May 7, 2009 4:00 PM PDT    Text size: 

Employee Richard Wolf, in his defense, acknowledged that his behavior was inappropriate when he used his work computer to upload nude photos of himself to AdultFriendFinder, where he was a member. He also said it was inappropriate to send explicit emails and to download 703 photos of adult performers.

But Wolf said he didn’t think he should be convicted of hacking for doing so.

Wolf, however, was convicted by a jury and later appealed nine issues of the judgment. The appeals court last month affirmed in part, reversed in part and vacated the lower court’s conviction and sentence on a charge of theft in office.

The case began when a superintendent of the Shelby City Wastewater Treatment Plant, where Wolf worked, was deleting old files from a work computer and found a nude photograph of Wolf.

Later, the superintendent brought police into the equation.

When police interviewed him, Wolf admitted that he joined AdultFriendFinder to hook up with women and that, in violation of established work practices, he uploaded nude photos of himself from his work computer after women he met online requested pictures.

Wolf admitted he spent more than 100 hours doing personal business on his work computer. He even admitted that he exchanged explicit emails with a dominatrix named Mistress Patrice, soliciting her services.

Wolf was convicted on state charges for three counts: unauthorized access to a computer, a felony; theft of services in office, also a felony; and solicitation of prostitution, a misdemeanor.

Wolf was sentenced to 15 months and a $5,000 fine for the two felony convictions and ordered to pay the city about $2,400 in restitution for personal business on city time. He also was sentenced to 60 days and a fine of $500 for the misdemeanor solicitation charge.

In the appeal, Wolf argued there was insufficient evidence for any of the convictions and that the convictions for unauthorized use of computer and theft of service in particular “are contrary to public policy and create such a manifest miscarriage of justice that such convictions must be reversed.”

The appeals court wrote that Wolf’s conduct was “beyond the scope of the express or implied consent” and the charge of unauthorized use of a computer was based upon sufficient evidence.

The three-judge panel relied on the Ohio hacking statute, which reads in part that “No person, in any manner and by any means, including, but not limited to, computer hacking, shall knowingly gain access to, attempt to gain access to, or cause access to be gained to any computer … without the consent of, or beyond the scope of the express or implied consent of, the owner of the computer … or other person authorized to give consent.”

The court, however, vacated the theft-of-service conviction.

Judge John Wise wrote that despite the amount of time Wolf spent on the computer at work attempting to hook up or viewing porn, “there was no evidence presented that his job performance suffered or that he failed to perform his job duties.

“Furthermore, even if it could be shown that [Wolf] failed to perform such job duties, while it could certainly serve as a basis for termination from his employment, such could not be the basis of a criminal theft in office charge.”

The case is State of Ohio vs. Richard Wolf, No. 08-16.