a search of his rooms at the Gulf Sands Motel. From those rooms, law enforcement officers seized \u201cnumerous telemarketing materials,\u201d including telephone bills, calling cards in the name of Calvin Root, and a four-page handwritten script describing the class action settlement against the Las Vegas telemarketers.\nThurston testified that he cashed checks for Defendant in return for twenty percent of the cheek amount. At some point, Defendant asked Thurston to employ other people to present the forms to Western Union, which he did. Thurston continued to retain twenty percent and paid the other people out of his portion. Thurston testified that he used Daniels in this manner approximately five or six times. Thurston also testified that, on one occasion, he had heard Defendant use the name Sam Odem.\nI. DEFENDANT\u2019S CONVICTION FOR COMPUTER ACCESS WITH INTENT TO DEFRAUD IS SUPPORTED BY SUBSTANTIAL EVIDENCE.\nDefendant initially challenges the sufficiency of the evidence to support the essential elements of computer access with intent to defraud under Section 30-45-3.\nA Evidence Presented at Defendant\u2019s Trial.\nPrior to trial, Defendant moved to quash the indictment, arguing that lifting a telephone receiver in Florida and dialing a New Mexico phone number did not, as a matter of law, amount to \u201caccessing a computer\u201d within the meaning of the New Mexico Computer Crimes Act, NMSA 1978, Sections 30-45-1 to -7 (Repl.Pamp.1989). In support of his motion, Defendant presented Gary Johnston, a digital electronics programming instructor at Clovis Community College. Johnston testified that he had been an instructor for sixteen years and had spent almost ten years installing telephone switching equipment and working with electronic switching systems.\nAccording to Johnston, an electronic switching system employs both an operations program and a translation program. Through the operations program, the computer knows how to connect a caller with other parties. The translation program stores customer information in the local office. This information includes, for example, whether the caller is entitled to services such as call waiting, call forwarding, and multiparty calling. By picking up a telephone handset, a caller can only access the services provided by the system and cannot \u201cget into\u201d the computer in the phone system to withdraw information or change the program. In refusing to quash the indictment, the district court ruled that it was \u201cthe province of a jury, whether or not they find that a computer, as defined in that section, was used by Mr. Rowell [Defendant] in the acts alleged here.\u201d We agree.\nAt trial, the State called Edward Isaacson, an investigations manager for GTE Florida, Inc. Isaacson testified that the telephone company\u2019s \u201cswitch\u201d is based on electronic software that is \u201cmade up of numerous or multi-computers or micro-processors that are working together as a network that not only provide dial tone to the customer, but they gather the information for processing a call ... and store the information for billing purposes.\u201d The prosecution proceeded to question Isaacson as follows:\nQ: [I]f the subscriber or anyone else punched in the numbers to call New Mexico from that phone [in Florida], would that person be accessing computer software?\nA: Yes, sir. And, in order to process the call, the tones ... become digitized in that switch, but the switch, which again is numerous computer-type systems tied together, would accept the information he\u2019s feeding it, the number he wants to call, and would process it. One part of the system processes the call; the other part gathers the information \u2014 his number, the time of day, whether the call [was] completed or not. And that\u2019s kept in a different part of the computer for later billing.\nQ: So do I understand then that when you punch in those numbers, you access this computer software?\nA: Yes, sir. That\u2019s what I\u2019m saying.\nThe State also called David Bailey, who had been responsible for computer security at Los Alamos National Laboratory, as an expert in the field of computer systems and networks. Bailey testified that a digital computer system is often identical to the systems businesses buy to do data processing. He stated that \u201c[t]he computer system takes information from the ... switching network. It makes decisions about routing of calls, and instructs the switching network how to make the connections.\u201d Bailey concluded, without objection, that in his opinion, \u201cif a person makes a long distance telephone call from Florida or anywhere else to New Mexico, that person has \u2018accessed a computer network\u2019 ____[i]n the terms of the New Mexico Computer Crimes Act.