Some do (if you can imagine an attorney doing something like that, it’s probably already been done), but they’re outliers, and they are violating both the law and the rules governing fitness to practice law if and when they do so.
If an attorney is actually (actually) violating the law or violating the rules governing the practice of law, you are not obligated to suffer it. Notify your attorney and bring the misconduct to the attention of the court, the police, and the bar.
That stated, one cannot simply and subjectively brand an attorney of being a stalker or of engaging in harassing behavior and thus establish the attorney as a stalker or harasser. It’s common for sore losers to make false accusations of harassment against an opposing party and his/her attorney. Why? Because it’s a cheap, risk-free way to cast aspersions and demonize and neutralize (if the accusations stick to any degree) the opposing party and/or his/her attorney. Don’t be that guy/gal. If you think you may feel “stalked” and/or “harassed,” before your start accusing, be honest with yourself and ask whether you’re truly being stalked and harassed or just feeling defeated, hurt, angry, anxious, and afraid and wanting to lash out.
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Deborah Jean West appeals from a jury’s determination that she violated a civil stalking injunction, challenging her conviction and the sentencing court’s sentence on several grounds. West asserts that the trial court erred in denying her pretrial motions to exclude certain evidence and to continue the trial. West also argues that her pro se post-trial motions to dismiss were denied in error. Finally, West argues that her constitutional right to be represented by counsel was violated when the court sentenced her without first determining whether her decision to represent herself was made knowingly and intelligently.
¶2 We uphold the trial court’s denial of the motion to exclude evidence and the motion to continue and therefore affirm West’s conviction. However, because the sentencing court did not ensure that West’s waiver of counsel was done knowingly, we vacate West’s sentence and remand for further proceedings. Because of our resolution of those issues, we do not reach the merits of West’s argument regarding her post-trial motions.
BACKGROUND
The Pretrial Motions and Trial
¶3 In May 2019, West was charged with violating a stalking injunction. The stalking injunction included the restriction that West was not to come within twenty feet of C.L. (Petitioner). The charge against West derived from an encounter between Petitioner and West that occurred in their housing community’s clubhouse library. At trial, the State bore the burden to prove that West intentionally or knowingly violated the stalking injunction. See Utah Code § 76-5-106.5(2)(b).
¶4 After being notified by the State that it intended to introduce evidence that West had allegedly violated the injunction on two other occasions after charges were filed, West filed a motion in limine the day before trial to preclude the admission of that evidence. The court addressed this motion on the first day of trial. West argued that the evidence should be excluded because it was improper character evidence, lacked any relevance, and posed a danger of unfair prejudice. The State argued that the evidence of West’s other alleged violations of the injunction should be admitted and presented to the jury to show West’s intent, knowledge, or lack of mistake, which the State argued was relevant to proving the intent element of the charged crime. See Utah R. Evid. 404(b) (stating that evidence of a crime, wrong, or other act is not admissible to prove propensity, but may be admissible to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident”).
¶5 When the trial court indicated its intention to admit the evidence, West’s counsel requested a continuance of the trial, arguing that as the State’s disclosure of the evidence was made only fifteen days before trial, he was precluded from appropriately preparing for the evidence, such as giving potential witnesses the proper notice to appear to testify. West’s counsel further contended that based on the sparse information regarding the State’s evidence, he would not have known whom to subpoena. The trial court ultimately denied the motion to continue, stating, “We have a jury here, a jury panel. I want the case tried,” indicating that it might “revisit the issue again” as the evidence was admitted.
¶6 During trial, the evidence presented showed that Petitioner was present at the clubhouse library, West entered the library, a brief verbal interaction occurred between the two, Petitioner called the police, and West left the library.
¶7 Petitioner testified that when she saw West was about to enter the library, she said, “Please don’t come in now. There is a 20-feet rule. You need to stay away from me 20-feet. . . . Or I’m going to have to call the police.” Despite this warning, West continued to enter the library and responded by saying something to the effect that she did not care and to “go ahead.” She then proceeded to remove her shoes, step onto a couch cushion, and hang a poster advertising a community event. Petitioner then left the clubhouse library in search of another person to witness that West had entered the clubhouse library where Petitioner had been. During Petitioner’s testimony, the State also showed video surveillance of the door to the clubhouse library, showing West walking in and Petitioner walking out shortly afterward. And a police officer testified that following the incident, based upon Petitioner’s report, he measured the approximate distance that would have been between Petitioner and West and concluded that West was easily within the twenty-foot radius prohibited by the stalking injunction.
