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State v. Fowers – 2023 UT App 128 – violation of protective order

State v. Fowers – 2023 UT App 128

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellant,

v.

THOMAS FOWERS,

Appellee.

Opinion

No. 20220073-CA

Filed October 26, 2023

Fourth District Court, Provo Department

The Honorable Robert A. Lund

No. 201402484

Sean D. Reyes and Jeffrey D. Mann, Attorneys for

Appellant, assisted by law student Rebecca Barker[1]

Douglas J. Thompson, Attorney for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which

JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.

LUTHY, Judge:

¶1        Thomas Fowers’s ex-wife (Ex-Wife) is married to his adopted brother (Brother). A court issued a protective order directing Fowers not to “contact . . . or communicate in any way with [Ex-Wife], either directly or indirectly,” and not to “threaten to commit any form of violence against” her. Early one morning, Fowers called Brother’s phone three times in two minutes from an unrecognized number. The first two times, no one answered. The third time, Ex-Wife answered, and Fowers said, “You and that f***ing whore have it coming.”

¶2        Fowers was charged with violating the protective order. The district court declined to bind Fowers over and dismissed the charge, determining that there was “no evidence in the record to establish that Mr. Fowers . . . intentionally communicat[ed] either directly or indirectly to [Ex-Wife]” since “the statement itself clearly [was] directed at [Brother]” and Fowers did not tell Brother “to direct the comment to [Ex-Wife].” The State appeals, and we reverse.

BACKGROUND

¶3        Ex-Wife obtained a protective order against Fowers in August 2017. The order included a “No Contact Order” stating, “Do not contact, phone, mail, e-mail, or communicate in any way with [Ex-Wife], either directly or indirectly.” It also included a “Personal Conduct Order” stating, “Do not commit, try to commit or threaten to commit any form of violence against [Ex-Wife] . . . . This includes stalking, harassing, threatening, physically hurting, or causing any other form of abuse.”

¶4        One morning in July 2020, Brother’s phone received three calls between 4:57 a.m. and 4:58 a.m. from an unrecognized number. At the time of the first call, Ex-Wife and Brother “were, of course, sleeping.” As they awoke, they thought that maybe someone was calling for help related to a wedding they were to attend that day. When Ex-Wife answered the third call, she recognized Fowers’s voice saying, “You and that f***ing whore have it coming.”

¶5        Ex-Wife reported the calls to authorities, and Fowers was charged with one third-degree felony count of violation of a protective order with a domestic violence enhancement.

¶6        The district court held a preliminary hearing on the charge. The State presented evidence that Fowers had been served with the protective order. In addition to Ex-Wife, who testified about the phone calls, the deputy who received Ex-Wife’s report testified that he had checked the number from which the calls had been made against local records and found that the number was attached to Fowers. The deputy also said that he called the number and that, when he asked to speak to Fowers, the person who answered identified himself as Fowers. Additionally, the court accepted into evidence records of three prior convictions of Fowers’s for violating this protective order and a previous protective order because those convictions were “relevant to establish under evidence [r]ule 404 both knowledge by the defendant and intention.”

¶7        After the State presented its case, the court found “that the [S]tate ha[d] not met its burden.” The court explained:

[A]lthough the direct and circumstantial evidence establishes that Mr. Fowers made the call, the number that he called was his adoptive brother’s number, not the alleged victim’s number. . . .

[And] the statement itself clearly is directed at [Brother], not at [Ex-Wife]. He say[s] “you and that f’ing whore,” meaning that he’s directing his comment toward [Brother] and not [Ex-Wife] . . . . [W]hat is glaringly missing from the record here is any statement by Mr. Fowers to [Brother] to direct the comment to the alleged victim. Therefore, there is no evidence in the record to establish that Mr. Fowers intentionally violated this order by intentionally communicating either directly or indirectly to [Ex-Wife].

Based on those findings, I find that the [S]tate has not—even drawing inferences in the light most favorable to the [S]tate— . . . establish[ed] sufficient evidence[,] and I decline to bind the charge over.

The court dismissed the charge with prejudice, and the State now appeals.

ISSUE AND STANDARD OF REVIEW

¶8        The State contends that it presented evidence establishing probable cause that Fowers violated the protective order and that the district court therefore erred by not binding Fowers over. In essence, the State argues that the court applied the wrong legal standard by not viewing the evidence and all reasonable inferences that can be drawn from it in favor of the prosecution. A district court’s “decision to bind over a criminal defendant for trial presents a mixed question of law and fact and requires the application of the appropriate bindover standard to the underlying factual findings. As a result, in reviewing a bindover decision, an appellate court should afford the decision limited deference.” In re I.R.C., 2010 UT 41, ¶ 12, 232 P.3d 1040 (cleaned up). “Applying the wrong legal standard . . . will always exceed whatever limited discretion the [court] has in the bindover decision.” State v. Ramirez, 2012 UT 59, ¶ 7, 289 P.3d 444.

