Judd v. Irvine ( 2015 )

2015 UT App 238THE UTAH COURT OF APPEALS
MONICA JUDD,
Appellee,
v.
ERIC IRVINE,
Appellant.
Per Curiam Decision
No. 20150134-CA
Filed September 17, 2015
Fourth District Court, Provo Department
The Honorable Fred D. Howard
No. 140401203
Eric Irvine, Appellant Pro Se
Monica Judd, Appellee Pro Se
Before JUDGES GREGORY K. ORME, J. FREDERIC VOROS JR., and
JOHN A. PEARCE.
PER CURIAM:
¶1 Eric Irvine appeals from a civil stalking injunction entered
against him. We affirm.
¶2 After Monica Judd obtained an ex parte civil stalking
injunction against Irvine, he requested an evidentiary hearing.
At the conclusion of that hearing, the district court made oral
findings in a ruling from the bench, as permitted by rule 52 of
the Utah Rules of Civil Procedure. “On appeal, when a trial
court has made findings of fact to support a civil stalking
injunction, we will recite the facts in a light most favorable to the
trial court’s findings.” Sheeran v. Thomas, 2014 UT App 285, ¶ 2
n.1, 340 P.3d 797. Therefore, we do not recite Irvine’s evidence
that contradicts the court’s findings, except as necessary to
address his specific claims on appeal. See id. “Our recitation of
Judd v. Irvine
the facts also includes findings implicitly made by the trial court
and matters that are undisputed in the record.” Id. (alteration in
original) (citation and internal quotation marks omitted).
¶3 Judd and Irvine were previously employed at the same
company. Although they were on the same team at work, they
were not friends, and Judd did not know Irvine well. At Irvine’s
request, Judd gave him a ride home from work as a favor. While
she was driving him home, Irvine made a comment about
women’s breasts that made Judd uncomfortable. After Judd gave
Irvine a ride home, she observed him constantly staring at her
while she was at work. Other people observed Irvine staring at
Judd and mentioned it to her. On or about August 16, 2014,
Judd’s fiancé received a message on Facebook that he and Judd
believed originated with Irvine (the August 16 incident). Judd
read the entire Facebook message into the record at the
evidentiary hearing. In crude sexual slang, the message alleged
an encounter between Irvine and Judd. It also alleged that Judd
had made negative comments about her fiancé. It concluded
with the words, “She must pay.”
¶4 Judd also received Facebook messages that Irvine had
sent to a mutual acquaintance and former co-worker of both
Judd and Irvine. The messages provided to Judd by the mutual
acquaintance included statements that Irvine and Judd had a
sexual encounter while they were employed by the same
company. The district court reviewed the messages forwarded to
Judd by the mutual acquaintance, clarifying that they were
“communications [Irvine] made to [the mutual acquaintance]
about [Judd].” Judd stated that the messages had pictures of her
and talked about her. Irvine testified that he and Judd had a
sexual encounter during their employment at the same company
and admitted that he shared that information with the mutual
acquaintance in Facebook messages. Judd denies having any
sexual or other relationship with Irvine. The district court did
not allow Judd to introduce a written statement from the mutual
20150134-CA 2 2015 UT App 238Judd v. Irvine
acquaintance, who was not present at the hearing. The district
court also did not allow Judd to testify that other women
allegedly had obtained stalking injunctions against Irvine. Judd
presented testimony from two other witnesses to the effect that
she was upset and frightened by Irvine’s alleged actions.
¶5 Irvine denied that he made the statements to Judd’s fiancé
on Facebook in the August 16 incident and requested further
proof. After he examined copies of the Facebook messages, he
stated, “I see no proof on here that this message came from me.
It just says, ‘Facebook user.’” Irvine denied that he made any
threatening statements or acted in any way that would make a
reasonable person afraid.
¶6 At the conclusion of the evidentiary hearing, the district
court ruled,
I’m not persuaded so much with the statement to
[the mutual acquaintance], which is more of a
private communication by the defendant; but I do
find there is a basis to support the stalking
injunction from the evidence that the court has
received, which included the characterization of
the ride home and the staring at the petitioner at
work, and the communications on Facebook . . . to
her fiancé, all of which I think substantiate and
give a basis for the grant of the stalking injunction,
which the court will grant.
¶7 We construe Irvine’s brief as making the following claims
on appeal. First, he contends that the August 16 incident was
insufficient to support granting a civil stalking injunction.
Second, he claims that the district court admitted evidence in
violation of the best evidence rule and the rule against hearsay.
Third, he claims that the testimony at the hearing was
insufficient to satisfy the burden of proof to support granting a
civil stalking injunction. Irvine’s brief suggests that he also
20150134-CA 3 2015 UT App 238Judd v. Irvine
argues that the evidence did not demonstrate a “course of
conduct” directed at Judd. See Utah Code Ann. § 76-5-106.5(2)
(LexisNexis 2012). Irvine’s claims that the district court admitted
evidence in violation of the best evidence rule or the rule against
hearsay are both unpreserved in the record and inadequately
briefed. “Therefore, because of the inadequacies of [his] brief,
[Irvine] has failed to carry [his] burden of persuasion on appeal.”