¶8 The State also presented evidence of the two other interactions between West and Petitioner—both occurring after the library incident for which West was charged and before the trial—where West was alleged to have been closer to Petitioner than the injunction’s twenty-foot restriction. In the first incident, both West and Petitioner attended a community potluck, and West sat at a table within twenty feet of Petitioner. In the second incident, while attending services at their church, Petitioner was in the church foyer and West approached, put her things down near where Petitioner was standing, and then stood within the same area for an extended time.
¶9 West testified at trial and she and her counsel had the following exchange after viewing surveillance video from the clubhouse library:
Counsel: [S]o you saw in the video [Petitioner] walks off away from the library, correct? And then the video shows you walking out some seconds later in the same direction. Is that correct?
West: That is correct.
Counsel: Now did you know where she had gone?
West: No.
Counsel: Okay. So where were you going when you walked out of there?
West: I was going to the kitchen . . . . And then I went from there into the exercise room.
Counsel: So you hung up two more posters after the library. And then did you leave?
West: Yes . . . .
¶10 Following deliberation, the jury found West guilty of violating the stalking injunction.
The Post-trial Motions and Sentencing
¶11 After trial and prior to sentencing, West filed several pro se post-trial motions, claiming in each that she was no longer represented by counsel. West also aired numerous grievances, of which few are relevant here. Pertinent to this appeal, West took issue with the trial court’s admission of the evidence of the other instances of alleged contact between her and Petitioner, and she repeatedly requested that her case be dismissed.
¶12 During a sentencing review hearing in December 2019, the sentencing court[1] asked West if she would “like a new lawyer,” to which West responded in the negative. Without engaging in any colloquy[2] and without questioning West about her understanding of the significance and the risk of proceeding without counsel, the court accepted West’s indication to proceed pro se, ordered West’s trial counsel to withdraw, and allowed West to represent herself.
¶13 At her sentencing hearing approximately sixteen months later—the delay in proceedings due in small part to expected scheduling conflicts and in larger part to the COVID-19 pandemic—the court engaged in no further discussion with West about her decision to waive counsel and represent herself, other than to note that West “put [herself] at a disadvantage . . . having fired [her] lawyer,” which was “pretty clear in the record, and [West] confirmed that . . . at [the sentencing review].” During this hearing, the sentencing court focused on West’s post-trial motions. The sentencing court indicated on the record that West had “framed most of the written materials . . . as motions to dismiss,” and noted that the motions had not “been submitted for decision, which would normally be required under the [Utah] Rules of Criminal Procedure.” However, the court expressed its intention to provide immediate responses to the motions, having told West that the court “would rule on [the] motions” during the sentencing hearing. The court then proceeded to deny the portion of West’s motions to dismiss dealing with the evidence of the other alleged injunction violations admitted at trial.
¶14 Next, the sentencing court addressed the other issues raised in West’s motions, simply concluding that “frankly, . . . the motions that [West had] made [were] legally frivolous.” The court ultimately denied all of West’s motions in totality and then proceeded with sentencing. The court sentenced West to serve 364 days in jail, but it suspended the jail time, and imposed a fine. The court ordered West to serve eighteen months of probation with the conditions that she complete community service, complete an anger management course, and continue to comply with the stalking injunction. West appeals.
ISSUES AND STANDARDS OF REVIEW
¶15 The first issue we address is West’s challenge to the denial of her pretrial motions. She argues that the trial court erred in denying the motion in limine, contending that she was denied the right to a fair trial when the court allowed evidence of additional interactions between West and Petitioner to be admitted. We review for an abuse of discretion a trial court’s decision to admit evidence under rules 404(b), 402, and 403 of the Utah Rules of Evidence. See State v. Tarrats, 2005 UT 50, ¶ 16, 122 P.3d 581 (“Trial courts have wide discretion in determining relevance, probative value, and prejudice. Therefore, we will not reverse the trial court’s ruling on evidentiary issues unless it is manifest that the trial court so abused its discretion that there is a likelihood that injustice resulted.” (quotation simplified)). In the event that the trial court admits evidence in error, “we will not disturb the outcome of a trial if the admission of the evidence did not reasonably affect the likelihood of a different verdict.” State v. Miranda, 2017 UT App 203, ¶ 24, 407 P.3d 1033 (quotation simplified), cert. denied, 417 P.3d 581 (Utah 2018). And West “bears the burden of showing that [she] was harmed by the trial court’s error.” See id. ¶ 44.
