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Category: Stalking Injunction/Civil Stalking Injunction

2023 UT App 48 – Anderson v. Deem – civil stalking injunction

2023 UT App 48 – Anderson v. Deem

THE UTAH COURT OF APPEALS

ELLIE ANDERSON,

Appellant,

v.

JACKSON DEEM,

Appellee.

Opinion

No. 20210558-CA

Filed May 11, 2023

Fourth District Court, Provo Department

The Honorable Robert A. Lund

No. 210400723

Jason B. Fida and Patricia Abbott Lammi,

Attorneys for Appellant

Emily Adams and Freyja Johnson,

Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which

JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.

MORTENSEN, Judge:

¶1        Jackson Deem used social media to send several messages to Ellie Anderson, his teenaged schoolmate. Anderson requested a civil stalking injunction, and the district court issued a temporary order. Deem requested a hearing, at which the court revoked the injunction and dismissed the case. The court considered each incident separately as to its emotional or fear-inducing effect to reach a conclusion that Deem had not engaged in a course of conduct as required by the civil stalking statute. In addition, the court justified its decision by referring to Deem’s autism and to the potential availability of a no-contact order in an unadjudicated criminal case. Anderson appeals, claiming that the district court applied the wrong standard in its evaluation of the issues. We agree, reverse the revocation and dismissal of the petition (thereby reinstating the injunction), and remand this matter to the district court so that it may apply the correct standard.

BACKGROUND[1]

¶2 Deem and Anderson were schoolmates, having intermittently attended elementary through high school together. As it is material in this case, we note that Deem was diagnosed with autism when he was around nine or ten years old.

¶3        The troubles underlying the present case stem from an incident in August 2018 when Anderson and Deem were starting tenth grade. Deem posted a message on Instagram stating that he was considering suicide. Seeing this message, Anderson called 911 to request a welfare check on Deem. Shortly after this, Deem posted that he was upset that someone had made the call. Notably, the record does not state that Deem ever said he knew who made the call, and Anderson testified that she was “not sure if he realized” that it was her.

¶4        After this incident, Anderson alleged that Deem sent her a series of unwelcome communications over a period of about three years.

The Incidents of Alleged Stalking

¶5        First Incident: Allegedly—there is no evidence of this event apart from Anderson’s testimony—Deem posted a “hit list” on Instagram about a week after he posted the message alluding to suicide. According to Anderson, this message “stated that [Deem] wanted to shoot up the school and . . . listed people [he] was going to be targeting,” and she and her friend “were on there.” Anderson asserted that she provided a screenshot of the message to her principal but did not otherwise save it or report it. Deem categorically denied posting such a list.

¶6        Second Incident: In July 2019, on the occasion of Anderson’s sixteenth birthday, Deem posted a message to her Facebook page expressing the sentiment, “die, bitch.” After this post, Anderson attempted to block Deem from contacting her on social media.

¶7        Third Incident: In May 2021, Deem, using a different account, sent Anderson a series of Instagram messages. Anderson testified that the first message was an apology stating that Deem “didn’t think” Anderson was “going to take all of [his] threats seriously.” This message was deleted and does not appear in the record; it was followed by four messages, which do appear in the record, from Deem over a period of about three hours.

¶8        In the first of these messages, Deem wrote,

I don’t know if you saw my apology from before, but I take it back. I wish nothing but the absolute worst for you in life. You being angry at what I said is one thing, but telling other people and blackballing me is another entirely. Why even care about what I said? No one values my opinion. I can scream at people how much I hate them all I want, but it doesn’t erase the fundamental power imbalance. You and all the other people who’ve mistreated me over the years have destroyed my mental health irreparably. And the worst part is that no one cares or even acknowledges how they’ve hurt me. There’s no reason why anyone should remember me because they have great lives today. But I don’t have that luxury of not caring about the past because I have no future. Now there’s not a single person from those schools who doesn’t hate me, so those memories are tainted now.

In the next message, apparently sent immediately afterward, Deem stated,

Unlike you, I acknowledge that I’m a terrible person. But you go about it in a different way. All those times you were nice to me were purely self-serving.

¶9        About two hours later, Anderson messaged Deem, “[P]lease stop harassing me or I will be going to the police.” About an hour later, Deem expressed his discontent with her response by sending two messages of his own. The first read, “I’ll be waiting for you in hell.” And the second was the capitalized epithet “FUCK YOU”—followed by 529 exclamation points.

The Injunction and Dismissal

¶10 After receiving the May 2021 messages, Anderson requested a civil stalking injunction against Deem, citing the three incidents described above and one other incident.[2] See Utah Code § 78B-7-701(1)(a)(i) (“[A]n individual who believes that the individual is the victim of stalking may file a verified written petition for a civil stalking injunction against the alleged stalker with the district court in the district in which the individual or respondent resides, is temporarily domiciled, or in which any of the events occurred.”). The district court granted that request and issued a temporary stalking injunction, ordering Deem to have no contact with Anderson and to stay away from Anderson’s home, work, and school. See id. § 78B-7-701(3)(a). Deem requested a hearing on the temporary stalking injunction. See id. § 78B-7­701(4)(a) (“[T]he respondent is entitled to request, in writing, an evidentiary hearing on the civil stalking injunction.”).[3]

¶11 At the hearing, Anderson, Deem, and Deem’s mother (Mother) testified. Anderson testified about the incidents described above, namely the suicide threat and the three incidents. Apart from the hit list, Anderson had screenshots of the communications that she referred to in her testimony. She also testified that she last saw Deem in person during their sophomore year of high school, sometime in 2018.

from Deem’s account. The court agreed with Deem, noting that the connection with Deem was tenuous and that the message was directed to a third party without reference to Anderson. Anderson does not challenge the exclusion on appeal.

¶12      Deem testified that he had not posted a hit list. He also testified that he never intended to cause Anderson fear or emotional distress. Rather, he said he “lashed out” on social media and had no intent to follow up, noting that Anderson was “just . . . the first person who came to mind as someone [he would] like to say those things to.” Deem also testified that he was homebound, did not drive or have a license, and never left his house without his parents. And he stated that he understood that he could not have any contact with Anderson and that he “did potentially cause [Anderson] emotional distress.” Finally, he testified that he did not know where Anderson lived.

¶13      Mother testified that she did not recall being informed by the school that Deem sent a hit list or threatened to shoot up the school in 2018. She testified that apart from an incident in fourth grade, she did not know Deem to be physically violent. However, she testified that Deem does “lash out with his words” from “behind a computer screen.” And concerning his mobility, she testified that Deem does not drive or leave the house without her or his father.

¶14 After hearing the evidence, the district court concluded that Anderson had “failed to meet the standard [of] by a preponderance of the evidence for a continuation of the injunction.” See id. § 78B-7-701(5) (“At the hearing, the court may modify, revoke, or continue the injunction. . . . [T]he burden is on the petitioner to show by a preponderance of the evidence that stalking of the petitioner by the respondent has occurred.”).

¶15      In arriving at its decision, the court considered the three incidents to determine if there was a course of conduct under the stalking statute: “An actor commits stalking if the actor intentionally or knowingly . . . engages in a course of conduct directed at a specific individual and knows or should know that the course of conduct would cause a reasonable person: (i) to fear for the individual’s own safety or the safety of a third individual; or (ii) to suffer other emotional distress . . . .” Id. § 76-5-106.5(2)(a).

¶16 Regarding the first incident, the court determined that it was “disputed and there was no independent evidence provided that the list was created or that . . . Anderson’s name was on it.” Concerning the second incident, the court stated that it “certainly” consisted of “conduct that could qualify under the statute as something that would create emotional distress.” And about the third incident, the court noted that it “contain[ed] two potentially concerning language references.” The first was the profane expression of “FUCK YOU,” but the court observed that this phrase is “so ubiquitous in our culture” as to have “no significance at all” or to be in “any way threatening.” The court stated, “[I]t’s not a term that causes emotional distress. It’s replete in our culture, in our language, in our entertainment.” Accordingly, the court found “that saying that to someone alone is not a basis to support the petition” for a stalking injunction. The court reasoned that the other phrase—“I’ll be waiting for you in hell”—“conveys that both parties have engaged in a pattern that makes them worthy of being relegated to hell” and that it was “not threatening on its face.”

¶17      The court reasoned that because “two of those events [did not] meet the standard for potentially satisfying the requirements of the statute,” it was left “with one [incident] that occur[red] over the period of three years,” which failed “to meet the course of conduct requirement of the statute.” See id. § 76-5-106.5(1)(a)(i) (defining course of conduct as “two or more acts directed at or toward a specific individual, including . . . acts in which the actor . . . communicates to or about an individual”).

¶18      The court acknowledged that Deem’s communications had a “significant impact” on Anderson. But when viewing the communications “independently” and “objectively,” and “weighing [the evidence] against the statutory requirement,” the court concluded “that there [was not] a further basis to enjoin . . . Deem’s behavior.” The court clarified that while Deem “communicated to or about” Anderson, he did not do so “in a way that invokes the necessity to enjoin him in the future,” noting that there was not “a course of conduct at issue here given the time frame [and] given the specific language that was used.”

¶19      The court then made two additional observations to justify

not extending the injunction. First, it delved into the impact of Deem’s autism:

And furthermore, I think that all this has to be taken in terms of whether or not he knowingly and intentionally[[4]] engaged in the course of conduct and whether or not he knew or should have known that a reasonable person would be in fear[.] [T]hat has to be viewed in light of . . . Deem’s special circumstances. If he didn’t have the diagnosis and the things that he does have, we might attribute more mens rea to him[,] and I think that somebody receiving communications from him in terms of how threatening they are or whether they would put someone in fear [or] apprehension, has to be viewed in the context of his condition, of the fact that he has no history of violence, that he’s not mobile. All those things relate to the reasonableness with which somebody would view this language.

¶20 Second, the court considered the impact of a criminal case—presumably related to the third incident. The court noted that Deem indicated that he would be “stipulating” to “a criminal no contact order . . . in that case.” The court observed that this potential no-contact order would provide Anderson “with the protection that she’ll need, if that protection is needed, which is, you know, not certain in this [c]ourt’s mind.”

¶21      With that, the district court ordered the stalking injunction dismissed. Anderson appeals.

ISSUE AND STANDARDS OF REVIEW

¶22      The issue on appeal is whether the district court “erred in its construction and application of the Utah stalking statutes” when it declined to continue the temporary stalking injunction. A court’s “interpretation and application of the relevant statutory provisions” regarding continuing a stalking injunction “is a question of law which we review for correctness, affording no deference to the district court’s legal conclusions.” Ellison v. Stam, 2006 UT App 150, ¶ 16, 136 P.3d 1242 (cleaned up). Although the question of whether the course of conduct would “cause a reasonable person [in a petitioner’s circumstances] to suffer fear or emotional distress” is “a question of fact that we review for clear error, we review the district court’s interpretation of the underlying legal standard for correctness.” See Ragsdale v. Fishler, 2021 UT 29, ¶ 16, 491 P.3d 835.[5]

ANALYSIS

¶23      Those who believe they are victims of stalking may file a petition for a civil stalking injunction against the alleged stalker with the district court. See Utah Code § 78B-7-701(1)(a)(i). If the court determines there is reason to believe that there has been an offense[6] of stalking, it may issue a civil stalking injunction restraining the alleged stalker from, among other actions, going near the other party or having contact with the other party. Id. § 78B-7-701(3)(a).

¶24      Our supreme court summarizes stalking as follows:

The crime of stalking consists of two elements. First, a person must intentionally or knowingly engage in a course of conduct directed at a specific person. Second, that person must know or should know that the course of conduct would cause a reasonable person to fear for the person’s own safety or suffer other emotional distress. A district court may enjoin an alleged stalker only if both elements are met.

Ragsdale v. Fishler, 2021 UT 29, ¶ 25, 491 P.3d 835 (cleaned up); see also Utah Code § 76-5-106.5(2)(a). Here, the district court’s approach suffered from two primary infirmities that we will address in turn. First, the district court erroneously considered incidents to be potentially part of a course of conduct only if each discrete incident was capable of causing fear or emotional distress. Second, and relatedly, the district court considered each incident in isolation as to whether fear or emotional distress might be engendered. In both regards, this approach is at odds with the applicable statute and precedent.

  1. Course of Conduct Analysis

¶25 Here, there is no dispute as to the first element. Deem intentionally or knowingly communicated with Anderson in the second and third incidents.[7] Indeed, Deem “concedes that there was a course of conduct here, as defined by the statute.” But for the sake of clarity and as this matter is being remanded for further consideration, we note that a course of conduct does not necessarily involve threatening behavior—as it appears the district court seemed to require in its approach to this case. Rather, a course of conduct merely requires “two or more acts directed at or toward a specific individual.” See Utah Code § 76-5-106.5(1)(a)(i). These acts might well be threatening, but they don’t have to be. Instead, they can include “acts in which the actor . . . communicates to or about an individual,” directly or indirectly and by any means. See id. § 76-5-106.5(1)(a)(i)(A).

¶26      As our supreme court has made clear, establishing a course of conduct is the first step in the stalking analysis. See Ragsdale v. Fishler, 2021 UT 29, ¶ 25, 491 P.3d 835. This step should not be conflated or combined with the second part of the analysis, which involves a determination as to whether the course of conduct would cause a reasonable person fear or emotional distress. See id. Here, the district court’s analysis on this point lagged a bit in clarity. The court said that because two of the three alleged incidents were not capable of inducing fear or emotional distress in the court’s view, they did not “meet the standard for potentially satisfying the requirements of the statute, . . . leav[ing] us with one [incident] that occur[ed] over the period of three years[,] which also fails to meet the course of conduct requirement of the statute.” Insofar as the district court was saying that while Deem committed two more acts that would have satisfied the course of conduct requirement had those acts been threatening in nature, the district court erred in its interpretation of the statute. For the purpose of showing a course of conduct, the Ragsdale court clearly explained, “[I]f a respondent follows, threatens, or communicates to a petitioner only once, he or she has not engaged in a course of conduct. But if a respondent follows, threatens, or communicates to the petitioner on two or more occasions, he or she engages in a course of conduct directed at the petitioner.” Id. ¶ 31 (emphasis added).[8] Deem’s communications in the second and third incidents easily fit the bill required by the first element of the statute. Deem acknowledged that he intentionally or knowingly communicated on multiple occasions with Anderson. That’s likely why Deem concedes that the course of conduct occurred.

But the district court’s consideration of whether fear or emotional distress was associated with each communication was an erroneous distraction in this part of the statutory analysis.

  1. Emotional Distress and Fear for Safety Analysis

¶27 Regarding the second element, the district court determined that only one communication—the second incident— would cause “a reasonable person to fear for the person’s own safety or suffer other emotional distress.” See Ragsdale v. Fishler, 2021 UT 29, ¶ 25, 491 P.3d 835 (cleaned up). In so concluding, the district court considered each communication in isolation. This was error.

¶28      The court declined to consider the alleged communication associated with the first incident because (1) the incident was disputed and (2) Anderson did not provide evidence, apart from her sworn testimony, to corroborate the claim that the hit list was created or that her name was on it. And the court concluded that the third incident was not threatening or emotionally distressful. Given that this effectively left only one incident to constitute the course of conduct in the court’s view, the district court concluded that Anderson had not shown by a preponderance of the evidence that Deem had stalked her so as to satisfy the conditions for continuing the injunction. See Utah Code § 78B-7-701(5). However, precedent holds that a district court should consider the course of conduct cumulatively. This the district court failed to do. While the district court was free to ignore the first incident because the court ruled it had not been proved to have occurred, the court erroneously failed to consider the remaining acts in the course of conduct collectively.

