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10.5-2 Unlawful Sale or Distribution of Certain Software -- § 53-451 (c)
Revised to December 1, 2007
The defendant is charged [in count __] with the unlawful sale or distribution of software designed to facilitate falsification of electronic mail transmission or routing information. The statute defining this offense reads in pertinent part as follows:
it shall be unlawful for any person to knowingly (sell / give / distribute / possess with the intent to sell, give or distribute) software that <insert appropriate subsection:>
§ 53-451 (c) (1): is primarily designed or produced for the purpose of facilitating or enabling the falsification of electronic mail transmission information or other routing information.
§ 53-451 (c) (2): has only limited commercially significant purpose or use other than to facilitate or enable the falsification of electronic mail transmission information or other routing information.
§ 53-451 (c) (3): is marketed by that person or another acting in concert with that person with that person's knowledge for use in facilitating or enabling the falsification of electronic mail transmission information or other routing information.
Element 1 - Sold, distributed,
possessed software
The first element is that the
defendant (sold / gave / distributed / possessed with the intent to sell, give,
or distribute) software that <insert as appropriate:>
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§ 53-451 (c) (1): is primarily designed or produced for the purpose of facilitating or enabling the falsification of electronic mail transmission information or other routing information.
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§ 53-451 (c) (2): has only limited commercially significant purpose or use other than to facilitate or enable the falsification of electronic mail transmission information or other routing information.
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§ 53-451 (c) (3): is marketed by that person or another acting in concert with that person with that person's knowledge for use in facilitating or enabling the falsification of electronic mail transmission information or other routing information.
"Computer software" means a set of computer programs, procedures and associated documentation concerned with computer data or with the operation of a computer, computer program or computer network.
Element 2 - Knowledge
The second element is that the
defendant had knowledge of the character of the software. A person acts "knowingly"
with respect to conduct or circumstances when (he/she) is aware that (his/her)
conduct is of such nature or that such circumstances exist. <See
Knowledge, Instruction 2.3-3.>
Conclusion
In summary, the state must prove beyond a reasonable doubt that 1) the defendant (sold / gave / distributed / possessed with the intent to sell, give, or distribute) software designed to facilitate falsification of electronic mail transmission or routing information, and 2) the defendant knew the character of the software.
If you unanimously find that the state has proved beyond a reasonable doubt each of the elements of the crime of the unlawful sale or distribution of certain software, then you shall find the defendant guilty. On the other hand, if you unanimously find that the state has failed to prove beyond a reasonable doubt any of the elements, you shall then find the defendant not guilty.
Commentary
Sentence Enhancer
General Statutes § 53-451 (d)
provides the penalties for this offense and includes two sentence enhancement
provisions. If the person's reckless disregard for the consequences of his or
her actions causes damage to the property of another person in an amount
exceeding $2,500, the penalty is a class D felony. The jury must find
this fact beyond a reasonable doubt. See
Sentence Enhancers, Instruction 2.11-4.
The interrogatory would have to include the following definitions:
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A person acts in "reckless disregard" of a risk when (he/she) is aware of and consciously disregards a substantial and unjustifiable risk that property damage will occur.
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To act "with malice" means to act with some improper or unjustifiable or harmful motive including, but not limited to, the desire to cause pain, injury or distress to another.