Bountiful City v. Swenson ( 2024 )

2024 UT App 133THE UTAH COURT OF APPEALS
BOUNTIFUL CITY,
Appellant,
v.
ROBERT TAKASHI SWENSON,
Appellee.
Opinion
No. 20230430-CA
Filed September 19, 2024
Second District Court, Bountiful Department
The Honorable David J. Williams
No. 221800355
Peter Daines, Attorney for Appellant
Raymond Takashi Swenson, Attorney for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and JOHN D. LUTHY concurred.
HARRIS, Judge:
¶1 Robert Takashi Swenson attended a doctor’s appointment
for his nine-year-old son (Son). At the time, Swenson was subject
to a protective order that had been entered against him in favor of
his ex-wife, who also attended the appointment. About a month
later, Bountiful City (the City) charged Swenson with violating
that protective order by attending the appointment. At a
subsequent preliminary hearing, however, the district court
declined to bind the matter over for trial, concluding that the
terms of the protective order did not bar Swenson from attending
the appointment and that there was therefore no probable cause
to believe that Swenson had committed the charged crime. The
City appeals from that determination, and we affirm.
Bountiful City v. Swenson
BACKGROUND
¶2 Swenson and his ex-wife (Brooke 1) married in 2008 and
had two children, including Son, who was born in 2013. By 2015,
however, the relationship had soured, and that year Brooke filed
both a petition for divorce as well as a petition for a protective
order. In November 2015, Brooke’s request for a protective order
was granted, and that order subjected Swenson to the following
relevant commands:
• “Personal Conduct Order Do not commit, try to
commit or threaten to commit any form of violence
against [Brooke] or any person listed on page 1 of this
form. This includes stalking, harassing, threatening,
physically hurting, or causing any other form of abuse.”
• “No Contact Order Do not contact, phone, mail, e-mail,
or communicate in any way with [Brooke], either
directly or indirectly.”
• “Stay Away Order Stay away from [Brooke’s] current
or future vehicle, job, [and] home, [as well as t]he school
or childcare of [the parties’ children].”
The protective order did not, however, contain any provision—
such as a 100-foot radius proximity order—specifically barring
Swenson from being in physical proximity to Brooke.
¶3 The next year, in 2016, Swenson and Brooke agreed to
amend and replace the “no contact” and “stay away” provisions
of the protective order, as follows:
• “No Contact Order (Replaces Paragraph 2 of the
Protective Order). Communication between the Parties
1. A pseudonym.
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shall be limited to email. Each party may set up a new
email account for this communication. All communication
shall be civil and in a reasonable number to solve the
problem. Communication shall be limited to the Minor
Children’s health, education, welfare, and parent-time.
Any communication regarding a medical emergency for
Minor Children can be by phone. Parties shall keep
each other apprised of their address and telephone
number.” (Emphasis added.)
• “Stay Away Order (Replaces Paragraph 4 of the
Protective Order). [Swenson] shall stay away from
[Brooke’s] current or future vehicle, job, and home,
except to accommodate parent-time exchanges. Parent-
time exchanges shall be curbside. Parties shall have no
contact except for exchange of clothing and other items
for their minor children.”
¶4 The next year—in 2017—the parties reached a stipulation
by which they agreed to resolve all of the issues in their divorce
case, and they submitted an agreed-upon form of divorce decree
(Decree) to the court for signature. As relevant here, the Decree
provides that “[b]oth Parties may attend Minor Children’s events
without regard to which parent is entitled to parent-time during
the events,” and that “[i]f there is a conflict between the Protective
Order and [the Decree], [the Decree] prevails, and Parties will
cooperate to amend the Protective Order so that it is consistent
with [the Decree].”
¶5 Over the next few years, Swenson and Brooke
simultaneously—although not together—attended many of their
children’s events, including back-to-school events, graduations,
parent-teacher conferences, school plays and performances, PTA
events, karate-belt-promotion tests, and religious events (e.g.,
baptisms). On occasion, at least in the years immediately
following entry of the Decree, Swenson and Brooke even
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concurrently attended a number of medical appointments for
their children, including occasions where the two of them were,
for a time, in the same room.
¶6 But by about 2021, Brooke informed Swenson that she did
not want him to attend any medical appointments at which she
was present. And, for a time, the parties proceeded in this manner,
with only one of them attending medical appointments.
¶7 In August 2022, however, Swenson wanted to attend a
particular appointment for Son that Brooke was also attending.
Brooke did not want him to attend, and as the hour of the
appointment approached, she informed him via email that if he
chose to attend, she would take the position that “it will be a
violation of the protective order.” Swenson responded that this
would “[p]ossibly” be the case, but he stated that he intended to
attend anyway and that he was “walking inside now.”