\u201d\nB. Application of the Law to the Facts of this Case.\nA person \u201cwho knowingly and willfully accesses or causes to be accessed any computer, computer system, computer network or any part thereof with the intent to obtain, by means of embezzlement or false or fraudulent pretenses, representations or promises, money, property or anything of value\u201d is guilty of a violation of Section 30-45-3. Defendant makes no argument as to the \u201cknowingly\u201d and \u201cwillfully\u201d requirements.\nDefendant focuses his argument on the following statutory definitions in Section 30-45-2:\nA. \u201caccess\u201d means to program, execute programs on, intercept, instruct, communicate with, store data in, retrieve data from or otherwise make use of any computer resources, including data or programs of a computer, computer system, computer network or database;\nB. \u201ccomputer\u201d includes an electronic, magnetic, optical or other high-speed data processing device or system performing logical, arithmetic or storage functions and includes any property, data storage facility or communications facility directly related to or operating in conjunction with such device or system. The term does not include an automated typewriter or typesetter or a single display machine in and of itself, designed and used solely within itself for word processing, or a portable hand-held calculator, or any other device which might contain components similar to those in computers but in which the components have the sole function of controlling the device for the single purpose for which the device is intended;\nC. \u201ccomputer network\u201d means the interconnection of communication lines and circuits with a computer or a complex consisting of two or more interconnected computers.\nFirst, Defendant points out that the definition of \u201ccomputer\u201d excludes any \u201cdevice which might contain components similar to those in computers but in which the components have the sole function of controlling the device for the single purpose for which the device is intended.\u201d He claims that this exception plainly applies to the case of an \u201cordinary long distance telephone call.\u201d We disagree. The statutory exception would encompass electronic devices built into a microwave oven or a television set that make it easier for a consumer to use those devices. Perhaps it would also include electronic components in a telephone handset that enable the user to use a speaker phone or a telephone\u2019s conference capability. It does not include the sort of telephone system described by the State\u2019s expert witnesses. Defendant argues that this testimony \u201cshows that the computer-like components contained in a long distance telephone switch simply control the device for the single purpose for which it was intended \u2014 to process phone calls.\u201d But if \u201csingle purpose\u201d is to be construed so broadly, many devices that might otherwise be considered a computer would fit within the statutory exception.\nWith respect to the definition of \u201ccomputer network,\u201d Defendant points out that \u201ccommunication lines and circuits\u201d cannot constitute a \u201ccomputer network\u201d unless the lines and circuits are interconnected with a computer or computers. We agree with Defendant that the definition of \u201ccomputer network\u201d cannot avail the State in the absence of proof of a computer, as defined by the statute. Defendant\u2019s argument is mooted, however, by the determination that the evidence supported a finding that the telephone system utilizes computers as defined by the statute.\nDefendant\u2019s argument that he did not \u201caccess\u201d a computer or computer network is not clear to us. Under the statutory definition, to \u201caccess\u201d a computer network is to \u201cmake use of\u2019 the network. Section 30-45-2(A). Defendant appears to contend that one accesses the telephone company computers only by stealing the dial tone or obtaining the company\u2019s customer base. We see no such limitation in the statutory definition. Under the normal reading of the phrase \u201cmake use of,\u201d Defendant made use of the telephone company computer system.