¶16 West further asserts that the trial court erred in denying her request to continue the trial after the court determined the other-acts evidence was admissible. We review the court’s denial of a motion for continuance for an abuse of discretion. State v. Cabututan, 861 P.2d 408, 413 (Utah 1993) (“The standard of review for the denial of a motion for continuance is abuse of discretion: It is well-established that the granting of a continuance is discretionary with the trial judge. Absent a clear abuse of that discretion, the decision will not be reversed by this court.” (quotation simplified)). A trial court “abuses its discretion when it denies a continuance and the resulting prejudice affects the substantial rights of the defendant, such that a review of the record persuades the court that without the error there was a reasonable likelihood of a more favorable result for the defendant.” Mackin v. State, 2016 UT 47, ¶ 33, 387 P.3d 986 (quotation simplified).
¶17 Next, we address West’s argument that her constitutional right to be represented by counsel at sentencing was violated because the sentencing court did not adequately explore through an on-the-record colloquy whether her waiver of counsel was knowingly and intelligently made with an understanding of the risks of representing herself. In the absence of a colloquy, we review the record de novo to determine whether the defendant knowingly and intelligently waived her right to counsel. See State v. Pedockie, 2006 UT 28, ¶ 45, 137 P.3d 716 (“De novo review is appropriate because the validity of a waiver does not turn upon whether the trial judge actually conducted the colloquy, but upon whether the defendant understood the consequences of waiver.” (quotation simplified)). “Whether [West’s] waiver was knowing and intelligent involves a mixed question of law and fact which we review for correctness, but with a reasonable measure of discretion given to the [trial] court’s application of the facts to the law.” State v. Bozarth, 2021 UT App 117, ¶ 21, 501 P.3d 116 (quotation simplified).[3]
ANALYSIS
Pretrial Motions
¶18 West first challenges the trial court’s denials of her motion to exclude evidence and motion to continue the trial. We do not reach the merits of West’s argument that the trial court erroneously admitted the other-acts evidence or abused its discretion in denying her continuance motion because even if the trial court erred, West has failed to meet her burden to show that she was prejudiced by either alleged error such that our confidence in the jury’s verdict is undermined. See State v. High, 2012 UT App 180, ¶ 41, 282 P.3d 1046 (“We will not disturb the jury’s verdict unless the likelihood of a different outcome is sufficiently high to undermine confidence in the verdict.” (quotation simplified)). In other words, West has not persuaded us that a “reasonable likelihood exists that the [alleged] error affected the outcome of the proceedings.” State v. Bilek, 2018 UT App 208, ¶ 35, 437 P.3d 544 (quotation simplified), cert. denied, 440 P.3d 693 (Utah 2019). “A reasonable likelihood requires a probability sufficient to undermine confidence in the outcome.” State v. Gallegos, 2020 UT App 162, ¶ 62, 479 P.3d 631 (quotation simplified), cert. denied, 496 P.3d 717 (Utah 2021).
Motion to Exclude Rule 404(b) Evidence
¶19 West contends on appeal that evidence of other uncharged alleged violations of the stalking injunction admitted at trial was “precisely what [rule] 404(b) was intended to bar.”[4] West further argues that had the jury not heard the evidence of these other alleged violations, “there was a reasonable likelihood that West would not have been found guilty of the charge.” Rule 404(b) of the Utah Rules of Evidence provides that other-acts evidence, while prohibited to “prove a person’s character in order to show that on a particular occasion the person acted in conformity with the character,” may be admissible for other purposes, such as “proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Utah R. Evid. 404(b). Such evidence must also pass the muster of rules 402 and 403, which require that evidence be relevant and have probative value that is not substantially outweighed by a danger of unfair prejudice. See id. R. 402, 403.
¶20 However, we need not address the underlying question of whether the trial court erred in admitting the other-acts evidence because, “even if the admission of rule 404(b) evidence by the [trial] court was in error, reversal on appeal is not appropriate unless the defendant demonstrates that the error materially affected the fairness or outcome of the trial.” Bilek, 2018 UT App 208, ¶ 35 (quotation simplified). Thus, the burden rests on West to make such a showing, and she fails to carry her burden here. In arguing that she was prejudiced, West simply asserts that, “[a]bsent the 404(b) evidence, there was a reasonable likelihood that West would not have been found guilty of the charge herein.” But she does not then provide much discussion as to how the outcome of the trial would have differed absent the admitted other-acts evidence, other than to essentially conclude that because it was, therefore it is so. That is, West has failed to demonstrate how excluding evidence that she was close to Petitioner at church and at a potluck, after the events in the clubhouse library, would have changed the jury’s determination that West knowingly and intentionally came within twenty feet of Petitioner while in the clubhouse library in violation of the injunction.