¶29      To qualify for a stalking injunction, “a petitioner must meet an objective—not subjective—standard.” Baird v. Baird, 2014 UT 8, ¶ 24, 322 P.3d 728. Under this “solely objective standard, the subjective effect of the respondent’s conduct on the petitioner is irrelevant. Rather, the petitioner must establish only that the respondent’s conduct would cause emotional distress to a reasonable person in the petitioner’s circumstances.” Id. ¶ 25. But by “including ‘in the victim’s circumstances’ as part of the ‘reasonable person’ definition,” the statute “provides for an individualized objective standard,” meaning that “a court must consider the entire context surrounding [the] defendant’s conduct.” Id. ¶ 26; see also State v. Miller, 2023 UT 3, ¶¶ 82, 91 (reciting the same standard); Utah Code § 76-5-106.5(1)(a)(v) (defining a reasonable person as “a reasonable person in the victim’s circumstances”). [9] Thus, “acts that seem perfectly innocent or even well intentioned may constitute stalking. For example, conduct such as sending the victim a dozen roses may seem benign and loving to the casual observer, but could mean a very different thing when understood in the context of the victim’s experience.” Baird, 2014 UT 8, ¶ 26 (cleaned up). “Courts applying this individualized objective standard have considered such factors as the victim’s background, the victim’s knowledge of and relationship with the defendant, any history of abuse between the parties, . . . and the cumulative effect of defendant’s repetitive conduct.” Id. ¶ 27 (cleaned up) (emphasis added); see also Miller, 2023 UT 3, ¶¶ 83–86 (noting that the factors listed in Baird are not exhaustive of the behaviors “that could, in certain circumstances, cause a victim emotional distress”).[10]

¶30      Here, the district court’s analysis was legally flawed because it approached the matter using an insular rather than a holistic framework to arrive at its conclusion that Deem’s course of conduct was not of such a type as to cause fear or emotional distress to a reasonable person. In other words, the court erred by looking at the individual acts that created the course of conduct rather than the course of conduct and other relevant incidents cumulatively.

¶31      The district court’s focus on the individual acts in isolation from the overall course of conduct is especially problematic with regard to the third incident. First, the district court concluded that the term “‘fuck you’ . . . is so ubiquitous in our culture” that it was of “no significance at all” or in “any way threatening.” The court stated that this profane statement is “not a term that causes emotional distress” given that its use is “replete in our culture, in our language, in our entertainment.” From its common use, the court found “that saying that to someone alone is not a basis to support the petition” for a stalking injunction. The court might be right that, standing alone, this term would not cause fear or emotional distress.[11] But analyzing the profanity in isolation from the other acts establishing a course of conduct is not what the stalking statute asks us to do. As our supreme court has clarified, courts “must consider the conduct cumulatively, accounting for the facts and circumstances of the individual case,” rather than considering the individual acts making up the course of conduct in isolation from each other. See Ragsdale, 2021 UT 29, ¶ 45 (cleaned up); see also Baird, 2014 UT 8, ¶ 27. Thus, while the profanity alone might not be enough to cause fear or emotional distress, when considered in conjunction with Deem’s wish to see Anderson in hell and his earlier communication that she was a “bitch” that he would like to see “die,” a different picture emerges. Moreover, Deem’s use of capital letters and hundreds (529, to be precise) of exclamation points in his final communication could be seen as expressing a certain amount of rage that goes well beyond the casual use of profanity. Thus, Deem’s overall course of conduct could very well be enough to cause fear or emotional distress.

¶32      Second, concerning Deem’s statement, “I’ll be waiting for you in hell,” the district court made a similar error in concluding that it conveyed nothing more than “that both parties [had] engaged in a pattern that [made] them worthy of being relegated to hell” and that it was “not threatening on its face.” Saying “I’ll see you in hell” might carry a benign meaning when said jokingly between friends, but when coupled with the profanity and Deem’s birthday greeting of “die, bitch,” it takes on an altogether different connotation. In other words, evaluating the hell statement in isolation makes it seem benign, but when viewed as part of Deem’s overall course of conduct, it could very well contribute to instilling fear or causing emotional distress.

¶33      On remand, we direct the district court to assess “the entire context surrounding” Deem’s conduct—rather than relying on a “blanket conclusion” that the ubiquity of profanity precludes it from instilling fear or causing emotional distress—so as to “account for the cumulative impact of his behavior” over the entire period of the course of conduct. See Ragsdale, 2021 UT 29, ¶ 47; see also Miller, 2023 UT 3, ¶ 116 (“Although the jury found that [certain] prior conduct did not constitute stalking, [that prior conduct] remained relevant to understand [the respondent and petitioner’s] relationship, the history they shared, and, therefore, whether [the respondent] knew or should have known [later actions] would cause a reasonable person in [petitioner’s] position emotional distress.”).

¶34      The district court also should conduct this analysis in light of the standard of a reasonable person in Anderson’s circumstances. See Ragsdale, 2021 UT 29, ¶ 48. This does not give license for the district court to conduct “a purely subjective analysis” that provides voice to unreasonable sensitivity or paranoia. See Baird, 2014 UT 8, ¶ 27. But it does mean that the court must consider factors such as Anderson’s “knowledge of and relationship” with Deem and their shared history in reaching its conclusion on whether Deem’s course of conduct would cause fear or emotional distress. See id.[12]

¶35      In sum, we remand this matter to the district court so that it may apply the appropriate objective standard as outlined above to its emotional distress and fear determination regarding the cumulative effect of Deem’s multiple communications directed at Anderson. This standard requires that the court look at the context surrounding Deem’s course of conduct. Specifically, we direct the district court to avoid looking at whether each of Deem’s individual acts induced fear or caused emotional distress, instead focusing on the impact of the overall course of his conduct on a reasonable person in Anderson’s circumstances.

CONCLUSION

¶36      The district court misapplied the standard in determining whether a course of conduct existed that would cause a reasonable person in Anderson’s circumstances to suffer fear or emotional distress. We reverse the revocation and dismissal of Anderson’s request for a civil stalking injunction (thereby reinstating the injunction) and remand this matter so that the court may apply the correct standard.

 

Utah Family Law, LC | divorceutah.com | 801-466-9277

 

[1] In the context of a “civil stalking injunction, we will recite the facts in a light most favorable to the trial court’s findings.” Sheeran v. Thomas, 2014 UT App 285, ¶ 2 n.1, 340 P.3d 797.

[2] Anderson also asserted that “around [the] time or before [the] time” of the May 2021 messages, a hacked Instagram account sent a message to her friends’ accounts stating, “I will murder your family.” Anderson said the name on the sending account “was a bunch of scrambled letters” but that she had deciphered it to reveal Deem’s name. Anderson speculated that Deem was surreptitiously sending the message to her through a third-party account, even though the message did not reference her in any way. Anderson attached a screenshot of this message to her request for the stalking injunction. At the hearing for the injunction, Deem objected to the admission of this evidence on the ground that there was not “any foundation” to show that it was

[3] If a respondent requests a hearing within ten days “after the day on which the . . . civil stalking injunction is served,” the “burden is on the petitioner to show by a preponderance of the evidence that stalking of the petitioner by the respondent has occurred.” Utah Code § 78B-7-701(4)(a), (b)(ii). “If the respondent requests a hearing after the 10-day period after service, . . . the burden is on the respondent to show good cause why the civil stalking injunction should be dissolved or modified.” Id. § 78B-7­701(7). Here, Deem filed the request within ten days. Accordingly, at the ensuing hearing, Anderson bore the burden of proof.

[4] The statutory standard is “intentionally or knowingly,” not “intentionally and knowingly.” See Utah Code § 76-5-106.5(2).

[5] Anderson also argues on appeal that the district court erred in considering that a no-contact order was available to her from Deem’s criminal matter—presumably arising from the third incident—in determining whether she was entitled to a stalking injunction. We agree. Consideration of whether other remedies (criminal or otherwise) exist is not contemplated in relevant caselaw or the stalking statute. See infra note 12. But we need not address this issue further given the manner in which we resolve this appeal.

[6] While it may seem odd to discuss an “offense” in a civil context, the stalking injunction statute borrows its definition from the criminal stalking statute. In other words, to “obtain a civil stalking injunction, a petitioner must establish the elements necessary to meet the definition of stalking in the criminal code.” See Higley v. Buhler, 2019 UT App 96, ¶ 11, 446 P.3d 92 (per curiam); see also Utah Code § 76-5-106.5(2).

[7] Deem stated that Anderson was “the first person who came to mind” when he wanted to lash out.

[8] The third incident likely established a course of conduct by itself. In Hardy v. Hardy, 2020 UT App 88, 467 P.3d 931, cert. denied, 474 P.3d 948 (Utah 2020), our court said, “We could conceive of a circumstance in which a single event with multiple distinct acts undertaken for different purposes or separated by some amount of time might constitute a course of conduct.” Id. ¶ 7 n.4; see also State v. Miller, 2023 UT 3, ¶ 126 (explaining that repeatedly replying to emails in the same thread “does not convert each of [the] separate emails into a single act” when the emails in the chain were sent over a period time). This is what we have in the third incident. See supra ¶¶ 7–9. First, there was an apology. Second, there were two consecutive messages in which Deem rescinded the apology and complained about the way he had been treated. Then—about three hours later and after Anderson had replied with a message telling Deem to “please stop harassing her or [she would] be going to the police”—Deem sent a third set of messages with the profanity and the reference to hell. These three communications likely constituted a course of conduct because each had “different purposes” and because they (or at least the second and third communications) were “separated by some amount of time.” See Hardy, 2020 UT App 88, ¶ 7 n.4. Thus, it seems likely that there were four communications—or “acts” in the parlance of the statute (namely, the second incident, the apology, the rescindment, and the profanity and hell comment)— to satisfy the course of conduct requirement.

[9] In this regard, the district court’s approach was arguably backward. The district court considered the individual circumstances of the respondent—a consideration absent in the statute—and failed to properly consider the individual circumstances of the petitioner. See supra ¶ 19.

[10] Still, our supreme court has cautioned that “when assessing these and other relevant factors, . . . courts must avoid succumbing to a purely subjective analysis, which is inconsistent with the objective standard’s intent to protect against criminalizing conduct that only an unreasonably sensitive or paranoid victim would find harassing so as to reduce the risk of a truly innocent defendant falling within the ambit of a stalking statute.” Baird v. Baird, 2014 UT 8, ¶ 27, 322 P.3d 728 (cleaned up).

[11] Although even this conclusion seems to rest on shaky ground. Our supreme court in Ragsdale v. Fishler, 2021 UT 29, 491 P.3d 835, noted, “[T]he fact that [the respondent] flipped off and communicated obscenities” to the petitioner “on two or more occasions” meant that the petitioner “could potentially obtain an injunction against” the respondent. Id. ¶ 39. Granted, the supreme court added, “But this does not mean that every person flipped off and sworn at two or more times by the same individual is entitled to a stalking injunction.” Id. ¶ 39 n.29. Yet, this is the point. In context, considering the particular circumstances of a petitioner, even profanity ubiquitous in society might very well form the basis for an injunction.

[12] Anderson asserts that the district court erred in considering Deem’s autism and other facts such as Deem’s lack of a history of violence and immobility. The district court’s consideration of these points strayed well into the realm of the irrelevant. There is nothing in the record to suggest that Anderson should have regarded Deem’s course of conduct as more or less threatening than it would have been had he not been diagnosed with autism. On remand, given the dearth of evidence about Anderson’s knowledge of (1) the impact autism had on Deem’s behavior, (2) Deem’s lack of past violent conduct, and (3) Deem’s other personal circumstances, we caution the district court to avoid the line of reasoning it previously embraced in this respect.

The district court should also avoid speculation regarding the availability of a no-contact order because consideration of other remedies is nowhere contemplated in the stalking statutes. The consolation of the merely potential no-contact order is nebulous at best, especially considering that the criminal case was unadjudicated at the time of the hearing. Cf. Miller, 2023 UT 3, ¶ 119 (noting that the availability of an existing stalking injunction does not necessarily “mitigate” or “eliminate the emotional distress [a respondent’s] behavior caused” when the course of conduct is ongoing).

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2023 UT App 57 – State v. Schroeder

2023 UT App 57 – State v. Schroeder

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

MICHAEL SCHROEDER,

Appellant.

Opinion

No. 20190339-CA[1]

Filed May 25, 2023

Fifth District Court, Cedar City Department

The Honorable Troy A. Little

No. 191500104

Trevor J. Lee, Attorney for Appellant

Shane Klenk, Attorney for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which

JUDGE MICHELE M. CHRISTIANSEN FORSTER and

SENIOR JUDGE KATE APPLEBY concurred.[2]

ORME, Judge:

¶1        Following a consolidated bench trial, the court found Michael Schroeder guilty on three charges of protective order violations and one charge of criminal stalking, all class A misdemeanors. Schroeder now appeals, primarily contending that there was insufficient evidence to establish his guilt beyond a reasonable doubt on the convictions still at issue in this appeal.[3]

¶2        We conclude that Schroeder’s convictions for violations of a protective order are supported by sufficient evidence and affirm those convictions. But we conclude that Schroeder’s conviction for stalking is against the clear weight of the evidence developed at trial in support of that charge and therefore reverse that conviction.

BACKGROUND[4]

¶3        After Michael Schroeder and Samantha[5] ended their romantic relationship in 2018, Samantha sought a protective order against Schroeder. On August 13, 2018, Utah’s Fifth District Court held a protective order hearing. Because Schroeder was present and because he did not object to the protective order becoming permanent, the court signed and served the Protective Order, which required Schroeder to refrain from contacting Samantha, to stay at least 1,000 feet from her, and to stay away from her home.

September 23 Protective Order Charge

¶4        During the bench trial, Samantha, her friend, a police officer, and Schroeder each testified about an event that took place on September 23, 2018. Schroeder testified that on that day, he drove his truck through the city where he and Samantha lived and inadvertently turned onto Samantha’s street. After turning onto the street, he suddenly recognized where he was and further realized that if he maintained his course, he would ultimately pass Samantha’s home. He also recognized that driving past her home may violate the Protective Order, but he was not certain. Although he contemplated turning around to avoid passing Samantha’s home, he testified that he chose to continue driving down her street.

¶5        When Schroeder approached Samantha’s home, Samantha was sitting outside with a friend. She and her friend testified that they saw the truck approaching and recognized the truck as belonging to Schroeder. Samantha testified that she saw the truck slow down to almost a stop in front of her home. She was able to identify Schroeder as the driver of the truck through the truck’s open window. Samantha further testified that Schroeder stared at her and made “complete eye contact” with her before driving off. Samantha estimated that she was “maybe 20 feet” from where Schroeder drove past. Her friend testified that he too had been able to identify Schroeder through the truck’s open window. The friend further corroborated Samantha’s testimony that when Schroeder passed Samantha’s home, he was “maybe 20” or “25 feet” from their position and that Schroeder had slowed down to a stop and stared at them for “a few seconds” before driving off.

¶6        Samantha called the police and reported what had happened. An officer arrived and spoke with Samantha and her friend, then contacted Schroeder and met with him at his residence. Schroeder explained that he had made a wrong turn onto Samantha’s street, thought about turning around, made the decision not to, and then proceeded to drive past Samantha’s home. Schroeder also told the officer that he did not know the conditions of the Protective Order.

¶7        Soon after this event, the State filed an Information and Affidavit of Probable Cause against Schroeder, charging him with a protective order violation for coming within 1,000 feet of Samantha.

January 7 Protective Order Violation Charge and Stalking Charge

¶8        During the bench trial, Samantha and Schroeder also testified regarding an event that took place on the morning of January 7, 2019. Samantha testified that she was with her dog in front of her home when she heard a diesel truck approaching the cross street at the end of the block, three houses away. The distinctive sound of a diesel engine caused her to look up, and she saw Schroeder’s truck slowly driving by on the cross street. Samantha recounted that she made eye contact with Schroeder and shook her head at him before he drove off. When she went back inside her home, she again called the police and reported what happened. Samantha stated that she is “really . . . not good” with estimating distances, but she estimated she was “maybe 35 feet” from where she saw Schroeder. Schroeder denied having any knowledge of this incident and suggested that Samantha might have seen “some other gray truck” and confused it with his truck.