\nThe final element of the offense specifically attacked by Defendant is the requirement of an intent to defraud. Defendant argues that the intent must be directed against the owners and operators of the computers. There is, however, no such limitation in the statute. Although doubts concerning the construction of criminal statutes are resolved in favor of the rule of lenity, that rule does not apply unless reasonable doubt about the statute\u2019s intended scope persists after a review of its language and history. State v. Yparrea, 114 N.M. 805, 808, 845 P.2d 1259, 1262 (Ct.App.1992), cert. denied, 114 N.M. 720, 845 P.2d 814 (1993); see also People v. Versaggi, 83 N.Y.2d 123, 608 N.Y.S.2d 155, 160, 629 N.E.2d 1034, 1039 (1994) (in interpreting a statute that prohibits altering a computer program, the court \u201cshould not legislate or nullify [criminal] statutes by overstrict construction\u201d).\nDefendant then launches a broad-based attack, contending that the legislature did not intend the Computer Crimes Act to encompass the conduct alleged in this case. Perhaps the legislature was not thinking specifically of the type of conduct committed by Defendant, but if the statutory language encompasses that conduct, we have no power to rewrite the statute. In any event, the few courts in other jurisdictions that have considered this question have indicated that placing a telephone call may be sufficient to support a conviction under a statute that requires the use of a computer.\nIn People v. Johnson, 148 Misc.2d 103, 560 N.Y.S.2d 238 (N.Y. City Crim.Ct.1990), the defendant was charged with the unauthorized use of a computer for offering travelers the use of an illegally possessed AT & T credit card. Id. 560 N.Y.S.2d at 239. In refusing to dismiss the indictment, the New York court rejected the very argument advanced by Defendant in the present case, saying:\nDefendant contends that this case does not involve the use of a computer but rather use of a telephone. Further, defendant advances the argument that were a computer violation charge to be sustained here, other prosecutions of patent absurdity would follow, such as using without authorization a washing machine that is equipped with a computerized timer. Defendant\u2019s position is ill taken.\nThe instrumentality at issue here is not merely a telephone, as defendant asserts, but rather a telephone inextricably linked to a sophisticated computerized communication system.\nId. 560 N.Y.S.2d at 241.\nThe conclusion that telephone communications systems are essentially \u201ccomputer networks\u201d is also supported by legal commentators. Several practitioners of criminal law recognize in their treatise, Stanley S. Arkin et al., Prevention and Prosecution of Computer and High Technology Crime \u00b6 7.05[2][d], at 7-39 (1992), that:\nTelecommunications systems have become so tightly merged with computer systems that it is often difficult to know where one starts and the other finishes. The telephone system, for example, is highly computerized and allows computers to communicate across long distances. Other forms of telecommunications create the means of linking various forms of communications through various forms of technology.\nId.\nAn example of this conclusion can be seen with regard to the \u201cvoice mailbox,\u201d a sophisticated form of an answering machine. In Commonwealth v. Gerulis, 420 Pa.Super. 266, 616 A.2d 686 (1992), appeal denied, 535 Pa. 645, 633 A.2d 150 (1993), the court applied a statute under which \u201c \u2018[a] person commits an offense [who] accesses, alters, damages or destroys any computer, computer system, computer network, computer software, computer program or data base or any part thereof.\u2019 \u201d Id. 616 A.2d at 690 (quoting 18 Pa.Cons.Stat.Ann. \u00a7 3933(a)(1)). Affirming a conviction for a violation of this statute, the Pennsylvania court held that the telephone system, which accessed'a \u201cvoice mailbox,\u201d was a computer because it was created by computer software, and messages were stored on computer discs. Id. 616 A.2d at 691-93.\nIn both Johnson and Gerulis, the question before the court was whether evidence of the telephone service at issue was sufficient to convict a defendant for accessing a computer. See Johnson, 560 N.Y.S.2d at 240-42; Gerulis, 616 A.2d at 691-93. Thus, in order to affirm Defendant\u2019s conviction under Section 30-45-3, we need not hold that making a long-distance telephone call is \u201caccessing a computer\u201d as a matter of law.\nThe Supreme Court of Washington emphasized this point in considering analogous facts in State v. Riley, 121 Wash.2d 22, 846 P.2d 1365 (1993) (en banc). Riley was convicted of three counts of computer trespass and four counts of possession of a stolen access device after he used his home computer to obtain long-distance access codes from telephone company computers. Id. 846 P.2d at 1367-68. On appeal, Riley argued that repeatedly dialing the telephone company\u2019s general access number and entering random six-digit numbers did not constitute computer trespass. Id. 846 P.2d at 1373. In rejecting the argument that dialing a telephone was not use of a computer, the Washington court relied upon the unrebutted testimony of the State\u2019s expert:\nRiley contends the telephone company\u2019s long distance switch is not a \u201ccomputer\u201d under [Wash.Rev.Code \u00a7 9A.52.110]. We reject this contention. The trial court explicitly found that the switch is a computer. This finding was based on unrebutted expert testimony. A trial court\u2019s findings of fact will not be disturbed on appeal when they are supported by undisputed evidence.