State v. Richard J. Mattinson

1 2004 UT App 267, 97 P.3d 732.
2007 UT 7
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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State of Utah, No. 20050415
Plaintiff and Petitioner,
v.
F I L E D
Richard Jeremy Mattinson,
Defendant and Respondent. January 19, 2007
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Fourth District, Provo Dep’t
The Honorable James R. Taylor
No. 021402530
Attorneys: Mark L. Shurtleff, Att’y Gen., Matthew Bates,
Asst. Att’y Gen., Salt Lake City, for plaintiff
Jennifer K. Gowans, Provo, for defendant
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On Certiorari to the Utah Court of Appeals
WILKINS, Associate Chief Justice:
¶1 Richard Jeremy Mattinson was convicted of second degree
felony communications fraud. Mattinson properly appealed his
conviction to the Utah Court of Appeals, arguing that the
Communication Fraud statute, Utah Code section 76-10-1801, is
unconstitutionally overbroad and vague. The court of appeals
affirmed his conviction, relying on its previous ruling in State
v. Norris.1
¶2 Mattinson then petitioned for a writ of certiorari,
which we granted. In our original order, we requested that the
parties address only whether section 76-10-1801, the
Communications Fraud statute, is unconstitutionally overbroad on
its face. After the original briefings had been filed and after
oral arguments, we requested supplemental briefing on the issue
of vagueness.

2 State v. Norris, 2007 UT 6, ¶ 10, 152 P.3d 293 ("Norris II")
(internal quotation marks and citations omitted).
No. 20050415 2
BACKGROUND
¶3 Mattinson was charged with one count of communications
fraud or, in the alternative, one count of identity theft. These
charges stem from his participation in an alleged scheme to
defraud Utah Valley Regional Medical Center (“UVRMC”) out of
payment for medical services. Mattinson had taken his friend,
Stevoni Wells, to the emergency room of UVRMC for treatment. Ms.
Wells was worried about being admitted to the hospital in her own
name for fear she would be arrested on outstanding warrants
against her. In order to avoid arrest, Ms. Wells gave the
hospital a false name, address, phone number, and social security
number. Mattinson, in order to remain with Ms. Wells, told the
hospital falsely that he was her husband. He also gave a false
name for himself. Further, when asked what his “wife’s” maiden
name was, Mattinson gave a false name.
¶4 At the time, Ms. Wells was in and out of consciousness.
As a result, Mattinson was asked to sign a consent form for Ms.
Wells to receive treatment. Mattinson did so but claims he was
never told that, in addition to granting consent for necessary
medical procedures, he was also assuming personal responsibility
for the payment of the medical bills. Additionally, Mattinson
says he did not read the back of the consent form where the
assumption of responsibility for payment was described.
¶5 The State charged the defendant with one count of
communications fraud or, in the alternative, one count of
identity theft. Mattinson moved to dismiss the communications
fraud charge, arguing that the statute was unconstitutionally
overbroad and vague. The district court denied Mattinson’s
motion, and a jury later convicted him of the second degree
felony communications fraud. Mattinson appealed. The court of
appeals affirmed the conviction. We granted certiorari.
STANDARD OF REVIEW
¶6 “On certiorari, we review the decision of the court of
appeals, not the trial court. Whether a statute is
unconstitutionally overbroad or vague is a question of law
reviewed for correctness. A statute is presumed constitutional,
and we resolve any reasonable doubts in favor of
constitutionality.”2

3 See Vill. of Hoffman Estates v. Flipside, Hoffman Estates,
Inc., 455 U.S. 489, 494 (1982); I.M.L. v. State, 2002 UT 110,
¶ 15, 61 P.3d 1038.
4 State v. Norris, 2007 UT 6, ¶¶ 17, 18, 152 P.3d 293.
5 As we said in Norris II, 2007 UT 6, ¶ 19, without being
both false and fraudulent, defamatory, or otherwise harmful
to the interests of society, it is unlikely statutory
criminalization of such speech would pass constitutional muster.
6 Norris II, 2007 UT 6, ¶ 24.
7 See Garrison v. Louisiana, 379 U.S. 64, 75 (1964) (stating
that knowingly false statements and false statements made with
reckless disregard of the truth do not enjoy constitutional
protection).
3 No. 20050415
ANALYSIS
¶7 The first step when reviewing a constitutional
challenge to a statute on overbreadth and vagueness grounds is to
determine if the conduct that the statute seeks to criminalize is
protected under the First Amendment.3 As we indicated in State
v. Norris (“Norris II”),4 the statute at issue seeks to
criminalize only false or fraudulent communications made
intentionally, knowingly, or with reckless disregard and “for the
purpose of executing or concealing” a scheme or artifice to
defraud another. Such communications receive no protection under
the First Amendment.5 Therefore, we adopt and apply the
overbreadth analysis of Norris II in which we concluded that the
Communications Fraud statute is not constitutionally overbroad.6
Mattinson, like the defendant in Norris II, made knowingly false
or fraudulent statements. He made those statements
intentionally, and he made them “for the purpose of executing or
concealing” a scheme or artifice to defraud another. Mattinson’s
speech does not enjoy any constitutional protection under the
First Amendment.7 Therefore, we reaffirm our holding in Norris
II that the Communications Fraud statute is not
unconstitutionally overbroad. Having made this determination, we
now move on to the vagueness challenge.
¶8 The United States Supreme Court has stated that once a
court has made the necessary determination regarding overbreadth
“[t]he court should then examine the facial vagueness challenge
and, assuming the enactment implicates no constitutionally