¶9        Following this incident, the State filed an Information and Probable Cause Statement against Schroeder, charging him with a violation of the Protective Order’s prohibition on coming within 1,000 feet of Samantha and also charging him with criminal stalking. The State predicated the stalking charge on events specified in the charging documents, discussed in more detail below.

Consolidated Trial

¶10      All cases and charges addressed in this appeal came before the trial court in a consolidated bench trial on April 4, 2019. In its case addressing the September 23 protective order violation, the State called Samantha, her friend, and the officer as witnesses. They testified as outlined above, and Schroeder testified in his defense but did not call other witnesses or present any other evidence. Following the trial, the court expressly found all the State’s witnesses to be credible. The court found that Schroeder had been properly served the Protective Order because he was present when the Protective Order was issued and did not object to its issuance. The court further found that because Schroeder recognized that he was driving down Samantha’s street and chose not to alter his course, he intentionally violated the Protective Order. Based on those findings, the trial court found Schroeder guilty of the protective order violation that occurred on September 23, 2018.

¶11      With respect to the January 7 protective order violation, the court found that the State presented sufficient evidence that Schroeder drove by on the adjacent street—which it found to be less than 1,000 feet away from Samantha—and that, while passing, Schroeder slowed down enough to stare at Samantha and for Samantha to identify him and shake her head at him. The court acknowledged that if Schroeder had just driven down the adjacent street and neither slowed down nor stared at Samantha, this likely would have been insufficient to support a protective order violation. But because he was driving down a street close to where he knew Samantha’s home to be and had slowed and stared at her while he passed, his actions were sufficient to amount to a violation of the Protective Order.

¶12 Regarding the stalking charge, the State specified the following three events in the Probable Cause Statement as the basis for the charge: (1) an alleged incident on January 6, 2019, at a local smoke shop; (2) the January 7 protective order violation; and (3) an alleged drive-by incident that occurred a few hours after the January 7 protective order violation. At trial, while the State presented evidence of the January 7 protective order violation, the State did not present any evidence of the other two events specified in the charging documents.

¶13      After both parties rested and presented closing arguments, the court determined that the September 23 and January 7 acts “were clearly course of conduct acts” that could and did cause Samantha “emotional distress and fear.” Thus, contrary to the State’s theory set out in the charging documents and not developed at trial, the court combined the September 23 and January 7 episodes to establish the proscribed course of conduct under the stalking statute.

¶14 Schroeder was convicted on all counts. This appeal followed.

ISSUE AND STANDARD OF REVIEW

¶15 Schroeder argues that there was insufficient evidence to prove his guilt beyond a reasonable doubt. “Unlike challenges to a jury verdict, a defendant need not file a separate motion or make a separate objection to challenge the sufficiency of the evidence supporting the court’s factual findings in a bench trial.” State v. Holland, 2018 UT App 203, ¶ 9, 437 P.3d 501, cert. denied, 437 P.3d 1252 (Utah 2019). “[W]e review a claim of insufficient evidence at a bench trial for clear error,” State v. Ayala, 2022 UT App 1, ¶ 15, 504 P.3d 755, meaning we “must sustain the district court’s judgment unless it is against the clear weight of the evidence, or if we otherwise reach a definite and firm conviction that a mistake has been made,” Holland, 2018 UT App 203, ¶ 9 (quotation simplified)In other words, “before we can uphold a conviction it must be supported by a quantum of evidence concerning each element of the crime as charged from which the factfinder may base its conclusion of guilt beyond a reasonable doubt.” Spanish Fork City v. Bryan, 1999 UT App 61, ¶ 5, 975 P.2d 501 (emphasis added) (quotation otherwise simplified).

ANALYSIS

  1. Protective Order Violations

¶16      Schroeder asks us to conclude that the trial court erred in finding him guilty of the September 23, 2018 and the January 7, 2019 protective order violations. He contends that there was insufficient evidence from which the court could find him guilty beyond a reasonable doubt. See generally State v. Austin, 2007 UT 55, ¶ 6, 165 P.3d 1191. We address each of the court’s rulings in turn.

  1. September 23 Protective Order Violation

¶17 Schroeder contends that the State did not produce sufficient evidence regarding Schroeder’s mental state when he drove past Samantha and her friend in front of Samantha’s home. As outlined by our Supreme Court, “when reviewing a bench trial for sufficiency of the evidence, we must sustain the trial court’s judgment unless it is against the clear weight of the evidence, or if we otherwise reach a definite and firm conviction that a mistake has been made.” State v. Gordon, 2004 UT 2, ¶ 5, 84 P.3d 1167 (quotation simplified). “An example of an obvious and fundamental insufficiency is the case in which the State presents no evidence to support an essential element of a criminal charge.” State v. Prater, 2017 UT 13, ¶ 28, 392 P.3d 398 (quotation simplified).

¶18      It is a violation of a protective order and “a class A misdemeanor,” Utah Code Ann. § 76-5-108(3) (LexisNexis Supp. 2022), when a defendant “intentionally or knowingly violates [an] order after having been properly served or having been present, in person or through court video conferencing, when the order was issued,” id. § 76-5-108(2)(b). Schroeder concedes that he was properly served with the Protective Order on August 13, 2018, and was aware of its existence. Therefore, what remains for us to decide is whether the State adduced sufficient evidence that Schroeder was aware of the Protective Order and that he “intentionally or knowingly” violated it. See id. In reviewing the sufficiency of the evidence, we are mindful that “credibility is an issue for the trier of fact.” Zappe v. Bullock, 2014 UT App 250, ¶ 8, 338 P.3d 242 (quotation simplified).

¶19      At trial, Schroeder conceded that he intentionally drove his truck past Samantha’s home after deciding not to turn around so as to avoid doing so. He recounted, “As soon as I turned on the road and realized what was going on, like I was going to flip around and then just kept on going through.” He also acknowledged that he came within 1,000 feet of Samantha’s home. Accordingly, we conclude that there was sufficient evidence to support the conviction. We further conclude that the trial court’s findings were not against the clear weight of the evidence and affirm Schroeder’s conviction regarding the September 23 protective order violation.

  1. January 7 Protective Order Violation

¶20 Schroeder next contends that the State did not provide sufficient evidence on which the trial court could determine, beyond a reasonable doubt, that he slowed down and stared at Samantha as he drove by on the cross street three houses away from her home.

¶21      At trial, the court appropriately recognized that simply driving down a cross street near Samantha’s home would “not necessarily be a violation” of the Protective Order. But the court found that Schroeder did not simply drive down the cross street, minding his own business. Instead, based on Samantha’s testimony, which the court found to be credible, the court found that Schroeder slowed and stared at Samantha as he drove past. Samantha’s testimony included her estimation, apparently found reasonable by the trial court, that she was less than 1,000 feet from the cross street when Schroeder slowed and stared at her.

¶22 Therefore, there was sufficient evidence to support the conviction, and the trial court’s findings were not against the clear weight of the evidence. Accordingly, we also affirm Schroeder’s conviction regarding the January 7 protective order violation.

  1. Stalking Conviction

¶23 Schroeder contends that the evidence supporting his stalking conviction was insufficient to establish the necessary course of conduct as charged by the State and that his conviction was therefore against the clear weight of the evidence.[6] We agree.

¶24      “Article I, section 12 of the Utah Constitution provides that every criminal defendant has a right to know ‘the nature and cause of the accusation.’” State v. Burnett, 712 P.2d 260, 262 (Utah 1985) (quoting Utah Const. art. I, § 12). “This entitles the accused to be charged with a specific crime, so that he can know the particulars of the alleged wrongful conduct and can adequately prepare his defense.” Id. Additionally, rule 4 of the Utah Rules of Criminal Procedure provides that “[a] prosecution may be commenced by filing an information,” Utah R. Crim. P. 4(a), which must contain “the name given to the offense by statute or ordinance, or stating in concise terms the definition of the offense sufficient to give the defendant notice of the charge,” id. R. 4(b)(2). And an information charging a felony or a class A misdemeanor must include “a statement of facts sufficient to support probable cause for the charged offense or offenses.” Id. R. 4(c)(1). Our Supreme Court has stated that “in a criminal proceeding . . . [the accused] is entitled to be charged with a specific crime so that he may know the nature and cause of the accusation against him” and that “the State must prove substantially as charged the offense it relies upon for conviction.” State v. Taylor, 378 P.2d 352, 353 (Utah 1963) (quotation simplified). This did not happen here with respect to the stalking charge.

¶25      The charging documents concerning the stalking charge alleged, in contemplation of section 76-5-106.5(2) of the Utah Code, as follows:

[Schroeder], on or about January 07, 2019, in Iron County, State of Utah, did (a) intentionally or knowingly engage in a course of conduct directed at [Samantha] and knew or should have known that the course of conduct would cause a reasonable person: (i) to fear for the person’s own safety or the safety of a third person; or (ii) to suffer other emotional distress[.]

¶26 Under section 76-5-106.5(2), an actor commits the offense of stalking when the actor “intentionally or knowingly . . . engages in a course of conduct” that “would cause a reasonable person . . . to fear for the individual’s safety” or “to suffer other emotional distress.” Utah Code Ann. § 76-5-106.5(2) (LexisNexis Supp. 2022). The statute also explains that a course of conduct comprises “two or more acts directed at or toward a specific individual,” id. § 76-5-106.5(1)(a)(i), and further defines emotional distress as “significant mental or psychological suffering, whether or not medical or other professional treatment or counseling is required,” id. § 76-5-106.5(1)(a)(ii)(A).

¶27 The Probable Cause Statement indicated that the stalking charge in this case was based on a course of conduct consisting of an event occurring “[oin or about January 6, 2019,” an event occurring the “following morning on January 7, 2019, between 8:00 a.m. and 9:00 a.m.,” and an event occurring “[liater that morning” on January 7, 2019. The charging documents concerning the stalking offense made no mention of the September 23 incident.

¶28      At trial, the State presented evidence only of the January 7 event. The State did not present any evidence addressing either of the other two events specified in the charging documents as establishing the requisite course of conduct for stalking. Accordingly, Schroeder had no reason to introduce controverting evidence when presenting his defense.

¶29      Following closing arguments, the trial court made findings of fact and entered its ruling. The court found Schroeder guilty of stalking based on its finding that the January 7 protective order violation and the September 23 protective order violation “were clearly course of conduct acts.”

¶30 Schroeder does not challenge the court’s finding that the January 7 protective order violation, included in the charging documents, could be a qualifying act to partially establish a stalking course of conduct. And the State presented sufficient evidence of its occurrence at trial. See supra Part I.B. But the State did not produce evidence concerning the other two incidents referred to in the Probable Cause Statement, and it never argued that the September 23 incident was relevant to the stalking charge, nor did it seek to amend the charging documents to incorporate that theory. Thus, by the end of trial, the State had established only one of the two or more incidents required to prove the stalking offense it charged. Because evidence is necessarily insufficient when the State fails to establish “an essential element of a criminal charge,” State v. Ayala, 2022 UT App 1, ¶ 15, 504 P.3d 755 (quotation simplified), we reverse Schroeder’s conviction for stalking.[7]

CONCLUSION

¶31      The trial court’s judgments were not against the clear weight of the evidence regarding Schroeder’s two convictions for the protective order violations. Therefore, we affirm Schroeder’s convictions regarding the September 23 protective order violation and the January 7 protective order violation. But because the State did not present evidence of any act specified in the relevant charging documents as constituting stalking, apart from the January 7 protective order violation, and because stalking is predicated on a course of conduct comprising two or more acts, the evidence was necessarily insufficient. Therefore, Schroeder’s stalking conviction was against the clear weight of the evidence, and we reverse that conviction.

Utah Family Law, LC | divorceutah.com | 801-466-9277

 

[1] This case is the consolidated appeal of cases 20190339-CA, 20190507-CA, and 20190508-CA.

[2] Senior Judge Kate Appleby sat by special assignment as authorized by law. See generally Utah R. Jud. Admin. 11-201(7).

[3] During the pendency of this appeal, Schroeder filed a motion for remand under rule 23B of the Utah Rules of Appellate Procedure on a claim of ineffective assistance of counsel he asserted in connection with his conviction for a protective order violation that was alleged to have occurred on January 26, 2019. We granted that motion. In March 2022, following a hearing on Schroeder’s rule 23B motion, the trial court granted the parties’ Stipulated Motion to Dismiss Charge with Prejudice. By so doing, the court dismissed the case concerning Schroeder’s January 26 protective order violation. For that reason, we do not discuss the events surrounding that charge, which is no longer at issue in this appeal.

[4] Following a bench trial, “we recite the facts from the record in the light most favorable to the findings of the trial court and present conflicting evidence only as necessary to understand issues raised on appeal.” State v. Cowlishaw, 2017 UT App 181, ¶ 2, 405 P.3d 885 (quotation simplified).

[5] A pseudonym.

[6] As previously noted, “a defendant need not file a separate motion or make a separate objection to challenge the sufficiency of the evidence supporting the court’s factual findings in a bench trial.” State v. Holland, 2018 UT App 203, ¶ 9, 437 P.3d 501, cert. denied, 437 P.3d 1252 (Utah 2019). When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised on appeal regardless of whether the party raising the question has made an objection to such findings via a motion or otherwise. See State v. Jok, 2021 UT 35, ¶ 18, 493 P.3d 665 (noting that “a sufficiency of the evidence claim is effectively preserved by the nature of a bench trial and does not require making a specific motion”).

[7] Schroeder additionally argues that the trial court’s sua sponte reconstruction of the stalking charge, following trial, in which it embraced a theory of stalking not charged, was at odds with the variance doctrine. The variance doctrine prevents the State from introducing evidence at trial that varies from the charging documents where the variance would prejudice a defendant’s case. See State v. Fulton, 742 P.2d 1208, 1215 (Utah 1987). While we premise our affirmance on the more straightforward rationale that there was insufficient evidence to establish the stalking offense as charged by the State, we recognize that our reversal of that conviction also advances the salutary purposes served by the variance doctrine.

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Corona-Leyva v. Hartman – 2022 UT App 45 – civil stalking injunction

Corona-Leyva v. Hartman – 2022 UT App 45
THE UTAH COURT OF APPEALS 

SERGIO CORONA-LEYVA,  

Appellee,  

JESUS HARTMAN,  

Appellant. 

Opinion 

No. 20200948-CA 

Filed April 7, 2022 

Fourth District Court, Provo Department 

The Honorable Thomas Low 

No. 200401402 

Sara Pfrommer, Ronald D. Wilkinson, and Nathan S.  

Shill, Attorneys for Appellant 

Sergio Corona-Leyva, Appellee Pro Se 

JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES JILL M. POHLMAN and RYAN M. HARRIS concurred. 

TENNEY, Judge: 

¶1 Sergio Corona-Leyva obtained a civil stalking injunction against Jesus Hartman. By statute, the district court was required to determine that Hartman’s “course of conduct” “would cause a reasonable person . . . to fear for the person’s own safety or the safety of a third person.” Utah Code Ann. § 76-5-106.5(2) (LexisNexis Supp. 2021).20 And in Baird v. Baird, 2014 UT 08, ¶ 26, 322 P.3d 728, the supreme court emphasized that a district court must apply an “individualized objective standard” to this element. 

¶2 In granting the injunction in this case, however, the district court found that the fear element had been met because of the subjective fears of Corona-Leyva and his neighbor. We accordingly reverse and remand so that the court can apply the correct standard. 