\nRiley, 846 P.2d at 1373.\nAs in Riley, the present Defendant allowed the testimony of the State\u2019s experts to the effect that the switching involved in a long distance call constituted accessing a computer network, to go unrebutted. There was, therefore, substantial evidence to support Defendant\u2019s conviction for computer access with intent to defraud under Section 30-45-3.\nII. THE COMPUTER CRIMES ACT IS NOT UNCONSTITUTIONALLY VAGUE AS APPLIED.\nDefendant argues that his conviction . must be reversed because the definitions of computer and access \u201care unconstitutionally vague as applied to the fact of a long distance telephone call, thereby denying [his] right to due process of law.\u201d\nOutside of the First Amendment context, \u201c[t]he proscription on vagueness in criminal statutes serves [two] important functions: (1) It allows individuals a fair opportunity to determine whether their conduct is prohibited. (2) It prevents impermissible delegation of legislative authority to police, prosecutors, and courts to determine whether conduct is criminal.\u201d State v. Pierce, 110 N.M. 76, 81, 792 P.2d 408, 413 (1990). A statute must \u201cdefine the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.\u201d Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983).\nObviously, Defendant cannot argue he failed to understand that defrauding people by requesting them to wire money to fictitious participants in a nonexistent class action was a criminal offense. In other words, in this particular case, the Computer Crimes Act merely makes malum prohibitum that which was already malum in se. See Dodd S. Griffith, Note, The Computer Fraud and Abuse Act of 1986: A Measured Response to a Growing Problem, 43 Vand.L.Rev. 453, 484 (1990) (\u201cThe acts that constitute computer crimes are all common-law crimes; the only difference is that the perpetrators of computer crime use computers to accomplish their goals.\u201d); cf. United States v. Donahue, 948 F.2d 438, 441 (8th Cir.1991) (\u201cOne does not have to be a rocket scientist to know that bank robbery is a crime; and the statute merely makes malum prohibitum ... that which already is malum in se\u201d), cert. denied, 503 U.S. 976, 112 S.Ct. 1600, 118 L.Ed.2d 314 (1992). Nor are the words used to define \u201ccomputer\u201d or \u201caccess\u201d unusual or overly technical. See State v. Azar, 539 So.2d 1222, 1224 (La.) (\u201cordinary persons of reasonable intelligence\u201d could readily understand statutory definition of \u201caccess\u201d), cert. denied, 493 U.S. 823, 110 S.Ct. 82, 107 L.Ed.2d 48 (1989).\nThe essence of Defendant\u2019s challenge is that, although he may have been generally on notice that defrauding people was illegal, he would not have understood that he was violating this particular statute in using a telephone to facilitate his fraud. While questions of the facial validity of a statutory standard are questions of law, questions of a defendant\u2019s knowledge or intent in performing the acts at issue are questions of fact. People v. Gregory, 217 Cal.App.3d 665, 266 Cal.Rptr. 527, review denied (May 17, 1990), cert. denied, 498 U.S. 1014, 111 S.Ct. 584, 112 L.Ed.2d 589 (1990); cf. Habie v. Krischer, 642 So.2d 138, 140 (Fla.Dist.Ct.App.1994) (question of whether defendant acted within the challenged statutory standard of \u201creasonable beliefs\u201d properly for the jury). \u201c[T]he question is whether the statute, or, more closely, the particular words objected to, identify for citizens and law enforcement authorities a core of condemned conduct, and whether this case ... appears to be within the core: the inquiry is contextual.\u201d Commonwealth v. Love, 26 Mass.App.Ct. 541, 530 N.E.2d 176, 179, review denied, 403 Mass. 1106, 532 N.E.2d 690 (1988), and review denied, 404 Mass. 1104, 537 N.E.2d 1248; (1989); see also United States v. Morison, 844 F.2d 1057, 1071 (4th Cir.1988). The statute in the present ease requires that the act be committed \u201cknowingly and willfully.