ANALYSIS

¶9        Our supreme court has explained that the evidentiary threshold for bindover is a low bar:

Although the guarantee of a preliminary hearing is fundamental, the evidentiary threshold at such hearing is relatively low. As we have emphasized, a showing of “probable cause” entails only the presentation of evidence sufficient to support a reasonable belief that the defendant committed the charged crime. . . . To justify binding a defendant over for trial, the prosecution need not present evidence capable of supporting a finding of guilt beyond a reasonable doubt. Nor is the prosecution required to eliminate alternative inferences that could be drawn from the evidence in favor of the defense. All that is required is reasonably believable evidence—as opposed to speculation—sufficient to sustain each element of the crime(s) in question.

State v. Ramirez, 2012 UT 59, ¶ 9, 289 P.3d 444 (cleaned up). Here, the State needed to present “evidence sufficient to support a reasonable belief” that Fowers violated the protective order, id. (cleaned up), and the court was required to “view all evidence in the light most favorable to the prosecution and . . . draw all reasonable inferences in favor of the prosecution,” State v. Clark, 2001 UT 9, ¶ 10, 20 P.3d 300 (cleaned up).

¶10 A person commits the crime of violation of a protective order if the person “(a) is the respondent or defendant subject to a protective order . . . and (b) intentionally or knowingly violates that order after having been properly served” with it. Utah Code § 76-5-108(2). A person acts intentionally “when it is his conscious objective or desire to engage in the conduct.” Id. § 76-2-103(1). And a person acts knowingly “when he is aware of the nature of his conduct or the existing circumstances.” Id. § 76-2-103(2).

¶11 There is no dispute that Fowers was subject to the protective order at issue, and the State showed that Fowers was served with that protective order. Thus, the only issue before us is whether the State offered evidence supporting a reasonable belief that Fowers intentionally or knowingly violated the protective order. On this point, the State first argues that it put on evidence sufficient to establish probable cause that Fowers violated the No Contact Order portion of the protective order by “intentionally or knowingly contact[ing] Ex-Wife at least indirectly” because “[i]t was reasonable to infer that Fowers knew or intended that his contact and [message] . . . would be relayed to Ex-Wife.” The State then argues that Fowers’s statement “You and that f***ing whore have it coming” can also be reasonably interpreted as a threat of violence in violation of the Personal Conduct Order portion of the protective order. We agree with each of the State’s arguments.[2]

¶12      The State put on evidence establishing probable cause that Fowers intentionally or knowingly contacted Ex-Wife at least indirectly. In State v. Fouse, 2014 UT App 29, 319 P.3d 778, cert. denied, 329 P.3d 36 (Utah 2014), this court affirmed a conviction for violation of a protective order where the defendant mailed envelopes to the victim’s sisters rather than to the victim, his estranged wife. Id. ¶¶ 4–7, 43. The victim was living with one of the sisters, and the other sister lived in the apartment next door. Id. ¶ 3. While some of the letters in the envelopes were addressed to the victim, others contained statements such as, “Please hold onto this. . . . [E]ven though I can’t send nor talk to my wife or kids[,] . . . writing sure does help.” Id. ¶ 4. Nonetheless, we reasoned that a factfinder “could readily infer that communication directed to or dealing with one’s ex-spouse, and sent to the ex-spouse’s siblings, will routinely and predictably be conveyed by the siblings to their family member.” Id. ¶ 40. And we noted, “Such an inference is particularly sound in this case, given the jury’s awareness that [the victim] and her sisters were close—in both senses of that term.” Id.

¶13 The same reasoning applies here. A factfinder could readily infer that calls Fowers placed to Brother or statements Fowers made to him would “routinely and predictably be conveyed” to Ex-Wife, Brother’s spouse, especially where a factfinder could reasonably infer that Brother and Ex-Wife were “close” “in both senses of that term.” Id. Indeed, a factfinder could infer that Fowers’s decision to call Brother just before 5:00 a.m.— a time when spouses could reasonably be assumed to be together—manifested his intent to catch Brother and Ex-Wife together. Therefore, we have no trouble concluding that the State’s evidence was sufficient to support a reasonable belief that Fowers, by calling Brother’s phone when he did, intentionally or knowingly contacted Ex-Wife directly or indirectly. Fowers did not need to explicitly direct Brother to communicate his message to Ex-Wife, and the court erred in suggesting as much.

¶14 The State also asserts that Fowers’s statement “You and that f***ing whore have it coming” can be reasonably interpreted as a threat of violence. We agree. In State v. Spainhower, 1999 UT App 280, 988 P.2d 452, this court recognized that the admittedly “vague and indirect” statement, “‘I’m going to get you,’ surely may connote a threat of bodily injury” because “among the many dictionary definitions of the verb ‘get’ are: ‘to bring to retribution, take vengeance on, KILL’ and ‘to strike with force, HIT.’” Id. ¶¶ 6– 7 (cleaned up). Likewise, the words at issue here, though perhaps similarly vague and indirect, could carry either a violent or a nonviolent meaning and must be interpreted by the factfinder in light of “the inferences to be drawn from the context in which the words were spoken.” Id. ¶ 7. And again, at the preliminary hearing stage, a court must “view all evidence in the light most favorable to the prosecution and must draw all reasonable inferences in favor of the prosecution.” Clark, 2001 UT 9, ¶ 10 (cleaned up). Accordingly, at this stage, the court should have interpreted Fowers’s words to be capable of conveying, in context, a threat of violence.