BACKGROUND21  

¶3 Utah Code section 78B-7-701 outlines the process for obtaining a civil stalking injunction. First, “an individual who believes that the individual is the victim of stalking may file a verified written petition for a civil stalking injunction against the alleged stalker.” Utah Code Ann. § 78B-7-701(1)(a) (LexisNexis Supp. 2021). A district court can then issue “an ex parte civil stalking injunction” if “the court determines that there is reason to believe that an offense of stalking has occurred.” Id. § 78B-7-701(3)(a). “Within 10 days after the day on which” the “ex parte civil stalking injunction is served, the respondent is entitled to request, in writing, an evidentiary hearing on the civil stalking injunction.” Id. § 78B-7-701(4). At the evidentiary hearing, “the court may modify, revoke, or continue the injunction. The burden is on the petitioner to show by a preponderance of the evidence that stalking of the petitioner by the respondent has occurred.” Id. § 78B-7-701(5). 

¶4 In September 2020, Sergio Corona-Leyva petitioned for a civil stalking injunction against Jesus Hartman, who was dating Corona-Leyva’s estranged wife. The petition covered both Corona-Leyva and his daughter (Daughter). After Corona-Leyva filed his petition, the district court granted an ex parte civil stalking injunction against Hartman, and the injunction covered both Corona-Leyva and Daughter. Hartman then timely requested an evidentiary hearing. 

¶5 The court held the evidentiary hearing in November 2020. At that hearing, Corona-Leyva represented himself and presented testimony from, among others, his neighbor, Daughter, and himself. These witnesses each corroborated Corona-Leyva’s claim that Hartman was stalking him. 

¶6 For example, Corona-Leyva’s neighbor testified that she had “seen [Hartman] on numerous occasions sitting out in front of [her] house, down [her] street.” She said that she “called [the police] on numerous occasions due to the fact that [she didn’t] feel safe with him just sitting out there.” The neighbor also explained that when she first saw Hartman, she had “no idea who he was” and that she didn’t “feel comfortable having just a random car sitting” on her street “by where [her] kids [were] playing.” 

¶7 The court asked the neighbor “how many times before September 8” she had “notice[d] him before [she] finally called the police.” The neighbor responded, “Probably at least 20 times.” When the court asked her how many times she had seen Hartman since calling the police on September 8, 2019, she replied, “Numerous times. I would say easily 25, 30 times.” She also explained that although she hadn’t seen Hartman “as much” in the “past few months,” she had “still . . . seen him drive through.” 

¶8 The court also questioned the neighbor about how she knew it was Hartman “when he’s just driving by.” The neighbor explained that “there’s suspicious behavior that he does, where he pulls up next to [her] house, will sit there for 10, 15 minutes, and then slowly creep down the road, and then race down past.” She said that “[a] lot of the times he does have windows open, a lot of times he has his music blaring.” The neighbor also identified Hartman, who was present for the virtual hearing, as “the same one who sat out in the cars.” 

¶9 Daughter testified next. She explained that she lived with her dad (Corona-Leyva), and that she didn’t have parent-time with her mom (who was living with Hartman) because Hartman “just [didn’t] make [her] feel safe.” Daughter also testified that she had seen Hartman “park and drive by” her dad’s house “[a] lot of times.” When the court asked if Hartman was driving by Corona-Leyva’s house to visit her, Daughter said, “No.” Daughter also explained that she knew it was Hartman driving by because he drives “kind of like crazy, or he just like slowly drives past and stops.” She additionally testified that his driving was “really suspicious.” But when the court asked if she “need[ed] a stalking injunction” against Hartman, Daughter responded, “No.” 

¶10 Corona-Leyva testified next, explaining that Hartman used to drive by his house “every other day” and would park outside his house “numerous time[s] half an hour to an hour.” He also testified that there was no reason for Hartman to be on his street because “it’s a dead end” and because Hartman didn’t need to drop off Corona-Leyva’s children. He further explained that Hartman continued to come to his house “all the time,” even after Corona-Leyva’s wife and other children moved in with Hartman. 

¶11 After Corona-Leyva presented his case, Hartman called several witnesses, including his parents, his sister, himself, and a licensed clinical psychologist. In contrast to Corona-Leyva’s witnesses, Hartman’s witnesses testified that Hartman was afraid of Corona-Leyva and that Hartman only went to Corona-Leyva’s house to pick up his girlfriend and her children. 

¶12 After each side presented its witnesses and gave closing arguments, the district court issued an oral ruling from the bench. The court first explained that it was “going to grant the stalking injunction, with one modification”—it removed Daughter as “a protected party.” The court stated that it was removing Daughter because there was no evidence that she was “threatened, harassed, monitored, surveilled, that kind of thing.” 

¶13 The court then recited the “elements of stalking” from the stalking statute. Of note here, these include a determination that the alleged stalker “intentionally or knowingly engage[d] in a course of conduct directed at a specific person” and that the alleged stalker “knows or should know that the course of conduct would cause a reasonable person: (a) to fear for the person’s own safety or the safety of a third person; or (b) to suffer other emotional distress.” Utah Code Ann. § 76-5-106.5(2). 

¶14 The court found that the course of conduct element was “easily satisfied with two or more acts”—namely that “Hartman has parked outside and driven past [Corona-Leyva’s] home many times.” The court expressed its view that this element was “easily” established by the neighbor’s testimony that she had seen Hartman “at least 20 times before calling the police and at least 25 to 30 times after calling the police.” 

¶15 The court then addressed whether Hartman’s conduct “would cause a reasonable person . . . (a) to fear for the person’s own safety or the safety of a third person; or (b) to suffer other emotional distress.” Id. The court stated that  

[e]motional distress has been emphasized by [Corona-Leyva], and it’s true that [Corona-Leyva] has not adduced much evidence on that issue, although he did establish that he bought a ring doorbell specifically for this purpose, which tends to indicate some emotional distress. But even so, the emotional distress requirement is not necessary here. What [Corona-Leyva] has satisfied, again, overwhelmingly, is the fear for the safety of self or another. 

¶16 When describing how Corona-Leyva demonstrated “fear for the safety of self or another,” the court referred to the neighbor’s testimony. As recounted in the transcript, the court stated that  

[t]he fact that a neighbor who has no connection to these parties had enough fear for her safety and the safety of her child to call the police, this easily establishes and corroborates [Corona-Leyva’s] expression that he fear[ed] for his own safety than that of another. That namely Daughter was who he was concerned for. 

The court continued that “[j]ust having a vehicle parked outside of your home that frequently at odd hours of the day and night is enough to cause fear for the safety of one’s self or another.” 

¶17 Based on these findings, the court entered a civil stalking injunction against Hartman and in favor of Corona-Leyva. Hartman timely appealed. 

ISSUE AND STANDARD OF REVIEW 

¶18 On appeal, Hartman argues that the district court misapplied the stalking statute “to the facts and circumstances of this case.” “The proper interpretation and application of a statute is a question of law which we review for correctness, affording no deference to the district court’s legal conclusions.” Ellison v. Stam, 2006 UT App 150, ¶ 16, 136 P.3d 1242 (quotation simplified). 

ANALYSIS 

¶19 Hartman claims that the district court “incorrectly applied the ‘fear for one’s safety’ element” of the stalking statute. We agree. 

¶20 A district court may enter a civil stalking injunction if it concludes that the alleged stalker’s “conduct violated Utah’s criminal stalking statute, Utah Code section 76-5-106.5.” Allen v. Anger, 2011 UT App 19, ¶ 14, 248 P.3d 1001. 

¶21 Under the criminal stalking statute, 

(2) A person is guilty of stalking who intentionally or knowingly engages in a course of conduct directed at a specific person and knows or should know that the course of conduct would cause a reasonable person: 

(a) to fear for the person’s own safety or the safety of a third person; or 

(b) to suffer other emotional distress.  

Utah Code Ann. § 76-5-106.5(2) (LexisNexis Supp. 2021). 

¶22 A “reasonable person” is “a reasonable person in the [petitioner’s] circumstances.” Id. § 76-5-106.5(1)(d). This statute accordingly uses an “objective standard” for this element. Baird v. Baird, 2014 UT 08, ¶ 25, 322 P.3d 728. This means that “the subjective effect of the respondent’s conduct on the petitioner is irrelevant.” Id. But our supreme court has also clarified that the question for this element is whether “the respondent’s conduct would cause emotional distress [or fear] to a reasonable person in the petitioner’s circumstances.” Id. In this sense, the element is analyzed under “an individualized objective standard.” Id. ¶ 26. 

Corona-Leyva v. Hartman 

¶23 In past cases, the supreme court has vacated injunctions based on courts’ failures to either apply an objective standard at all or instead to apply the individualized gloss to that objective standard. In Baird, for example, the court vacated an injunction because the district court had improperly focused on whether the conduct was “subjectively causing” the petitioner “distress.” Id. ¶ 28 (quotation simplified). And in Ragsdale v. Fishler, 2021 UT 29, ¶¶ 44, 48, 491 P.3d 835, the supreme court vacated an injunction because the district court had failed to consider the “entire context surrounding” the conduct and its impact “not just on a reasonable person, but a reasonable person” in the petitioner’s “specific circumstances.” 

¶24 The district court here likewise applied the wrong standard. As noted, the court determined that Corona-Leyva had “overwhelmingly” demonstrated “fear for the safety of self or another.” But when describing the basis for this determination, the court stated that the 

fact that a neighbor who has no connection to these parties had enough fear for her safety and the safety of her child to call the police, this easily establishes and corroborates [Corona-Leyva’s] expression that he fear[ed] for his own safety than that of another. That namely [Daughter] was who he was concerned for. 

(Emphases added.) 

¶25 The court thus appears to have determined that the injunction was warranted based on the subjective fears of two people: Corona-Leyva and his neighbor. In doing so, the court therefore erred by using a “subjective analysis,” rather than the “individualized objective standard” required by Baird. In light of this, “we remand so the district court can apply the correct standard.” Ragsdale, 2021 UT 29, ¶ 49.22  

¶26 Given the likelihood that this will be further litigated on remand, we make two additional observations. Cf. Sheppard v. Geneva Rock, 2021 UT 31, ¶ 47, 493 P.3d 632 (noting an appellate court’s ability to “provide additional guidance on issues that are likely to recur on remand”). 

¶27 First, while advancing his legal argument, Hartman at least arguably makes a factual challenge of his own to the court’s ruling, contending that there was “no evidence in the record” that Corona-Leyva was “in fear of his own safety or the safety of others.” If Hartman means to advance this as a separate ground for relief, we note that he has made the same error that he faults the district court for making: he improperly focuses on Corona-Leyva’s subjective fear (or lack thereof), as opposed to whether a reasonable person in Corona-Leyva’s circumstances would have had such fear. 

¶28 Second, if Hartman means to instead suggest that there’s no evidence from which the court could find that a reasonable person in Corona-Leyva’s circumstances would have any such fear, we note our disagreement with Hartman’s unduly restrictive approach to the evidence. In his brief, for example, Hartman contends that the neighbor’s testimony could not be relevant to the court’s analysis of the fear element. In a similar vein, Hartman suggests that the court’s assessment of that element should be limited to very recent events. 

¶29 But Baird itself recognized that the “individualized objective standard” allows a district court to look at a variety of factors, including “the victim’s background,” “the victim’s knowledge of and relationship with the defendant,” “any history of abuse between the parties,” “the location of the alleged stalking and its proximity to the victim’s children,” “the cumulative effect” of “repetitive conduct” by the respondent, and “any other relevant factors.” 2014 UT 08, ¶ 27. And this holistic approach is likewise consistent with Ragsdale’s insistence that a district court should consider the “entire context surrounding” the conduct when making the fear determination under the individualized objective standard. 2021 UT 29, ¶¶ 44, 48. 

¶30 Here, the neighbor testified that she saw Hartman drive by “at least 20 times” before calling police and “easily 25, 30 times” after calling the police. Hartman fails to even acknowledge this testimony in his brief, let alone account for it. And although this testimony came from the neighbor, it could certainly be used in conjunction with testimony from any other witness to establish what Hartman had actually done—which could then inform the court’s assessment of, among other factors, the “history of abuse” between the parties and the “cumulative effect” of any “repetitive conduct.” As noted, both of these can be relevant to the court’s assessment of whether Hartman’s behavior would cause fear in a reasonable person in Corona-Leyva’s circumstances. See Baird, 2014 UT 08, ¶ 27.23  

CONCLUSION 

¶31 The district court misapplied the stalking statute when it focused on the subjective fears of Corona-Leyva and his neighbor. We therefore reverse and remand so that the district court can determine whether Hartman’s conduct would cause a reasonable person in Corona-Leyva’s circumstances to suffer fear for self or another. 

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Noel v. James – 2022 UT App 33 – civil stalking injunction

Noel v. James – 2022 UT App 33

THE UTAH COURT OF APPEALS

MICHAEL EARL NOEL,

Appellee,

v.

WILLIAM THOMAS JAMES,

Appellant.

Opinion

No. 20200565-CA

Filed March 10, 2022

Sixth District Court, Kanab Department

The Honorable Marvin D. Bagley

No. 190600053

William Thomas James, Appellant Pro Se

Frank D. Mylar, Attorney for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which JUDGES JILL M. POHLMAN and RYAN D. TENNEY concurred.

HAGEN, Judge:

¶1        To obtain a civil stalking injunction, a petitioner must establish by a preponderance of the evidence that the alleged stalker’s “course of conduct . . . would cause a reasonable person: (a) to fear for the person’s own safety or the safety of a third person; or (b) to suffer other emotional distress.” Utah Code Ann. § 76-5-106.5(2) (LexisNexis Supp. 2021); see id. §§ 78B­7-102(21), -701(1), -701(5). In this case, the district court granted a stalking injunction against Appellant William James, but it made no finding as to whether James’s course of conduct would have caused a reasonable person in Appellee Michael Noel’s position to fear for his safety or suffer emotional distress. Because the basis for the injunction is not apparent in the record, we vacate the injunction and remand for additional proceedings consistent with this opinion.

BACKGROUND[1]

¶2        Noel sought a stalking injunction after he and James were kicked out of a Kanab City Council meeting. Noel is an experienced public official who previously served as a state legislator for sixteen years and now serves as the executive director of the Kane County Water Conservancy District. James is a member of a local conservancy group. Both had attended the meeting to give public comment on a controversial permitting issue.

¶3        Noel “got up and got in line” once the comment period opened. James then “got up from the corner” and joined Noel in line. As Noel later testified, “[James] came right at me in kind of a burly manner . . . requiring me to move over for him to get by in an intimidating way. . . . I’m not saying I was fearful, but he came at me and forced me” to move aside. “If I wouldn’t have moved, he would have banged into me.”

¶4        While waiting in line, Noel decided he wanted to be the last person to address the council. Accordingly, he left his place in line and moved to the back. James, however, “wanted to prevent [Noel] from having the last word on [him]”—so he, too, gave up his spot and moved to the back of the line. Noel eventually gave up waiting in line altogether. But when he turned to leave, James stood in his way “to stop [Noel] from getting behind” him once again. And so Noel and James “jockeyed” for a few moments, with Noel unable to get past James and James unwilling to let Noel through. Noel testified, I wanted him to get out of the way, and he was blocking me, and it did anger me to do that. But I was also wondering if there was going to be a confrontation here. I was actually fearful that he might, you know, . . . take a shot at me.

¶5        Noel called James “a worthless piece of garbage.” James, in turn, shouted to the audience, relaying what Noel had just called him. At this point, law enforcement intervened and asked both men to leave the meeting. Noel went home, and James was arrested after he refused to comply. At the encouragement of the chief of police, Noel later petitioned for a civil stalking injunction against James.

¶6        The district court held a full-day evidentiary hearing on the petition. At the hearing, James sought to admit videos of both the city council meeting and a chamber of commerce meeting earlier that day through a witness who had attended both meetings. The videos had not been previously disclosed.

