Hardy v. Hardy , 2020 UT App 88 ( 2020 )

2020 UT App 88THE UTAH COURT OF APPEALS
KAREN HARDY,
Appellee,
v.
BRIAN NEIL HARDY,
Appellant.
Opinion
No. 20190496-CA
Filed June 11, 2020
Fifth District Court, St. George Department
The Honorable Michael Leavitt
No. 190500106
Lewis P. Reece and Devon James Herrmann,
Attorneys for Appellant
Benjamin Lusty and Stephanie Lenhart, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES GREGORY K. ORME and KATE APPLEBY concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Brian Neil Hardy appeals the district court’s entry of a
civil stalking injunction against him. We reverse.
Hardy v. Hardy
BACKGROUND
¶2 Brian and his former wife, Karen Hardy, 1 had a strained
relationship following their divorce. Brian believed that Karen
was taking their child to a particular therapist he did not
approve of, which would have been a violation of their divorce
decree. To confirm his suspicions, he went to the therapist’s
office at the time when he believed Karen had an appointment
scheduled for their child. Brian observed Karen in her vehicle
outside the therapist’s office and took two photographs to use as
evidence.
¶3 Karen saw Brian’s car at the therapist’s office and filed a
request for a civil stalking injunction the same day. The petition
alleged a separate stalking incident in addition to the incident at
the therapist’s office, but the district court determined that the
other incident did not amount to stalking. Nevertheless, the
court found that by both observing and photographing Karen at
the therapist’s office, Brian had engaged in a course of conduct
that amounted to stalking. The court found that “the addition of
the photographing is a separate act, over and above observing,”
because “the purpose for photographing is different than . . . the
purpose for observing or monitoring something.” Additionally,
the court found that the actions were directed at Karen and that
Brian knew or should have known that they would cause her
emotional distress. Accordingly, the court granted the civil
stalking injunction. Brian now appeals.
ISSUE AND STANDARD OF REVIEW
¶4 Brian raises only one issue on appeal. He asserts that the
district court erred in determining that observing and
1. As is our practice in cases where both parties share a last
name, we refer to the parties by their first names with no
disrespect intended by the apparent informality.
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photographing Karen on the day in question could be
considered a “course of conduct” under the Utah Code.
Whether someone has engaged in a course of conduct under the
stalking statute is a question of law, which we review for
correctness. Judd v. Irvine, 2015 UT App 238, ¶ 8, 360 P.3d 793(per curiam).
ANALYSIS
¶5 Utah Code section 77-3a-101 allows for the entry of a
civil stalking injunction upon a district court finding that “an
offense of stalking has occurred.” Utah Code Ann. § 77-3a-
101(5)(a) (LexisNexis 2017). Under Utah law, stalking occurs
when a person
intentionally or knowingly engages in a course of
conduct directed at a specific person and knows or
should know that the course of conduct would
cause a reasonable person:
(a) to fear for the person’s own safety or the safety
of a third person; or
(b) to suffer other emotional distress.
Id. § 76-5-106.5(2) (Supp. 2019). A “course of conduct” is defined
as “two or more acts directed at or toward a specific person” and
can include, among other things, “acts in which the actor
follows, monitors, observes, photographs, surveils, [or] threatens
. . . a person.” Id. § 76-5-106.5(1)(b)(i).
¶6 We agree with Brian that observing and photographing
Karen at the same time and for the same purpose was not
sufficient to establish a course of conduct under the stalking
statute. Observing someone is generally inherent in the act of
photographing them, especially in the context of the stalking
statute where the photography must be knowing and directed
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toward a specific person. 2 See id. § 76-5-106.5(2). If we were to
classify observing and photographing as separate acts in this
context, it would mean that in virtually all circumstances where
the other elements of the statute are met, the act of
photographing would necessarily establish a course of conduct.
We do not believe this is consistent with the statute’s stated
intent that a course of conduct be composed of “two or more
acts.” See id. § 76-5-106.5(1)(b). Further, it is inconsistent with the
nature of stalking, which is inherently “an offense of
repetition.” 3 See Ellison v. Stam, 2006 UT App 150, ¶ 28, 136 P.3d
1242.
¶7 We also consider the purpose of the conduct to be
relevant in assessing whether two separate acts have occurred.
The district court observed that “the purpose for photographing
is different than . . . the purpose for observing or monitoring
something.” But nothing in the facts of this case supports a
finding that the observing and photographing served different
2. Karen asserts that people can be photographed “randomly, in
an impromptu fashion, or coincidentally,” as well as “remotely”
or automatically by surveillance cameras. But such situations
would be highly unlikely to fall within the stalking statute in the
first place, as it would be difficult to demonstrate that the act of
photographing someone was either knowing or directed at the
person if it was accomplished without observation.
3. Karen correctly points out that in 2008, the Utah Legislature
modified the definition of “course of conduct” in the stalking
statute by removing the reference to “repeatedly” and changing
the course-of-conduct requirement from “two or more
occasions” to “two or more acts.” See Act of March 18, 2008, ch.
356, § 2, 2008 Utah Laws 2290, 2292. But we do not believe these
changes are as significant as Karen argues. “Stalking, by its very
nature, is an offense of repetition,” and “conduct is rendered . . .
more threatening because it is repeated.” Ellison v. Stam, 2006 UT
App 150, ¶ 28, 136 P.3d 1242 (emphasis added).
20190496-CA 4 2020 UT App 88Hardy v. Hardy
purposes. Rather, they were part of a single act intended to
expose Karen for allegedly violating the parties’ divorce decree
by taking their child to a therapist unapproved by Brian. 4
¶8 We also do not assign the same significance to the listing
of possible acts of stalking included in the statute that Karen
does. Just because observing and photographing are listed
separately in the statute does not mean that they are distinct acts
when they occur simultaneously and where one is inherent in
the other. Indeed, many of the examples of stalking listed in the
statute may overlap. For example, monitoring (“to watch,
observe, or check”), observing (“to take notice [or] be attentive”),
and surveilling (to keep “close watch . . . over one or more
persons”) are essentially synonyms in most cases. See Monitor,
Webster’s Third New Int’l Dictionary (1986); id. Observance; id.Surveillance. And following, like photographing, cannot be
accomplished without some degree of monitoring, observing, or
surveilling. Thus, the fact that a single action may be described
by more than one named example in the statutory list does not
mean multiple acts of stalking have occurred. Rather, the alleged
actions must be distinct in time or purpose. In this case, the
photographing and observing together were a single “act” and
cannot constitute a course of conduct.
4. We could conceive of a circumstance in which a single event
with multiple distinct acts undertaken for different purposes or
separated by some amount of time might constitute a course of
conduct. For example, if Brian had followed Karen to learn
where she was going and then photographed her to prove that
she was engaging in inappropriate conduct, the following and
photographing/observing might constitute two separate acts. But
in this case, nothing indicates that the observation was distinct
either in time or purpose from the photographing. The
photographing and observing occurred essentially
simultaneously and furthered a single purpose of proving that
Karen was taking the child to therapy.
20190496-CA 5 2020 UT App 88Hardy v. Hardy
CONCLUSION
¶9 Because the observing and photographing constituted a
single act for purposes of the stalking statute, they did not
constitute a course of conduct, and the district court therefore
erred in granting the stalking injunction. Accordingly, we
reverse the district court’s decision and vacate the stalking
injunction.
20190496-CA 6 2020 UT App 88