CONCLUSION

¶15 The protective order’s No Contact Order forbade Fowers from contacting, phoning, mailing, e-mailing, or communicating in any way with Ex-Wife, either directly or indirectly. Its Personal Conduct Order forbade him from threatening violence against Ex-Wife. Plainly there is “reasonably believable evidence—as opposed to speculation—sufficient to” show that Fowers violated one or both of these provisions. State v. Ramirez, 2012 UT 59, ¶ 9, 289 P.3d 444. By not viewing the evidence and the reasonable inferences to be drawn from it in the light most favorable to the State—and instead requiring a statement by Fowers to Brother to direct the comment at issue to Ex-Wife—the district court applied the wrong legal standard and exceeded “whatever limited discretion” it had in the bindover decision. Id. ¶ 7. We therefore reverse and remand this matter to the district court for further proceedings consistent with this opinion.


[1] See Utah R. Jud. Admin. 14-807 (governing law student practice in the courts of Utah).

[2] Fowers asserts that the State did not preserve “the arguments” it now makes on appeal because the prosecutor “did not raise [them] in a way that gave the district court the opportunity . . . to address [them].” “An issue is preserved by presenting it to the trial court in such a way that the trial court has an opportunity to rule on that issue.” Vierig v. Therriault, 2023 UT App 67, ¶ 43, 532 P.3d 568 (cleaned up); see id. ¶ 44 (“Of note, issues must be preserved, not arguments for or against a particular ruling on an issue raised below. By contrast, new arguments, when brought under a properly preserved issue or theory, do not require an exception to preservation.” (cleaned up)).

Fowers is mistaken when he says that the State did not meet this preservation standard here. At the close of the preliminary hearing, the State referenced “paragraph 1 and 2 of the protective order”; identified those paragraphs as the Personal Conduct Order and No Contact Order respectively; and noted that they prohibited Fowers from “threatening [Ex-Wife] in any way” and from “communicating in any way with [Ex-Wife] either directly or indirectly.” The State then highlighted the evidence that Fowers “called the husband of [Ex-Wife] in the early morning hours when they would presumably be together and made a statement against her to [her] then husband,” which is the same evidence that the State emphasizes here. By presenting evidence and arguing below for bindover based on an alleged violation of both the Personal Conduct Order and the No Contact Order, the State gave the district court an opportunity to rule on the same questions we are now asked to rule on. So regardless of whether those questions are characterized as arguments or issues—and we express no opinion as to the proper characterization here— Fowers’s preservation argument fails.

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Important things divorce attorney clients need to know but would easily and freely be forgiven for not knowing without being told. No. 2:

If your attorney calls you, it’s important. Take the call, and if you can’t take the call, then call back ASAP (meaning same day, and not at 4:47 p.m.). Hours can often make the difference between winning and losing. If your lawyer is desperately trying to get in touch with you in the morning and you don’t respond until later that day, or worse, days later, it may be too late. Really. No, really.

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

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My attorney just dropped me. What do I do now?

My attorney just dropped me. What do I do now?

My attorney in a civil matter dropped me and I just found out yesterday that I have 21 days to get a new attorney, and my time is up in 3 days. Is there any way to get an extension for this? 

I had to write this quickly because I wanted you to see my answer as soon as possible: 

My answer: Maybe. I’d contact the opposing attorney and ask for an extension. I would call and ask. You will likely be told “the attorney can’t come to the phone,” so I would then follow up my call with an email seeking an extension to find substitute counsel explaining that you learned today that you only have 3 days left of the 21 days (and explain why you just found out and why you couldn’t have taken care of this sooner). You’ll want that e-mail to document the fact that you tried to get opposing counsel to agree to you receiving a reasonable extension of time. 

Then I would notify the court with the same thing, i.e., explaining to the court clerk that you learned today that you only have 3 days left of the 21 days (and explain why you just found out and why you couldn’t have taken care of this sooner). It’s doubtful that the court clerk can do anything to give you more time, but it’s important to document that you gave notice and that you informed the clerk of your efforts. 

Then I would do my best to find a new lawyer within 3 days and ensure that that attorney files a notice of appearance as your counsel within that 3 days. This is serious. Failure to comply with the deadline or to obtain—in writing—an extension of the deadline could have some potentially serious and irreparable adverse effects on your case. 

If you believe or know that for some reason you absolutely cannot get a new attorney before the 21-day period expires, you may wish to file a motion with the court to request an extension of time (a reasonably extension, I’d say around 7–10 days at most). Just because you filed the motion does not mean that your request will automatically be granted, so don’t make the mistake of believing that “ask and it shall be given.” 

The safest course of action is to get a new lawyer to enter an appearance as your counsel before the time expires. 

Finally, remember this: in the jurisdiction where I practice law (Utah), a litigant is not required to get a new lawyer. What I mean is: if your lawyer drops you as a client and withdraws as your counsel and you want to proceed on your own in the case, representing yourself, you can do that. You would need to file with the court a notice that you are choosing to proceed without counsel and to represent yourself in the case going forward. See Utah Rules of Civil Procedure, Rule 74. After you have done that, if in the future you determine you want or need a lawyer, you can hire a lawyer at your discretion and on your own timetable. 

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

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Is service of legal papers other than in person fair?

Is service of legal papers other than in person fair?

I recently received a follow up question on this original question I answered on Quroa:

How can I sue someone without knowing their address?

