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Criminal Jury Instructions

Criminal Jury Instructions Home

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:>

  • § 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.

"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.  While normally a B misdemeanor, 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 an A misdemeanor, and if the person’s malicious actions cause 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: 

  • 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.

  • 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.
     


 

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