State v. Richard Franklin Norris

2007 UT 6
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. 20041118
Plaintiff and Respondent,
v.
F I L E D
Richard Franklin Norris,
Defendant and Petitioner. January 19, 2007
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Third District, Salt Lake
The Honorable Robin W. Reese
No. 971008355
Attorneys: Mark L. Shurtleff, Att’y Gen., Kris C. Leonard,
Asst. Att’y Gen., Salt Lake City, for plaintiff
Elizabeth Hunt, Salt Lake City, for defendant
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On Certiorari to the Utah Court of Appeals
WILKINS, Associate Chief Justice:
¶1 Defendant Richard Norris seeks reversal of the court of
appeals’ ruling that Utah Code section 76-10-1801 is neither
unconstitutionally overbroad nor vague.
¶2 Norris also asks that we reverse the court of appeals’
decision that proper jurisdiction existed in the district court
for the filing of charges against him even though the remittitur
of his pending appeal was issued prematurely. We affirm.
BACKGROUND
¶3 Norris ran advertisements in local newspapers for
salaried employment positions. The employment consisted of
selling a diet product or some type of counseling in conjunction
with the sale of the diet product. It appears that several
individuals answered the advertisements and were extended job
offers. As part of this process, the individuals were given the
diet product and asked to sign an agreement. Many believed that
they were signing a product inventory, but they were actually

1 At the time, circuit courts existed with limited
jurisdiction. They were all consolidated into the district
courts in 1996. See Utah Code Ann. § 78-1-2 (2006).
No. 20050415 2
agreeing to purchase the product. They later learned that their
employment was not salaried as had been advertised. When they
tried to return the diet product, Norris would refuse it. He
would then sue in small claims court for alleged breach of the
contracts.
¶4 The procedural history in this case is complex. West
Valley City originally brought four misdemeanor charges of
communications fraud against Norris in the Third Circuit Court.1
The circuit court dismissed the charges because the aggregate of
the four counts exceeded the court’s jurisdictional limit of
$1000. West Valley appealed to the court of appeals. While
this appeal was pending, the Salt Lake County District Attorney’s
Office charged Norris with eleven felony counts of communications
fraud in the district court. Norris moved to quash the charges
because the West Valley appeal was still on-going. The district
court granted the motion, dismissing the charges without
prejudice.
¶5 West Valley immediately sought a dismissal of its
appeal. Norris opposed the dismissal. However, the court of
appeals dismissed the appeal on March 26, 1997. In April, the
Salt Lake County District Attorney re-filed ten of the felony
charges, and Norris moved to dismiss, arguing that the necessary
remittitur of the prior appeal had not yet issued. The court
granted the motion and dismissed the charges without prejudice a
second time.
¶6 The remittitur was prematurely issued on May 13, 1997,
and the DA’s office again re-filed, this time with twenty felony
communications fraud charges. At this same time, Norris asked
the court of appeals to reconsider the dismissal, filed a
petition for writ of certiorari, and sought an extraordinary writ
from this court directing the court of appeals to recall the
remittitur as premature since the time for filing an appeal had
not yet expired.
¶7 We ordered the recall of the remittitur, and Norris
sought certiorari review both with us and with the United States
Supreme Court. Both the U.S. Supreme Court and our court denied
certiorari review. Following the denials, the case was once