¶21 To be sure, the evidence of the other acts was most likely helpful to the State in proving its case. Absent the evidence, the State would have had to rely solely on Petitioner’s credibility in the eyes of the jury and her testimony of what occurred between West and her to support its case that West had knowingly and intentionally violated the stalking injunction. See Utah Code § 76-5-106.5(2)(b). But even without the other-acts evidence, evidence and testimony presented to the jury during trial sufficiently supports our confidence in the jury’s verdict. See State v. Ferguson, 2011 UT App 77, ¶ 20, 250 P.3d 89 (acknowledging that while erroneously admitted evidence had “the potential of being highly prejudicial, the other evidence presented at trial was sufficiently strong as to convince us that there was no reasonable likelihood of a different result” (quotation simplified)), cert. denied, 262 P.3d 1187 (Utah 2011); High, 2012 UT App 180, ¶¶ 50– 51, 54 (noting that while the case was not like Ferguson, “where the evidence of guilt was overwhelming” in the absence of evidence allegedly admitted in error, the court’s “confidence in the jury’s verdict” was not undermined as “the jury would still have heard unchallenged and properly admitted” evidence supporting the defendant’s guilt).
¶22 For example, here the jury heard generally unchallenged testimony from Petitioner about the nature of her encounter with West: that she told West to stop and not enter until she was finished or she would have to call the police, and that West ignored her entreaty and threat and carried on with her business in the clubhouse library. The jury then heard West testify as to her actions following the encounter with Petitioner. Even by her own account, West did not immediately leave after the incident, but instead made her way through the clubhouse facilities without much concern about whether Petitioner was still in the area or not. The jury was also aware, by nature of the charge against West, that a stalking injunction was in place, and it could have reasonably inferred that West had a history of unwanted interactions with Petitioner that would warrant the imposition of the stalking injunction, and that the reported clubhouse library incident was not just a solitary incident. And West has not argued how all of this, standing alone and absent the added gloss of the rule 404(b) evidence, would have induced the jury to find in her favor instead.
¶23 Accordingly, we are not persuaded that exclusion of the other two alleged incidents would so tilt the jury’s view of West’s credibility as to change its verdict. In other words, West has failed to persuade us that even without the admission of the other alleged violations of the stalking injunction, the result of the trial would have been favorable for her.
Motion to Continue
¶24 West also contends the court’s denial of her motion to continue to address the other violations evidence “deprived [her] of her right to a fair trial.” A defendant bears the burden of showing that the trial court’s denial of the motion to continue was “an unreasonable action that prejudiced the party.” State v. Cornejo, 2006 UT App 215, ¶ 14, 138 P.3d 97 (quotation simplified). “Such prejudice exists when our review of the record persuades us that had the trial court not denied the continuance request there would have been a reasonable likelihood of a more favorable result for the moving party.” Id. (quotation simplified). West again fails to persuade us that the denial of the continuance was prejudicial.
¶25 West has not outlined on appeal how her defense strategy would have changed had she been given more time to prepare. And though she indicates in her brief and told the sentencing court judge that she had witnesses to one of the incidents, she has neither provided even the slightest information on who those witnesses may be nor provided an explanation as to whether they would have been available to testify within an appropriate time frame. Moreover, West does not flesh out on appeal why the State’s information was so lacking that she could not subpoena witnesses prior to trial. See id. ¶ 15 (“When a party to a criminal action moves for a continuance in order to procure the testimony of an absent witness, the party must demonstrate that: (1) the testimony sought is material and admissible, (2) the witness could actually be produced, (3) the witness could be produced within a reasonable time, and (4) due diligence had been exercised before the request for a continuance.” (quotation simplified) (quoting State v. Creviston, 646 P.2d 750, 752 (Utah 1982))). West contends only that once the trial court allowed the other-acts evidence to be introduced, “had the continuance been afforded as it should have been, counsel would have had time to gather evidence, find witnesses, and raise a defense against that other evidence.” This simply is not a sufficient showing on appeal to persuade us that the denial of her motion to continue affected the outcome of the trial. Therefore, her claim fails here as well.
