Anderson v. Deem , 2023 UT App 48 ( 2023 )

2023 UT App 48THE UTAH COURT OF APPEALS
ELLIE ANDERSON,
Appellant,
v.
JACKSON DEEM,
Appellee.
Opinion
No. 20210558-CA
Filed May 11, 2023
Fourth District Court, Provo Department
The Honorable Robert A. Lund
No. 210400723
Jason B. Fida and Patricia Abbott Lammi,
Attorneys for Appellant
Emily Adams and Freyja Johnson,
Attorneys for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.
MORTENSEN, Judge:
¶1 Jackson Deem used social media to send several messages
to Ellie Anderson, his teenaged schoolmate. Anderson requested
a civil stalking injunction, and the district court issued a
temporary order. Deem requested a hearing, at which the court
revoked the injunction and dismissed the case. The court
considered each incident separately as to its emotional or fear-
inducing effect to reach a conclusion that Deem had not engaged
in a course of conduct as required by the civil stalking statute. In
addition, the court justified its decision by referring to Deem’s
autism and to the potential availability of a no-contact order in an
unadjudicated criminal case. Anderson appeals, claiming that the
district court applied the wrong standard in its evaluation of the
Anderson v. Deem
issues. We agree, reverse the revocation and dismissal of the
petition (thereby reinstating the injunction), and remand this
matter to the district court so that it may apply the correct
standard.
BACKGROUND 1
¶2 Deem and Anderson were schoolmates, having
intermittently attended elementary through high school together.
As it is material in this case, we note that Deem was diagnosed
with autism when he was around nine or ten years old.
¶3 The troubles underlying the present case stem from an
incident in August 2018 when Anderson and Deem were starting
tenth grade. Deem posted a message on Instagram stating that he
was considering suicide. Seeing this message, Anderson called
911 to request a welfare check on Deem. Shortly after this, Deem
posted that he was upset that someone had made the call.
Notably, the record does not state that Deem ever said he knew
who made the call, and Anderson testified that she was “not sure
if he realized” that it was her.
¶4 After this incident, Anderson alleged that Deem sent her a
series of unwelcome communications over a period of about three
years.
The Incidents of Alleged Stalking
¶5 First Incident: Allegedly—there is no evidence of this event
apart from Anderson’s testimony—Deem posted a “hit list” on
Instagram about a week after he posted the message alluding to
suicide. According to Anderson, this message “stated that [Deem]
wanted to shoot up the school and . . . listed people [he] was going
1. In the context of 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.
20210558-CA 2 2023 UT App 48Anderson v. Deem
to be targeting,” and she and her friend “were on there.”
Anderson asserted that she provided a screenshot of the message
to her principal but did not otherwise save it or report it. Deem
categorically denied posting such a list.
¶6 Second Incident: In July 2019, on the occasion of Anderson’s
sixteenth birthday, Deem posted a message to her Facebook page
expressing the sentiment, “die, bitch.” After this post, Anderson
attempted to block Deem from contacting her on social media.
¶7 Third Incident: In May 2021, Deem, using a different
account, sent Anderson a series of Instagram messages. Anderson
testified that the first message was an apology stating that Deem
“didn’t think” Anderson was “going to take all of [his] threats
seriously.” This message was deleted and does not appear in the
record; it was followed by four messages, which do appear in the
record, from Deem over a period of about three hours.
¶8 In the first of these messages, Deem wrote,
I don’t know if you saw my apology from before,
but I take it back. I wish nothing but the absolute
worst for you in life. You being angry at what I said
is one thing, but telling other people and
blackballing me is another entirely. Why even care
about what I said? No one values my opinion. I can
scream at people how much I hate them all I want,
but it doesn’t erase the fundamental power
imbalance. You and all the other people who’ve
mistreated me over the years have destroyed my
mental health irreparably. And the worst part is that
no one cares or even acknowledges how they’ve
hurt me. There’s no reason why anyone should
remember me because they have great lives today.
But I don’t have that luxury of not caring about the
past because I have no future. Now there’s not a
20210558-CA 3 2023 UT App 48Anderson v. Deem
single person from those schools who doesn’t hate
me, so those memories are tainted now.
In the next message, apparently sent immediately afterward,
Deem stated,
Unlike you, I acknowledge that I’m a terrible
person. But you go about it in a different way. All
those times you were nice to me were purely self-
serving.
