State v. Miller , 440 P.3d 868 ( 2019 )

2019 UT App 46THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellant,
v.
GREGORY RYAN MILLER,
Appellee.
Opinion
No. 20170349-CA
Filed March 28, 2019
Third District Court, West Jordan Department
The Honorable Bruce C. Lubeck
No. 151400888
Simarjit S. Gill and Breanne M. Miller, Attorneys
for Appellant
Nathalie S. Skibine, Attorney for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
FORSTER concurred.
HAGEN, Judge:
¶1 A jury convicted Miller of one count of stalking based on
evidence that Gregory Ryan Miller sent emails disparaging the
victim (K.B.) to her employer (the company). After the jury
delivered its verdict, Miller filed a motion to arrest judgment.
The district court granted the motion, determining that no
reasonable jury could find that Miller (1) intentionally or
knowingly engaged in a course of conduct directed at K.B. and
(2) knew or should have known that the course of conduct
would cause a reasonable person fear or emotional distress
because Miller did not know that K.B. would read the emails. See
Utah Code Ann. § 76-5-106.5(2) (LexisNexis 2014). The State
State v. Miller
appeals. We conclude that the State was not required to present
evidence that Miller knew or should have known that his emails
to the company would reach K.B. to prove beyond a reasonable
doubt that Miller’s conduct amounted to stalking. We therefore
reverse and remand to reinstate the jury’s verdict.
BACKGROUND 1
¶2 Miller and K.B. met in 2003 or 2004 while working at the
same accounting firm, and there were “periods of time” that
they were “close friends.” In 2011, K.B. found herself
underemployed and Miller assisted her in obtaining a higher
paying job with the company, a security system provider, where
Miller was also employed. Miller held the position of financial
controller and K.B. was hired as a bookkeeper.
¶3 In August 2012, Miller came across an invoice billed by a
law firm for research conducted on the rights of convicted felons
to have ownership interests in security system companies in the
several states in which the company operated. The invoice
identified the felon in question as the chief executive officer and
one of the owners of the company. 2 Based on his own research,
Miller concluded that the owner was illegally operating in the
industry. Around this time, Miller and K.B.’s friendship began to
deteriorate, which K.B. attributed to her refusal to be involved in
Miller’s plan to blackmail the owner.
1. “We recite the facts in the light most favorable to the jury’s
verdict, and we present conflicting evidence as necessary to
understand issues raised on appeal.” State v. Black, 2015 UT App
30, ¶ 2, 344 P.3d 644.
2. At the time of trial, this owner no longer possessed an
ownership interest in the company.
20170349-CA 2 2019 UT App 46State v. Miller
¶4 Without K.B.’s support, Miller eventually confronted the
owner about his criminal past and Miller’s employment at the
company was terminated the following day. After the company
terminated his employment, Miller entered into negotiations
with the company regarding his severance package. But
according to Miller’s testimony, the negotiations came to a
sudden halt after Miller learned that K.B. had provided the
company’s attorney with damaging information regarding
Miller.
¶5 Following his termination, K.B. notified Miller that she no
longer wished to remain in contact with him. Nevertheless,
Miller continued to call her cell phone, call her work phone,
email her, and text her about work and her personal life. Such
communications included a suggestion that she find new
employment as he intended to notify authorities that the
company was illegally operating in the industry, accusations
that K.B. was a traitor, requests that K.B. provide him a good
work reference, racial slurs about K.B.’s boyfriend, and requests
to meet her boyfriend. K.B. asked Miller to stop contacting her.
¶6 Despite her requests, Miller continued to contact K.B. by
phone and email and would appear in public places that K.B.
typically frequented. K.B. notified the police and in August 2013,
she obtained a civil stalking injunction against Miller. The
injunction stated, in relevant part:
Do not stalk [K.B.]. This means you must not
follow, threaten, annoy, harass, or cause distress to
[K.B.]. For a legal definition of stalking, see Utah
Code, sections 76-5-106.5 and 77­3a-101.
Do not contact, phone, mail, e-mail, or
communicate in any way with [K.B.] and any
person listed below, either directly or indirectly.
20170349-CA 3 2019 UT App 46State v. Miller
Other people you must not contact: K.B., [and
K.B.’s daughters].
After the court issued the injunction, Miller ceased calling,
texting, or emailing K.B.
¶7 In the meantime, Miller and the company were engaged
in a civil lawsuit, to which K.B. was not a party. After the
company and Miller eventually reached a settlement, Miller later
contacted the company’s attorney via email. This resulted in an
exchange of emails between Miller and the company’s attorney
that took place between August 11, 2014, and August 25, 2014.