\u201d See \u00a7 30-45-3. A statute requiring the fact-finder to determine whether a defendant committed a knowing or willful violation is less likely to be found vague because the jury must determine scienter. See, e.g., People v. Gross, 830 P.2d 933, 938 (Colo.1992) (en banc). Thus, we find that the Computer Crimes Act is not unconstitutionally vague as applied.\nIII. ADMISSION OF BAILEY\u2019S TESTIMONY WITHOUT OBJECTION WAS NOT PLAIN OR FUNDAMENTAL ERROR.\nDefendant next challenges Bailey\u2019s testimony that, in his opinion, \u201cif a person makes a long distance telephone call from Florida or anywhere else to New Mexico, that person has \u2018accessed a computer network\u2019 in the terms of the New Mexico Computer Crimes Act.\u201d Bailey\u2019s response was in reply to a hypothetical question whether,\nas an expert in the field of computers and computer networks, [he had] an opinion whether a person who makes a long distance call from Florida to New Mexico, to Clovis, New Mexico, \u2018accesses or causes to be accessed a computer network\u2019 within the meaning of that definition in the New Mexico Computer Crimes Act.\nBecause Defendant did not object or challenge this testimony at trial, he now argues the district court committed \u201cplain error\u201d by allowing such testimony.\nPlain error refers to grave errors that seriously affect substantial rights of the accused. State v. Lucero, 116 N.M. 450, 453, 863 P.2d 1071, 1074 (1993). There is no such error in the present record. Indeed, allowing such testimony is consistent with prior judicial interpretation. In Herrera v. Fluor Utah, Inc., 89 N.M. 245, 248, 550 P.2d 144, 147 (Ct.App.), cert. denied, 89 N.M. 321, 551 P.2d 1368 (1976), the plaintiffs attorney asked his expert physician, over defense objections, whether the plaintiffs disease was an occupational disease within the meaning of the Occupational Disease Disablement Law, NMSA 1953, Section 59-11-21 (2d Repl.Vol. 9, pt. 1). In the lead opinion, Judge Lopez indicated that the trial court\u2019s admission of the evidence was consistent with New Mexico Rule of Evidence 704. Herrera, 89 N.M. at 249, 550 P.2d at 148; see also United States v. Buchanan, 787 F.2d 477, 483 (10th Cir.1986) (not error for expert to testify that defendant\u2019s unregistered weapon was the type of device required to be registered), cert. denied, 494 U.S. 1088, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990). Moreover, in the present case, the danger of confusion was reduced by jury instructions that made it clear that the applicable law was contained entirely in the instructions.\nIV. DEFENDANT\u2019S RIGHT TO A FAIR TRIAL WAS NOT VIOLATED BY THE PROSECUTOR\u2019S CLOSING ARGUMENT.\nDefendant next challenges the prosecutor\u2019s closing argument as a \u201cmisstatement\u201d of the law regarding the definition of \u201ccomputer\u201d and \u201ccomputer network\u201d under the Computer Crimes Act. During closing argument, on rebuttal, the prosecutor argued:\nNow, the last point I want to make to you, this whole stuff about accessing a computer. We can make it complicated, we can make it simple. I want to make it as simple as I can for you. When you\u2019re in the jury room, eliminate. There\u2019s a choice in the language that the Defendant caused access or caused to be accessed either a \u201ccomputer\u201d or a \u201ccomputer network.\u201d And the definition of \u201ccomputer\u201d that you have in the instructions, it\u2019s pretty complicated and you might have some trouble with it. So don\u2019t use it. Eliminate that option and just see whether or not this Defendant accessed a \u201ccomputer network,\u201d because he certainly did; and that\u2019s a pretty simple definition; it\u2019s pretty straightforward. It\u2019s the kind that I know you\u2019ll be comfortable with____\nDefendant initially argues that he preserved an objection to this argument by raising the issue of the applicability of Section 30-45-3 on a motion for directed verdict. Defendant contends that, \u201c[b]ecause the trial court accepted the State\u2019s position regarding its alternative charges, Defendant was not required to make a useless objection during closing argument.\u201d We disagree. The purpose of requiring trial counsel to make a timely objection is to alert the trial judge to the problem so that it might be corrected. State v. Alingog, 117 N.M. 756, 759, 877 P.2d 562, 566 (1994). Defense counsel\u2019s earlier argument that Section 30-45-3 did not apply could hardly alert the trial judge to Defendant\u2019s later theory that \u201cthe prosecution led the jury away from the statutory definition of computer.\u201d\nDefendant further argues that the prosecutor\u2019s closing argument constituted \u201cfundamental error.