¶9 About two hours later, Anderson messaged Deem,
“[P]lease stop harassing me or I will be going to the police.” About
an hour later, Deem expressed his discontent with her response
by sending two messages of his own. The first read, “I’ll be
waiting for you in hell.” And the second was the capitalized
epithet “FUCK YOU”—followed by 529 exclamation points.
The Injunction and Dismissal
¶10 After receiving the May 2021 messages, Anderson
requested a civil stalking injunction against Deem, citing the three
incidents described above and one other incident. 2 See Utah Code
2. Anderson also asserted that “around [the] time or before [the]
time” of the May 2021 messages, a hacked Instagram account sent
a message to her friends’ accounts stating, “I will murder your
family.” Anderson said the name on the sending account “was a
bunch of scrambled letters” but that she had deciphered it to
reveal Deem’s name. Anderson speculated that Deem was
surreptitiously sending the message to her through a third-party
account, even though the message did not reference her in any
way. Anderson attached a screenshot of this message to her
request for the stalking injunction. At the hearing for the
injunction, Deem objected to the admission of this evidence on the
ground that there was not “any foundation” to show that it was
(continued…)
20210558-CA 4 2023 UT App 48Anderson v. Deem
§ 78B-7-701(1)(a)(i) (“[A]n 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
with the district court in the district in which the individual or
respondent resides, is temporarily domiciled, or in which any of
the events occurred.”). The district court granted that request and
issued a temporary stalking injunction, ordering Deem to have no
contact with Anderson and to stay away from Anderson’s home,
work, and school. See id. § 78B-7-701(3)(a). Deem requested a
hearing on the temporary stalking injunction. See id. § 78B-7-
701(4)(a) (“[T]he respondent is entitled to request, in writing, an
evidentiary hearing on the civil stalking injunction.”). 3
¶11 At the hearing, Anderson, Deem, and Deem’s mother
(Mother) testified. Anderson testified about the incidents
described above, namely the suicide threat and the three
incidents. Apart from the hit list, Anderson had screenshots of the
communications that she referred to in her testimony. She also
testified that she last saw Deem in person during their sophomore
year of high school, sometime in 2018.
from Deem’s account. The court agreed with Deem, noting that
the connection with Deem was tenuous and that the message was
directed to a third party without reference to Anderson. Anderson
does not challenge the exclusion on appeal.
3. If a respondent requests a hearing within ten days “after the
day on which the . . . civil stalking injunction is served,” the
“burden is on the petitioner to show by a preponderance of the
evidence that stalking of the petitioner by the respondent has
occurred.” Utah Code § 78B-7-701(4)(a), (b)(ii). “If the respondent
requests a hearing after the 10-day period after service, . . . the
burden is on the respondent to show good cause why the civil
stalking injunction should be dissolved or modified.” Id. § 78B-7-
701(7). Here, Deem filed the request within ten days. Accordingly,
at the ensuing hearing, Anderson bore the burden of proof.
20210558-CA 5 2023 UT App 48Anderson v. Deem
¶12 Deem testified that he had not posted a hit list. He also
testified that he never intended to cause Anderson fear or
emotional distress. Rather, he said he “lashed out” on social
media and had no intent to follow up, noting that Anderson was
“just . . . the first person who came to mind as someone [he would]
like to say those things to.” Deem also testified that he was
homebound, did not drive or have a license, and never left his
house without his parents. And he stated that he understood that
he could not have any contact with Anderson and that he “did
potentially cause [Anderson] emotional distress.” Finally, he
testified that he did not know where Anderson lived.
¶13 Mother testified that she did not recall being informed by
the school that Deem sent a hit list or threatened to shoot up the
school in 2018. She testified that apart from an incident in fourth
grade, she did not know Deem to be physically violent. However,
she testified that Deem does “lash out with his words” from
“behind a computer screen.” And concerning his mobility, she
testified that Deem does not drive or leave the house without her
or his father.
¶14 After hearing the evidence, the district court concluded
that Anderson had “failed to meet the standard [of] by a
preponderance of the evidence for a continuation of the
injunction.” See id. § 78B-7-701(5) (“At the hearing, the court may
modify, revoke, or continue the injunction. . . . [T]he burden is on
the petitioner to show by a preponderance of the evidence that
stalking of the petitioner by the respondent has occurred.”).