2 By this time, the circuit court, from which the appeal had
been taken, had been merged into the district court.
3 Salt Lake County v. Metro W. Ready Mix, Inc., 2004 UT 23,
¶ 11, 89 P.3d 155.
4 See Provo City Corp. v. Thompson, 2004 UT 14,¶ 5, 86 P.3d
735.
5 Grand County v. Emery County, 2002 UT 57, ¶ 6, 52 P.3d
1148.
3 No. 20050415
again remitted to the district court2 in October 1998. During
the time that Norris was seeking certiorari review of the
misdemeanor appeal, he also sought a dismissal of the felony
charges in the district court. The district court denied the
motion and declared that it would entertain no further hearings,
motions, or arguments until the misdemeanor appeal had been once
again remitted.
¶8 Once the final remittitur finally issued, the state
withdrew eight of the twenty felony charges, and defendant was
bound over on the remaining charges. The defendant eventually
entered conditional guilty pleas. Two weeks later, the defendant
moved to withdraw his guilty pleas. The motion was denied, and
he was sentenced on two felony counts. Defendant timely
appealed, and the court of appeals reversed and remanded the case
because of possible confusion in the terms of the plea bargain.
On remand, the defendant withdrew his guilty pleas and the case
was set for a seven-day trial.
¶9 On September 8, 2003, Norris entered conditional guilty
pleas to two charges of attempted communications fraud, both
class A misdemeanors, and reserved for appeal the
constitutionality question and a jurisdictional question.
STANDARD OF REVIEW
¶10 On certiorari, we review the decision of the court of
appeals, not the trial court.3 Whether a statute is
unconstitutionally overbroad or vague is a question of law
reviewed for correctness.4 A statute is presumed constitutional,
and we resolve any reasonable doubts in favor of
constitutionality.5 Whether the district court has jurisdiction

6 Beaver County v. Qwest, Inc., 2001 UT 81, ¶ 8, 31 P.3d
1147.
No. 20050415 4
is a question of law that we review for correctness, giving no
deference to the lower court.6
ANALYSIS
¶11 Norris raises two issues on certiorari. The first is a
constitutional overbreadth challenge to the Communications Fraud
statute, and the second is a challenge to the district court’s
jurisdiction to accept and act on the felony charges prior to the
proper remittitur of the circuit court appeal. After briefing
and oral argument, we requested that the parties also brief
whether the Communications Fraud statute was unconstitutional due
to vagueness.
¶12 We conclude that the statute is neither
unconstitutionally overbroad nor vague as applied to Norris. In
addition, we conclude that the district court did have
jurisdiction. We begin by addressing the overbreadth and
vagueness arguments and then the jurisdictional argument.
I. UTAH CODE SECTION 76-10-1801 IS NEITHER OVERBROAD NOR VAGUE
¶13 Defendant argues that, on its face, Utah Code section
76-10-1801 is both unconstitutionally overbroad and vague. The
United States Supreme Court has given clear guidance concerning
facial challenges for overbreadth and vagueness:
In a facial challenge to the overbreadth and
vagueness of a law, a court’s first task is
to determine whether the enactment reaches a
substantial amount of constitutionally
protected conduct. If it does not, then the
overbreadth challenge must fail. The court
should then examine the facial vagueness
challenge and, assuming the enactment
implicates no constitutionally protected
conduct, should uphold the challenge only if
the enactment is impermissibly vague in all
of its applications. A plaintiff who engages
in some conduct that is clearly proscribed
cannot complain of the vagueness of the law
as applied to the conduct of others. A court
should therefore examine the complainant’s

7 Vill. of Hoffman Estates v. Flipside, Hoffman Estates,
Inc., 455 U.S. 489, 494-95 (1982) (emphases added) (citations
omitted).
8 See I.M.L. v. State, 2002 UT 110, ¶ 15, 61 P.3d 1038.
9 Id. (citation and internal quotation marks omitted).
10 Utah Code Ann. § 76-10-1801(1) (2003) (emphasis added).
11 Id. § 76-10-1801(6).
5 No. 20050415
conduct before analyzing other hypothetical
applications of the law.7
¶14 We therefore begin by determining whether the
Communications Fraud statute reaches a substantial amount of
protected conduct.8 “In making this determination, criminal
statutes must be scrutinized with particular care; those that
make unlawful a substantial amount of constitutionally protected
conduct may be held facially invalid even if they also have
legitimate application.”9
¶15 It is clear from the text of the statute that the
Communications Fraud statute deals with speech in various forms.
The question is whether the type of speech that this statute
criminalizes falls under the protection of the First Amendment.
It does not.
¶16 The relevant language of the statue states that
[a]ny person who has devised any scheme or
artifice to defraud another or to obtain from
another money, property, or anything of value
by means of false or fraudulent pretenses,
representations, promises, or material
omissions, and who communicates directly or
indirectly with any person by any means for
the purpose of executing or concealing the
scheme or artifice is guilty of
[communications fraud].10
In subsection (6) of the statute, “communicate” is defined to
mean “to bestow, convey, make known, recount, impart; to give by
way of information; to talk over; or to transmit information.”11
This definition is quite broad and obviously includes speech
protected under the First Amendment. However, subsection (1) and
subsection (7) of the statute limit the applicable definition.

