State of Utah v. Hopkins

State v. Hopkins

IN THE UTAH COURT OF APPEALS

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Richard Ramsey Hopkins,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020432-CA
 

F I L E D
(June 12, 2003)
 

2003 UT App 192

 

-----

Second District, Farmington Department

The Honorable Glen R. Dawson

Attorneys: Blake T. Ostler, Bountiful, for Appellant

Mark L. Shurtleff and Jeffrey T. Colemere, Salt Lake City, for Appellee

-----

Before Judges Billings, Bench, and Thorne.

BENCH, Judge:

Contrary to Defendant's contention, as a grammatical matter, the language of purpose of section 76-6-505(1) can only be construed in the alternative, i.e.:

Any person who issues or passes a check or draft for the payment of money, for the purpose of [1] obtaining from any person, firm, partnership, or corporation, any money, property, or other thing of value or [2] paying for any services, wages, salary, labor, or rent, knowing it will not be paid by the drawee and payment is refused by the drawee, is guilty of issuing a bad check or draft.

Utah Code Ann. § 76-6-505(1) (1999) (emphasis added).(1) Defendant's proposed construction of the statute would contravene our mandate to avoid "'interpretations . . . which render some part of a provision nonsensical or absurd.'" Perrine v. Kennecott Mining Corp., 911 P.2d 1290, 1292 (Utah 1996) (citation omitted). In the context of payment for services, a bad check need not be an inducement to obtain the services. Furthermore, intent to defraud is not an element of the offense. See State v. Delmotte, 665 P.2d 1314, 1315 (Utah 1983).(2)

Defendant also argues that the language, "it will not be paid," Utah Code Ann. § 76-6-505(1) (emphasis added), requires that "to be guilty of this offense, [Defendant] would have to have known that the specific checks issued to Julie Vanisi would not clear." As the State explains, under this interpretation, "one could legally write numerous checks knowing that there are only sufficient funds in the checking account to cover a portion of those checks." Such a reading is "in blatant contravention of the express purpose of the statute," Perrine, 911 P.2d at 1292, which criminalizes the knowing issuance of bad checks. The "fair import" of section 76-6-505(1) is that it prohibits the issuance of any number of checks knowing that at least one will not clear because the drafts will exceed available funds. Utah Code Ann. § 76-1-106 (1999).

Defendant next argues that the court's finding that Defendant had "knowledge that any given check may not be paid by the drawee" is insufficient to establish that he knew the checks issued to Julie Vanisi "will not be paid." Utah Code Ann § 76-6-505(1) (emphasis added). However, the finding that Defendant had "knowledge that any given check may not be paid by the drawee" supports the conclusion that Defendant knew that, at least in the aggregate, the drafts he issued on the company's account exceeded available funds. We conclude that the court's subsidiary findings sufficiently support its ultimate findings that "the Defendant's conduct was knowing" and "all of the elements of subsection 1 of 76-6-505 have been shown beyond a reasonable doubt."

Defendant next contends that section 76-6-505(1) is void for vagueness. Defendant claims that the disparate treatment by the statue of bad checks used to obtain goods and bad checks used to pay for services "is contrary to common sense and renders the statute vague and uncertain." Although the reasons for the legislature's disparate treatment of bad checks for goods and bad checks for services may be unclear, the prohibited conduct is not. We thus see no vagueness. See State v. Archambeau, 820 P.2d 920, 927 (Utah Ct. App. 1991) ("'[A]n enactment is void for vagueness if its prohibitions are not clearly defined.'" (citation omitted)).

Finally, Defendant argues that section 76-6-505(1) violates article I, section 16 of the Utah Constitution, which prohibits imprisonment for debt. On its face, section 76-6-505(1) does not punish indebtedness. Rather, it punishes those who knowingly pass bad checks to obtain goods or to pay for services. Furthermore, Defendant cites only cases from other jurisdictions interpreting statutes materially different than section 76-6-505(1). Defendant's argument therefore fails. Defendant also asserts that the statute violates article I, section 16 "if, as a matter of practice, those who pay their bad checks are not prosecuted." Defendant fails, however, to allege or demonstrate any pattern of discriminatory prosecution, and we therefore decline to address this argument.

We conclude that the trial court's findings are sufficient to support a conviction under section 76-6-505(1). We also conclude that Defendant has not established that section 76-6-505(1) is unconstitutional. We thus affirm Defendant's conviction.

______________________________

Russell W. Bench, Judge

-----

WE CONCUR:

______________________________

Judith M. Billings,

Associate Presiding Judge

______________________________

William A. Thorne Jr., Judge

1. Defendant also raises several issues regarding subsection (2) of section 76-6-505. Because the trial court found Defendant guilty under both subsections (1) and (2) of section 76-6-505, and because we affirm his conviction under subsection (1), we need not address his claims regarding subsection (2).

2. This construction also resolves Defendant's claim that "disclos[ure of] the potential problems with the checks to his employees" should have acted as "a complete defense to prosecution." Because the statute requires only knowledge and not an intent to defraud, Defendant's disclosure of his knowledge that the checks were bad is no defense.