Knowing and Intelligent Waiver
¶26 The next question before us is whether West knowingly and intelligently waived her right to be represented by counsel at sentencing. West argues that because there was no colloquy on the record that would inform this court that her waiver was knowingly and intelligently made, her waiver was invalid. The State disagrees and argues that even in the absence of a colloquy conducted by the sentencing court, the record shows that West knowingly and intelligently waived her right to counsel because she “was given a front row seat to the intricacies of navigating a criminal case” as she did not excuse her counsel until after the trial.
¶27 “Under both the United States and Utah Constitutions, a criminal defendant has the right to assistance of counsel,” State v. Hall, 2013 UT App 4, ¶ 25, 294 P.3d 632, cert. denied, 308 P.3d 536 (Utah 2013), which includes the right to effective counsel for sentencing proceedings, see State v. Casarez, 656 P.2d 1005, 1007 (Utah 1982) (“Sentencing is a critical stage of a criminal proceeding at which a defendant is entitled to the effective assistance of counsel.”). “Concomitant with that right is the criminal defendant’s guaranteed right to elect to present [one’s] own defense.” State v. Hassan, 2004 UT 99, ¶ 21, 108 P.3d 695; see also State v. Pedockie, 2006 UT 28, ¶ 26, 137 P.3d 716 (“Defendants also have the right to waive their right to counsel.”). Because the right to counsel and the right to waive counsel are mutually exclusive, “a trial court must be vigilant to assure that the choice [to waive counsel] is freely and expressly made ‘with eyes open.’” State v. Bakalov, 1999 UT 45, ¶ 15, 979 P.2d 799 (quoting Faretta v. California, 422 U.S. 806, 835 (1975)). “Before permitting a defendant to [self-represent], . . . a trial court should ensure that the waiver [of counsel] is voluntary, knowing, and intelligent.” Pedockie, 2006 UT 28, ¶ 26.
¶28 A defendant may employ any of three different methods to validly waive a right to counsel: “true waiver, implied waiver, and forfeiture.” State v. Smith, 2018 UT App 28, ¶ 17, 414 P.3d 1092.
¶29 At issue here is true waiver: “A true waiver is one in which the defendant affirmatively represents that [she] wishes to proceed without counsel.” Id. ¶ 18. To be a valid true waiver, a defendant must “clearly and unequivocally” communicate to the court the wish “to proceed pro se.” Id. (quotation simplified); see also State v. Bozarth, 2021 UT App 117, ¶ 34, 501 P.3d 116 (“True waiver occurs when a defendant directly communicates a desire to proceed pro se.”). “Where a defendant expressly declines an offer of counsel by the trial judge” but later challenges the validity of that waiver, “[she] has the burden of showing by a preponderance of the evidence that [she] did not knowingly and intelligently waive this right.” Bozarth, 2021 UT App 117, ¶ 39 (quotation simplified).[5]
¶30 There is no question in this case that West clearly and unequivocally communicated to the court her desire to represent herself at sentencing. In her written motions, and then at the sentencing hearing when the court asked if she wanted a new lawyer, West plainly expressed her wish to proceed on her own without the assistance of counsel. But waiver alone is not enough to verify that West understood the significant right being waived and how her waiver might be applied in the real-world setting of sentencing. So, we must next address whether West’s waiver was knowingly and intelligently made. See id. ¶ 34 (“To be a valid true waiver, the defendant must (1) clearly and unequivocally request self-representation and (2) act knowingly and intelligently, being aware of the dangers inherent in self-representation.” (quotation simplified) (emphasis added)).
¶31 For a waiver to be knowingly and intelligently made, a defendant must understand “the relative advantages and disadvantages of self-representation in a particular situation.” State v. Frampton, 737 P.2d 183, 188 (Utah 1987) (quotation simplified). In other words, a court must be satisfied that a defendant has “actual awareness of the risks of proceeding pro se under the particular facts and circumstances at hand.” Smith, 2018 UT App 28, ¶ 19 (quotation simplified). The best way to ascertain if a defendant has the requisite knowledge of the legal mire she wishes to wade into is for a court to engage in “penetrating questioning,” Frampton, 737 P.2d at 187, on the record, see Smith, 2018 UT App 28, ¶ 19. Such questioning is the “encouraged” practice for courts, utilizing Frampton’s “sixteen-point guide” as a framework to ensure a defendant is making the decision to proceed pro se knowingly and intelligently. See id.; see also Pedockie, 2006 UT 28, ¶ 42 (“The sixteen-point colloquy found in State v. Frampton establishes a sound framework for efficient and complete questioning.”); cf. State v. Patton, 2023 UT App 33, ¶ 14 n.5 (“We encourage trial courts to keep a prepared Frampton waiver-of-counsel colloquy script at the ready on the bench, for use when the occasion arises.”).