My answer was:

In Utah, if you can persuade the court with which you have filed your law suit that you have made, without success, a duly diligent search for a way to serve the defendant, the court will allow you to serve the defendant “by publication,” meaning by publication in a newspaper of general circulation in the city where the defendant was last known to have been found or publication by posting notice in the courthouse, or online, etc. The point being that if there is no other way to achieve service of process personally upon the defendant or by mailing a copy of the complaint and summons to his/her U.S. Mail address or e-mail address or by text message to his/her cell phone, etc., then service by publication is what the court will permit, so that your law suit can proceed.

The follow up question was this:

Wow, this sounds really extreme. I’m not an attorney and from your profile it seems that you are, but I just can’t understand logistically how a Court could allow this. Perhaps when everyone received circulars this might have been more reasonable, but with so many news sources I don’t know how you could possibly expect that the person being served to see this. Would a Judge allow summary judgment if they didn’t respond after the publication?

Here is my follow up answer:

Remember, a plaintiff is not granted leave to serve by alternative means without first proving to the court’s satisfaction that the plaintiff “the identity or whereabouts of the person to be served are unknown and cannot be ascertained through reasonable diligence” or “if there is good cause to believe that the person to be served is avoiding service.” The party moving the court to allow service by means other than personal service “must set forth the efforts made to identify, locate, and serve the party” before the court will permit service by alternative means.

Alternative service used to be primarily by publishing in the newspaper when newspaper delivery and reading were ubiquitous. Now that fewer people read newspapers with every passing day, alternative service has moved to things like mail to last known mailing address, an e-mail to last known address, to a social media account, or a text message to last-known phone number. That’s fair. That’s reasonably and honestly calculated to try to reach the defendant and give him/her notice. How else would you reasonably expect alternative service to be achieved?

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

https://www.quora.com/How-can-I-sue-someone-without-knowing-their-address/answer/Eric-Johnson-311

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Can a parent discipline a child by taking the child’s phone away?

Can a parent discipline a child by taking the child’s phone away?

Before researching this question, I thought the answer was obvious. It’s not. As a both a lawyer and a parent myself, I always believed that I had control over my minor children’s property, meaning I could, among other things, withhold use of a phone or a bike as a disciplinary measure. Now I’m not so sure. Here’s what I found. What do you think? (read this whole thing because if you don’t you’ll be fooled):

I found two cases (in Texas and Michigan) in which a parent was arrested and charged with theft of a phone. In the Texas case, a father was charged with theft, but the court found the father not guilty because there was insufficient evidence of theft. The mother of the child claimed the phone was hers, but the court could not determine ownership. In the Michigan case, a mother was charged with theft, but charges were dropped when it was discovered that the phone was not the property of the ex-husband/father, but that the minor daughter’s owned the phone.

From what I can tell from the cursory research I have conducted, I can confidently conclude: 1) courts and prosecutors generally don’t want to deal with these kinds of family disputes (good for them) and 2) these kinds of cases can turn out however the prosecutors and/or courts want, i.e., they can construe the same facts and the same law to reach the desired outcome either way. Otherwise stated, if a conviction for theft is wanted, it can be found “as a matter of law” that taking a child’s phone is theft, and if a conviction for theft is not wanted, it can be found “as a matter of law” (often times referring to the same statutes) that a parent taking the child’s phone away was not theft.

But is there a more definitive legal answer? Here’s what I found on that question:

See 61 A.L.R.2d 1270 (Originally published in 1958):

§ 1. Generally [Cumulative Supplement]

Although a parent, either as natural guardian or otherwise, has no title to the property of his minor child, nor any custody or control over it, and may make a gift inter vivos to such child which, when fully executed, is irrevocable, property furnished by a parent to his child for the purpose of support and maintenance, or education, unless in some definite way given to the child as his own property, or unless the child has been emancipated, from which a gift may be implied, appears to remain the property of the parent, who is entitled to recover for damage thereto or loss thereof.

And see:

5 Summ. Pa. Jur. 2d Family Law § 8:38 (2d ed.) | June 2020 Update

§ 8:38. Parent’s right to control of child’s property

A parent has no authority to sell and convey the interest of a minor child in real or personal property. Parents are also precluded from bargaining away the rights of their minor children.

But then you get cases like Kemp v. Kemp, 485 N.E.2d 663, 665 (Ind.Ct.App.1985):

Court necessarily grants to divorced parent some degree of control over child’s property in process of determining which parent acquires or retains custody of child upon dissolution of marriage.

Inherent in the concept of “child custody” is the right and obligation to care for, control, and maintain the child. It is a matter of common sense, then, that in the process of determining which parent acquires or retains custody of a child, a court necessarily grants to that parent some degree of control over the child’s property.

For example, no one would deny a “divorce” court’s jurisdiction when dissolving a marriage and disposing of marital property to order a husband to surrender to his former wife a motorcycle belonging to their sixteen-year-old child, now in the wife’s custody. An argument that the court in such a hypothetical has thereby “awarded property not owned by the parties” or “distributed assets in excess of the marital estate” misses the mark entirely. In fact, such a court has awarded nothing and distributed nothing. It has simply decided which parent should exercise the guidance and control over the minor’s life and property that inhere in the concept of parental custody.

