State v. Bradshaw

• Decision Date: 10 September 2004
• Docket Number: No. 20020137-CA.,20020137-CA.
• Citation: 2004 UT App 298,99 P.3d 359
• Parties: STATE of Utah, Plaintiff and Appellee, v. Brooks BRADSHAW, Defendant and Appellant.
• Court: Utah Court of Appeals

99 P.3d 359

2004 UT App 298

STATE of Utah, Plaintiff and Appellee, v. Brooks BRADSHAW, Defendant and Appellant.

No. 20020137-CA.

Court of Appeals of Utah.

September 10, 2004.

Kent R. Hart and Robert K. Heineman, Salt Lake City, for Appellant.

Mark L. Shurtleff, Christine F. Soltis, and Charlene Barlow, Salt Lake City, for Appellee.

Before BILLINGS, P.J., ORME, and THORNE, JJ.

OPINION

ORME, Judge:

¶ 1 Defendant Brooks Bradshaw was charged with eleven counts of communications fraud, second degree felonies in violation of Utah Code Ann. § 76-10-1801 (2003), and one count of pattern of unlawful activity (racketeering), a second degree felony in violation of Utah Code Ann. § 76-10-1603 (2003). Bradshaw filed a motion to quash the bindover on the racketeering charge and to reduce the degree of offense of the communications fraud charges. The trial court denied his motion in both respects. We reverse.

BACKGROUND

¶ 2 In lieu of a preliminary hearing, which Bradshaw waived, the parties submitted a written stipulation setting forth the following facts. Over a period of several months, Bradshaw defrauded eleven persons of amounts ranging from $400 to $600 each, for a total of $5,400. Most of the victims were either attempting to refinance mortgages on their residences or in the process of foreclosure. After identifying his victims, Bradshaw falsely represented himself as the owner of various mortgage companies. Bradshaw then promised to assist the victims in obtaining refinancing or avoiding foreclosure in exchange for various fees, ostensibly to be used for appraisals, title searches, and credit checks. Brett Kennedy and William Thomas, two of Bradshaw's former co-workers in the appraisal business,¹ witnessed some of the fraudulent activity, and Bradshaw asked Thomas to falsely represent himself as an appraiser to one of the victims. Bradshaw took the victims' money, but never performed any of the promised services. Bradshaw spent the money paying his personal expenses.

¶ 3 The State charged Bradshaw with eleven counts of communications fraud, second degree felonies in violation of Utah Code Ann. § 76-10-1801 (2003), and one count of pattern of unlawful activity (racketeering), a second degree felony in violation of Utah Code Ann. § 76-10-1603 (2003).² Bradshaw filed a motion to quash the bindover on the racketeering charge and to reduce the degree of offense of the communications fraud charges.

¶ 4 As to the racketeering charge, Bradshaw argued that the state failed to show probable cause that he was engaged in an "enterprise" as required by subsections (1) and (2) of section 76-10-1603. As to the communications fraud charges, Bradshaw argued that the State misconstrued the statute in charging him with eleven second degree felonies. In determining the degree of the offense, the statute allows for aggregation of "the total value of all ... money ... obtained by the scheme or artifice." Utah Code Ann. § 76-10-1801(2). In addition, the statute provides that "[e]ach separate communication. . . is a separate act and offense of communication fraud." Id. § 76-10-1801(5). The State first aggregated the amount taken from all of Bradshaw's victims, which amounted to $5,400, surpassing the threshold for a second degree felony. See id. § 76-10-1801(1)(d). The State then treated each communication as a separate offense and attributed the entire $5,400 to each of Bradshaw's victims, charging Bradshaw with eleven second degree felonies. Bradshaw argued that the State should not be permitted to avail itself of both charging schemes at once. In other words, under Bradshaw's view the State should be required to choose whether to aggregate the amounts taken from Bradshaw's victims, or, in the alternative, to treat each of Bradshaw's communications as separate offenses. Thus, Bradshaw contended that he should have been charged with either eleven class A misdemeanors or one second degree felony.

¶ 5 The trial court denied Bradshaw's motion, concluding, first, that the State could prove the "enterprise" element of racketeering even if Bradshaw only used the money for personal expenses, and second, that the State could legitimately charge Bradshaw with eleven second degree felonies under section 76-10-1801.

¶ 6 Pursuant to a plea agreement, Bradshaw pled guilty to four counts of attempted communications fraud, third degree felonies under Utah Code Ann. § 76-4-102(3) (2003), reserving his right to appeal the trial court's denial of his motion. See generally State v. Sery, 758 P.2d 935, 939 (Utah Ct.App.1988). The trial court accepted the pleas and the remaining charges were dropped. A judgment of conviction was entered on four counts of attempted communications fraud, and Bradshaw appealed.