¶32 Absent a colloquy, it is still possible for a reviewing court to find that a defendant’s waiver was validly made after examining “any evidence in the record which shows a defendant’s actual awareness of the risks of proceeding pro se” at the time the defendant communicated the wish to self-represent. Frampton, 737 P.2d at 188. Therefore, we must conduct a “de novo review of the record to analyze the particular facts and circumstances surrounding the case” to establish “whether the defendant understood the consequences of waiver.” See Bozarth, 2021 UT App 117, ¶ 41 (quotation simplified). However, more than once and quite recently, Utah’s appellate courts have noted that such a conclusion is rare. See id. (“It is possible—although perhaps rare—for a defendant to knowingly and intelligently waive the right to counsel without a Frampton colloquy.” (citation omitted)); Pedockie, 2006 UT 28, ¶ 45 (“We therefore anticipate that reviewing courts will rarely find a valid waiver of the right to counsel absent a colloquy.”).[6]
¶33 Given the rarity, we look to Frampton and Bozarth for instruction, both of which demonstrate when the record may support a conclusion that a defendant did knowingly and intelligently waive the right to counsel in the absence of an adequate colloquy. See Frampton, 737 P.2d at 188–89; Bozarth, 2021 UT App 117, ¶¶ 42–48.
¶34 In Frampton, the defendant was represented by counsel at a trial that resulted in a hung jury. 737 P.2d at 186. The defendant then opted to represent himself at a second trial that resulted in a mistrial. Id. A third trial was scheduled, and prior to the third trial, the defendant filed eighteen of his own motions, two of which “asserted his right to assistance of counsel,” but he “insisted on being represented by a non-member of the Bar,” which option is not constitutionally protected. Id. at 189. On the day of the third trial, the defendant indicated that he wished to represent himself, and the court acknowledged the defendant’s right to self-representation and indicated that “[the defendant] would be accorded every courtesy along that line.” Id. at 186 (quotation simplified). The court then appointed standby counsel, over the defendant’s objections, but the defendant “refused to receive any help from the appointed counsel.” Id. at 186, 189. On appeal, the Utah Supreme Court concluded that the defendant had “knowingly and intelligently waived the right to representation by counsel” for several reasons. Id. at 188–89. First, the record clearly indicated that the “value of counsel should have been apparent to defendant” because while represented, his trial ended in a hung jury. Id. at 189. Furthermore, the court noted that the record showed several instances that, taken together, supported a conclusion that the defendant was sufficiently versed in legal procedures and proceedings: (1) he had filed eighteen of his own motions, (2) he had explained to jurors “the statute under which he was charged,” (3) he had been informed of the charge he faced and the possible penalty for a guilty verdict, and (4) he had been “accorded . . . every courtesy” by the court when it “explain[ed] applicable procedure and [gave] defendant extremely wide latitude in conducting his defense.” Id.
¶35 Likewise, in Bozarth, this court reached a similar conclusion regarding the question of whether a waiver was knowingly and intelligently made for a similar reason: the record showed as much. 2021 UT App 117, ¶ 44. In Bozarth, the defendant initially requested counsel but reserved his right to self-representation in the event that he wanted to “retake the helm” at a later time. Id. (quotation simplified). Additionally, prior to the defendant undertaking his own representation, the trial court had instructed and the defendant was aware of the importance of having counsel, and the defendant specifically requested that standby counsel be provided to “assist” only. Id. The defendant had even demonstrated knowledge about court procedures: he invoked the exclusionary rule at an evidentiary hearing and negotiated a plea deal that included his reservation of the right to appeal all prior objections, including “ineffective assistance of counsel.” Id. ¶¶ 14, 18. Lastly, the defendant had been informed of the charges against him and the potential penalties of a conviction on his charges. Id. ¶ 44. The Bozarth court then concluded that, with all these things taken together, the defendant had failed to meet his burden of proving that he “did not knowingly and intelligently waive his right to counsel.” Id.
¶36 But West’s case went differently. Here, unlike the defendants in both Frampton and Bozarth, there is no indication in the record that West had been informed by her counsel or by the sentencing court of the risks she faced by proceeding alone, nor was it clear that she understood the associated value of having the assistance of counsel during her sentencing or that she understood the law or the procedural requirements of a sentencing hearing. When West elected to proceed pro se, the sentencing court simply mentioned on the record that by doing so, she may have put herself at a disadvantage, with no other discussion or explanation as to why West’s decision would have done so. Again, this is in direct contrast to the facts of both Frampton and Bozarth, where those judges not only advised the defendants of the risks of proceeding pro se, but also encouraged or insisted on appointing standby counsel in the event assistance was needed.