¶15 In arriving at its decision, the court considered the three
incidents to determine if there was a course of conduct under the
stalking statute: “An actor commits stalking if the actor
intentionally or knowingly . . . engages in a course of conduct
directed at a specific individual and knows or should know that
the course of conduct would cause a reasonable person: (i) to fear
for the individual’s own safety or the safety of a third individual;
or (ii) to suffer other emotional distress . . . .” Id. § 76-5-106.5(2)(a).
20210558-CA 6 2023 UT App 48Anderson v. Deem
¶16 Regarding the first incident, the court determined that it
was “disputed and there was no independent evidence provided
that the list was created or that . . . Anderson’s name was on it.”
Concerning the second incident, the court stated that it “certainly”
consisted of “conduct that could qualify under the statute as
something that would create emotional distress.” And about the
third incident, the court noted that it “contain[ed] two potentially
concerning language references.” The first was the profane
expression of “FUCK YOU,” but the court observed that this
phrase is “so ubiquitous in our culture” as to have “no
significance at all” or to be in “any way threatening.” The court
stated, “[I]t’s not a term that causes emotional distress. It’s replete
in our culture, in our language, in our entertainment.”
Accordingly, the court found “that saying that to someone alone
is not a basis to support the petition” for a stalking injunction. The
court reasoned that the other phrase—“I’ll be waiting for you in
hell”—“conveys that both parties have engaged in a pattern that
makes them worthy of being relegated to hell” and that it was
“not threatening on its face.”
¶17 The court reasoned that because “two of those events [did
not] meet the standard for potentially satisfying the requirements
of the statute,” it was left “with one [incident] that occur[red] over
the period of three years,” which failed “to meet the course of
conduct requirement of the statute.” See id. § 76-5-106.5(1)(a)(i)
(defining course of conduct as “two or more acts directed at or
toward a specific individual, including . . . acts in which the actor
. . . communicates to or about an individual”).
¶18 The court acknowledged that Deem’s communications had
a “significant impact” on Anderson. But when viewing the
communications “independently” and “objectively,” and
“weighing [the evidence] against the statutory requirement,” the
court concluded “that there [was not] a further basis to enjoin . . .
Deem’s behavior.” The court clarified that while Deem
“communicated to or about” Anderson, he did not do so “in a way
that invokes the necessity to enjoin him in the future,” noting that
20210558-CA 7 2023 UT App 48Anderson v. Deem
there was not “a course of conduct at issue here given the time
frame [and] given the specific language that was used.”
¶19 The court then made two additional observations to justify
not extending the injunction. First, it delved into the impact of
Deem’s autism:
And furthermore, I think that all this has to be taken
in terms of whether or not he knowingly and
intentionally[4] engaged in the course of conduct and
whether or not he knew or should have known that
a reasonable person would be in fear[.] [T]hat has to
be viewed in light of . . . Deem’s special
circumstances. If he didn’t have the diagnosis and
the things that he does have, we might attribute
more mens rea to him[,] and I think that somebody
receiving communications from him in terms of
how threatening they are or whether they would
put someone in fear [or] apprehension, has to be
viewed in the context of his condition, of the fact
that he has no history of violence, that he’s not
mobile. All those things relate to the reasonableness
with which somebody would view this language.
¶20 Second, the court considered the impact of a criminal
case—presumably related to the third incident. The court noted
that Deem indicated that he would be “stipulating” to “a criminal
no contact order . . . in that case.” The court observed that this
potential no-contact order would provide Anderson “with the
protection that she’ll need, if that protection is needed, which is,
you know, not certain in this [c]ourt’s mind.”
4. The statutory standard is “intentionally or knowingly,” not
“intentionally and knowingly.” See Utah Code § 76-5-106.5(2).
20210558-CA 8 2023 UT App 48Anderson v. Deem
¶21 With that, the district court ordered the stalking injunction
dismissed. Anderson appeals.