Before and after the dissolution the motorcycle “belongs” to the child; the court has merely determined which party ultimately possesses what might be termed parental dominion over the property by virtue of having custody of its owner. Thus, even though the mother might subsequently deny her minor child the use of his motorcycle, her right to do so lies in her rights and duties as custodial parent, not in any rights of legal ownership. See McKinnon v. First National Bank of Pensacola (1919) 77 Fla. 777, 82 So. 748 (In McKinnon, the Florida Supreme Court noted that while a father had given money to his children as an absolute gift, he “did not intend for them to acquire extravagant habits by permitting them to use the money as they pleased before they were eighteen years old. This, as their natural guardian, he had the right to do, and if the gifts had been made by a third person he could have controlled his children in its expenditure until they reached an age when he considered it was advisable for them to use it as they saw fit.” 82 So. at 749, 750 (emphasis supplied)).

. . . and like State v. Udell (Court of Appeals of Kansas, July 22, 2005 34 Kan.App.2d 163, 115 P.3d 176):

a parent/child relationship gives rise to a presumption of control of property. Rith, 164 F.3d at 1330. The Rith court noted evidence which would tend to rebut that presumption included the child’s payment of rent, a lock on the bedroom door, or an implicit or explicit agreement the parents never enter a particular area. 164 F.3d at 1331.

. . . and like L. A. M. v. State (Supreme Court of Alaska. March 15, 1976, 547 P.2d 827)

While there is much discussion of parental rights in reported cases, few cases attempt to define those rights making discussion difficult. A careful review of the literature, including case law, treatise and law review, indicates that the following have been listed as ‘parental rights’ protected to varying degrees by the Constitution:

*****

(4) The right to control and manage a minor child’s property.*

*I can’t find any U.S. Supreme Court or other case law supporting this claim.

But then there are cases such as In re Casey (December 4, 2008, Not Reported in Cal.Rptr.3d2008 WL 51229895 Cal. State Bar Ct. Rptr. 1172008 Daily Journal D.A.R. 17,952)

(Emery v. Emery (1955) 45 cal.2d 421, 432 [minor child’s property is his or her own, and not that of child’s parents]; see also Fam.Code, § 7502 [parent has “no control over the property of [a] child”]; In re Tetsubumi Yano’s Estate (1922) 188 Cal. 645, 649 [minority does not incapacitate a person from taking and holding real estate].)

Black’s Law Dictionary ((11th ed. 2019), under the definition of “parental rights”) has this, but then gives no citations to the Constitution or statutes or case law:

parental rights (18c) A parent’s rights to make all decisions concerning his or her child, including the right to determine the child’s care and custody, the right to educate and discipline the child, and the right to control the child’s earnings and property.

Before researching this question, I thought the answer was obvious. It’s not.

See 61 A.L.R.2d 1270 (Originally published in 1958):

§ 1. Generally [Cumulative Supplement]

Although a parent, either as natural guardian or otherwise, has no title to the property of his minor child, nor any custody or control over it, and may make a gift inter vivos to such child which, when fully executed, is irrevocable, property furnished by a parent to his child for the purpose of support and maintenance, or education, unless in some definite way given to the child as his own property, or unless the child has been emancipated, from which a gift may be implied, appears to remain the property of the parent, who is entitled to recover for damage thereto or loss thereof.

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

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

2020 UT App 73  THE UTAH COURT OF APPEALS

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

Opinion
No. 20190395-CA
Filed May 7, 2020

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

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

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

HAGEN, Judge:

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

BACKGROUND[1]

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

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

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

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

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

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

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

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

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

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

¶12      Allen appeals.

ISSUE AND STANDARD OF REVIEW

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

ANALYSIS

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

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

  1. Knowledge of the Injunction

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

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

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

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

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

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

  1. Intentional Failure to Comply

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

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

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

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

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

CONCLUSION

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

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

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

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

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

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

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2019 UT App 202 – State v. Baize – protective order challenge

2019 UT App 202 – THE UTAH COURT OF APPEALS

STATE OF UTAH, Appellee,
v.
NATHAN DAVID BAIZE, Appellant.

Opinion
No. 20180326-CA
Filed December 12, 2019

Fourth District Court, American Fork Department
The Honorable Roger W. Griffin
No. 161100835

Douglas J. Thompson, Attorney for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES KATE APPLEBY and JILL M. POHLMAN concurred.

CHRISTIANSEN FORSTER, Judge:

¶1           Nathan David Baize appeals his convictions for violating a protective order. We affirm.

BACKGROUND[1]

¶2           Baize and his former wife (Victim) were married in 2010 and divorced in 2014. Victim had sole physical custody of their child and shared joint legal custody with Baize. After enduring several instances of verbal and physical abuse, Victim sought a protective order against Baize. The court issued a protective order after a hearing, at which Baize was present, directing Baize not to “commit, try to commit or threaten to commit any form of violence” against Victim, including “stalking, harassing, threatening, physically hurting, or causing any other form of abuse.” Baize was also ordered, “Do not contact, phone, mail, e-mail, or communicate in any way with [Victim], either directly or indirectly,” with the exception that Baize could email Victim about their child, provided his communications were “civil in nature.”

