Opinion
Case No. 20030474-CA.
Filed March 31, 2005. (Not For Official Publication).
Appeal from the Fourth District, Provo Department, The Honorable James R. Taylor.
Jennifer K. Gowans, Provo, for Appellant.
Mark L. Shurtleff and Matthew D. Bates, Salt Lake City, for Appellee.
Before Judges Billings, Greenwood, and Thorne.
MEMORANDUM DECISION
Richard Jeremy Mattinson appeals his conviction of one count of communications fraud, a second degree felony. See Utah Code Ann. § 76-10-1801 (2001). We affirm.
Mattinson challenges the constitutionality of section 76-10-1801, both on its face and as it was applied to him. However, we recently determined that section 76-10-1801 was facially valid, and thus not subject to broad attack on either vagueness or overbreadth grounds. See State v. Norris, 2004 UT App 267, ¶¶ 8-16, 97 P.3d 732, cert. granted, 106 P.3d 743 (Utah 2004). Mattinson has not presented us with any reason to believe that Norris was clearly erroneous; consequently, we reject his claim that the statute is unconstitutional on its face. See State v. Menzies, 889 P.2d 393, 399 n. 3 (Utah 1994) (stating that under the doctrine of horizontal stare decisis, "although it may not do so lightly, a panel may overrule its own or another panel's decision where the decision is clearly erroneous or conditions have changed so as to render the prior decision inapplicable" (quotations and citation omitted)); State v. Thurman, 846 P.2d 1256, 1269 (Utah 1993) ("Although the doctrine is typically thought of when a single-panel appellate court is faced with a prior decision from the same court, stare decisis has equal application when one panel of a multi-panel appellate court is faced with a prior decision of a different panel.").
Mattinson also argues that the statute is unconstitutionally overbroad and vague "as applied" to this case. We note first that Mattinson's argument fails to comport with rule 24 of the Utah Rules of Appellate procedure because he failed to present or develop any authority that might support his claim. See State v. Green, 2004 UT 76, ¶¶ 11-15, 99 P.3d 820 (discussing the requirements of rule 24 and the effect of an appellant's failure to comply with the rule). "'It is well established that a reviewing court will not address arguments that are not adequately briefed.'" Id. at ¶ 15 (quoting State v. Thomas, 961 P.2d 299, 304 (Utah 1998)). Consequently, we decline to entertain Mattinson's "as applied" argument. However, even if we were to examine this claim on its merits, the outcome would remain unchanged.
Mattinson presents two cases — both of which center on cruel and unusual punishment — to support his "as applied" argument. Not only are these cases misplaced, but Mattinson neither presented, nor preserved, any cruel and unusual punishment argument below. Therefore, we do not address his cruel and unusual punishment claim on appeal. See State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346 ("As a general rule, claims not raised before the trial court may not be raised on appeal.").
When analyzing an "as applied" challenge to a criminal statute, we focus first on "whether the statute is sufficiently definite to have adequately warned [the defendant] that his conduct was proscribed." Id. at ¶ 46. If we conclude that it is sufficiently definite, we then "examine whether the statute is sufficiently definite so as to discourage arbitrary and discriminatory enforcement," which requires that the statute "establish minimal guidelines to govern law enforcement such that it avoids entrusting lawmaking to the moment-to-moment judgment of the policeman on his beat." Id. at ¶ 50 (quotations and citations omitted). Finally, we note that our examination must focus "on the particular conduct at hand and not on the possible conduct of hypothetical parties." Id. at ¶ 51.
Section 76-10-1801 prohibits the act of communicating information, either directly or indirectly, to a person "by any means for the purpose of executing a scheme or artifice" to defraud another. Utah Code Ann. § 76-10-1801(1). The gravity of the offense will be determined, in general, by the monetary value sought through the scheme or artifice to defraud.See id. § 76-10-1801(1)(a)-(d). In State v. Norris we defined each of the material statutory terms expressed above and determined that these terms were best defined by their plain meanings. See 2004 UT App 267 at ¶¶ 13-15. Applying the plain meaning to the instant case, we conclude that the statutory language is sufficiently clear to have put Mattinson on notice that his conduct violated the statute. Consequently, we turn our analysis to determining whether the statute is drafted to preclude law enforcement from becoming ad-hoc lawmakers. See Green, 2004 UT 76 at ¶ 50.
The scheme or artifice to defraud must involve a communication that contains "false or fraudulent pretenses, representations, promises, or material omissions." Utah Code Ann. § 76-10-1801(1) (2001).
Mattinson argues that his conviction arose under section 76-10-1801(1)(e), which criminalizes conduct where "the object of the scheme or artifice to defraud is other than the obtaining of something of monetary value." Utah Code Ann. § 76-10-1801(1)(e) (2001). Although the State presented evidence that Mattinson may have been seeking a nonmonetary goal with his scheme or artifice to defraud, i.e., assisting Wells's efforts to avoid arrest, the State also presented ample evidence that the scheme or artifice to defraud centered on avoiding Wells's medical expenses. Consequently, we focus our analysis on Mattinson's avoidance of the medical costs and leave for another day any analysis of section 76-10-1801(1)(e).
Here, Mattinson took his friend Stovoni Wells to the Utah Valley Regional Medical Center when she exhibited symptoms of meningitis. The two agreed that she would be registered under a false name; that he would represent himself as her husband, also using a false name; and that any personal information required by the hospital would also be false. Mattinson then carried out this plan, completing all of the hospital forms with false information, including the form in which he guaranteed, jointly and severally with Wells, payment of all costs incurred as a result of Wells's hospitalization. The eventual costs of Wells's medical care amounted to over $5000. When Wells was later arrested, apparently on a different matter, she confessed to her participation in this scheme, implicated Mattinson, and stated that she had provided false information to avoid paying the medical costs associated with her hospitalization. Under these circumstances, Mattinson's conduct clearly fell into an area prohibited by the statute, and we cannot say that police officials were improperly left to "decide, in their discretion, that the statute's provisions should not apply." Id., 2004 UT 76 at ¶ 52. Therefore, we reject Mattinson's "as applied" challenge to section 76-10-1801.
Accordingly, Mattinson's conviction is affirmed.
WE CONCUR: Judith M. Billings, Presiding Judge, Pamela T. Greenwood, Judge.