¶37 Furthermore, while it is true that West filed several pro se motions prior to sentencing, which action on its face could indicate an awareness of court procedures like in Frampton, the content of West’s filings should have suggested to the sentencing court that she did not understand that attorneys and litigants are expected to conduct themselves with decorum and professionalism every time they enter the courtroom or file a pleading. The sentencing court even commented on the disparaging content of West’s motions: “If you were a lawyer, you would, in all likelihood, if you said those kinds of things to a judge, and wrote the kinds of things that you did, there’s a significant possibility that you would have sanctions issued against you.” But even with these indications that West perhaps did not grasp the implications of proceeding without counsel, the sentencing court’s investigation of West’s knowledge of the risks of self-representation stopped there.[7]
¶38 The State defends West’s waiver as knowing and intelligent because West “was given a front row seat” to observe her trial counsel at trial and argues that this knowledge was sufficient to establish that West knew the “intricacies of navigating a criminal case.” We disagree with this reasoning. Merely observing court proceedings does not provide an untrained pro se defendant with the awareness or knowledge of the risks of appearing for sentencing without representation. Few lay people, even after observing a trial from start to finish, would then be able to understand “the various matters germane to a sentencing proceeding,” such as the ability to argue mitigating circumstances and evidence to influence sentencing. See State v. Smith, 2018 UT App 28, ¶ 26, 414 P.3d 1092. For instance, a sentencing may involve discussion of the actions that a defendant may take following a guilty verdict, the financial ability that a defendant has to pay a fine or pay for a remedial course, appropriate lengths of jail time or suspended jail time, and previous criminal history. Without prior exposure to a sentencing for a charge of violating a stalking injunction, it is not persuasive to argue that West would understand the differences between a trial and a sentencing proceeding and the risks she assumed by continuing without the assistance of counsel to aid her in arguing, for instance, against the imposition of an anger management class or for a reduced fine or suspended jail time. We therefore strongly disagree that West’s “observations” of her attorney in action in court proceedings resulted in something that resembled the legal acuity or understanding of court proceedings that the defendants in Frampton and Bozarth exhibited.
¶39 Accordingly, we conclude that West has met her burden to show that her waiver of counsel prior to sentencing, though express, was not knowingly and intelligently made. The sentencing court should have conducted further inquiry into West’s awareness, or lack thereof, of the risks of self-representation before allowing her to be sentenced without the assistance of counsel. Therefore, we vacate West’s sentence and remand for resentencing.[8]
CONCLUSION
¶40 We are not convinced by West’s argument that the trial court abused its discretion in denying the pretrial motions, because West has not met her burden to show that if the other-acts evidence had been excluded or her motion to continue had been granted the outcome of her trial would have been different. We therefore affirm West’s conviction. However, we are persuaded that West did not knowingly and intelligently waive her right to be represented by counsel at her sentencing. We therefore vacate West’s sentence and remand for the limited purpose of resentencing.
[1] The judge who presided over West’s trial and ruled on the pretrial motions was not the same judge who presided over West’s sentencing hearings and denied West’s pro se post-trial motions.
[2] The entire exchange between the sentencing court and West consisted of the following:
Sentencing Court: [Trial counsel] was appointed to represent you previously?
West: He was.
Sentencing Court: Would you like a new lawyer?
West: No. I will represent myself. I can do better representing myself.
Sentencing Court: Okay. So [trial counsel] is allowed to withdraw from the cases. And Ms. West will represent herself.
[3] West also argues on appeal that the sentencing court erred in interpreting West’s pro se post-trial motions as motions to dismiss instead of considering them as motions for a new trial and denying those motions. However, given our determination that West did not knowingly and intelligently waive her constitutional right to counsel at sentencing, which requires vacating the sentence and remanding for further proceedings, we need not reach West’s final argument here. Remand for re-sentencing will allow West to refile her motions for consideration, with the assistance of counsel if she so chooses.
[4] West highlights in her brief the fact that these events occurred after the incident for which she is charged but does not further expound on any potential significance of this. Even so, we reiterate that timing of other acts in relation to the incident for which a defendant is charged is not a precluding factor to the admission of evidence of those acts: “Rule 404(b) itself . . . makes no reference to ‘prior’ crimes, wrongs, or acts, but refers only to ‘other’ crimes, wrongs, or acts.” State v. Barney, 2018 UT App 159, ¶ 16 n.2, 436 P.3d 231. “Many courts have recognized that other crimes, wrongs, or acts can be relevant, even if those acts occurred after the charged conduct.” Id. (collecting cases).