¶3           After the entry of the protective order, Baize sent numerous emails to Victim that were not about their child, not civil in nature, and arguably abusive. Much of the content of the emails was directed toward Victim’s qualities and character. Baize sent emails to Victim telling her that she was a “spoiled brat,” “lazy,” “irresponsible,” “vindictive,” “selfish,” “uncooperative,” “incapable,” “fake,” and lacking “integrity.” Baize also sent emails to Victim telling her to “[u]se your brain blondie,” to “[k]eep it simple stupid, [Victim’s name],” and that he was “sick and tired . . . of [Victim’s] blonde, lazy, messed up approach to cooperation.” Additionally, on several occasions, Baize threatened to call the police for “custodial interference charges.”

¶4           On another occasion, Baize emailed Victim—with a copy also sent to Victim’s new husband—complaining about Victim and alleging that Victim engaged in certain improprieties during their marriage. Victim’s husband spoke to Baize at length and told him that he “need[ed] to stop the belligerent, degrading emails to [Victim].” Baize responded that his emails “will never stop.” Furthermore, Baize told Victim that she was “a weak, weak person” because she would “construe [his email comments] as personal attacks.”

 

¶5        The content of Baize’s emails to Victim prompted the State to charge him with four counts of violating a protective order. See Utah Code Ann. § 76-5-108 (LexisNexis Supp. 2018). These charges were enhanced from misdemeanors to third degree felonies because Baize already had a prior conviction for violating the same protective order. See id. § 77-36-1.1(2)(c) (Supp. 2019) (describing enhanced penalties for violating a protective order). Baize moved to dismiss the charges, arguing that the protective order was an unconstitutional prior restraint of speech and that requiring his emails to be “civil in nature” was unconstitutionally vague. Baize also asked the court to give the jury an instruction defining the terms “harassing,” “threatening,” and “abuse” in the protective order as “forms of violence or threats of violence.” The court denied both motions.

¶6        At trial, Baize stated that while the tone in his emails might indicate that he was “[f]rustrated,” “feeling dejected,” “[h]elpless, hopeless, [and] concerned,” the emails were never uncivil. Rather, Baize asserted that he was just being “honest” and “clear.” However, Baize also testified that he suspected Victim would be offended by the emails and that Victim was “weak” for reading his emails as insults. Baize also admitted that his emails were similar in tone and content to emails he had sent previously to Victim, which formed the basis of his prior conviction for violating the same protective order. The jury found Baize guilty of three counts of violating a protective order. Baize appeals.

ISSUES AND STANDARDS OF REVIEW

¶7        The first issue on appeal is whether the restriction in the protective order requiring that Baize’s communication with Victim be “civil in nature” rendered the order unconstitutionally vague or acted as a prior restraint on speech. “Whether [an order] is constitutional is a question of law that we review for correctness, giving no deference to the trial court.” State v. MacGuire, 2004 UT 4, ¶ 8, 84 P.3d 1171 (quotation simplified).

 

¶8           Baize’s second challenge on appeal is that the trial court erred in denying his request to instruct the jury on the “legal definitions” of terms in the protective order. This issue presents a question of law, and both parties agree that we review the trial court’s decision on this point for correctness. See State v. Dozah, 2016 UT App 13, ¶ 12, 368 P.3d 863 (“We review a district court’s refusal to give a requested jury instruction for correctness.”).

ANALYSIS

I. Constitutional Challenges to the Protective Order

¶9           At the outset, we must determine whether Baize is permitted, “in this criminal proceeding, [to] collaterally attack the protective order entered in the prior civil proceeding.” See State v. Hegbloom, 2014 UT App 213, ¶ 10, 362 P.3d 921. The State contends that as “a threshold matter, this Court should not address either constitutional claim because the collateral bar rule precludes Baize from challenging the validity of the protective order in a prosecution for violating that order.”

¶10 A collateral attack is “where a judgment is attacked in other ways than by proceedings in the original action to have it vacated or revised or modified or by a proceeding in equity to prevent its enforcement.” Olsen v. Board of Educ. of Granite School Dist., 571 P.2d 1336, 1338 (Utah 1977) (quotation simplified). “Under the collateral bar doctrine, a party may not challenge a district court’s order by violating it. Instead, [the party] must move to vacate or modify the order, or seek relief in an appellate court.” Iota LLC v. Davco Mgmt. Co., 2016 UT App 231, ¶ 13, 391 P.3d 239 (quotation simplified). “With rare exception, when a court with proper jurisdiction enters a final judgment, . . . that judgment can only be attacked on direct appeal.” State v. Hamilton, 2003 UT 22, ¶ 25, 70 P.3d 111.

¶11 The proper forum for a defendant to challenge a protective order’s terms is in the original action, not in a subsequent criminal case resulting from its violation. This court has already addressed this issue in Hegbloom, where we stated that a civil protective order is not subject to collateral attack and that there is “nothing fundamentally unfair in not allowing a litigant to challenge collaterally a judgment he could have challenged directly had he chosen to do so.” 2014 UT App 213, ¶¶ 15, 22; see also Olsen, 571 P.2d at 1338 (explaining that when an issue is erroneously decided, the proper remedy is to directly, rather than collaterally, attack it); Iota, 2016 UT App 231, ¶ 18 (“The proper method for contesting an adverse ruling is to appeal it, not to violate it.” (quotation simplified)). Courts in other jurisdictions are in accord.[2]

¶12 Thus, our precedent and that of other jurisdictions make clear that the collateral bar rule applies to situations in which a defendant seeks to attack the validity of a protective order in a criminal proceeding for addressing a violation of that same protective order. See State v. Winter, 979 A.2d 608, 615 (Conn. App. Ct. 2009) (“The collateral bar rule has been extended to apply to situations in which . . . the defendant seeks to attack the validity of a court order in a criminal proceeding, and the rule is justified on the ground that it advances important societal interests in an orderly system of government, respect for the judicial process and the rule of law, and the preservation of civil order.” (quotation simplified)).