¶7        When the issue first arose, the court and counsel for both parties were under the impression that there were only two videos—one of the chamber of commerce meeting recorded by the witness herself and one of the city council meeting recorded by a videographer hired by the conservancy group. Noel stipulated to the admission of the first video, but he objected to the second video because the videographer was not present to lay foundation. Specifically, Noel’s counsel explained, “If there’s a woman here [who] says she videoed this on her camera, and it accurately depicts what she videoed on her camera, and she was there at the meeting, and she’s subject to cross-examination, and she made the video, I think that that’s proper. But the other one I don’t.”

¶8        But when the witness was called to testify, she explained that there were actually three videos: one video from each of the two meetings that she recorded with her personal cell phone, and a third video from the city council meeting recorded by the videographer. At that point, Noel’s counsel objected to the admission of all three videos because they had not been disclosed and he was “surprised” that they were being offered as evidence. James’s counsel did not dispute that the videos had not been disclosed in advance but claimed that, when the matter was discussed earlier, Noel “had stipulated to anything that [the witness] had personally recorded.” In response, Noel’s counsel argued that he had merely stipulated to the chamber of commerce video: “That’s all we were discussing at the time.” The court agreed with Noel’s counsel that the stipulation was limited to the chamber of commerce video. And because Noel “didn’t make the objection before about not having [the chamber of commerce video] in advance,” the court held him to that stipulation. The court received the chamber of commerce video into evidence per the stipulation, but excluded the other two based on the objection.

¶9        At the conclusion of the hearing, the district court determined that James had engaged in a course of conduct directed at Noel, as required under the civil stalking statute. The court found that the course of conduct consisted of two component acts, each committed at the city council meeting: (1) when James approached Noel “in a kind of burly manner,” and (2) when James “blocked [Noel] from going back to his seat.” The court did not make an express finding that James’s conduct would cause a reasonable person in Noel’s circumstances to fear for his safety or suffer emotional distress. Nonetheless, the court granted the requested stalking injunction.

ISSUES AND STANDARDS OF REVIEW

¶10 James now appeals, contending that the district court erred in imposing a civil stalking injunction against him.[2] James primarily argues that his course of conduct would not have caused a reasonable person in Noel’s circumstances to fear for his safety or suffer emotional distress. Although the question of whether “a reasonable person would suffer fear or emotional distress” under the circumstances “is a question of fact that we review for clear error, we review the district court’s interpretation [and application] of the underlying legal standard for correctness.” Ragsdale v. Fishler, 2021 UT 29, ¶ 16, 491 P.3d 835; see also Baird v. Baird, 2014 UT 08, ¶ 16, 322 P.3d 728 (“The proper interpretation and application of a statute is a question of law which we review for correctness, affording no deference to the district court’s legal conclusion.” (cleaned up)).

¶11 James also challenges the district court’s decision to exclude video evidence of the city council meeting. Specifically, he contends that the “videos met the [parties’] stipulation for new video evidence” and that, therefore, the district court erred by excluding them. “The scope of a stipulation presents a question of fact, which we review for clear error.” Fuller v. Bohne, 2017 UT App 28, ¶ 9, 392 P.3d 898 (cleaned up).

ANALYSIS

I. Civil Stalking Injunction

¶12 To obtain a civil stalking injunction, the petitioner “must prove by a preponderance of the evidence that ‘an offense of stalking has occurred.’” Ragsdale v. Fishler, 2021 UT 29, ¶ 25, 491 P.3d 835 (quoting Utah Code Ann. § 77-3a-101(7) (LexisNexis 2017)).[3] “The crime of stalking consists of two elements. First, a person must ‘intentionally or knowingly engage in a course of conduct directed at a specific person.’” Id. (cleaned up) (quoting Utah Code Ann. § 76-5-106.5(2) (LexisNexis 2017)). By statute, a “‘[c]ourse of conduct’ means two or more acts directed at or toward a specific person.” Utah Code Ann. § 76-5-106.5(1)(a) (LexisNexis Supp. 2021) (listing several examples of qualifying acts). Second, the respondent “must ‘know or should know that the course of conduct would cause a reasonable person’ to ‘fear for the person’s own safety’ or ‘suffer other emotional distress.’” Ragsdale, 2021 UT 29, ¶ 25 (quoting Utah Code Ann. § 76-5­106.5(2)). A “reasonable person” is statutorily defined as “a reasonable person in the victim’s circumstances.” § 76-5­106.5(1)(d).

¶13      Although the district court recited both elements, it made findings on the first element only. It identified an intentional course of conduct consisting of two acts: approaching Noel in a “burly manner” and later blocking Noel from returning to his seat. But the court did not make a factual finding on the second element, that is, whether James knew or should have known that his course of conduct would have caused a reasonable person in Noel’s circumstances to fear for his safety or suffer emotional distress. “When confronted with questions of fact, this court will only rule as a matter of law if the evidence is so clear and persuasive that all reasonable minds would find one way.” See Baird v. Baird, 2014 UT 08, ¶ 29, 322 P.3d 728 (cleaned up). Otherwise, “remand is appropriate” to allow the district court to make that determination. See id.

¶14      Noel acknowledges that the district court never addressed the second element on the record, but he argues that James failed to preserve the issue for appeal. We disagree. To issue a stalking injunction, “the district court necessarily had to consider whether [Noel] had established each element of a stalking offense.” See id. ¶ 20. Thus, the court had an opportunity to rule on whether the statutory elements were met, and that issue is “adequately preserved” for appeal. See id. In any event, James specifically argued to the court that “[t]his [was] not a situation where a reasonable person . . . in [Noel’s] position” would have been “afraid of physical harm or . . . in emotional distress.” And he moved “essentially for a directed verdict” on that basis. Therefore, we are confident that James presented this issue “to the district court in such a way that the court ha[d] an opportunity to rule on it.” See State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443 (cleaned up).

¶15      Alternatively, Noel contends that we can affirm on appeal because the district court “had evidence to determine that James acted in a threatening manner that would have made a reasonable person fearful or suffer some emotional distress over the two encounters.” When the district court does “not explicitly make a necessary finding,” we may still affirm “if the evidence and statements contained in the record make the evidentiary basis for this finding sufficiently clear.” See Sheeran v. Thomas, 2014 UT App 285, ¶ 8, 340 P.3d 79 (cleaned up); see also State v. Bingham, 2015 UT App 103, ¶¶ 28–29, 348 P.3d 730 (explaining that a reviewing court may “assume that the [district] court found the facts in accord with its decision,” unless “the ambiguity of the facts makes this assumption unreasonable” (cleaned up)). But here, the evidentiary basis for finding that Noel satisfied the second element is not sufficiently clear from this record.

¶16 To determine whether the petitioner has met the second element required for a civil stalking injunction, we apply “an individualized objective standard.” Baird, 2014 UT 08, ¶ 26. Under this standard, the “subjective effect of the respondent’s conduct on the petitioner is irrelevant.” Ragsdale, 2021 UT 29, ¶ 45. Instead, the relevant question is whether the conduct would have caused fear or emotional distress to “a reasonable person in the petitioner’s circumstances.” Id. (quoting Baird, 2014 UT 08, ¶ 25). “In applying this standard, courts must consider the entire context surrounding a respondent’s conduct” and “must consider the conduct cumulatively, accounting for the facts and circumstances of the individual case.” Id. (cleaned up).

¶17      Our supreme court has suggested a non-exhaustive list of factors that may be relevant to this assessment. Those factors include “the victim’s background, the victim’s knowledge of and relationship with the defendant, any history of abuse between the parties, the location of the alleged stalking and its proximity to the victim’s children, if any, and the cumulative effect of defendant’s repetitive conduct.” Baird, 2014 UT 08, ¶ 27 (cleaned up). “Furthermore, under an individualized objective standard, a court may consider whether the defendant had knowledge of a particular vulnerability of the victim and then acted with full knowledge of the victim’s vulnerability.” Id. (cleaned up).

¶18 Under this standard, it is far from obvious that a reasonable person in Noel’s circumstances would have feared for his safety or suffered emotional distress, given the context in which James’s conduct took place. See Utah Code Ann. § 76-5-106.5(2)(a)–(b) (LexisNexis Supp. 2021). The encounter occurred in a public place—a city council meeting—and in full view of a room packed with witnesses. Law enforcement officers were stationed at the meeting and ready to intervene. And Noel is an experienced public official accustomed to dealing with members of the public. See Baird, 2014 UT 08, ¶ 27 (indicating that the individualized objective standard considers “the victim’s background”). Although Noel testified that James was “a loose cannon” and “a different guy than [Noel had] dealt with in [his] years of public service,” the district court made no finding that a reasonable person in Noel’s circumstances would have found James particularly threatening. And even though James was ultimately arrested, his arrest was based not on his conduct toward Noel, but on his refusal to comply when law enforcement ordered both men to leave the meeting.

¶19 Noel argues that a reasonable person would fear for his safety under these circumstances. He suggests that the district court’s finding that James approached in a burly manner “could mean that James was acting tough or flexing his muscles or puffing his chest in a manner that would suggest physical aggression.” Perhaps it could, but we have no findings to that effect. Nor do we have a finding that such a display would cause a reasonable person to fear for his safety in the context in which it occurred—a well-attended, public meeting, with law enforcement officers standing by.

¶20 Noel also argues that the evidence supported a finding that James’s conduct would have caused “some emotional distress,” but that is not the standard. The stalking statute defines “emotional distress” as “significant mental or psychological suffering, whether or not medical or other professional treatment or counseling is required.” See Utah Code Ann. § 76-5-106.5(1)(b) (emphasis added). Noel has pointed to no evidence in the record that would have clearly supported a finding that James knew or should have known that his course of conduct would cause a reasonable person in Noel’s circumstances to suffer “emotional distress,” as defined by statute.

¶21      If the district court applied the correct legal standard and implicitly found the second element satisfied, the evidentiary basis for that ruling is not clear on this record. Although the interaction that occurred at the city council meeting was certainly uncivil, it is not the type of conduct that would ordinarily cause a reasonable person to fear for his physical safety or experience “significant mental or psychological suffering”—at least not without other contextual facts not apparent from the record. See id.

¶22 Having heard the evidence firsthand, the district court is in an advantaged position to make factual findings as to whether Noel has proved the second element by a preponderance of the evidence. We ordinarily rely on the district court to make those kinds of assessments, because it has “personally observed the quality of the evidence, the tenor of the proceedings, and the demeanor of the parties.” Baird, 2014 UT 08, ¶ 30. “This is particularly true in a case like this one where the record consists almost entirely of evidence presented at an evidentiary hearing.” See id. Therefore, we vacate the injunction and remand for the district court to determine whether Noel has proved the second element under the legal standard explained in this opinion.

II. Scope of the Stipulation

¶23 Because we are remanding for further findings, we must also reach the question of whether the district court properly excluded video of the interaction between James and Noel at the city council meeting. James argues on appeal that the district court abused its discretion by excluding both videos of the city council meeting, because Noel had stipulated to the admission of late-disclosed videos so long as James laid sufficient foundation by calling the person who recorded each one.

¶24 But in excluding the videos of the city council meeting, the district court found that the parties’ stipulation was limited to the chamber of commerce video. James’s counsel asserted that Noel “had stipulated to anything that [the witness] had personally recorded,” but Noel’s counsel pointed out that, at the time of the stipulation, he was unaware of the existence of the third video and that the only thing counsel had discussed was the chamber of commerce video. The court agreed with Noel’s counsel, saying, “That’s the way I understood the stipulation.”

¶25 The district court’s finding that the stipulation was limited to the chamber of commerce video was not clearly erroneous. At the time of the stipulation, the parties were discussing only two videos. Noel stipulated to the admission of the chamber of commerce video taken by the witness and objected to the admission of the city council video taken by the videographer based on lack of foundation. His stipulation to the chamber of commerce video cannot fairly be read as a stipulation to a third video that he did not know existed.

¶26 James has not argued that the videos were timely disclosed, that the disclosure violation could be excused for good cause, or that the failure to disclose was harmless. See Utah R. Civ. P. 26(d)(4) (“If a party fails to disclose or to supplement timely a disclosure or response to discovery, that party may not use the undisclosed witness, document, or material at any hearing or trial unless the failure is harmless or the party shows good cause for the failure.”). Therefore, he has not established any basis on which to reverse the district court’s exclusion of the city council videos.

CONCLUSION

¶27 James has not established that the district court erred in excluding the late-disclosed videos of the city council meeting, but he has established that the injunction was entered without the necessary findings. Specifically, the district court made no express finding as to whether James knew or should have known that his course of conduct would have caused a reasonable person in Noel’s circumstances to fear for his safety or suffer emotional distress. Because the record does not provide a clear evidentiary basis for the court’s decision, we vacate the stalking injunction against James and remand for additional proceedings consistent with this opinion.


[1] “On appeal, when a trial court has made findings of fact to support a civil stalking injunction, we will recite the facts in a light most favorable to the trial court’s findings.” Sheeran v. Thomas, 2014 UT App 285, ¶ 2 n.1, 340 P.3d 797.

[2] James, a non-attorney, represents himself in this appeal. We hold him “to the same standard of knowledge and practice as any qualified member of the bar,” but accord him “every consideration that may reasonably be indulged.” See State v. Winfield, 2006 UT 4, ¶ 19, 128 P.3d 1171 (cleaned up).

[3] Although the 2018 amendment of the civil stalking statute governs this case, we cite the most recent version of the civil stalking statute for convenience—unless a prior version is quoted by a different source. Regardless of the version quoted throughout this opinion, the statutory language at issue is the same.


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2022 UT App 15 – Miller v. DaSilva – protective order objections

2022 UT App 15 – Miller v. DaSilva

http://www.utcourts.gov/opinions/view.html?court=appopin&opinion=Miller v. Dasilva20220203_20200719_15.pdf

THE UTAH COURT OF APPEALS

LISA M. MILLER,
Appellant,
v.
AMY ELIZABETH DASILVA,
Appellee.

Opinion

No. 20200719-CA

Filed February 3, 2022

Third District Court, Salt Lake Department

The Honorable Robert P. Faust

No. 204904364

Steve S. Christensen and Clinton Brimhall, Attorneys
for Appellant

Amy Elizabeth Dasilva, Appellee Pro Se

JUDGE DIANA HAGEN authored this Opinion, in which JUDGES
GREGORY K. ORME and MICHELE M. CHRISTIANSEN FORSTER concurred.

HAGEN, Judge:

¶1        A final judgment on a petition for a cohabitant abuse protective order cannot be entered based on a commissioner’s recommendation until the parties are afforded their statutory right to object. If a timely objection is filed, the objecting party is entitled to a hearing before the district court. In this case, once the commissioner recommended that the protective order be denied and the case dismissed, a final order was immediately entered and the petitioner’s timely objection was subsequently denied without a hearing. Because a final judgment was entered before the time for filing an objection had passed and without holding a hearing on the objection, we vacate the final judgment and remand to the district court to hold the required hearing.

BACKGROUND

¶2        Lisa Miller petitioned the district court for a cohabitant abuse protective order against her former friend and tenant, Amy Dasilva. A temporary protective order was issued, and a hearing was scheduled before a commissioner. At the conclusion of the hearing, the commissioner made the following findings:

I cannot find that there is sufficient evidence to support a finding that Ms. Da[s]ilva has been stalking Ms. Miller. And I cannot find a fear of ongoing physical harm.[1] And, therefore, I am going to respectfully dismiss the protective order.

A minute entry reflected that the “Commissioner recommends” that the petition “be DENIED and this case be dismissed” because “[t]he evidence does not support the entry of a protective order.”

¶3        That same day, at the direction of a district court judge, the court clerk entered a final order that stated: “This case is dismissed. Any protective orders issued are no longer valid.”

¶4        Miller filed a timely objection to the commissioner’s recommendation, requesting an evidentiary hearing before the district court pursuant to rule 108 of the Utah Rules of Civil Procedure. The next day, the district court denied that objection on the grounds that “dismissal of a protective order . . . is not a matter that is heard by the District Court Judges under Rule 108 as it is not a recommendation of the Commissioner, but rather a final decision.”

