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.
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 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
How can I get my high-conflict ex to violate any terms of our court order? He operates within the confines of the legal language, but harasses and torments me at every opportunity. I have no recourse because he hasn’t broken any law, technically.
OK, I think I understand what you’re asking and why. I don’t think you’re saying that you want to entrap your ex into violating your divorce decree orders when your ex has no intention of violating them.
I believe that you are frustrated with how your ex is making you miserable without having violated the decree of divorce or otherwise appearing to you to have done anything illegal for which he can be held accountable.
The good news is that if your ex is chronically tormenting you, he probably is violating at least one law and or doing something for which the law has a remedy for you.
Go talk to the police or to the prosecuting attorney in your city or county.
Let me give you a few examples from the jurisdiction where I practice divorce and family law:
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.
¶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:
Nathan David Baize;
While subject to a protective order issued by a Utah Court;
After having been properly served with the protective order;
Intentionally or knowingly violated the protective order; and
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
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[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.
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