¶13 Here, Baize was ordered not to “commit, try to commit or threaten to commit any form of violence” against Victim, including “stalking, harassing, threatening, physically hurting, or causing any other form of abuse.” The relevant portion of the protective order also provided the following prohibition: “Do not contact, phone, mail, e-mail or communicate in any way with [Victim], either directly or indirectly,” the only exception being that Baize could contact Victim “via email about Child,” provided the emails were “civil in nature.” Not only did Baize sign the protective order as a whole, but he initialed each provision of the order, including those he now challenges on constitutional grounds. Thus, at the outset and even before he signed it, Baize had the opportunity to seek clarification of any provision in the order that he believed was too restrictive or vague. And after the protective order was entered by the court, Baize still could have challenged the order on direct appeal. But he never did so. Instead, Baize raised his prior restraint and vagueness challenges to the protective order only after he was criminally charged a second time with violating the order.

¶14 Precedent—both that of Utah and other jurisdictions­ states that a defendant cannot attack the validity of a protective order in a prosecution for violating the order. And that is exactly what Baize attempts to do here. Thus, we conclude that Baize cannot collaterally attack a protective order arising from a civil proceeding in this criminal proceeding. Put simply, this is not the proper forum to address constitutional challenges to the protective order’s terms.[3]

II. Legal Definitions in the Protective Order

¶15 The protective order prohibited Baize from “stalking, harassing, threatening, physically hurting, or causing any other form of abuse” to Victim. Baize argues that the trial court erred when it denied his request to define for the jury certain “legal terms” contained in the protective order.

¶16 Jury instructions require no specific form as long as they accurately convey the law. “To determine if jury instructions correctly state the law, we look at the jury instructions in their entirety and will affirm when the instructions taken as a whole fairly instruct the jury on the law applicable to the case.” State v. Painter, 2014 UT App 272, ¶ 6, 339 P.3d 107 (quotation simplified); see also State v. Hobbs, 2003 UT App 27, ¶ 31, 64 P.3d 1218 (stating that jury instructions will be upheld when they “fairly tender the case to the jury even where one or more of the instructions, standing alone, are not as full or accurate as they might have been” (quotation simplified)).

¶17 Baize was charged with violating a protective order. See Utah Code Ann. § 76-5-108 (LexisNexis Supp. 2018) (stating that any person who is “subject to a protective order” and “who intentionally or knowingly violates that order after having been properly served” is guilty of a misdemeanor or felony, depending on the circumstances). The court instructed the jury that to find Baize guilty of violating the protective order, it would need to find beyond a reasonable doubt the following elements:

  1. Nathan David Baize;
  2. While subject to a protective order issued by a Utah Court;
  3. After having been properly served with the protective order;
  4. Intentionally or knowingly violated the protective order; and
  5. Is or was a cohabitant of the alleged victim.

¶18 Baize contends that the court erred when it denied his motion requesting a jury instruction that defined the terms “stalking, harassing, threatening, physically hurting, or causing any other form of abuse” as forms of violence or the threat of violence. Baize argues that “because the protective order only prohibits stalking, harassing, threats, and abuse insofar as these terms could mean violence or a threat of violence,” the definitions of those terms should be “limited . . . to that realm.” (Quotation simplified.) Specifically, Baize requested that the court instruct the jury on the definitions of harassment and physical harm as those terms are defined in Utah’s criminal code or in the Cohabitant Abuse Procedures Act. See Utah Code Ann. § 76-5-106(1) (LexisNexis 2017) (defining harassment as intentionally frightening or harassing another by communicating “a written or recorded threat to commit any violent felony”); id. § 77-36-1(4) (Supp. 2019) (defining domestic violence as “any criminal offense involving violence or physical harm or threat of violence or physical harm”).[4]

¶19 The violence-based definitional language Baize requested is not found in the protective order or in the statute he was accused of violating. But Baize asserts that because Utah Code section 76-5-108 does not define the terms in the protective order (namely, harassing and threatening), the court should have given the jury the statutory meanings of those terms pulled from other provisions of the criminal code instead of allowing the jury to rely on the general understanding of the terms. Baize’s argument misses the mark. He was not charged with harassing or any other violent behavior pursuant to a separate statute. Rather, he was charged pursuant to Utah Code section 76-5-108 with four counts of violating the protective order, and the jury instructions on those four counts closely tracked the language of that section. Moreover, Baize presents no evidence that the protective order adopted the specific violence-based statutory definitions he proposed.