ISSUE AND STANDARDS OF REVIEW
¶22 The issue on appeal is whether the district court “erred in
its construction and application of the Utah stalking statutes”
when it declined to continue the temporary stalking injunction. A
court’s “interpretation and application of the relevant statutory
provisions” regarding continuing a stalking injunction “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 (cleaned up). Although the
question of whether the course of conduct would “cause a
reasonable person [in a petitioner’s circumstances] to suffer fear
or emotional distress” is “a question of fact that we review for
clear error, we review the district court’s interpretation of the
underlying legal standard for correctness.” See Ragsdale v. Fishler,
2021 UT 29, ¶ 16, 491 P.3d 835. 5
ANALYSIS
¶23 Those who believe they are victims of stalking may file a
petition for a civil stalking injunction against the alleged stalker
with the district court. See Utah Code § 78B-7-701(1)(a)(i). If the
5. Anderson also argues on appeal that the district court erred in
considering that a no-contact order was available to her from
Deem’s criminal matter—presumably arising from the third
incident—in determining whether she was entitled to a stalking
injunction. We agree. Consideration of whether other remedies
(criminal or otherwise) exist is not contemplated in relevant
caselaw or the stalking statute. See infra note 12. But we need not
address this issue further given the manner in which we resolve
this appeal.
20210558-CA 9 2023 UT App 48Anderson v. Deem
court determines there is reason to believe that there has been an
offense 6 of stalking, it may issue a civil stalking injunction
restraining the alleged stalker from, among other actions, going
near the other party or having contact with the other party. Id.§ 78B-7-701(3)(a).
¶24 Our supreme court summarizes stalking as follows:
The crime of stalking consists of two elements. First,
a person must intentionally or knowingly engage in
a course of conduct directed at a specific person.
Second, that person must know or should know that
the course of conduct would cause a reasonable
person to fear for the person’s own safety or suffer
other emotional distress. A district court may enjoin
an alleged stalker only if both elements are met.
Ragsdale v. Fishler, 2021 UT 29, ¶ 25, 491 P.3d 835 (cleaned up); see
also Utah Code § 76-5-106.5(2)(a). Here, the district court’s
approach suffered from two primary infirmities that we will
address in turn. First, the district court erroneously considered
incidents to be potentially part of a course of conduct only if each
discrete incident was capable of causing fear or emotional
distress. Second, and relatedly, the district court considered each
incident in isolation as to whether fear or emotional distress might
be engendered. In both regards, this approach is at odds with the
applicable statute and precedent.
6. While it may seem odd to discuss an “offense” in a civil context,
the stalking injunction statute borrows its definition from the
criminal stalking statute. In other words, to “obtain a civil stalking
injunction, a petitioner must establish the elements necessary to
meet the definition of stalking in the criminal code.” See Higley v.
Buhler, 2019 UT App 96, ¶ 11, 446 P.3d 92 (per curiam); see also
Utah Code § 76-5-106.5(2).
20210558-CA 10 2023 UT App 48Anderson v. Deem
I. Course of Conduct Analysis
¶25 Here, there is no dispute as to the first element. Deem
intentionally or knowingly communicated with Anderson in the
second and third incidents. 7 Indeed, Deem “concedes that there
was a course of conduct here, as defined by the statute.” But for
the sake of clarity and as this matter is being remanded for further
consideration, we note that a course of conduct does not
necessarily involve threatening behavior—as it appears the
district court seemed to require in its approach to this case. Rather,
a course of conduct merely requires “two or more acts directed at
or toward a specific individual.” See Utah Code § 76-5-
106.5(1)(a)(i). These acts might well be threatening, but they don’t
have to be. Instead, they can include “acts in which the actor . . .
communicates to or about an individual,” directly or indirectly
and by any means. See id. § 76-5-106.5(1)(a)(i)(A).
¶26 As our supreme court has made clear, establishing a course
of conduct is the first step in the stalking analysis. See Ragsdale v.
Fishler, 2021 UT 29, ¶ 25, 491 P.3d 835. This step should not be
conflated or combined with the second part of the analysis, which
involves a determination as to whether the course of conduct
would cause a reasonable person fear or emotional distress. See id.Here, the district court’s analysis on this point lagged a bit in
clarity. The court said that because two of the three alleged
incidents were not capable of inducing fear or emotional distress
in the court’s view, they did not “meet the standard for potentially
satisfying the requirements of the statute, . . . leav[ing] us with one
[incident] that occur[ed] over the period of three years[,] which
also fails to meet the course of conduct requirement of the
statute.” Insofar as the district court was saying that while Deem
committed two more acts that would have satisfied the course of
conduct requirement had those acts been threatening in nature,
the district court erred in its interpretation of the statute. For the
7. Deem stated that Anderson was “the first person who came to
mind” when he wanted to lash out.