¶8 In the initial email, Miller notified the attorney that he
intended to file “grievances” against the Utah Division of
Occupational and Professional Licensing with the Utah Attorney
General and the FBI. Miller stated that he had a job interview
with one of the company’s competitors and that he intended to
work with Utah legislators to “improve Utah’s regulation of
companies trafficking in sensitive consumer information.” The
company’s attorney replied that Miller was ignoring key
provisions of the settlement agreement and the company would
consider any of the actions Miller had described to be a material
breach of the agreement.
¶9 In the next email, Miller accused K.B. and the owner of
fabricating the stalking charges against him and suggested that
the owner was using K.B.’s stalking allegations to take revenge
on Miller. The company’s attorney responded that he would not
speak with Miller any further about the settlement. Miller then
responded, proposing new settlement terms, which included a
provision stating:
Gregory Ryan Miller . . . [e]nters into a formal
agreement with [the company] to refrain from
pressing criminal charges or bringing civil actions
20170349-CA 4 2019 UT App 46State v. Miller
against any related party, including [the owner]
and [K.B.], for actions and statements alleged to
have occurred prior to the date of the signing of
said formal agreement.
¶10 The company rejected Miller’s offer. Miller next proposed
that the company re-employ him in the capacity of “Strategic
Consultant.” In addition to requesting generous compensation,
Miller also proposed that:
[The company] pays to $zero balances the existing
delinquent federal and state tax liabilities of [K.B.];
[The company] establishes a fund for $25,000.00 to
reimburse the tuition and other post­secondary
educational expenses of [K.B.’s daughter].
¶11 The company also rejected this offer. In response, Miller
again suggested that the owner was using K.B. to harm Miller’s
career and reputation. The company’s attorney responded that
the company would not accept additional settlement terms,
stating that the company had no reason to believe Miller would
abide by a new settlement when he had disregarded the first. In
his reply, Miller listed the reasons why he would abide by his
proposed terms, including the following:
[B]efore me is a once­in­a­lifetime and priceless
opportunity to repay evil with good. In my
estimation [K.B.] has been treacherous, ungrateful,
thoughtless and vicious. She has caused
tremendous harm to me and mine, such that
instinct and worldly wisdom tell me to hate and
humiliate her. But who would gain from this?
Instead, it is my hope that to give up some of my
advantage in order to ease her burden would serve
to brighten her outlook, soften her disposition and
20170349-CA 5 2019 UT App 46State v. Miller
perhaps even help her to escape the cycle of
futility, despair and vice that has plagued her for
many years.
¶12 Because these email conversations conveyed Miller’s
settlement offers, the company’s attorney forwarded them to the
owner and to the company’s general counsel. The company’s
attorney did not forward the emails to K.B., but the owner
frequently mentioned Miller at work due to the ongoing civil
litigation between the company and Miller. At the company,
K.B. saw the emails in which Miller requested that the company
pay money to her and her daughter and referred to her actions
as “evil,” and she testified that the knowledge that Miller had
involved her in his litigation with the company caused her to
fear for her job and prevented her from concentrating on her
work. It made her feel anxious, horrible, and worried.
¶13 Upon K.B.’s request, the company’s attorney forwarded
redacted copies of the emails to the police. Subsequently, the
State charged Miller with three counts of stalking, all class A
misdemeanors. See Utah Code Ann. § 76-5-106.5(6) (LexisNexis
2014). Count I alleged stalking that occurred prior to K.B.’s
injunction against him, Count 2 alleged an incident of stalking
that occurred after the injunction, and Count 3 alleged stalking
as a result of Miller’s email correspondence with the company’s
attorney. Following trial, the jury acquitted Miller on Count 1
and Count 2 but found Miller guilty on Count 3.
¶14 Prior to sentencing, Miller filed a motion to arrest
judgment. See Utah R. Crim. P. 23. The district court granted
Miller’s motion after concluding that “the way [Miller’s emails
were] structured through the attorney . . . there is just no
reasonable basis on which to believe [Miller] could think . . . or
intend that that was going to cause [K.B.] or did cause her
emotional distress or any fear.” The State appeals.
20170349-CA 6 2019 UT App 46State v. Miller
ISSUE AND STANDARD OF REVIEW
¶15 The State argues that the district court erred in granting
Miller’s motion to arrest judgment for his stalking conviction.
Under rule 23 of the Utah Rules of Criminal Procedure, a district
court “upon its own initiative may, or upon motion of a
defendant shall, arrest judgment if the facts proved or admitted
do not constitute a public offense.” We review a district court’s
application of rule 23 for correctness. State v. Black, 2015 UT App
30, ¶ 11, 344 P.3d 644.