¶20 We conclude that the trial court did not err when it denied Baize’s request that the jury be instructed using Baize’s restrictive definitions of certain terms and allowed the jury to determine whether Baize violated the protective order based on common definitions of the terms contained in the protective order.[5]

CONCLUSION

¶21 We hold that the proper forum for Baize to challenge the protective order was the original civil proceeding pursuant to which the order was entered. Because Baize had notice and the opportunity to appeal the protective order, he is barred from collaterally challenging it in the subsequent criminal proceeding resulting from its violation. We also conclude that the trial court did not err in denying Baize’s request to define for the jury certain terms contained in the protective order. Accordingly, the judgment of the trial court is affirmed.

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

———————–

[1] “On appeal, we recite the facts from the record in the light most favorable to the jury’s verdict and present conflicting evidence only as necessary to understand issues raised on appeal.” State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.

[2] 2. Other jurisdictions also explicitly bar collateral attack in this context. See, e.g., State v. Grindling, 31 P.3d 915, 918–19 (Haw. 2001) (stating that a domestic restraining order is not subject to collateral attack in the criminal proceeding for its violation and collecting cases stating the same); Wood v. Commonwealth, 178 S.W.3d 500, 513 (Ky. 2005) (stating that a party “may not launch a collateral attack on the validity of an emergency protective order in a subsequent prosecution for violation of that order”); Truesdell v. State, 304 P.3d 396, 399 (Nev. 2013) (“[A] party may not collaterally attack the validity of a [protective order] in a subsequent criminal proceeding based on violation of the [protective order].”); Best v. Marino, 2017-NMCA-073, ¶ 18, 404 P.3d 450 (“The collateral bar rule precludes a restrained party from challenging the merits of [a protective order] after a finding of contempt.”); City of Seattle v. May, 256 P.3d 1161, 1165 (Wash. 2011) (en banc) (“The collateral bar rule precludes challenges to the validity . . . of a court order in a proceeding for violation of such an order except for challenges to the issuing court’s jurisdiction to issue the type of order in question.”).

[3] 3. Even if we were to conclude that Baize could attack the validity of the civil protective order here and agree with him that the “civil in nature” language in the protective order is unconstitutionally vague, Baize ignores the alternative restriction imposed on him by the protective order, namely that his communication with Victim must pertain to their child. Baize’s emails to Victim appear to have violated this provision.

Baize’s communications variously described Victim in unflattering terms and accused her of indiscretions. Indeed, our review of the record reveals that Baize’s emails to Victim are replete with examples of Baize directing his comments to Victim’s alleged attributes rather than a discussion of co-parenting needs or the needs of the child.

We find the argument that Baize’s comments took place in the context of communication about their child unpersuasive. Baize’s concerns regarding their child’s well-being or Victim’s parenting could have been effectively communicated without personal commentary about Victim. In fact, Baize admitted at trial that he was “[g]ambling on” Victim construing the comments he made in his emails as “personal attacks.”

[4] Baize also argues on appeal that the jury should have been instructed on the definition of stalking. But at trial, the State stipulated that the court would consider instructing the jury on the definition of stalking only “[i]f the State [brought] in evidence of stalking.” The State did not attempt to introduce evidence of stalking, and Baize did not again request that the trial court instruct the jury on the issue of stalking. Consequently, Baize waived this aspect of his argument below and cannot raise it on appeal. See State v. Johnson, 2017 UT 76, ¶ 16 n.4, 416 P.3d 443 (“Waiver, in the context of raising an issue before a court, is generally the relinquishment or abandonment of an issue before a trial or appellate court. . . . If an issue has been waived in the trial court, that issue is not preserved for appeal.”).

[5] 5. We resolve this aspect of Baize’s appeal by declining to apply strict statutory definitions, but we note that the language of the relevant provisions of the protective order was written broadly and did not suggest that Baize was prohibited from engaging in only physically violent behavior or in making threats of violence. Baize’s violence-based reading of the protective order’s terms conflicts with the public policy underlying the entire domestic violence statutory scheme:

Because of the serious, unique, and highly traumatic nature of domestic violence crimes, the high recidivism rate of violent offenders, and the demonstrated increased risk of continued acts of violence subsequent to the release of a perpetrator who is convicted of domestic violence, it is the finding of the Legislature that domestic violence crimes warrant the issuance of continuous protective orders . . . because of the need to provide ongoing protection for the victim . . . . [T]he court shall issue a continuous protective order at the time of the conviction or sentencing limiting the contact between the perpetrator and the victim unless the court determines by clear and convincing evidence that the victim does not . . . have a reasonable fear of future harm or abuse.

Utah Code Ann. § 77-36-5.1(6)(a)–(b) (LexisNexis Supp. 2019); see also State v. Hardy, 2002 UT App 244, ¶ 17, 54 P.3d 645 (“The state has an inarguably significant interest in protecting the health and well-being of its citizens. In furtherance of this goal, the state has created a mechanism whereby the victims of domestic violence may obtain civil orders of protection against their abusers. As part of this protection, the court may prohibit the abuser from having any contact, direct or indirect, with the victim or the victim’s family.”). Thus, the statute’s purpose is to protect domestic abuse victims from further abusive behavior in the broad sense, including psychological abuse and other forms of controlling behavior. Baize’s violence-based interpretation of the protective order’s terms appears to run contrary to the significant interest the State has in protecting the overall health and emotional well-being of its citizens.

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Using Smart Home Devices to Stalk and Harass

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

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