20210558-CA 11 2023 UT App 48Anderson v. Deem
purpose of showing a course of conduct, the Ragsdale court clearly
explained, “[I]f a respondent follows, threatens, or communicates
to a petitioner only once, he or she has not engaged in a course of
conduct. But if a respondent follows, threatens, or communicates to
the petitioner on two or more occasions, he or she engages in a
course of conduct directed at the petitioner.” Id. ¶ 31 (emphasis
added). 8 Deem’s communications in the second and third
incidents easily fit the bill required by the first element of the
statute. Deem acknowledged that he intentionally or knowingly
communicated on multiple occasions with Anderson. That’s
likely why Deem concedes that the course of conduct occurred.
8. The third incident likely established a course of conduct by
itself. In Hardy v. Hardy, 2020 UT App 88, 467 P.3d 931, cert. denied,
474 P.3d 948 (Utah 2020), our court said, “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.” Id. ¶ 7 n.4; see also
State v. Miller, 2023 UT 3, ¶ 126 (explaining that repeatedly
replying to emails in the same thread “does not convert each of
[the] separate emails into a single act” when the emails in the
chain were sent over a period time). This is what we have in the
third incident. See supra ¶¶ 7–9. First, there was an apology.
Second, there were two consecutive messages in which Deem
rescinded the apology and complained about the way he had been
treated. Then—about three hours later and after Anderson had
replied with a message telling Deem to “please stop harassing her
or [she would] be going to the police”—Deem sent a third set of
messages with the profanity and the reference to hell. These three
communications likely constituted a course of conduct because
each had “different purposes” and because they (or at least the
second and third communications) were “separated by some
amount of time.” See Hardy, 2020 UT App 88, ¶ 7 n.4. Thus, it
seems likely that there were four communications—or “acts” in
the parlance of the statute (namely, the second incident, the
apology, the rescindment, and the profanity and hell comment)—
to satisfy the course of conduct requirement.
20210558-CA 12 2023 UT App 48Anderson v. Deem
But the district court’s consideration of whether fear or emotional
distress was associated with each communication was an
erroneous distraction in this part of the statutory analysis.
II. Emotional Distress and Fear for Safety Analysis
¶27 Regarding the second element, the district court
determined that only one communication—the second incident—
would cause “a reasonable person to fear for the person’s own
safety or suffer other emotional distress.” See Ragsdale v. Fishler,
2021 UT 29, ¶ 25, 491 P.3d 835 (cleaned up). In so concluding, the
district court considered each communication in isolation. This
was error.
¶28 The court declined to consider the alleged communication
associated with the first incident because (1) the incident was
disputed and (2) Anderson did not provide evidence, apart from
her sworn testimony, to corroborate the claim that the hit list was
created or that her name was on it. And the court concluded that
the third incident was not threatening or emotionally distressful.
Given that this effectively left only one incident to constitute the
course of conduct in the court’s view, the district court concluded
that Anderson had not shown by a preponderance of the evidence
that Deem had stalked her so as to satisfy the conditions for
continuing the injunction. See Utah Code § 78B-7-701(5).
However, precedent holds that a district court should consider the
course of conduct cumulatively. This the district court failed to
do. While the district court was free to ignore the first incident
because the court ruled it had not been proved to have occurred,
the court erroneously failed to consider the remaining acts in the
course of conduct collectively.