¶8 According to Swenson—whose account is the only one we
have in the record submitted to us—the appointment took place
entirely without incident. Both Swenson and Brooke
communicated with the physician about Son, but there is no
indication that they communicated at all with each other, verbally
or otherwise. And there is no indication that there was any
physical contact between them. After the appointment, Brooke
notified police that Swenson had been present at the appointment.
¶9 About a month later, the City charged Swenson with one
count of violation of a protective order. As that case proceeded,
Brooke filed a motion in the protective order case—a case
presided over by the same judge who was presiding over the
criminal case—asking the court to modify the terms of the
protective order to include a provision requiring Swenson to stay
500 feet away from Brooke. The court held an evidentiary hearing
to consider the matter, and it thereafter determined that
Swenson’s attendance at the doctor’s appointment in question
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had not violated the terms of the protective order, and in addition
declined Brooke’s invitation to add a term to the order that would
expressly bar Swenson from ever being within a minimum
distance from Brooke.
¶10 A few weeks after holding the evidentiary hearing in the
protective order case, the court in the criminal case held a
preliminary hearing to consider whether that matter should be
bound over for trial. At that hearing, the parties agreed that the
operative facts were not in dispute—everyone agreed that
Swenson had been present at the doctor’s appointment and had
known that Brooke would be there—and that the main issue in
dispute was whether the terms of the protective order forbade
Swenson from being there. Because the facts weren’t in dispute,
the parties agreed to proceed by “argument and proffer” rather
than by presenting live testimony.
¶11 The City proffered the facts as set forth above—including
that Swenson had been present at the appointment and knew in
advance that Brooke would be there—but it proffered no evidence
that Swenson had said anything to or made any other effort to
communicate, either directly or indirectly, with Brooke during the
appointment. And both sides offered oral argument about the
meaning of the language of the protective order. The City argued
that the parties’ recent course of conduct—generally attending
medical appointments separately during the year before the
appointment in question—indicated that the parties understood
that the protective order barred Swenson from being present at
such appointments if Brooke was also present. And it asserted
that interpreting “the no-contact provision in a way that does not
include physical contact but only addresses verbal contact would
be an interpretation contrary to common understanding . . . .” In
response, Swenson countered that the City had a burden “to
prove that [he] clearly violated the explicit terms of the protective
order,” and he pointed out that no provision “in the protective
order . . . says [he] must stay [away] from [Brooke] personally.”
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¶12 At the conclusion of the hearing, the court again
interpreted the protective order in Swenson’s favor, concluding
that “there’s nothing in the protective order that prohibits the
attendance of Mr. Swenson at doctor’s appointments.” The court
began its analysis by examining the protective order and by
noting that, in this criminal case, “it is of the utmost importance
that the provisions of the protective order clearly state what is
prohibited so that [Swenson] is on clear notice regarding . . . what
he . . . can or cannot do.” The court also noted that the protective
order contained no “distance requirement” that barred Swenson
from being within a certain distance of Brooke at all times, and
that the court had recently denied Brooke’s request to modify the
protective order to add such a requirement. In the court’s view,
the “no contact” provision of the order was largely aimed at
restricting the parties’ communication with one another, but it
could perhaps be interpreted “that you cannot have physical
contact.” The court declined the City’s invitation to read into the
“no contact” provision a prohibition on Swenson ever being in the
same room as Brooke. And the court noted that there was no
“evidence of a physical contact during the” appointment, and no
evidence that Swenson had been inappropriately near Brooke’s
“vehicle, job, or home.” For these reasons, the court did “not find
probable cause to bind this case over,” and it therefore ordered
the case dismissed.
ISSUE AND STANDARD OF REVIEW
¶13 The City now appeals the court’s order dismissing the case
for lack of probable cause. A district court’s bindover decision
involves “mixed questions of law and fact to which we grant some
deference.” State v. Schmidt, 2015 UT 65, ¶ 13, 356 P.3d 1204(quotation simplified). “In this context, appellate courts give
limited deference to a magistrate’s application of the bindover
standard to the facts of each case.” State v. Prisbrey, 2020 UT App
172, ¶ 18, 479 P.3d 1126 (quotation simplified).
20230430-CA 6 2024 UT App 133Bountiful City v. Swenson
ANALYSIS
¶14 “To support the bindover of a defendant for trial, the
prosecution must put forward enough evidence at the
preliminary hearing to establish probable cause.” State v. Graham,
2013 UT App 109, ¶ 8, 302 P.3d 824. In this context, “all evidence
and testimony must be viewed in the light most favorable to the
[prosecution], and all reasonable inferences are drawn in favor of
the [prosecution].” State v. Smith, 2024 UT 13, ¶ 32, 548 P.3d 874.