ANALYSIS
¶16 In granting Miller’s motion to arrest judgment for his
stalking conviction, the district court concluded that Miller’s
actions could not “reasonably be construed to be designed to
cause emotional stress,” that the evidence the State presented at
trial failed to prove beyond a reasonable doubt that Miller
intended “to cause [K.B.] or did cause [K.B.] emotional stress or
any fear,” and that, as a result, Miller’s conduct did not
constitute a “public offense.”
¶17 Under the standard for determining whether an order
arresting judgment is erroneous, which is the same as that for
determining whether a jury verdict should be set aside for
insufficient evidence, “a trial court may arrest a jury verdict
when the evidence, viewed in the light most favorable to the
verdict, is so inconclusive or so inherently improbable as to an
element of the crime that reasonable minds must have
entertained a reasonable doubt as to that element.” State v.
Workman, 852 P.2d 981, 984 (Utah 1993).Viewing the evidence
and all reasonable inferences that may be fairly drawn therefrom
in the light most favorable to the jury’s verdict, see id., we
conclude that there was sufficient evidence to prove the
elements of stalking beyond a reasonable doubt.
20170349-CA 7 2019 UT App 46State v. Miller
¶18 Miller argues that under the stalking statute, the State was
required to prove beyond a reasonable doubt that the he knew
or should have known that his email correspondence with the
company’s attorney would reach K.B. and that the evidence
presented at trial was insufficient on this point. This argument
presumes that the only way to prove that Miller knew or should
have known that his emails would cause a reasonable person to
suffer emotional distress is by establishing that he knew or
should have known that the emails would be relayed to K.B. We
disagree that such evidence is required to prove the elements of
stalking beyond a reasonable doubt.
¶19 A person is guilty of stalking when that person “(1)
intentionally or knowingly engages in a course of conduct
directed at a specific person and (2) knows or should know that
the course of conduct would cause a reasonable person” to either
“fear for the person’s own safety or the safety of a third person”
or “to suffer other emotional distress.” Utah Code Ann. § 76-5-
106.5(2) (LexisNexis 2014). 3 Under section 76-5-106.5(1), “course
of conduct” means “two or more acts directed at or toward a
specific person, including:”
(i) acts in which the actor follows, monitors,
observes, photographs, surveils, threatens, or
3. Under this section, a person is also guilty of stalking if he
violates a stalking injunction. See Utah Code Ann. § 76-5-106.5(3)
(LexisNexis 2014). As an alternative theory of Miller’s guilt, the
State presented evidence at trial and argues on appeal that
Miller’s conduct violated the civil stalking injunction protecting
K.B. and her daughters from Miller. Because we conclude that
Miller’s conduct violated section 76-5-106.5(2), we do not
separately analyze the sufficiency of the evidence supporting
this alternative theory.
20170349-CA 8 2019 UT App 46State v. Miller
communicates to or about a person, or interferes
with a person’s property:
(A) directly, indirectly, or through any third
party; and
(B) by any action, method, device, or means;
or
(ii) when the actor engages in any of the following
acts or causes someone else to engage in any of
these acts:
...
(B) appears at the person’s workplace or
contacts the person’s employer or coworkers;
...
(D) sends material by any means to the
person or for the purpose of obtaining or
disseminating information about or
communicating with the person to a member of
the person’s family or household, employer,
coworker, friend, or associate of the person; . . . .
Id. § 76-5-106.5(1)(b) (emphasis added).
¶20 Contacting a person’s employer or co-workers about the
person is conduct included in the definition of stalking.
Subsection (i) includes acts in which the perpetrator
“communicates . . . about a person . . . indirectly, or through any
third party.” Id. § 76-5-106.5(1)(b)(i). Similarly, subsection (ii)
includes acts of “contacting the person’s employer or coworkers”
and “disseminating information about . . . the person to . . . the
person’s . . . employer [or] coworker.” Id. § 76-5-106.5(1)(b)(ii).