¶5        Miller filed a timely notice of appeal.

ISSUE AND STANDARD OF REVIEW

¶6        The dispositive issue before us is whether, under Utah Code section 78B-7-604(1)(f), the district court was permitted to immediately dismiss the case based on the commissioner’s recommendation and thereafter deny Miller’s objection and request for a hearing. “The proper interpretation and application of a statute is a question of law, and we afford no deference to the trial court in reviewing its interpretation.” Patole v. Marksberry, 2014 UT App 131, ¶ 5, 329 P.3d 53 (cleaned up).

ANALYSIS

¶7        Under the Cohabitant Abuse Act, the court may issue a protective order without notice to the other party (an ex parte protective order) if it appears from the petition “that domestic abuse has occurred” or is substantially likely to occur. Utah Code Ann. § 78B-7-603(1)(a) (LexisNexis Supp. 2020). If the court issues an ex parte protective order, it must schedule a hearing and provide notice to the respondent. Id. § 78B-7-604(1)(a). After notice and a hearing, the court may issue a cohabitant abuse protective order, which is effective until further order of the court. Id. § 78B-7-604(1)(e). If such an order is not issued, the ex parte protective order expires unless extended by the court. Id. § 78B-7-604(1)(b).

¶8 A commissioner may conduct the required hearing in cohabitant abuse cases and “[m]ake recommendations to the court.” Utah R. Jud. Admin. 6-401(1)–(2)(D). If the hearing takes place before a commissioner, “either the petitioner or respondent may file an objection within 10 days after the day on which the recommended order [is issued by the commissioner] and the assigned judge shall hold a hearing within 20 days after the day on which the objection is filed.”[2] Utah Code Ann. § 78B-7­604(1)(f).

¶9        Here, the district court denied Miller’s objection to the commissioner’s recommendation without holding a hearing. Miller argues this was a “violation of the mandate in Utah Code Ann. § 78B-7-604(1)(f).” We agree.

¶10 In denying Miller’s objection, the court ruled that “dismissal of a protective order” is not a matter that can be heard by the district court under rule 108 because “it is not a recommendation of the commissioner, but rather a final decision.” Because commissioners are prohibited from making “final adjudications,” Utah R. Jud. Admin. 6-401(4)(A), we assume that the district court was referring not to the commissioner’s recommendation, but to the order dismissing the case entered at the direction of a district court judge immediately after the hearing before the commissioner. Even so, the rule expressly provides that “[a] judge’s counter-signature on the commissioner’s recommendation does not affect the review of an objection.” Utah R. Civ. P. 108(a). Once Miller filed a timely objection to the commissioner’s recommendation and a request for hearing, the district court was statutorily required to hold a hearing within twenty days. See Utah Code Ann. § 78B-7­-604(1)(f). The district court erred by denying the objection without holding such a hearing.

CONCLUSION

¶11 The district court did not have authority to enter a final order dismissing this case before the time for filing an objection to the commissioner’s recommendation had expired. Because Miller filed a timely objection and request for hearing, she was entitled to a hearing before the district court. Accordingly, we vacate the final judgment, reverse the district court’s order denying the objection, and remand for the district court to hold the hearing required by statute.

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Do judges sometimes feel overburdened by the responsibilities of their job?

Yes, and for good reason. First, let me be unusually but sincerely candid: many judges and many of the actions that judges take disappoint me. There are some excellent judges on the bench who are clearly skilled in the law and know how to apply it accurately, justly, and equitably. Would that all judges lived up to this standard. But not all judges do. I mention this so that the context of my answer to your question is clear.

Being a judge is, in my opinion, mostly a thankless job. Sure, there are some obvious perks to being a judge, including, but not limited to, a good salary, state and federal holidays off, most judges receive a generous pension when they retire, the prestige of being called “Your Honor,” but the burdens of being a judge are in some ways unimaginable. Can you conceive of sentencing someone to life in prison or death? Or even sentencing someone to 5 to 10 years in prison when you’re not certain of his or her guilt? Can you imagine what it must be like to spend your work week, week after week, hearing hundreds of stories of lying, cheating, robbing, destroying property, assaulting, raping and murdering? It all takes an inevitable toll on even the strongest of people. Those judges who do the best they can and do the job well day after day, year-over-year deserve not only our respect, but our sympathy, our thanks, and support.

All that stated, there are clearly some judges who are not cut out for the job and need to quit. Some need to quit because they are not competent as judges. Some need to quit because, while they might have been up to the demands of the job in the beginning, they aren’t anymore. Some need to quit before they become so jaded that they cannot give the job and the people who come before them the attention both the job–and the cases they hear and decide–deserve.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Do-judges-sometimes-feel-overburdened-by-the-responsibilities-of-their-job/answer/Eric-Johnson-311?prompt_topic_bio=1

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Can I get a restraining order against a couple?

Can I get a restraining order against a couple?

In a sense, no (but you can still obtain a restraining order against both people).

A “couple” would not be something against which you can get restraining or protective order, but if both members of a couple individually commit the acts that would entitle you to restraining order, protective order, or stalking injunction, then you would apply for the order against each member of the couple because you want and need protection from both of them.

Let’s say that one spouse of a married couple is assaulting you, or attempting to assault you, or threatening to assault you. And let’s say that there is no question that the other spouse in the couple has done nothing wrong (isn’t even aware of what his/her spouse is doing wrong). In that scenario, there would be no basis for seeking a restraining order against both people. But if both of them are causing, attempting, or threatening harm, then you could certainly seek a restraining or protective order or stalking injunction against them both.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Can-I-get-a-restraining-order-against-a-couple/answer/Eric-Johnson-311

 

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Hardy v. Hardy – 2020 UT App 88 – Utah Court of Appeals – civil stalking

2020 UT App 88

THE UTAH COURT OF APPEALS
KAREN HARDY, Appellee,
v.
BRIAN NEIL HARDY, Appellant.

Opinion
No. 20190496-CA
Filed June 11, 2020
Fifth District Court, St. George Department

The Honorable Michael Leavitt
No. 190500106

Lewis P. Reece and Devon James Herrmann, Attorneys for Appellant
Benjamin Lusty and Stephanie Lenhart, Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES GREGORY K. ORME and KATE APPLEBY concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Brian Neil Hardy appeals the district court’s entry of a civil stalking injunction against him. We reverse.

BACKGROUND

¶2        Brian and his former wife, Karen Hardy,[1] had a strained relationship following their divorce. Brian believed that Karen was taking their child to a particular therapist he did not approve of, which would have been a violation of their divorce decree. To confirm his suspicions, he went to the therapist’s office at the time when he believed Karen had an appointment scheduled for their child. Brian observed Karen in her vehicle outside the therapist’s office and took two photographs to use as evidence.

¶3        Karen saw Brian’s car at the therapist’s office and filed a request for a civil stalking injunction the same day. The petition alleged a separate stalking incident in addition to the incident at the therapist’s office, but the district court determined that the other incident did not amount to stalking. Nevertheless, the court found that by both observing and photographing Karen at the therapist’s office, Brian had engaged in a course of conduct that amounted to stalking. The court found that “the addition of the photographing is a separate act, over and above observing,” because “the purpose for photographing is different than . . . the purpose for observing or monitoring something.” Additionally, the court found that the actions were directed at Karen and that Brian knew or should have known that they would cause her emotional distress. Accordingly, the court granted the civil stalking injunction. Brian now appeals.

ISSUE AND STANDARD OF REVIEW

¶4      Brian raises only one issue on appeal. He asserts that the district court erred in determining that observing and photographing Karen on the day in question could be considered a “course of conduct” under the Utah Code. Whether someone has engaged in a course of conduct under the stalking statute is a question of law, which we review for correctness. Judd v. Irvine, 2015 UT App 238, ¶ 8, 360 P.3d 793 (per curiam).

ANALYSIS

¶5        Utah Code section 77-3a-101 allows for the entry of a civil stalking injunction upon a district court finding that “an offense of stalking has occurred.” Utah Code Ann. § 77-3a-101(5)(a) (LexisNexis 2017). Under Utah law, stalking occurs when a person

intentionally or knowingly engages in a course of conduct directed at a specific person and knows or should know that the course of conduct would cause a reasonable person:

(a)        to fear for the person’s own safety or the safety of a third person; or

(b)       to suffer other emotional distress.

Id. § 76-5-106.5(2) (Supp. 2019). A “course of conduct” is defined as “two or more acts directed at or toward a specific person” and can include, among other things, “acts in which the actor follows, monitors, observes, photographs, surveils, [or] threatens . . . a person.” Id. § 76-5-106.5(1)(b)(i).

¶6        We agree with Brian that observing and photographing Karen at the same time and for the same purpose was not sufficient to establish a course of conduct under the stalking statute. Observing someone is generally inherent in the act of photographing them, especially in the context of the stalking statute where the photography must be knowing and directed toward a specific person.[2] See id. § 76-5-106.5(2). If we were to classify observing and photographing as separate acts in this context, it would mean that in virtually all circumstances where the other elements of the statute are met, the act of photographing would necessarily establish a course of conduct. We do not believe this is consistent with the statute’s stated intent that a course of conduct be composed of “two or more acts.” See id. § 76-5-106.5(1)(b). Further, it is inconsistent with the nature of stalking, which is inherently “an offense of repetition.”[3] See Ellison v. Stam, 2006 UT App 150, ¶ 28, 136 P.3d 1242.

¶7 We also consider the purpose of the conduct to be relevant in assessing whether two separate acts have occurred. The district court observed that “the purpose for photographing is different than . . . the purpose for observing or monitoring something.” But nothing in the facts of this case supports a finding that the observing and photographing served different purposes. Rather, they were part of a single act intended to expose Karen for allegedly violating the parties’ divorce decree by taking their child to a therapist unapproved by Brian.[4]

¶8 We also do not assign the same significance to the listing of possible acts of stalking included in the statute that Karen does. Just because observing and photographing are listed separately in the statute does not mean that they are distinct acts when they occur simultaneously and where one is inherent in the other. Indeed, many of the examples of stalking listed in the statute may overlap. For example, monitoring (“to watch, observe, or check”), observing (“to take notice [or] be attentive”), and surveilling (to keep “close watch . . . over one or more persons”) are essentially synonyms in most cases. See Monitor, Webster’s Third New Int’l Dictionary (1986); id. Observance; id. Surveillance. And following, like photographing, cannot be accomplished without some degree of monitoring, observing, or surveilling. Thus, the fact that a single action may be described by more than one named example in the statutory list does not mean multiple acts of stalking have occurred. Rather, the alleged actions must be distinct in time or purpose. In this case, the photographing and observing together were a single “act” and cannot constitute a course of conduct.

CONCLUSION

¶9 Because the observing and photographing constituted a single act for purposes of the stalking statute, they did not constitute a course of conduct, and the district court therefore erred in granting the stalking injunction. Accordingly, we reverse the district court’s decision and vacate the stalking injunction.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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[1] As is our practice in cases where both parties share a last name, we refer to the parties by their first names with no disrespect intended by the apparent informality.

[2] Karen asserts that people can be photographed “randomly, in an impromptu fashion, or coincidentally,” as well as “remotely” or automatically by surveillance cameras. But such situations would be highly unlikely to fall within the stalking statute in the first place, as it would be difficult to demonstrate that the act of photographing someone was either knowing or directed at the person if it was accomplished without observation.

[3] Karen correctly points out that in 2008, the Utah Legislature modified the definition of “course of conduct” in the stalking statute by removing the reference to “repeatedly” and changing the course-of-conduct requirement from “two or more occasions” to “two or more acts.” See Act of March 18, 2008, ch. 356, § 2, 2008 Utah Laws 2290, 2292. But we do not believe these changes are as significant as Karen argues. “Stalking, by its very nature, is an offense of repetition,” and “conduct is rendered . . . more threatening because it is repeated.” Ellison v. Stam, 2006 UT App 150, ¶ 28, 136 P.3d 1242 (emphasis added).

[4] We could conceive of a circumstance in which a single event with multiple distinct acts undertaken for different purposes or separated by some amount of time might constitute a course of conduct. For example, if Brian had followed Karen to learn where she was going and then photographed her to prove that she was engaging in inappropriate conduct, the following and photographing/observing might constitute two separate acts. But in this case, nothing indicates that the observation was distinct either in time or purpose from the photographing. The photographing and observing occurred essentially simultaneously and furthered a single purpose of proving that Karen was taking the child to therapy.

What happens to a person who files a protective order out of spite?

What happens to a person who files a protective order out of spite?

Unless you can prove it was filed out of spite/fraudulently: nothing.

Clearly, there are people who are dangerous and their victim’s or potential victims need and deserve protection. Still, after more than 23 years in practice it is my opinion 1) that most (most, not all) protective orders are filed spitefully/fraudulently, and 2) that few falsely filed protective order applications are dismissed as without merit.

Why?

In my experience many courts don’t exercise the courage to deny insufficiently supported protective order applications is because they don’t want to.

Why?

I believe that when courts don’t want to deny insufficiently supported protective order applications it is because they do not have the will or courage to deny those insufficiently supported protective order applications.

Why?

They don’t want to deny an insufficiently supported protective order application only to learn a week later that the respondent/defendant put the applicant in the hospital or the morgue. They don’t want it on their conscience and/or to be blamed and criticized for such a situation. That’s perfectly understandable, but it’s still totally wrong; it’s a blatant denial of due process and a blatant failure to abide by the applicable standards of proof, but many courts feel that “better safe than sorry” and “an abundance of caution” trump these bedrock principles of justice. They do not. Exercising judgment is a tough and thankless job, but it’s the job nonetheless. If a judge does not have the guts to apply the law impartially and correctly to the best of the judge’s ability, that judge has no business being a judge.

It is a crime to lie to judges. It is a crime to lie to law enforcement. It is a crime in my jurisdiction (Utah) to seek a protective order fraudulently. That is likely true for most jurisdictions. Here are some ways one could be charged and prosecuted IF a prosecutor were interested in pursuing such a charge (and they rarely are):

Utah Code § 76-8-506. Providing false information to law enforcement officers, government agencies, or specified professionals.

A person is guilty of a class B misdemeanor if he:

(1) knowingly gives or causes to be given false information to any peace officer or any state or local government agency or personnel with a purpose of inducing the recipient of the information to believe that another has committed an offense;

(2) knowingly gives or causes to be given to any peace officer, any state or local government agency or personnel, or to any person licensed in this state to practice social work, psychology, or marriage and family therapy, information concerning the commission of an offense, knowing that the offense did not occur or knowing that he has no information relating to the offense or danger;

******

Utah Code § 76-8-504. Written false statement.

A person is guilty of a class B misdemeanor if:

(1) He makes a written false statement which he does not believe to be true on or pursuant to a form bearing a notification authorized by law to the effect that false statements made therein are punishable; or

(2) With intent to deceive a public servant in the performance of his official function, he:

(a) Makes any written false statement which he does not believe to be true; or

(b) Knowingly creates a false impression in a written application for any pecuniary or other benefit by omitting information necessary to prevent statements therein from being misleading; or

(c) Submits or invites reliance on any writing which he knows to be lacking in authenticity; or

(d) Submits or invites reliance on any sample, specimen, map, boundary mark, or other object which he knows to be false.

(3) No person shall be guilty under this section if he retracts the falsification before it becomes manifest that the falsification was or would be exposed.

Utah Code § 76-8-502. False or inconsistent material statements.

A person is guilty of a felony of the second degree if in any official proceeding:

(1) He makes a false material statement under oath or affirmation or swears or affirms the truth of a material statement previously made and he does not believe the statement to be true; or

(2) He makes inconsistent material statements under oath or affirmation, both within the period of limitations, one of which is false and not believed by him to be true.