[5] This court has recently noted the dissonance between the language in State v. Frampton, 737 P.2d 183, 187 (Utah 1987)—that a defendant who expressly declines a trial court’s offer of counsel then bears the burden to show “by a preponderance of the evidence that [she] did not so waive this right”—and the language in State v. Pedockie, 2006 UT 28, ¶ 45, 137 P.3d 716—that because of the “strong presumption against waiver and the fundamental nature of the right to counsel, any doubts must be resolved in favor of the defendant.” See State v. Patton, 2023 UT App 33, ¶ 22 n.6. We again take the liberty to suggest that the “better, and far clearer, rule would be that where a trial court fails to employ a Frampton colloquy, the presumption is that waiver did not occur and the burden would be placed on the State to prove otherwise. We hope that our supreme court would look favorably on such an articulation.” Id.
[6] Echoing previous decisions addressing this issue, “we continue to strongly recommend a colloquy on the record as the preferred method of determining whether a defendant is aware of [the] risks.” Pedockie, 2006 UT 28, ¶ 42. While we are cognizant that the “colloquy is not mandatory,” State v. Bozarth, 2021 UT App 117, ¶ 41, 501 P.3d 116, it is nevertheless “the most efficient means by which appeals may be limited,” Frampton, 737 P.2d at 187. We encourage courts to engage in a full colloquy to ensure that criminal defendants are conscious of the challenges that come with self-representation.
[7] Of further note, the April 2021 sentencing hearing occurred sixteen months after the sentencing review hearing at which West verbally asserted her desire to self-represent at sentencing. Sixteen months is a long time—with a pandemic in the middle, no less—and it would have been helpful to revisit West’s intention of being sentenced without an attorney.
[8] During oral argument, there was discussion about whether what occurred at West’s sentencing would be subject to “harmless error” review. However, the State acknowledged that it did not brief this argument. Therefore, “we do not address [the argument] on its merits.” See State v. Smith, 2018 UT App 28, ¶ 27 n.2, 414 P.3d 1092.
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.
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.
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.
[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).
JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES JILL M. POHLMAN and RYAN M. HARRIS concurred.
TENNEY, Judge:
¶1Sergio 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.
¶2In 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
¶3Utah 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).
¶4In 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.
¶5The 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.
¶6For 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
¶26Given 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”).
¶27First, 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.
¶28Second, 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.
¶30Here, 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
¶31The 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.
Utah Family Law, LC | divorceutah.com | 801-466-9277
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.
¶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.
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.
I’m preparing to begin pursuing child visitation. However, the child’s mother has moved and never told me where, and has cut off contact with me. How can I find out where she is now, or would getting a lawyer to find her address be better?
Make sure that you conduct the search in a way that is legal and that does not constitute harassment or stalking.
If a Google (and other search engines) search hasn’t uncovered the mother’s address,
then I would move on to one or two of the online services that charge a fee to locate such information. Here’s a list of some:
If that doesn’t work, hire a good private investigator. Note: private investigator quality varies widely. Make sure you don’t waste your money on a lousy P.I.
You asked if hiring a lawyer is a good way to find your child’s mother’s address and other contact information. No. Lawyers generally have no such skills. When lawyers want to find this kind of information they . . . hire private investigators. But it would be wise to consult an attorney when you start this process of seeking a court order for visitation to ensure that you don’t violate any laws in searching for the mother and in seeking a court order of visitation.
Utah Family Law, LC | divorceutah.com | 801-466-9277
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
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
————–
[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.
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
Lawyers consider restraining orders to stop abusers from using smart home devices to harass – but you can protect yourself
Some domestic abusers are using smart home devices to intimidate, harass, watch and listen to their victims.
Lawyers are grappling with the issue as they seek to cover smart home technology in restraining orders, the New York Times reports. Its story is based on more than 30 interviews with victims, their lawyers, shelter workers and emergency responders. (click here to read the rest of the article from the ABA Law Journal)
And click here (forms for applying for a protective order in Utah) and here (Utah Code Title 78B, Chapter 7 (Protective Orders)) if you want to learn more about how Utah protective orders can, among other protections,
Not to interfere with or change my phone, utility or other services.
To maintain existing wireless phone contracts or accounts.
Utah Family Law, LC | divorceutah.com | 801-466-9277