Stokes v. TLCAS, 2015 UT App 98, ¶ 27, 348 P.3d 739. Even
assuming that the claims concern the Facebook messages
received by Judd’s fiancé, Irvine examined copies of the
messages at the hearing, but he did not make an objection in the
district court based upon the best evidence rule. Similarly, Irvine
did not make any objection to specific evidence based upon the
hearsay rule. Furthermore, the district court excluded items of
evidence, including the written statement by the absent mutual
acquaintance, that would have constituted hearsay.
¶8 We review for correctness a challenge to the legal
determination that Irvine engaged in a “course of conduct”
constituting stalking. Bott v. Osburn, 2011 UT App 139, ¶ 5, 257
P.3d 1022. Because Irvine did not object to “the adequacy of the
findings by alerting the district court to any perceived
deficiencies,” we address his remaining claims as a challenge to
the sufficiency of the evidence to support the factual findings
that supported the grant of a civil stalking injunction. See Sheeran
v. Thomas, 2014 UT App 285, ¶ 8 n.3, 340 P.3d 797. Although “the
trial court’s findings are relatively sparse,” “the evidence and
statements in the record make the evidentiary basis for the
ruling sufficiently clear.” Id. ¶ 10. We review a challenge to the
district court’s factual findings for clear error. Ellison v. Stam,
2006 UT App 150, ¶ 17, 136 P.3d 1242. Accordingly, “we will
affirm the trial court’s decision to grant the civil stalking
injunction unless it is against the clear weight of the evidence or
we reach a definite and firm conviction that there was a
mistake.” Sheeran, 2014 UT App 285, ¶ 8. Irvine has not
undertaken the analysis necessary to demonstrate that the
20150134-CA 4 2015 UT App 238Judd v. Irvine
district court’s factual findings were clearly erroneous. See
Butters v. Herbert, 2012 UT App 329, ¶ 8 n.4, 291 P.3d 826(concluding that by failing to marshal the evidence with respect
to the appellant’s factual challenge, the appellant did not meet
his burden on appeal).
¶9 We next consider Irvine’s legal claim that the district
court erred in concluding that Irvine engaged in a “course of
conduct,” as defined by Utah Code section 76-5-106.5(1)(b),
which requires two or more acts directed at a specific person. See
Utah Code Ann. § 76-5-106.5(1)(b). Although Irvine seeks to have
us focus narrowly on the August 16 incident, we have stated that
we
do not read the plain language of the Stalking
Statute to require that each act or incident
independently be such as to cause a reasonable
person to fear for his or her safety; rather, it is the
pattern of behavior or the course of conduct
considered in the context of the circumstances that
must have that cumulative effect.
See Coombs v. Dietrich, 2011 UT App 136, ¶ 13, 253 P.3d 1121. The
evidence supports the trial court’s conclusion that Irvine
engaged in a course of conduct directed toward Judd. While
Irvine and Judd were employed at the same company, Irvine
made a statement during a ride home from work that caused
Judd discomfort, and he subsequently stared at her constantly
while they were at work. The separate August 16 incident was
based upon Facebook messages that included crude, sexually
explicit comments about Judd and culminated with threats of
harm and “revenge” for alleged wrongdoing by Judd. The
district court implicitly found Judd’s claim that the Facebook
messages to her fiancé were from Irvine to be credible and found
Irvine’s denial that he was the author not to be credible. The
message threatened both Judd and her fiancé with harm.
20150134-CA 5 2015 UT App 238Judd v. Irvine
Accordingly, we conclude that the district court was correct in
concluding that Irvine knowingly engaged in a course of
conduct directed toward Judd and consisting of two separate
incidents.
¶10 Finally, we consider Irvine’s claim that the course of
conduct would not cause a “reasonable person . . . to fear for the
person’s own safety or . . . to suffer other emotional distress.” See
Utah Code Ann. § 76-5-106.5(2). Again, “we do not view the
incidents in isolation when determining whether a reasonable
person in [Judd’s] position would fear for her safety” or suffer
other emotional distress. Butters, 2012 UT App 329, ¶ 18; see also
Coombs, 2011 UT App 136, ¶ 13. The district court in this case
concluded that the course of conduct demonstrated by “the
characterization of the ride home and the staring at the
petitioner at work, and the communications on Facebook . . . to
her fiancé” “substantiate[d] and gave a basis for the grant of the
stalking injunction.” We agree. The message to Judd’s fiancé
included threats of harm and referred to taking revenge on Judd
and making her “pay.” Considered with Irvine’s other behaviors
directed at Judd, we conclude that a reasonable person would
fear for her safety or suffer other emotional distress. The district
court’s decision to grant the civil stalking injunction was not
against the clear weight of the evidence, nor are we convinced
that the trial court made a mistake of law in granting the civil
stalking injunction.
¶11 Affirmed.
20150134-CA 6 2015 UT App 238