Utah Code § 76-8-503. False or inconsistent statements.

(1) Except as provided in Subsection (2), a person is guilty of a class B misdemeanor if:

(a) the person makes a false statement under oath or affirmation or swears or affirms the truth of the statement previously made and the person does not believe the statement to be true if:

(i) the falsification occurs in an official proceeding, or is made with a purpose to mislead a public servant in performing the public servant’s official functions; or

(ii) the statement is one that is authorized by law to be sworn or affirmed before a notary or other person authorized to administer oaths; or

(b) the person makes inconsistent statements under oath or affirmation, both within the period of limitations, one of which is false and not believed by the person to be true.

(2) Subsection (1) does not include obstructing a legislative proceeding, as described in Section 36-12-9.5.

(3) A person is not guilty under this section if the person retracts the falsification before it becomes manifest that the falsification has been or will be exposed.

Utah Code § 76-8-501. Definitions.

As used in this part:

(1) “False statement” includes a false unsworn declaration, with “unsworn declaration” being defined in Section 78B-18a-102.

(2) “Material” means capable of affecting the course or outcome of an official proceeding, unless the person who made the statement or provided the information retracts the statement or information before the earlier of:

(a) the end of the official proceeding in which the statement was made or the information was provided;

(b) when it becomes manifest that the false or misleading nature of the statement or information has been or will be exposed; or

(c) when the statement or information substantially affects the proceeding.

(3) “Official proceeding” means:

(a) any proceeding before:

(i) a legislative, judicial, administrative, or other governmental body or official authorized by law to take evidence under oath or affirmation;

(ii) a notary; or

(iii) a person that takes evidence in connection with a proceeding described in Subsection (3)(a)(i);

(b) any civil or administrative action, trial, examination under oath, administrative proceeding, or other civil or administrative adjudicative process; or

(c) an investigation or audit conducted by:

(i) the Legislature, or a house, committee, subcommittee, or task force of the Legislature; or

(ii) an employee or independent contractor of an entity described in Subsection (3)(c)(i), at or under the direction of an entity described in Subsection (3)(c)(i).

Utah Code § 76-8-505. False or inconsistent statements — Proof of falsity of statements — Irregularities no defense.

(1) On any prosecution for a violation of Subsection 76-8-502(1) or 76-8-503(1)(a), falsity of a statement may not be established solely through contradiction by the testimony of a single witness.

(2) In prosecutions for violation of Subsection 76-8-502(2) or 76-8-503(1)(b), it need not be alleged or proved which of the statements are false but only that one or the other is false and not believed by the defendant to be true.

(3) It is not a defense to a charge under this part that the oath or affirmation was administered or taken in an irregular manner.

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Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/What-happens-to-a-person-who-files-a-protective-order-out-of-spite/answer/Eric-Johnson-311

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If someone obtains a restraining order against me, can I obtain one against him/her?

If someone put a restraining order on you only because they thought you were going to put one on them and they are the one who is stalking and harassing you, can you put one on them before anything is decided by the judge?

This happens a lot, i.e., the real perp accuses you of the very things he/she is doing and on that basis “preemptively” requests a restraining order or protective order or stalking injunction (whatever options that particular jurisdiction allows) against you before you can seek one against him/her.

Some jurisdictions, however, do not bar you from seeking some kind of protective order against such a perp, even if he/she obtained one against you first. Utah is such a jurisdiction. Consult a knowledgeable attorney in your jurisdiction to find out what options you may have.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/If-someone-put-a-restraining-order-on-you-only-because-they-thought-you-were-going-to-put-one-on-them-and-they-are-the-one-who-is-stalking-and-harassing-you-can-you-put-one-on-them-days-before-anything-is-decided-by/answer/Eric-Johnson-311

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2020 UT App 73 – Utah Court of Appeals – civil stalking, contempt, intent

2020 UT App 73  THE UTAH COURT OF APPEALS

ALICIA W. KOEHLER,
Appellee,
MARK STEWART ALLEN,
Appellant.

Opinion
No. 20190395-CA
Filed May 7, 2020

Fourth District Court, Provo Department
The Honorable M. James Brady
No. 160400655

Scott N. Weight, Attorney for Appellant
Albert N. Pranno and Justin T. Ashworth, Attorneys
for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

HAGEN, Judge:

¶1        The district court found Mark Stewart Allen in contempt for violating a civil stalking injunction when he contacted Alicia W. Koehler via email. On appeal, Allen argues that insufficient evidence supported the district court’s findings that (1) he knew that he was subject to a civil stalking injunction, and (2) he intentionally violated the civil stalking injunction. Although we reject his first argument, we reverse on the second and remand for the district court to enter an explicit finding as to whether Allen acted intentionally.

BACKGROUND[1]

¶2        Allen and Koehler met in 2011 on Facebook. Whatever relationship developed between the two apparently deteriorated because Koehler requested that Allen “discontinue contact” with her in July 2013. But Allen continued to contact Koehler by emailing her, reaching out through third parties, sending Koehler and her family gifts, and entering Koehler’s home while she was not there. After contacting the police in 2014 and 2015, Koehler sought a civil stalking injunction in April 2016.

¶3        The district court granted Koehler a temporary civil stalking injunction (the injunction) on May 2, 2016. The injunction prohibited Allen from contacting Koehler and specifically advised him not to “contact, phone, mail, e-mail, or communicate in any way with [Koehler] . . . either directly or indirectly.” In bolded italics, the order stated that “[t]his order ends 3 years after it is served.” In a section titled “Warnings to the Respondent,” the injunction stated “[t]his is an official court order” and “[n]o one except the court can change it.” The injunction further warned that if Allen “disobey[ed] this order, the court [could] find [him] in contempt.” The injunction notified Allen of his right to a hearing but warned that if he did not ask for a hearing within 10 days, the order would last for three years after the date of service.

¶4        Allen was served with the injunction on May 13, 2016. Because a hearing was not requested within ten days, “the ex parte civil stalking injunction automatically [became] a civil stalking injunction without further notice to [Allen] and expire[d] three years from the date of service.” See Utah Code Ann. § 77-3a-101(9) (LexisNexis 2017).

¶5        Allen requested a hearing on May 26, 2016. Because the request was made more than ten days after service of the injunction, the burden shifted to Allen “to show good cause why the civil stalking injunction should be dissolved or modified.” See id. § 77-3a-101(10). The matter was set for a one-day bench trial, but Allen’s attorney moved to continue the hearing for additional discovery. For reasons not clear from the record, no hearing was ever held. No court orders were entered revoking or modifying the injunction.

¶6        On December 21, 2018, less than three years after service of the injunction, Allen contacted Koehler via email at 7:01 p.m. The email stated, in part, “Why you have despised me and ruined my hope for happiness, unknown, but I do desire peace between our hearts . . . if you are willing.”

¶7 Koehler moved for an order to show cause why Allen should not be held in contempt for contacting her in contravention of the injunction. At the hearing on the motion, Allen testified that he had been served with the injunction in 2016 but had asked his attorney to request a hearing, believing that the injunction would last only until a hearing was held. According to Allen, his attorney later informed him that the hearing was canceled because the case had been dismissed. Allen testified that, after speaking with his attorney, he believed the injunction was no longer in effect, but he admitted that he had never received any official court documents suggesting that the injunction had been dismissed or modified in any way.

¶8        Allen also admitted that he had been criminally charged with violating the injunction in June 2017 and had pled “no contest” pursuant to a plea-in-abeyance agreement.[2] During that plea hearing, Allen claimed that he “wasn’t aware there . . . was an injunction in place” because his “former counsel . . . had a mental breakdown and failed to provide that documentation to [him].” But he admitted, as the factual basis for the plea, that the State could likely prove that “with the stalking injunction in place [he] sent a package to the protected party which was in violation of that.” As a condition of the plea in abeyance, the court ordered Allen not to contact Koehler for one year. Allen testified that he complied with the terms of his plea agreement and the criminal case was dismissed prior to December 2018. Allen acknowledged, however, that the court in the criminal case did not say anything about the injunction. Allen was asked multiple times whether the 2017 criminal proceedings put him on notice that the injunction was still in place, and the district court noted that Allen was “evasive” in his answers.

¶9        Allen also claimed that he did not recall emailing Koehler on December 21, 2018. He testified that, on December 21, he had taken both Unisom, an over-the-counter sleep aid, and trazodone, a medication that had been prescribed to Allen to treat insomnia. Allen testified that he “woke up some 24 hours later” and recalled “[a]bsolutely nothing” from the time period during which the email was sent. Allen’s prescribing physician testified that taking trazodone and Unisom together would result in impairment and that it was possible that Allen slept for 24 hours.

¶10      After hearing arguments on the motion, the district court found that Koehler had proved the first two elements necessary for contempt by clear and convincing evidence. Specifically, the court found that, first, Allen “knew what was required” by the injunction and, second, Allen had “the ability to comply” with the injunction. But the third element—intentional failure to comply with the court-ordered injunction—was taken under advisement. In considering whether Allen “acted intentionally in sending the email,” the court noted that the email was “sent at 7:00 p.m., . . . which is not a time when typically people are asleep, but it could be that he tried to go to sleep at 1:00 or 2:00 in the afternoon and slept for 24 hours.” The court observed “that the content of the email and the way that it was drafted is not a rambling email and it’s not one that by its face is gibberish.” The court also noted that the email “seems to carry messages, it carries it clearly, it’s even punctuated, even with the uses of ellipses in the sentences.”

¶11 After taking the issue of intent under advisement, the district court issued a written ruling finding Allen in contempt of the stalking injunction. The court found that the third element was satisfied because “Allen acted intentionally, or . . . he was voluntarily intoxicated when he sent the email in question to Ms. Koehler.” In its written ruling, the court found that “[t]he content of the email, the proper spelling, sentence structure, use of punctuation are all indications of a person whose mind is not confused or stuporous. The time the email was sent is not when most people would be taking medicines to help them sleep.”

¶12      Allen appeals.

ISSUE AND STANDARD OF REVIEW

¶13 Allen argues that there was insufficient evidence to support the district court’s findings on two elements of contempt: first, that he was aware of the injunction and, second, that he intentionally violated the injunction. “When reviewing a bench trial for sufficiency of the evidence, we must sustain the trial court’s judgment unless it is against the clear weight of the evidence, or if we otherwise reach a definite and firm conviction that a mistake has been made.” In re D.V., 2011 UT App 241, ¶ 10, 265 P.3d 803 (cleaned up).

ANALYSIS

¶14      “As a general rule, in order to prove contempt for failure to comply with a court order it must be shown that the person cited for contempt knew what was required, had the ability to comply, and intentionally failed or refused to do so.” Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988), superseded on other grounds by statute as stated in State v. Hurst, 821 P.2d 467 (Utah Ct. App. 1991). The district court must make “explicit findings, whether written or transcribed, on the three elements of contempt.” State v. Hurst, 821 P.2d 467, 470 (Utah Ct. App. 1991). In a civil contempt proceeding such as this one, those elements must be proved by clear and convincing evidence. Von Hake, 759 P.2d at 1172.[3]

¶15 Allen challenges the sufficiency of the evidence supporting the district court’s findings on the first and third elements. First, he argues that there was insufficient evidence that he “knew he was subject to a stalking injunction on December 21, 2018.” Next, he argues that there was insufficient evidence that he “knowingly and intentionally violated the stalking injunction that was issued against him” because he could not form the requisite intent due to voluntary intoxication. We address each challenged element in turn.

  1. Knowledge of the Injunction

¶16 Allen argues that there was insufficient evidence that he “knew he was subject to a stalking injunction on December 21, 2018” because of “misleading information he received in 2016 from his attorney and the lack of explanation at the 2017 hearing.” We disagree.

¶17      The district court found by clear and convincing evidence that Allen knew he was subject to the injunction when he sent the email to Koehler in December 2018. In so doing, the court implicitly found that Allen’s claim of ignorance lacked credibility. “Because the weight to be given to the testimony is within the province of the finder of fact, we will not second guess a court’s decisions about evidentiary weight and credibility if there is a reasonable basis in the record to support them.” SA Group Props. Inc. v. Highland Marketplace LC, 2017 UT App 160, ¶ 24, 424 P.3d 187 (cleaned up). Here, the evidence supports the court’s finding that Allen knew he was subject to the injunction when he emailed Koehler in December 2018, despite his professed ignorance.

¶18 Allen admitted that he was served with the injunction, which stated that the court order would end after three years. The injunction was served on May 13, 2016, placing Allen on notice that he was required to obey the court order until May 13, 2019. Even assuming that Allen’s attorney later misinformed him that the case had been dismissed, the injunction specified that “[n]o one except the court can change” the order and Allen admitted that he never received any official communication from the court relieving him of the responsibility to comply.

¶19 Most importantly, Allen admitted that he had been charged with violating the injunction in 2017, long after he allegedly received the misinformation from his attorney. The stated factual basis for his plea in abeyance was that “with the stalking injunction in place the defendant sent a package to the protected party which was in violation of that.” And when asked whether the 2017 criminal proceedings had resolved any uncertainty about whether the injunction was still in place, Allen was “evasive,” casting further doubt on his credibility.

¶20 The record also undermines Allen’s claim that the 2017 criminal proceedings created further confusion about the status of the injunction. He testified that, after the plea hearing in his criminal case, he believed that the only order prohibiting him from contacting Koehler was the one-year order issued by the court, which expired before December 2018. But the record makes clear that the one-year period was not a substitute for or modification of the injunction, but a term of Allen’s plea-in-abeyance agreement. And Allen admitted that the court in the criminal case did not say anything about the injunction.

¶21 Viewed in the light most favorable to the district court’s ruling, the finding that Allen knew what was required of him by the injunction was not against the clear weight of the evidence. Therefore, we affirm the district court’s finding that Allen “knew he was subject to a stalking injunction on December 21, 2018.”

  1. Intentional Failure to Comply

¶22      Allen also argues that insufficient evidence supported the district court’s finding that he “knowingly and intentionally violated the stalking injunction that was issued against him” because he was voluntarily intoxicated when the alleged violation occurred. Because we conclude that the court did not make an explicit finding on whether Allen’s conduct was intentional, we do not reach the issue of whether such a finding would be supported by sufficient evidence.

¶23 The district court did not make an explicit finding that Allen acted intentionally, as required to hold him in contempt. Rather, the court ruled in the alternative that “Allen acted intentionally, or that he was voluntarily intoxicated when he sent the email in question to Ms. Koehler.” (Emphasis added.) That alternative ruling fails to account for the potential of voluntary intoxication to negate a person’s ability to form the intent required for a finding of contempt. See State v. Bell, 2016 UT App 157, ¶ 30, 380 P.3d 11.

¶24 Voluntary intoxication is not a defense “unless the intoxication ‘negates the existence of the mental state which is an element of the offense.’” Id. (quoting Utah Code Ann. § 76-2-306 (LexisNexis 2017)).[4] For voluntary intoxication to negate the existence of intent required for a finding of contempt, a defendant “must demonstrate that his state of intoxication deprived him of the capacity to form the mental state necessary” for such a finding. Id. (cleaned up). “It is not enough to merely present evidence showing that the defendant was intoxicated.” Id. (cleaned up). “Rather, to establish a viable voluntary intoxication defense, the defendant must point to evidence showing that he was so intoxicated that he was incapable of forming the requisite mental state for the [acts] committed.” Id. (cleaned up).

¶25 Here, the district court appears to have mistakenly assumed that Allen’s alleged voluntary intoxication could not be considered in determining whether Allen acted with the required mental state. Indeed, the court’s order stated that “[e]ven if [Allen] was not capable of intentionally sending the email as a result of confusion, stupor or intoxication caused by the medicines, since the medicines were voluntarily combined by [Allen], his intoxication was voluntary and therefore not a defense.” That ruling allows for the possibility that Allen did not act intentionally. Although the court’s subsidiary findings regarding the timing and content of the email suggest that it did not believe Allen’s mind was “confused or stuperous” as a result of the alleged intoxication, the court did not explicitly find that the third element was proved by clear and convincing evidence.