ISSUES AND STANDARDS OF REVIEW

¶ 7 Bradshaw raises two issues on appeal. First, Bradshaw argues that the State's charging scheme is contrary to the language and purpose of Utah's Communications Fraud statute. Second, Bradshaw argues that the trial court erroneously denied his motion to quash the bindover on the racketeering charge because the stipulated facts do not establish that Bradshaw was engaged in an "enterprise."

¶ 8 Both issues on appeal present questions of statutory interpretation. "The proper interpretation of a statute is a question of law." Rushton v. Salt Lake County, 1999 UT 36,¶ 17, 977 P.2d 1201. Therefore, "we accord no deference to the legal conclusions of the [trial] court but review them for correctness." Id. Likewise, "[t]he determination of whether to bind a criminal defendant over for trial is a question of law.... [W]e review that determination without deference to the court below." State v. Clark, 2001 UT 9,¶ 8, 20 P.3d 300.³

ANALYSIS

I. Rules of Statutory Interpretation

¶ 9 "When interpreting statutes, our primary goal is to evince `the true intent and purpose of the Legislature.'" State ex rel. Division of Forestry, Fire & State Lands v. Tooele Co., 2002 UT 8,¶ 10, 44 P.3d 680 (quoting Jensen v. Intermountain Health Care, Inc., 679 P.2d 903, 906 (Utah 1984)). Generally, the "`best evidence' of a statute's meaning[is] the plain language of the act." Id. "In reading the language of an act, moreover, we seek `to render all parts [of the statute] relevant and meaningful,' and we therefore `presume the legislature use[d] each term advisedly and ... according to its ordinary meaning.'" Id. (alterations and ellipsis in original) (citations omitted). This means that "the expression of one [term] should be interpreted as the exclusion of another ... [and that] omissions in statutory language should `be taken note of and given effect.'" Biddle v. Washington Terrace City, 1999 UT 110, ¶ 14, 993 P.2d 875 (quoting Kennecott Copper Corp. v. Anderson, 30 Utah 2d 102, 514 P.2d 217, 219 (1973)).

¶ 10 However, if the plain language of a statute is ambiguous, "unreasonably confused, [or] inoperable," we will "seek guidance" from other sources, including "legislative history and relevant policy considerations." State Farm Mut. Auto. Ins. Co. v. Clyde, 920 P.2d 1183, 1186 (Utah 1996) (internal quotations and citations omitted). Finally, "[Utah statutory] provisions and all proceedings under them are to be liberally construed with a view to effect the objects of the statutes and to promote justice." Utah Code Ann. § 68-3-2 (2000).

II. Communications Fraud

¶ 11 Bradshaw argues that the State should not be permitted to aggregate the amounts taken from all of his victims while simultaneously treating each communication as a separate offense, thereby attributing the aggregated amount of $5,400 to each of Bradshaw's eleven victims.

¶ 12 Pursuant to the rules of statutory construction outlined above, we look first to the language of the statute. The relevant provisions of Utah's Communications Fraud statute are as follows:

(1) Any 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:

(a) a class B misdemeanor when the value of the property, money or thing obtained or sought to be obtained is less than $300;

(b) a class A misdemeanor when the value of the property, money, or thing obtained or sought to be obtained is or exceeds $300 but is less than $1,000;

(c) a third degree felony when the value of the property, money, or thing obtained or sought to be obtained is or exceeds $1,000 but is less than $5,000;

(d) a second degree felony when the value of the property, money, or thing obtained or sought to be obtained is or exceeds $5,000....

(2) The determination of the degree of any offense under Subsection (1) shall be measured by the total value of all property, money, or things obtained or sought to be obtained by the scheme or artifice described in Subsection (1)....

. . . .

(5) Each separate communication made for the purpose of executing or concealing a scheme or artifice described in Subsection (1) is a separate act and offense of communication fraud.

Utah Code Ann. § 76-10-1801 (2003).

¶ 13 In the trial court's view, the validity of the State's charging methodology hinged on the interpretation of the word "another" in subsection (1) of section 76-10-1801, which refers to "any scheme or artifice to defraud another or to obtain [money] from another... by means of false or fraudulent pretenses." Id. (emphasis added). The trial court reasoned that if "another" is interpreted in the singular, a "scheme or artifice" would appear to contemplate only one victim; but, on the other hand, if "another" is interpreted to include the plural, then "scheme or artifice" could involve multiple victims.

¶ 14 The trial court concluded that the term "another" should be interpreted to include the plural form "others" and...