## Facts

- Mitchell Scott Newberger worked as a new-accounts credit analyst for a department store and entered credit-application information into a computer system that ordinarily transmitted applications to a credit bureau for approval or denial.
- The system allowed analysts to bypass transmission to the credit bureau by pressing the “9” key (“nining” the system); the system created a record when this function was used.
- Analysts were authorized to use the bypass feature only in limited circumstances not applicable to Newberger’s conduct.
- The State alleged Newberger used the bypass feature to open two fraudulent credit accounts and was also charged as a principal based on another analyst’s use of the bypass feature.
- Newberger was charged with three counts under Fla. Stat. § 815.04 (1991) (offenses against intellectual property), enhanced under § 815.04(4)(b) for fraudulent purposes.
- He was also charged and convicted under a separate statute for making a false statement to obtain a credit card.
- After a jury trial, Newberger was convicted on all counts and appealed, challenging (1) § 815.04’s constitutionality and (2) the sufficiency of the evidence.

## Issues

1. Whether Fla. Stat. § 815.04 (1991) is unconstitutional.
2. Whether the evidence was sufficient to support the conviction for making a false statement to obtain a credit card.
3. Whether the evidence was sufficient to prove that using the “9” key bypass “modifie[d] data, programs, or supporting documentation” within the meaning of § 815.04(1).

## Decision

- The court held § 815.04 is constitutional and affirmed the trial court on that issue.
- The court affirmed the conviction for making a false statement to obtain a credit card (without extended discussion).
- The court reversed the convictions for modifying intellectual property under § 815.04, concluding the evidence did not establish the statutory element of “modif[ication]” of data, programs, or supporting documentation.
- Disposition: affirmed in part and reversed in part.

## Legal Principles

- Statutes are construed according to their plain and ordinary meaning, using dictionary definitions when necessary and when terms are not statutorily defined.
- Under § 815.04(1), “modify” requires an alteration to computer “data, programs, or supporting documentation,” not merely unauthorized use of an existing system feature.
- The presence of an automated system record generated by use of a built-in function does not, by itself, prove the defendant modified data or programs as contemplated by § 815.04.

## Conclusion

The appellate court upheld the constitutionality of Florida’s computer “intellectual property” statute and affirmed the false-statement credit-card conviction, but reversed the § 815.04 convictions because pressing a built-in bypass key to avoid credit-bureau transmission did not constitute a statutory modification of computer data, programs, or supporting documentation.


Newberger v. State, 641 So. 2d 419 (Fla. Dist. Ct. App. 1994)