8 Vill. of Hoffman Estates, 455 U.S. at 494-95.
9 16B Am. Jur. 2d Constitutional Law § 920.
10 Utah Code Ann. § 76-10-1801(1)(e)(2003).
No. 20050415 4
protected conduct, should uphold the challenge only if the
enactment is impermissibly vague in all of its applications.”8
¶9 Additionally,
A statute is void for vagueness when its
prohibition is so vague as to leave an
individual without knowledge of the nature of
the activity that is prohibited. To pass
constitutional muster, statutes challenged as
vague must give a person of ordinary
intelligence a reasonable opportunity to know
what is prohibited and provide explicit
standards for those who apply it to avoid
arbitrary and discriminatory enforcement.9
¶10 Using these analytic tools, we find that subsection
(1)(e) of the statute is “impermissibly vague in all of its
applications” so “as to leave an individual without knowledge of
the nature of the activity that is prohibited” and is therefore
constitutionally deficient.
¶11 Subsection (1)(e) sets the level of the offense as “a
second degree felony when the object of the scheme or artifice to
defraud is other than the obtaining of something of monetary
value.”10 We find problematic the language “other than the
obtaining of something of monetary value.” We are unable to
determine what activities or conduct this language is intended to
encompass. Presumably, it addresses “obtaining . . . something
of [no] monetary value.” Neither the parties nor we were able to
apply any meaningful, logical definition to the phrase. At its
extreme, it implies that anything that is totally worthless is of
greater criminal import than mere money. Without more, the
language of (1)(e) gives no notice whatever of what “something,”
when “obtained,” results in a felony.
¶12 This case offers an example of the problems caused by
the vagueness of this subsection. The prosecutor, during his
closing argument, discussed the necessary elements the State must
prove in order to prevail, including what “value” meant. On one
hand, he said that the jury could find that the dollar amount of
the unpaid hospital bill was sufficient to satisfy this element

11 There is some question as to the liability of Mattinson
for the hospital bills. Certainly, had he not fraudulently
indicated that he was Ms. Wells’ husband, he would not have been
permitted to sign the consent form, which also made him liable
for the payment of the hospital bill. It is difficult to
understand why he would engage in a scheme or artifice to defraud
the hospital of payment for services he would not have been
liable for absent the scheme.
5 No. 20050415
and be considered “value.” However, the prosecutor indicated
that “the object of the scheme or artifice to defraud [could also
be] something other than obtaining something of monetary value.”
And that the “biggest thing they were trying to obtain here that
wasn’t of monetary value . . . was [avoiding execution of] the
warrants.” Not surprisingly, the jury expressed confusion on
whether the treatment received by Ms. Wells qualified as
“anything of value” or as “something other than monetary value.”
¶13 Moreover, we are unable to discern from the record the
basis on which the jury convicted Mattinson. The jury could have
found Mattinson guilty believing he defrauded the hospital of
services that exceeded $5,000 in monetary value. It is also
possible that the jury could have concluded that the desire to
avoid detection of Ms. Wells’ true identity, given the
outstanding warrants, was the “value” that Mattinson sought to
obtain.11 Finally, it is also possible that the guilty verdict
was based on the treatment that Ms. Wells received and the jury
believed that, as to Mattinson, this was “other than for monetary
value.” We cannot know on what basis the jury convicted
Mattinson.
¶14 Mattinson also argues that the “any thing of value”
language found elsewhere in subsection (1) is likewise vague. We
do not agree. We interpret “value” in subsection (1) to mean
monetary value, given the specific legislative effort to
distinguish something not of monetary value in (1)(e) from the
rest of subsection (1). Interpreted in this way, the language is
not unconstitutionally vague.
¶15 Given the difficulty in determining what “other than
the obtaining of something of monetary value” is, and to whom it
must have value (the seeker or the victim or both), a person of
normal intelligence familiar with the language of subsection (e)
of this statute would be left to wonder what behavior is being
criminalized. This is the very essence of vagueness that offends

12 State v. Green, 2004 UT 76, ¶ 43, 99 P.3d 820.
13 Modifications to the statute enacted in the 2006 session
added a new subsection (f) that clarifies what may have been
meant by something of non-monetary value. The new language
specifically incorporates into the criminalized behavior any
attempt to take the identity of another. This new language is
not before us, and we express no opinion as to its constitutional
soundness.
No. 20050415 6
the Due Process Clause of the Constitution.12 Absent subsection
(e), the statute is adequately clear to pass constitutional
muster. We therefore strike subsection (e) as unconstitutional,
preserving the bulk of the statute and the overall intent of the
legislature in criminalizing deceptive and fraudulent
communications used to victimize others.13
CONCLUSION
¶16 We apply our analysis to the overbreadth challenge to
Utah Code section 76-10-1801 the same as in Norris II. The
statute does not criminalize conduct protected under the First
Amendment and therefore is not unconstitutionally overbroad.
Conversely, we strike as void for vagueness subsection (1)(e) but
leave intact the remainder of the statute. Reversed and remanded
for a new trial.
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¶17 Chief Justice Durham, Justice Durrant, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Wilkins’
opinion.