12 Id. § 76-10-1801(7) (emphasis added).
13 Id. § 76-10-1801(1).
No. 20050415 6
¶17 Under subsection (1), violation of the statute also
requires a person to have devised a scheme or artifice to defraud
or devised a scheme or artifice to obtain from another money,
property, or anything of value by means of false or fraudulent
pretenses, representations, promises, or material omissions. The
statute further states in subsection (7) that “[a] person may not
be convicted under this section unless the pretenses,
representations, promises, or material omissions made or omitted
were made or omitted intentionally, knowingly, or with reckless
disregard for the truth.”12
¶18 The statute criminalizes speech that is fraudulent or
false. Additionally, in order to be actionable, the statute
requires that the communication be made intentionally, knowingly,
or with reckless disregard. Finally, the statute requires that
the communication be made in connection with and “for the purpose
of executing or concealing” a scheme or artifice to defraud
another.13 This type of speech is not protected by the First
Amendment.
¶19 In making this determination, we do not conclude that
all false speech is subject to being criminalized by the state.
This case deals with speech that was both knowingly false and
part of a scheme to defraud. False speech of this type may be
restricted by the imposition of criminal penalties. However,
speech that is knowingly false but that is neither defamatory,
fraudulent, nor otherwise harmful to the interests of society may
well be protected by the Constitution from state prohibitions.
The question is not before us, but it is unlikely that such a
case would pass constitutional muster.
¶20 As a result, Norris’s overbreadth challenge fails,
since no protected conduct is proscribed.
¶21 So too does his vagueness challenge fail. Norris
focuses on the vagueness of the provisions of the act, Utah Code
section 76-10-1801(1) and (1)(e), that relate to “anything of
value” or of no “monetary value.” In his case, Norris was
charged with, and pled guilty to, fraud involving taking money
from his victims. As a result, in Norris’s case, any vagueness
that may reside in the terms “anything of value” or of no
“monetary value” simply do not apply. There is no vagueness in
the prohibition against Norris’s taking money from his victims.
As such, Norris is foreclosed from making a vagueness challenge

14 See Vill. of Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 494 (1982).
15 Utah Const. art. VIII, § 1.
7 No. 20050415
based on hypothetical circumstances that may apply to others but
clearly not to himself.14
II. THE DISTRICT COURT DID HAVE JURISDICTION OVER FELONY CHARGES
¶22 We now turn to whether the district court had
jurisdiction over the felony charges filed after the remittitur
had been issued prematurely. We hold that it did.
¶23 Once the circuit court dismissed the misdemeanor
charges, there were no pending charges against Norris. Although
the city had sought reversal of that order, until the court of
appeals reinstated the charges, the county was free to bring the
felony charges against Norris in the district court as a new
action. The timing and the propriety of remittitur has no legal
impact on the filing of the felony charges in this instance.
Therefore, the district court had proper jurisdiction to receive
and resolve the new charges under its constitutional grant of
general jurisdiction.15
CONCLUSION
¶24 Utah Code section 76-10-1801 does not reach any
constitutionally protected conduct, and, therefore, is not
unconstitutionally overbroad. In addition, as applied to Norris,
the statute is not unconstitutionally vague. Finally, the
district court had proper jurisdiction over the felony charges.
The timing of the remittitur of the circuit court appeal on
dismissal of the misdemeanor charges was irrelevant. The
decision of the court of appeals is affirmed.
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¶25 Chief Justice Durham, Justice Durrant, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Wilkins’
opinion.