As we have often stated, the prosecution’s “burden is relatively
low.” Prisbrey, 2020 UT App 172, ¶ 21 (quotation simplified). But
that low burden does not guarantee bindover; courts should deny
bindover when the prosecution does not “present sufficient
evidence to support a reasonable belief that an offense has been
committed and that the defendant committed it.” Id. ¶ 20
(quotation simplified); accord Schmidt, 2015 UT 65, ¶¶ 21–22.
¶15 In this case, the City charged Swenson with violation of a
protective order, a crime that requires the City to prove that
Swenson “intentionally or knowingly violate[d]” the terms of a
protective order with which he had “been properly served . . . .”
See Utah Code § 76-5-108(2)(b). In this case, the parties agree that
there exists a valid protective order and that Swenson was
properly served with it. In addition, the parties agree that
Swenson was intentionally present at the doctor’s appointment
and that he knew in advance that Brooke would be there.
¶16 With all of those things undisputed, this case therefore
involves a relatively narrow question: whether the district court
abused its limited discretion in concluding that Swenson’s
uncontested actions could not constitute an intentional or
knowing violation of the terms of the protective order.
¶17 As an initial matter, we agree with the district court’s
observation that, in this criminal case in which Swenson faces the
potential of incarceration, “it is of the utmost importance that the
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provisions of the protective order clearly state what is prohibited
so that [Swenson] is on clear notice regarding . . . what he . . . can
or cannot do.” Indeed, individuals cannot be punished for
disobeying a court order unless the order is “sufficiently specific
and definite as to leave no reasonable basis for doubt regarding
its meaning.” See Cook Martin Poulson PC v. Smith, 2020 UT App
57, ¶ 26, 464 P.3d 541 (quotation simplified). 2 And in the related
and analogous contempt context, courts have often declined to
punish individuals accused of violating a court order where the
order in question is not sufficiently clear to put the individual on
notice regarding what is required. See, e.g., id. (“Contradictory
language in the findings and conclusions is simply not
‘sufficiently specific and definite’ . . . . This should have been
obvious to the district court, and therefore, it was plain error for
the court to find Smith in contempt for violating the preliminary
injunction solely on the basis that Smith provided services to
former clients.”); see also Wadsworth v. Wadsworth, 2022 UT App
28, ¶ 111, 507 P.3d 385 (“We could not say that the language is so
clearly limited . . . that there could be no reasonable basis for
doubt regarding its meaning.” (quotation simplified)), cert. denied,
525 P.3d 1259 (Utah 2022); State v. L.A., 2010 UT App 356, ¶ 18, 245
P.3d 213 (“Under these circumstances, the juvenile court’s
contempt order was not supported by sufficient evidence that [the
parent] knew what was required.” (quotation simplified)).
¶18 On the other hand, where the order in question is clear, it
is appropriate to punish individuals who intentionally or
knowingly violate it. See State v. Fouse, 2014 UT App 29, ¶ 38, 319
P.3d 778 (“This was a clear violation of the provision in the
protective order requiring [the defendant] to stay away from the
2. A somewhat similar concept is the so-called “rule of lenity,”
which “requires that we interpret an ambiguous statute in favor
of lenity toward the person charged with criminal wrongdoing.”
State v. Rasabout, 2015 UT 72, ¶ 22, 356 P.3d 1258.
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premises or the provision precluding him from contacting [the
victim], even indirectly.” (quotation simplified)); see also State v.
Pence, 2018 UT App 198, ¶ 23, 437 P.3d 475 (“We disagree with
[the defendant’s] argument that ‘ordinary people’ would not
know ‘what conduct is prohibited’ by the ‘Stay Away’ language
used in the protective order. Any ordinary person would know
that a protective order directing a party to ‘Stay Away’ from
someone or something means to avoid all contact with that person
or thing.” (quotation simplified)).
¶19 We agree with the district court’s assessment that the
protective order at issue here did not clearly prohibit Swenson
from attending medical appointments for his children, even when
Brooke was also present. No provision of that order barred
Swenson from being within a certain distance from Brooke, and
no provision of that order barred Swenson from attending Son’s
medical appointments.
¶20 Despite the absence of any language clearly forbidding
Swenson from attending the appointment, the City asserts that the
“no contact” and “stay away” provisions of the protective order
are broad enough to put Swenson on notice that he should not
have attended an event that would put him in the “same enclosed
space” as Brooke, or in her “immediate proximity.” The City’s
assertions are unpersuasive. In some cases, protective orders are
drafted to include a physical proximity provision that forbids the
respondent from being within a certain distance from the
petitioner. This order had no such provision, and its absence must
mean something; indeed, the district court declined Brooke’s
express invitation to add such a provision. As drafted and
enacted, the “stay away” provision only commanded Swenson, as
a general matter, to stay away from Brooke’s vehicle, home, and
workplace, and from the children’s school. It said nothing about
the children’s medical appointments.
