O'Connor v. Commonwealth of Virginia, 16 Va. App. 416, 430 S.E.2d 567 (1993) (full-text).

Factual Background

Defendant Mary Christina O’Connor was indicted for obtaining by false pretense or token, with intent to defraud, a computer software package, having a value of $200.00 or more, belonging to MicroSystems Technologies, Inc. Evidence established that only a couple of days before the date of her indictment, Ms. O’Connor executed a contract with MicroSystems Technologies, Inc. for the development of a computer software program. A document attached to the contract described the nature of the program to be developed.

Upon execution of the contract and attached specifications, Defendant gave the company a check representing the initial payment for development of the program, but the check was uncollectable. The president of the company testified that his delivery of the set of specifications to Ms. O’Connor was conditioned upon receiving the down payment from her. He testified that the set of specifications had commercial value because it could be used by a competing designer to create a computer program. However, the set of specifications was merely a description of the program to be developed; it was not itself something that could be executed by a computer.

Defendant was convicted in the Circuit Court, City of Virginia Beach of obtaining computer software by false pretenses.

Appellate Court Proceedings

On appeal, the court held that specifications that defendant received from the computer software company for the program to be developed were not “computer software” for purposes of convicting her of obtaining computer software by false pretenses. Further, the specifications that she received from the company could not be executed by computer and therefore were not a “computer program.” The specifications also did not relate to a program in existence, and therefore were not “documentation.”

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