Lehi City v. Rickabaugh

• Decision Date: 01 April 2021
• Docket Number: No. 20190501-CA,20190501-CA
• Parties: LEHI CITY, Appellee, v. Jason RICKABAUGH, Appellant.
• Court: Utah Court of Appeals

487 P.3d 453

LEHI CITY, Appellee,

v.Jason RICKABAUGH, Appellant.

No. 20190501-CA

Court of Appeals of Utah.

Filed April 1, 2021

Staci A. Visser and Justin S. Pratt, Salt Lake City, Attorneys for Appellant

James Hansen, Timothy G. Merrill, Pleasant Grove, and Cherylyn Egner, Attorneys for Appellee

Sean D. Reyes, Salt Lake City, and John J. Nielsen, Attorneys for Amicus Curiae State of Utah

Judge Jill M. Pohlman authored this Opinion, in which Judge Diana Hagen and Senior Judge Kate Appleby concurred.¹

Opinion

POHLMAN, Judge:

¶1 Jason Rickabaugh appeals his conviction of electronic communication harassment, a class B misdemeanor. He contends that the governing statute is unconstitutionally overbroad and vague, both on its face and as applied to him. We affirm.

BACKGROUND

¶2 The parties agree that the events in this case arise from the Lehi City Planning Commission's and Lehi City Council's consideration of certain mining and development projects near Traverse Mountain. Rickabaugh and the victim (Victim), both private citizens, took an interest in the issue and held opposing views. Victim was "actively involved in brokering" an earlier compromise between the developer and the community, and he "had a lot of different discussions with the City" on the particular development then under consideration. On January 16, 2018, Victim attended a city council meeting and, during public comment, spoke in favor of the development.

¶3 On January 26, 2018, Rickabaugh sent at least thirty direct messages to Victim via Facebook. Starting at 12:40 a.m., Rickabaugh wrote,² among other things, the following:

• Are you such a fucking bitch you don't want to take the time to drive your children across Kevin bacon's rail road tracks?³

• Do you have skin in the game? You are such a pathetic cunt. When are you—whatever you traded your soul for, I hope it keeps your cunt warm at night. Trading your soul and your family's lungs for some cunt-ass alternative.

• Perhaps I should contact the first presidency to strip you of all dignity.

• Suck dick [Victim]! Your mom is the mother of a whore.

• [Your wife] will leave you because you are a CUNT!

• Your children will hate you!

• I'M on you like white on rice on a paper airplane on a paper plat being held by a captain on a submarine that broke through the ice at the FUCKING NORTH POLE! IN A FUCKING GOD ENDING BLIZARD.

• YOU KNOW WHAT ....... NOW YOU ARE #1 ON MY LIST OF PEOPLE TO DESTROY!

• PORTER⁴ TO THE NEXT LEVEL OF CUNT SMASHING!

Later that morning, at 11:16 a.m., Rickabaugh followed up with another message: "Sorry man. I get really drunk and angry about the insane idea that mining in a residential area is ok."

¶4 Victim read Rickabaugh's "barrage" of messages in the morning. Feeling "violated" and "threaten[ed]," Victim contacted the police. When the police reached Rickabaugh and asked him why he sent the messages to Victim, Rickabaugh "freely admitted that he had sent them out of a difference of opinion between him and [Victim] regarding ... the mining efforts or ... the excavation within Traverse Mountain." Lehi City then charged Rickabaugh with one count of electronic communication harassment based on the messages.

¶5 The case was first brought in Lehi City Justice Court. Rickabaugh moved to dismiss the case on constitutional grounds, arguing that the electronic communication harassment statute is overbroad and vague and that it infringed on his right to free speech. The court denied the motion, and Rickabaugh was tried and convicted by a jury. He then appealed for a trial de novo in district court. See generally Utah Code Ann. § 78A-7-118 (LexisNexis 2018) (explaining that a criminal defendant in justice court "is entitled to a trial de novo in the district court"); Utah R. Crim. P. 38 (setting forth the procedural rules for an appeal from justice court to district court).

¶6 The City filed a bill of particulars in district court, stating that the offense occurred on or about January 26, 2018. It also stated its theory of the case under three subsections of the electronic communication harassment statute. Specifically, the City asserted that Rickabaugh "committed the crime of electronic communication harassment, with the intent to intimidate, abuse, or harass, frighten, or threaten [Victim]" by "making repeated contact by means of electronic communications"; by "sending messages via electronic means, that contained insults, taunts, or challenges likely to provoke a violent or disorderly response"; or by "making contact with [Victim] by means of electronic communication and threaten[ing] to inflict injury, physical harm, or damage to any person or property." See Utah Code Ann. § 76-9-201(2)(a)(i), (b), (c) (LexisNexis 2017).