\u201d The doctrine of fundamental error is more stringent than that of plain error. Lucero, 116 N.M. at 453, 863 P.2d at 1074. \u201cThe rule of fundamental error applies only if there has been a miscarriage of justice, if the question of guilt is so doubtful that it would shock the conscience to permit the conviction to stand, or if substantial justice has not been done.\u201d State v. Orosco, 113 N.M. 780, 784, 833 P.2d 1146, 1150 (1992).\nIn New Mexico, counsel have \u201cconsiderable latitude\u201d in closing arguments. State v. Pennington, 115 N.M. 372, 381, 851 P.2d 494, 503 (Ct.App.), cert. denied, 115 N.M. 409, 852 P.2d 682 (1993); see State v. Diaz, 100 N.M. 210, 215, 668 P.2d 326, 331 (Ct.App.1983). The challenged statement by the prosecutor was based upon the testimony of both Isaacson and Bailey. The prosecutor\u2019s emphasis on the statutory language regarding a \u201ccomputer network\u201d seems justified since that was the phrase used by his expert, Bailey. The closing argument, then, can be viewed as a method of having the jury focus on the testimony that supported the State\u2019s theory of how the law applied to the facts. Moreover, not every misstatement of law during closing argument mandates a new trial. Cf. State v. Copeland, 105 N.M. 27, 35-36, 727 P.2d 1342, 1350-51 (Ct.App.) (prosecutor\u2019s comment on silence of deceased victim and reference to defendant\u2019s Miranda rights did not warrant a new trial), cert. denied, 104 N.M. 702, 726 P.2d 856 (1986).\nEven if we believed that the prosecutor\u2019s closing argument gave the jury the wrong impression of the law, we cannot say that the argument so influenced the jury, which was correctly instructed on the law by the district court, as to have deprived Defendant of a fair and impartial trial. See State v. Omar-Muhammad, 105 N.M. 788, 794, 737 P.2d 1165, 1171 (1987). The jury was specifically instructed that \u201c[t]he law governing this case is contained in these instructions, and it is your duty to follow that law.\u201d The jury was then given the exact definitions of \u201ccomputer network,\u201d \u201ccomputer,\u201d and \u201caccess\u201d contained in Section 30-45-2. \u201cIn order to find prejudice to [a] defendant we would have to accept that the jury took the comments made during closing and applied them as the law of the case, ignoring the written instructions.\u201d State v. Armendarez, 113 N.M. 335, 338, 825 P.2d 1245, 1248 (1992). This we will not do. See id. The prosecutor\u2019s statements do not constitute fundamental error.\nV. THE DISTRICT COURT DID NOT ERR IN ALLOWING AGGREGATION OF THE THREE INCIDENTS.\nDefendant next challenges his felony conviction, which was based upon the aggregation of three separate misdemeanor offenses under a single fraudulent scheme. Defendant argues that \u201cthe State has thwarted the plain language of the statute by aggregating the value of three separate misdemeanors to fabricate a 4th degree felony.\u201d\nThe State based its aggregation theory on the single larceny doctrine as enunciated in Judge Bivins\u2019 dissent in State v. Brooks, 116 N.M. 309, 862 P.2d 57 (Ct.App.1993), rev\u2019d in relevant part, 117 N.M. 751, 877 P.2d 557 (1994). Adopting the State\u2019s argument, the district judge stated:\n[I]t appears that the appellate courts can leave it up to the fact finder to make a determination as to whether or not the state has proved that it is one single offense or if it\u2019s a series of offenses that are not related. And so, it appears to me that it would not be appropriate to quash the indictment and it would be more appropriate to let the fact finder or the jury make that determination, perhaps by the use of an instruction as suggested by the dissent in Brooks by Judge Bivins.\nSince Defendant\u2019s trial, the New Mexico Supreme Court has reversed the Brooks majority and adopted the rationale advanced by Judge Bivins in his dissent. In remanding the Brooks case to the district court, the Supreme Court said:\nIn such a retrial, the jury must determine whether crimes committed on separate days were indeed acts motivated by a separate impulse as charged. In words similar to those suggested by Judge Bivins, 116 N.M. at 318, 862 P.2d at 66, the trial court would instruct the jury:\nEvidence has been presented in this case that, as part of a scheme or plan to embezzle, Defendant had only one single, continuing, sustained intent for all [or certain combinations] of the takings. To find Defendant guilty of more than one embezzlement, the burden is on the State to prove beyond a reasonable doubt that each act charged was the result of a separate and independent impulse. After considering all the evidence, if you have a reasonable doubt that Defendant acted with a separate and independent criminal impulse for each taking charged, you must find him not guilty of more than any one taking [or combination of takings].