20170349-CA 9 2019 UT App 46State v. Miller
The statute does not require that the perpetrator intend for his
message to reach the victim through the victim’s employer or
co-workers. Cf. State v. Trujillo, 2019 UT 5, ¶¶ 20–23 (holding that
the crime of witness retaliation requires that the defendant
intend for the victim to hear the threat because the threat must
be made “as retaliation or retribution” against a witness)
¶21 Miller’s “course of conduct” in this case falls squarely
within these statutory definitions. Miller sent emails to an
attorney representing K.B.’s employer. A reasonable jury could
infer that Miller expected the company’s attorney to forward his
settlement proposals to the owner. Miller’s statements about K.B.
included suggesting that he had grounds to pursue criminal or
civil charges against her; that she had “existing delinquent
federal and state tax liabilities”; and that K.B. was “treacherous,
ungrateful, thoughtless and vicious” and had caused harm to
Miller. Through these emails, Miller both communicated about
K.B. indirectly or through a third party and disseminated
information about K.B. to her employer, either of which may
constitute a “course of conduct” prohibited by the statute.
¶22 To be sure, the State must still prove that Miller knew or
should have known that such a course of conduct would cause a
reasonable person to suffer emotional distress. But a jury could
reasonably find this element satisfied even if Miller had no
reason to know that the emails would be relayed to K.B. Under
section 76-5-106.5, “‘[e]motional distress’ means significant
mental or psychological suffering, whether or not medical or
other professional treatment or counseling is required,” and
“‘[r]easonable person’ means a reasonable person in the victim’s
circumstances.” Utah Code. Ann. § 76-5-106.5(1)(d)–(e). The
Model Stalking Code, on which Utah’s statute is based, see Baird
v. Baird, 2014 UT 08, ¶ 24, 322 P.3d 728, recognizes that “certain
types of stalking behavior committed as part of a course of
conduct, such as making repeated telephone calls to a victim at a
workplace, possibly endangering her job, or engaging in conduct
20170349-CA 10 2019 UT App 46State v. Miller
that destroys the victim’s credit history, depending on the
context, might not meet the ‘fear for safety’ standard” but still
inflict “emotional distress.” National Center for Victims of
Crime, The Model Stalking Code Revisited: Responding to the
New Realities of Stalking 40 (2007), https://victimsofcrime.org/do
cs/default-source/src/model-stalking-code.pdf?sfvrsn=12 [https://
perma.cc/Z5DS-2GAT]; see also State v. Askham, 86 P.3d 1224,
1230 (Wash. Ct. App. 2004) (concluding that “a course of conduct
designed to destroy [the victim’s] life, both personally and
professionally” would cause substantial emotional distress to a
reasonable person). Damage to one’s reputation, relationships,
or livelihood would cause a reasonable person to suffer
emotional distress regardless of whether the communications
that caused the damage are ever relayed to the victim.
¶23 Here, the State presented sufficient evidence from which a
reasonable jury could find that, at the time that Miller sent the
emails, he knew or should have known that a reasonable person
in K.B.’s circumstances would suffer significant mental or
psychological suffering. K.B. testified that she “wanted nothing
to do with” Miller or “anything he was doing” and that Miller’s
emails to her employer’s attorney made her feel afraid that she
was going to lose her job. She added that she felt anxious
because she knew people at her place of employment were
talking about her and that she felt “bullied” and “horrible”
throughout the duration of the time that Miller was contacting
her and the company’s attorney after he was fired. At the time
Miller sent the emails, he knew that his prior unwelcome
behavior toward K.B. had distressed her to such a degree that
she had reported Miller’s conduct to the police and obtained a
civil stalking injunction against him. Miller received a copy of
that injunction, which not only prohibited him from directly or
indirectly contacting K.B., but also warned him not to “follow,
threaten, annoy, harass, or cause distress” to K.B. and referred
him to the statutory definition of “stalking,” which includes
20170349-CA 11 2019 UT App 46State v. Miller
contacting a person’s employer or co-workers about the person.
Because Miller was aware that K.B. no longer wanted to be
involved with him, the jury could reasonably infer that Miller
knew or should have known that disparaging K.B. to her
employer and attempting to embroil her in his legal conflict and
settlement negotiations would have caused a reasonable person
in K.B.’s circumstances to suffer emotional distress.
CONCLUSION
¶24 It is immaterial whether Miller knew or should have
known that the emails would be disclosed to K.B. The question
for the jury was whether Miller knew or should have known that
his course of conduct—spreading damaging information about
K.B. to her employer after K.B. requested that he leave her
alone—would cause a reasonable person in K.B.’s circumstances
to suffer emotional distress. Based on the evidence, the jury
could reasonably infer that Miller’s emails were designed to
damage K.B.’s reputation and endanger her job and that Miller
knew or should have known that such interference would cause
a reasonable person, who had repeatedly requested that Miller
leave her alone and had received a stalking injunction against
him, to suffer emotional distress. Therefore, we reverse the
court’s order arresting judgment, reinstate the jury’s verdict, and
remand for further proceedings consistent with this opinion.
20170349-CA 12 2019 UT App 46