¶7 Before trial, Rickabaugh again moved to dismiss the case on constitutional grounds. He asserted generally that the statute is unconstitutionally overbroad and vague, both on its face and as applied to him. In his view, "the statute is overbroad by including constitutionally protected speech within its prohibitions" and it is "written in a vague manner and as a result a person of ordinary intelligence cannot know what is prohibited."

¶8 After hearing oral argument, the district court denied Rickabaugh's motion to dismiss. Noting that "[f]acial challenges including those based on overbreadth are disfavored," the court first ruled that the electronic communication harassment statute is not overbroad. It reasoned that a mental state, that is, mens rea,⁵ is "necessary to separate wrongful conduct from otherwise innocent conduct" and that the "mens rea ... is everything in this" case. The court further explained that the City "hav[ing] to prove to a jury the specific intent to intimidate, abuse, threaten, or disrupt" is why the court "can't overturn this statute." It also observed that even if one subsection of the statute were unconstitutional, it could not "overturn the entire statute." Next, the court ruled that the statute is not vague, explaining that Rickabaugh's "vagueness arguments fail for the same reason as ... his overbreadth arguments." Accordingly, the court concluded that "the specific intent requirement mitigates any potential vagueness" in the statute.

¶9 The case proceeded to a jury trial in district court. The City's witnesses included Victim, and the City introduced the January 26, 2018 Facebook messages into evidence. Rickabaugh himself testified and admitted that he sent at least thirty messages to Victim via Facebook. Rickabaugh stated that he "wanted to communicate with [Victim] hopefully to get [him] to change his position and show him [Rickabaugh's] disappointment in ... [Victim's] decisions and perhaps to strike [up] a conversation." To show Rickabaugh's intent, the City also introduced evidence indicating that after Victim "blocked" Rickabaugh on Facebook, Rickabaugh "called [Victim] out" and accused him of bigotry on Lehi Link, a community Facebook page. This Lehi Link post prompted Victim, using somebody else's Facebook page, to respond on the forum. The actual Lehi Link posts, however, were not offered into evidence. But three emails that Rickabaugh sent to the City mayor in May 2018, in which Rickabaugh referred to his dispute with Victim, were entered into evidence.

¶10 The jury found Rickabaugh guilty. He now appeals to this court. See generally Utah Code Ann. § 78A-7-118(8) ("The decision of the district court [from a case originating in justice court] is final and may not be appealed unless the district court rules on the constitutionality of a statute or ordinance.").

ISSUES AND STANDARDS OF REVIEW

¶11 On appeal, Rickabaugh contends that the district court should have concluded that the electronic communication harassment statute is unconstitutionally overbroad and vague, both on its face and as applied to him. "A constitutional challenge to a statute presents a question of law," and we review the district court's decision on that question for correctness. State v. Garner , 2008 UT App 32, ¶ 10, 177 P.3d 637 (cleaned up); see also State v. Mattinson , 2007 UT 7, ¶ 6, 152 P.3d 300 ("Whether a statute is unconstitutionally overbroad or vague is a question of law ...." (cleaned up)). "Those who challenge a statute or ordinance as unconstitutional bear the burden of demonstrating its unconstitutionality." State v. Jones , 2018 UT App 110, ¶ 9, 427 P.3d 538 (cleaned up). "When addressing such a challenge, this court presumes that the statute is valid, and we resolve any reasonable doubts in favor of constitutionality." Garner , 2008 UT App 32, ¶ 10, 177 P.3d 637 (cleaned up); accord South Salt Lake City v. Maese , 2019 UT 58, ¶ 10, 450 P.3d 1092.

ANALYSIS

¶12 The statute at issue in this case is Utah Code section 76-9-201, which defines the crime of electronic communication harassment. The relevant provisions state,

(2) A person is guilty of electronic communication harassment and subject to prosecution in the jurisdiction where the communication originated or was received if with intent to intimidate, abuse, threaten, harass, frighten, or disrupt the electronic communications of another, the person:

(a)(i) makes repeated contact by means of electronic communications, regardless of whether a conversation ensues; or

...

(b) makes contact by means of electronic communication and insults, taunts, or challenges the recipient of the communication or any person at the receiving location in a manner likely to provoke a violent or disorderly response; [or]

(c) makes contact by means of electronic communication and threatens to inflict injury, physical harm, or damage to any person or the property of any person ....

Utah Code Ann. § 76-9-201(2)(a)(i), (b), (c) (LexisNexis 2017). The statute defines "electronic communication" as "any communication by electronic, electro-mechanical, or electro-optical communication device for the transmission and reception of audio, image, or text but does not include broadcast transmissions or similar communications that are not targeted at...