\nBrooks, 117 N.M. at 755, 877 P.2d at 562.\nThe district court in the present case submitted the case on an instruction patterned on the instruction suggested by Judge Bivins. We believe that this submission is consistent with the Supreme Court\u2019s direction in Brooks and not reversible error.\nVI.VENUE WAS PROPER IN CURRY COUNTY.\nDefendant\u2019s venue argument depends upon his assertion that, without a single fraudulent scheme, \u201cno material element of the alleged offenses arising out of Raton and Carlsbad occurred in Curry County.\u201d Because we have held that the issue of whether Defendant\u2019s actions could be aggregated as a single fraudulent scheme was properly submitted to the jury, we find no merit in this claim.\nVII. THE DISTRICT COURT DID NOT ERR IN ALLOWING THE AGGREGATION OF THREE INCIDENTS IN ONE COUNT.\nDefendant also contends that fraud is complete once a misappropriation occurs and is not a continuing offense. The State argues that the jury was properly instructed with respect to the single fraudulent scheme and found sufficient, evidence to convict. We agree. Based on the discussion under Point V, we affirm.\nVIII. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN ADMITTING THE COMPLETE TELEPHONE BILL.\nDefendant next argues that the district court abused its discretion in admitting State Exhibit 4 in its entirety. This exhibit consisted of copies of all telephone bills issued by GTE to Calvin Root for a telephone listed in Room 10 at the Gulf Sands Motel. Included within the numerous pages of bills in the exhibit were records of fourteen calls to the three New Mexico victims, together with hundreds of other long distance phone charges. Defendant made a motion to limit the exhibit as to all calls except the calls to Isbell, Butt, and Grey as \u201cirrelevant\u201d and \u201cprejudicial\u201d under SCRA 1986, 11-401, 11-402, and 11 \u2014 403 (Repl.1994). The State argued that Exhibit 4 contained relevant evidence which tended to prove that the perpetrator of this scheme used this particular telephone. After reviewing the exhibit, the district court denied Defendant\u2019s motion. In evaluating whether the district court erred in not limiting the telephone records to only those portions containing the calls to New Mexico, we may reverse only if a clear abuse of discretion has occurred. See Behrmann v. Phototron Corp., 110 N.M. 323, 327, 795 P.2d 1015, 1019 (1990). In his summation, Defendant attacked the credibility of Thurston as a major witness whose testimony was uncorroborated and unreliable. However, the large number of telephone calls reflected in the exhibit tends to corroborate Thurston\u2019s testimony that: (1) Defendant was involved in the field of telemarketing and (2) Defendant was making enough through such calls to pay Thurston $80 to $500 a week just to pick up the money. Thus, the district court did not abuse its discretion in admitting the entire telephone bill.\nIX. DEFENDANT\u2019S CONVICTION FOR COMPUTER FRAUD AND ATTEMPTED FRAUD BASED ON THE SAME CONDUCT CANNOT STAND.\nFinally, Defendant argues that he cannot be convicted, based on the same facts, of both a completed offense under the specific provisions of the computer fraud statute, Section 30-45-3, and an attempted offense under the general fraud statute, Section 30-16-6. The State offers no response to Defendant\u2019s arguments. Defendant\u2019s conviction under Section 30-16-6 is therefore vacated.\nX. CONCLUSION.\nAll of Defendant\u2019s challenges to Count I are rejected. However, we vacate Defendant\u2019s conviction under Count II.\nIT IS SO ORDERED.\nAPODACA, C.J., and HARTZ, J., concur.", "type": "majority", "author": "BLACK, Judge." } ], "attorneys": [ "Tom Udall, Atty. Gen., Matthew Ortiz, Richard J. Klein, Asst. Attys. Gen., Santa Fe, for plaintiff-appellee.", "Sammy J. Quintana, Chief Public Defender, Christopher Bulman, Asst. Appellate Defender, Santa Fe, for defendant-appellant." ], "corrections": "", "head_matter": "895 P.2d 232\nSTATE of New Mexico, Plaintiff-Appellee, v. Donald Morris ROWELL, a/k/a Jimmie Carrol Rowell, Defendant-Appellant.\nNo. 15365.\nCourt of Appeals of New Mexico.\nMarch 16, 1995.\nCertiorari Granted April 22, 1995.\nTom Udall, Atty. Gen., Matthew Ortiz, Richard J. Klein, Asst. Attys. Gen., Santa Fe, for plaintiff-appellee.\nSammy J. Quintana, Chief Public Defender, Christopher Bulman, Asst. Appellate Defender, Santa Fe, for defendant-appellant." }, "file_name": "0710-01", "first_page_order": 802, "last_page_order": 813 }