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¶21 And the “no contact” provision is—as drafted and
amended by these parties—all about the parties’ communication
practices, and not about actual physical contact. The meaning of a
word is often illuminated by the words that surround it,
especially if that word is just one word in a longer list. See Richards
v. Cox, 2019 UT 57, ¶ 34, 450 P.3d 1074 (“[W]e read associated
words as bearing similar contextual meanings to each other.”); see
also Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 195 (2012) (explaining that “words
grouped in a list should be given related meanings” (quotation
simplified)). Here, the relevant provision of the original protective
order commands Swenson not to “contact, phone, mail, e-mail, or
communicate in any way with” Brooke. This list of terms is all
about communication. In addition, the parties amended this
provision in 2016, about a year after the order was entered, and
they again chose words that all refer to various ways in which
Swenson might communicate with Brooke; indeed, the parties
used some form of the word “communicate” five times in one
paragraph. Our best reading of this provision, especially as
amended, is that it is intended to refer to communication, and not
to physical contact. 3 At a minimum, the provision does not refer
3. The City resists this conclusion by directing our attention to out-
of-state cases involving sex offenders whose probation conditions
require them to have “no contact” with minors; courts in some
such cases have interpreted the “no contact” language in that
context to forbid “close proximity to a child,” even in the absence
of any communication. See, e.g., People v. Devorss, 277 P.3d 829, 836
(Colo. App. 2011). We find these cases unpersuasive here, for two
reasons. First, the sex offender context raises concerns about child
safety that are not present in this case; indeed, these parties—as
coparents of children—necessarily had to sometimes be at the
same place at the same time, and they attempted to account for
that in drafting the language of the order and the Decree. Second,
(continued…)
20230430-CA 10 2024 UT App 133Bountiful City v. Swenson
to physical contact clearly enough to allow it to be used as a
vehicle for charging Swenson with criminal liability simply for
being in Brooke’s immediate proximity.
¶22 Our interpretation of the “no contact” provision is also
informed by the parties’ stipulated Decree, which expressly
allowed Swenson to be present at the children’s “events,” even if
Brooke was also there, and which mandated that, to the extent its
terms were in conflict with the protective order, the Decree’s
provisions would control. In this vein, we also note the parties’
practice, occurring over a number of years, of both attending
various events without incident or complaint.
¶23 We can, to be sure, envision situations in which—given the
proper context—a person’s mere physical presence might be a
subtle form of communication, or perhaps even a threat. And the
protective order bars even nonverbal types of communication, as
well as indirect communication. But here, the City presented no
evidence that Swenson intended his presence at Son’s
appointment to be a form of communication, or even that
Swenson knew that Brooke would take his presence that way.
And the City presented no evidence that Swenson made any effort
to communicate—even indirectly or nonverbally—with Brooke
during the appointment. Had the City presented such evidence,
this case might well look different.4
those cases are unpersuasive on a linguistic level; the “no contact”
provision in this case, as amended, was all about communication
and not about physical proximity.
4. In other cases cited by the City, the activity in question was at
least arguably communicative. See State v. Fouse, 2014 UT App 29,
¶¶ 3, 7, 38, 319 P.3d 778 (a case in which the defendant sent letters
and wedding memorabilia to the address where the protected
(continued…)
20230430-CA 11 2024 UT App 133Bountiful City v. Swenson
¶24 Under the circumstances of this case, however, the district
court did not abuse its limited discretion by determining that the
protective order was not clear enough to support criminal liability
against Swenson.
CONCLUSION
¶25 Because the protective order did not clearly forbid
Swenson from attending Son’s doctor’s appointment, and because
there is no evidence that Swenson made any effort to
communicate with Brooke during that appointment, the district
court did not abuse its limited discretion in concluding that no
probable cause exists in this case to believe that Swenson
committed the charged crime. We therefore affirm the district
court’s decision not to bind the case over for trial, and we affirm
its order dismissing the case.
person lived); State v. Peterson, 2008 UT App 137U, paras. 1–2 (a
case in which the defendant sent “Valentine’s Day cards and a
rose” to the protected person); State v. Hardy, 2002 UT App 244,
¶¶ 3, 10–12, 54 P.3d 645 (a case in which the defendant sent letters,
addressed to the parties’ children, to the protected person’s home,
and two of the children were not even old enough to read). These
cases are distinguishable on that basis.
20230430-CA 12 2024 UT App 133