¶29 To qualify for a stalking injunction, “a petitioner must meet
an objective—not subjective—standard.” Baird v. Baird, 2014 UT 8,
¶ 24, 322 P.3d 728. Under this “solely objective standard, the
subjective effect of the respondent’s conduct on the petitioner is
irrelevant. Rather, the petitioner must establish only that the
20210558-CA 13 2023 UT App 48Anderson v. Deem
respondent’s conduct would cause emotional distress to a
reasonable person in the petitioner’s circumstances.” Id. ¶ 25. But
by “including ‘in the victim’s circumstances’ as part of the
‘reasonable person’ definition,” the statute “provides for an
individualized objective standard,” meaning that “a court must
consider the entire context surrounding [the] defendant’s
conduct.” Id. ¶ 26; see also State v. Miller, 2023 UT 3, ¶¶ 82, 91
(reciting the same standard); Utah Code § 76-5-106.5(1)(a)(v)
(defining a reasonable person as “a reasonable person in the
victim’s circumstances”). 9 Thus, “acts that seem perfectly
innocent or even well intentioned may constitute stalking. For
example, conduct such as sending the victim a dozen roses may
seem benign and loving to the casual observer, but could mean a
very different thing when understood in the context of the
victim’s experience.” Baird, 2014 UT 8, ¶ 26 (cleaned up). “Courts
applying this individualized objective standard have considered
such factors as the victim’s background, the victim’s knowledge
of and relationship with the defendant, any history of abuse
between the parties, . . . and the cumulative effect of defendant’s
repetitive conduct.” Id. ¶ 27 (cleaned up) (emphasis added); see
also Miller, 2023 UT 3, ¶¶ 83–86 (noting that the factors listed in
Baird are not exhaustive of the behaviors “that could, in certain
circumstances, cause a victim emotional distress”). 10
9. In this regard, the district court’s approach was arguably
backward. The district court considered the individual
circumstances of the respondent—a consideration absent in the
statute—and failed to properly consider the individual
circumstances of the petitioner. See supra ¶ 19.
10. Still, our supreme court has cautioned that “when assessing
these and other relevant factors, . . . courts must avoid
succumbing to a purely subjective analysis, which is inconsistent
with the objective standard’s intent to protect against
criminalizing conduct that only an unreasonably sensitive or
(continued…)
20210558-CA 14 2023 UT App 48Anderson v. Deem
¶30 Here, the district court’s analysis was legally flawed
because it approached the matter using an insular rather than a
holistic framework to arrive at its conclusion that Deem’s course
of conduct was not of such a type as to cause fear or emotional
distress to a reasonable person. In other words, the court erred by
looking at the individual acts that created the course of conduct
rather than the course of conduct and other relevant incidents
cumulatively.
¶31 The district court’s focus on the individual acts in isolation
from the overall course of conduct is especially problematic with
regard to the third incident. First, the district court concluded that
the term “‘fuck you’ . . . is so ubiquitous in our culture” that it was
of “no significance at all” or in “any way threatening.” The court
stated that this profane statement is “not a term that causes
emotional distress” given that its use is “replete in our culture, in
our language, in our entertainment.” From its common use, the
court found “that saying that to someone alone is not a basis to
support the petition” for a stalking injunction. The court might be
right that, standing alone, this term would not cause fear or
emotional distress. 11 But analyzing the profanity in isolation from
paranoid victim would find harassing so as to reduce the risk of a
truly innocent defendant falling within the ambit of a stalking
statute.” Baird v. Baird, 2014 UT 8, ¶ 27, 322 P.3d 728 (cleaned up).
11. Although even this conclusion seems to rest on shaky ground.
Our supreme court in Ragsdale v. Fishler, 2021 UT 29, 491 P.3d 835,
noted, “[T]he fact that [the respondent] flipped off and
communicated obscenities” to the petitioner “on two or more
occasions” meant that the petitioner “could potentially obtain an
injunction against” the respondent. Id. ¶ 39. Granted, the supreme
court added, “But this does not mean that every person flipped
off and sworn at two or more times by the same individual is
entitled to a stalking injunction.” Id. ¶ 39 n.29. Yet, this is the point.
In context, considering the particular circumstances of a
(continued…)
20210558-CA 15 2023 UT App 48Anderson v. Deem
the other acts establishing a course of conduct is not what the
stalking statute asks us to do. As our supreme court has clarified,
courts “must consider the conduct cumulatively, accounting for
the facts and circumstances of the individual case,” rather than
considering the individual acts making up the course of conduct
in isolation from each other. See Ragsdale, 2021 UT 29, ¶ 45
(cleaned up); see also Baird, 2014 UT 8, ¶ 27. Thus, while the
profanity alone might not be enough to cause fear or emotional
distress, when considered in conjunction with Deem’s wish to see
Anderson in hell and his earlier communication that she was a
“bitch” that he would like to see “die,” a different picture
emerges. Moreover, Deem’s use of capital letters and hundreds
(529, to be precise) of exclamation points in his final
communication could be seen as expressing a certain amount of
rage that goes well beyond the casual use of profanity. Thus,
Deem’s overall course of conduct could very well be enough to
cause fear or emotional distress.