¶26 We therefore remand to the district court to make a finding as to whether Allen intentionally violated the injunction. If the court finds this element satisfied by clear and convincing evidence, it should enter an amended judgment to that effect. If, on the other hand, the court finds that Allen did not act intentionally—as a result of voluntary intoxication or otherwise—it should vacate the contempt order.

CONCLUSION

¶27      The district court’s finding that Allen knew he was subject to the injunction was not against the clear weight of the evidence. However, because the district court did not enter an explicit finding as to whether Allen acted intentionally in violating the injunction, we reverse and remand for the district court to make a finding on that element of contempt.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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[1] “On appeal from a bench trial, we view the evidence in a light most favorable to the district court’s findings, and therefore recite the facts consistent with that standard and present conflicting evidence to the extent necessary to clarify the issues raised on appeal.” Burggraaf v. Burggraaf, 2019 UT App 195, n.2, 455 P.3d 1071 (cleaned up).

[2] In accordance with rule 410(a)(2) of the Utah Rules of Evidence, the district court did not consider Allen’s prior “no contest” plea for the purpose of establishing that Allen had previously violated the injunction. However, as permitted by rule 410(b), the parties stipulated to the admission of statements made during the plea hearing. We consider those statements only to the extent that they bear on whether Allen knew that the injunction was in effect on December 21, 2018.

[3] In a criminal contempt proceeding, the “elements must be proven beyond a reasonable doubt.” Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988). “The primary determinant of whether a particular contempt order is to be labeled civil or criminal is the trial court’s purpose in entering the order.” Id. at 1168. A criminal contempt order is punitive in nature, whereas a civil contempt order has a remedial purpose. Id. “A remedial purpose is indicated when the contemner is allowed to purge him- or herself of the contempt by complying with the court’s orders.” Id. Thus, “a contempt order is criminal if the fine or sentence imposed is fixed and unconditional, but is civil if the fine or imprisonment is conditional such that the contemner can obtain relief from the contempt order merely by doing some act as ordered by the court.” Id. at 1168 n.5. Here, the district court’s order “impose[d] sanctions on Mr. Allen including a jail term of 10 days and a fine of $300.” However, these sanctions were “stayed to allow Mr. Allen an opportunity to purge his contempt.” The order allowed Allen to obtain relief from the contempt order merely by “having no further contact directly or indirectly, in person, in writing, by email[,] text, electronic posting to social media or in other manner with Ms. Koehler for a period of two years.” Because this order was conditional such that Allen could obtain relief by staying away from Koehler, the contempt order is not criminal but civil. See id. As such, the court was required to find the three substantive elements of contempt by clear and convincing evidence.

[4] Although section 76-2-306 applies to criminal prosecutions, neither party has suggested that different principles apply in civil cases such as this one.

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Can I renew the no contact order?

Probably, but even if the no contact order cannot be renewed, or if the police or court (depending upon who in your jurisdiction has the authority to renew the no contact order) refuse to renew the no contact order, then there are a variety of other options you may have to provide the same or substantially similar protections:

  • Protective orders (also known by other names like Orders of Protection, etc.)
  • Restraining Orders
  • Stalking Injunctions

To find out whether you can renew a no contact order, talk to a lawyer who deals with criminal and domestic relations matters or to a knowledgeable person at your police or sheriff’s office.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Can I get a restraining order against a person living in the same house?

Can one get a restraining order against a person living in the same house as me?

Sure. There’s no requirement that the petitioner and respondent in a restraining order matter reside separately as a condition to obtaining a restraining order or protective order, although it is common for for a petitioner who is currently residing with the respondent (or who recently resided with, but then fled) to escape the danger posed by the respondent) to ask that the restraining order or protective order eject the respondent from the marital or shared residence as a means of ensuring that one is protected.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Can-a-person-get-a-restraining-order-on-a-person-in-the-same-house/answer/Eric-Johnson-311

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Can I get a restraining order against my abusive ex if we both use public transportation?

Do you mean to ask: “Can I get a restraining order against my abusive ex that prevents him/her from using the same public transportation as I do?”

If so, the answer is: probably not. Unless you can show that whenever your ex knows where you are, your ex abuses, attempts to abuse, or threatens to abuse you, the court would almost certainly not take such extreme measures.

Protecting you from legitimate and serious risks of abuse is one thing, but preventing your ex from using public transportation—assuming your ex needs to use public transportation to get to school, and/or work and/or , and/or the grocery store, and/or the doctor, etc.—would be overreaching. Instead, the court could still issue you a restraining order against your ex, but on a limited basis, i.e., not barring your ex from the same bus or train, but ordering your ex to avoid eye contact with you, not to speak to or gesture at you, not to sit next to you, and to move as far as possible to the back of the bus/train, for example.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Can-I-get-a-restraining-order-against-my-abusive-ex-if-we-both-use-public-transportation/answer/Eric-Johnson-311

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What do you do about domestic abuse?

I have not been the victim of domestic violence or abuse, but I have had some clients who are. If you have a good, honest, and responsive police force in your jurisdiction, coupled with the court that is willing to issue protective orders AND enforce them, then police and courts can help.

Regardless of whether the police and courts in your jurisdiction do or not take domestic violence and abuse seriously, you should never rely upon law enforcement or the court’s to protect your life and physical safety. You and you and you alone are best equipped to protect your physical safety and life.

If the police and courts in your jurisdiction will not bring to bear their resources to protect you, then protect yourself. Get away from the abuser, if you can. Yes, run. Stay alive. The National Domestic Violence Hotline | Get Help Today | 1-800-799-7233 provides help for women and for men who are abuse victims.

You can complain all you want about your rights, but that won’t stop a bullet or a fist. Learn how to own and carry and use a gun for self-defense. learn how to secure your home with locks and surveillance cameras and alarm systems.

If you are the victim of domestic violence and/or abuse, report it as quickly as you can after it occurs. If you are threatened with domestic violence, report that too. and if you have any written or recorded evidence of those threats, make sure you share that with law enforcement and with the court. Not only can you report violence or threats of violence, you can take action to protect yourself from future violence by requesting a protective order or civil stalking injunction.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Higley v. Buhler – 2019 UT App 96 – civil stalking injunction

Higley v. Buhler – 2019 UT App 96

THE UTAH COURT OF APPEALS

JEDEDIAH WELLS HIGLEY, Appellee,
v.
BRYAN DEAN BUHLER,Appellant.

Per Curiam Opinion No. 20180925-CA

Filed June 6, 2019
First District Court, Logan Department
The Honorable Brian G. Cannell
No. 180100393

Glen R. Thomas, Attorney for Appellant Jedediah Wells Higley, Appellee Pro Se
Before JUDGES GREGORY K. ORME, KATE APPLEBY, and DIANA HAGEN.

PER CURIAM:

¶1        Bryan Dean Buhler appeals a permanent civil stalking injunction entered against him in favor of Jedediah Wells Higley. We affirm.

¶2        “On appeal, when a trial court has made findings of fact to support a civil stalking injunction, we will recite the facts in a light most favorable to the trial court’s findings.” Carson v. Barnes, 2016 UT App 214, ¶ 2 n.1, 385 P.3d 744 (quotation simplified).

¶3        On September 28, 2018, Higley requested an ex parte civil stalking injunction against Buhler. Higley listed three stalking events in which Buhler allegedly drove by Higley’s house a number of times on August 16, 2018, September 6, 2018, and September 22, 2018. The request contained allegations regarding Buhler’s earlier alleged assault of Higley, listing a pending assault case involving Higley and Buhler with a court case number. Higley also attached two police reports. One described a call to police about alleged harassment on August 16, 2018. The other police report described the investigation of the alleged assault and demonstrated that the investigation culminated in Buhler’s arrest for assaulting Higley.

¶4        Buhler requested a hearing after the entry of the temporary civil stalking injunction. See Utah Code Ann. § 77-3a­-101(6) (LexisNexis 2017). At the hearing, Buhler conceded that there was a fight on July 7, 2018, between Higley and Buhler and that Higley’s injuries required medical attention. But Buhler challenged the credibility of Higley’s account of the events that led to the fight. Buhler also did not directly dispute that he drove by Higley’s residence on one or more of the dates alleged in the request for a civil stalking injunction and flipped him off.

¶5        Higley testified and also presented the testimony of his mother, who lived next door to him and had seen Buhler drive by her as she was walking and flip her off. Higley’s adult sister testified that she also encountered Buhler, that she heard him refer to her as a “bitch,” and that he flipped her off as he drove away. Higley stated that his family felt threatened, unsafe, and uneasy. They were concerned that they did not know what Buhler was “capable of anymore.”

¶6        Buhler argued that his conduct could not meet the definition of stalking, claiming that flipping someone off is “protected speech” that cannot constitute an act of stalking unless it is accompanied “with fighting words or some sort of threat.” The court inquired about considering the gesture in the context of the fight between the two men. Buhler argued that the events were “so remote in time and place . . . and not even related to the same people. The flipping off would have to put them under some sort of emotional distress, which they didn’t offer any testimony to that effect.”[1] Buhler also argued that there was no proof of significant mental or psychological suffering and that there were credibility issues with Higley’s account.

¶7 The court refocused the parties on the statutory requirements for a civil stalking injunction. In response to the court, Buhler conceded that the fight occurred, that Higley was harmed, and that he had to go to the hospital for treatment. The court then asked Higley about the allegations in the request for a civil stalking injunction “that there were multiple events in which Mr. Buhler drove by your place of residence. . . . How many times did he go by your place where you see him going by and he gave you the finger?” Higley responded that he saw Buhler do this “three or four times” after the July 7 fight, “like a day or two after he got out of jail from being released from the initial arrest for this, . . . a day or two after that.” These three or four additional events after the fight caused him to be in fear of harm. The court inquired whether Buhler wished to reexamine Higley, and his counsel declined.

¶8        The district court found that there was a fight between Higley and Buhler that resulted in some level of harm to Higley. The court found that there was an additional witness—Mr. Higley’s mother—who testified that she witnessed “an event of her own being flipped off.” The district court found that Buhler had options other than driving past Higley’s residence to reach the landfill when he needed to go there for purposes of his work. Buhler also could have driven past the Higley residence without taking the additional action of flipping off Higley (or his mother). The district court found that, regardless of any claim of “free speech,” when considered in the context of the July 7, 2018, fight—“where there apparently was significant harm”—the court was required under the stalking statute to address the later instances as acts “where . . . the respondent directly observed or communicated to this petitioner,” and determine whether those actions “would cause a reasonable person to suffer emotional distress or be afraid for that person’s own safety.” The court considered the ensuring actions in “the context of the fight and the resulting harm to Mr. Higley.” Accordingly, the district court concluded that it was “required . . . at this point to confirm the status associated with that civil stalking injunction and have it remain in place.”

¶9        After the court ruled, Buhler’s counsel inquired about potential issues regarding the school where both men had children attending. The court directed the parties to stay away from each other if they were both at the school. Buhler did not object at that time to the inclusion of other family members in the injunction’s coverage.

¶10 Buhler argues that the district court erred in its interpretation and application of the statutory requirements for a civil stalking injunction. We review the “interpretation and application of a statute” for correctness, “affording no deference to the district court’s legal conclusion.” Baird v. Baird, 2014 UT 08, ¶ 16, 322 P.3d 728 (quotation simplified).

¶11 To obtain a civil stalking injunction, a petitioner must establish the elements necessary to meet the definition of stalking in the criminal code. See Utah Code Ann. § 77-3a-101(1).

(2) A person is guilty of stalking who intentionally or knowingly engages in a course of conduct directed at a specific person and knows or should know that the course of conduct would cause a reasonable person:

(a) to fear for the person’s own safety or the safety of a third person; or

(b) to suffer other emotional distress.

Utah Code Ann. § 76-5-106.5(2) (LexisNexis Supp. 2018). A “reasonable person” is defined as “a reasonable person in the victim’s circumstances.” Id. § 76-5-106.5(1)(e). A course of conduct requires “two or more acts directed toward a specific person, including:”

(i) acts in which the actor follows, monitors, observes, photographs, surveils, threatens, or communicates to or about a person, or interferes with a person’s property:

(A) directly, indirectly, or through any third party; and

(B) by any action, method, device, or means.

Id. § 76-5-106.5(1)(b)(i).

¶12 The inclusion of the phrase “in the victim’s circumstances” in the statutory definition of “reasonable person,” “provides for an individualized objective standard.” Baird, 2014 UT 08, ¶ 26 (quotation simplified). “Under this standard, a court must consider the entire context surrounding [respondent’s] conduct.” Id. Thus, a court may consider whether a respondent “had knowledge of a particular vulnerability of the victim and then acted with full knowledge of the victim’s vulnerability.” Id. ¶ 27 (quotation simplified). “Thus even actions that, viewed in isolation, might be insufficient to cause a reasonable person in the same position to fear for his safety can, taken together, cause fear.” Carson v. Barnes, 2016 UT App 214, ¶ 20, 385 P.3d 744 (quotation simplified); see also Meyer v. Aposhian, 2016 UT App 47, ¶ 13, 369 P.3d 1284 (stating a court does not view the incidents in isolation when determining whether a reasonable person in the petitioner’s position would fear for his safety).

¶13 Buhler claims that the evidence was insufficient to establish a course of conduct that constituted stalking. He first claims that flipping someone off is constitutionally protected speech. This specific argument was not presented to the district court for a ruling. In order to preserve an issue for appeal, it “must be specifically raised in a timely manner and must be supported by evidence and relevant legal authority.” See Meyer, 2016 UT App 47, ¶ 26 (quotation simplified). While Buhler argued in the district court that flipping a person off was protected speech unless combined with other “fighting words,” the specific constitutional argument contained in his appellate brief was not presented to the district court and is not preserved for appeal. We do not consider it further.

¶14 Buhler also argues that the court improperly considered irrelevant evidence and that the evidence was otherwise insufficient to establish a course of conduct under the civil stalking injunction statute. In this case, the district court was required to consider the individual circumstances of the petitioner—Higley—and determined that Buhler’s actions constituted a course of conduct. See Utah Code Ann. § 76-5­-106.5(1)(e) (defining a “reasonable person” as “a reasonable person in the victim’s circumstances”). As such, the court properly considered whether repeatedly driving past Higley’s residence within days of Buhler’s release from jail after his arrest for allegedly assaulting Higley would place a reasonable person in Higley’s circumstances in fear for his and his family’s safety. See Carson, 2016 UT App 214, ¶ 21 (stating that the district court did not err in determining that a threshold incident involving a threat with a gun “impacted all future actions” taken by the respondent directed toward the petitioner (quotation simplified)). In addition, the court properly considered the acts directed toward Higley’s mother as corroborating evidence of the course of conduct, as well as Buhler’s contacts with other members of Higley’s family.

¶15 The district court did not err in determining that Higley demonstrated by a preponderance of the evidence that the civil stalking injunction should remain in place. Considered in context, Buhler’s “pattern of behavior ha[d] a cumulative effect that would cause a reasonable person in [the petitioner’s] position to fear for his safety or the safety of his family.” Id. ¶ 25 (quotation simplified). Buhler’s conduct—flipping off Higley and his family members—was conduct that “communicates to or about a person,” see Utah Code Ann. § 76-5-106.5(1)(b)(i), and it was properly considered by the district court in the context of the earlier fight between the two men and other evidence presented to the district court. The court did not err in concluding that the evidence taken as a whole supported continuation of the civil stalking injunction.

¶16      Accordingly, we affirm the decision to enter a permanent civil stalking injunction.

Utah Family Law, LC | divorceutah.com | 801-466-9277

[1] This argument is only pertinent if counsel was referring to the actions of flipping off Higley’s mother and sister.

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