¶32 Second, concerning Deem’s statement, “I’ll be waiting for
you in hell,” the district court made a similar error in concluding
that it conveyed nothing more than “that both parties [had]
engaged in a pattern that [made] them worthy of being relegated
to hell” and that it was “not threatening on its face.” Saying “I’ll
see you in hell” might carry a benign meaning when said jokingly
between friends, but when coupled with the profanity and
Deem’s birthday greeting of “die, bitch,” it takes on an altogether
different connotation. In other words, evaluating the hell
statement in isolation makes it seem benign, but when viewed as
part of Deem’s overall course of conduct, it could very well
contribute to instilling fear or causing emotional distress.
¶33 On remand, we direct the district court to assess “the entire
context surrounding” Deem’s conduct—rather than relying on a
“blanket conclusion” that the ubiquity of profanity precludes it
petitioner, even profanity ubiquitous in society might very well
form the basis for an injunction.
20210558-CA 16 2023 UT App 48Anderson v. Deem
from instilling fear or causing emotional distress—so as to
“account for the cumulative impact of his behavior” over the
entire period of the course of conduct. See Ragsdale, 2021 UT 29,
¶ 47; see also Miller, 2023 UT 3, ¶ 116 (“Although the jury found
that [certain] prior conduct did not constitute stalking, [that prior
conduct] remained relevant to understand [the respondent and
petitioner’s] relationship, the history they shared, and, therefore,
whether [the respondent] knew or should have known [later
actions] would cause a reasonable person in [petitioner’s] position
emotional distress.”).
¶34 The district court also should conduct this analysis in light
of the standard of a reasonable person in Anderson’s
circumstances. See Ragsdale, 2021 UT 29, ¶ 48. This does not give
license for the district court to conduct “a purely subjective
analysis” that provides voice to unreasonable sensitivity or
paranoia. See Baird, 2014 UT 8, ¶ 27. But it does mean that the court
must consider factors such as Anderson’s “knowledge of and
relationship” with Deem and their shared history in reaching its
conclusion on whether Deem’s course of conduct would cause
fear or emotional distress. See id. 12
12. Anderson asserts that the district court erred in considering
Deem’s autism and other facts such as Deem’s lack of a history of
violence and immobility. The district court’s consideration of
these points strayed well into the realm of the irrelevant. There is
nothing in the record to suggest that Anderson should have
regarded Deem’s course of conduct as more or less threatening
than it would have been had he not been diagnosed with autism.
On remand, given the dearth of evidence about Anderson’s
knowledge of (1) the impact autism had on Deem’s behavior,
(2) Deem’s lack of past violent conduct, and (3) Deem’s other
personal circumstances, we caution the district court to avoid the
line of reasoning it previously embraced in this respect.
(continued…)
20210558-CA 17 2023 UT App 48Anderson v. Deem
¶35 In sum, we remand this matter to the district court so that
it may apply the appropriate objective standard as outlined above
to its emotional distress and fear determination regarding the
cumulative effect of Deem’s multiple communications directed at
Anderson. This standard requires that the court look at the
context surrounding Deem’s course of conduct. Specifically, we
direct the district court to avoid looking at whether each of
Deem’s individual acts induced fear or caused emotional distress,
instead focusing on the impact of the overall course of his conduct
on a reasonable person in Anderson’s circumstances.
CONCLUSION
¶36 The district court misapplied the standard in determining
whether a course of conduct existed that would cause a
reasonable person in Anderson’s circumstances to suffer fear or
emotional distress. We reverse the revocation and dismissal of
Anderson’s request for a civil stalking injunction (thereby
reinstating the injunction) and remand this matter so that the
court may apply the correct standard.
The district court should also avoid speculation regarding
the availability of a no-contact order because consideration of
other remedies is nowhere contemplated in the stalking statutes.
The consolation of the merely potential no-contact order is
nebulous at best, especially considering that the criminal case was
unadjudicated at the time of the hearing. Cf. Miller, 2023 UT 3,
¶ 119 (noting that the availability of an existing stalking injunction
does not necessarily “mitigate” or “eliminate the emotional
distress [a respondent’s] behavior caused” when the course of
conduct is ongoing).
20210558-CA 18 2023 UT App 48