State v. Miller

2023 UT 3IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Respondent,
v.
GREGORY RYAN MILLER,
Petitioner.
No. 20210617
Heard September 1, 2022
Filed March 16, 2023
On Certiorari to the Utah Court of Appeals
Third District, West Jordan
The Honorable Bruce C. Lubeck
The Honorable A. Chelsea Koch
No. 151400888
Attorneys:
Simarjit S. Gill, Breanne M. Miller, Salt Lake City, for respondent
Nathalie S. Skibine, Salt Lake City, for petitioner
ASSOCIATE CHIEF JUSTICE PEARCE authored the opinion of the Court in
which CHIEF JUSTICE DURRANT, JUSTICE PETERSEN, JUSTICE POHLMAN,
and JUDGE PETTIT joined.
Having recused herself, JUSTICE HAGEN does not participate herein;
DISTRICT COURT JUDGE KARA L. PETTIT sat.
JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶ 1 A jury convicted Gregory Miller of stalking Kendra, a former
friend and coworker.1 The conviction rested, in large part, on emails
that Miller sent to an attorney who represented Kendra and his
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1 Kendra is a pseudonym.
MILLER v. STATE
Opinion of the Court
former—and Kendra‘s then-current—employer. The district court
judge who presided over the trial arrested the judgment, concluding
that no reasonable jury could have convicted Miller of stalking based
on those emails. The State appealed, and the court of appeals
reversed. After some wrangling to ensure that appellate jurisdiction
existed, we granted certiorari.
¶ 2 Miller nevertheless contends that we lack jurisdiction. The
State initially appealed the arrest of judgment from a non-final
order. Miller argues that Utah Rule of Appellate Procedure 4(c)—
which allows the appeal of a non-final order to be effective upon the
entry of a final order—does not apply to this appeal. Miller claims
that the years-long delay between the announcement of the non-
final order and the entry of the final order, as well as the fact that a
different judge entered the final order, pulls this case out of rule
4(c)‘s reach.
¶ 3 As for the substance of the court of appeals‘ decision, Miller
argues that the court of appeals misinterpreted the statute when it
held Miller could be guilty of stalking Kendra without the State
proving that Miller knew or should have known that the emails he
sent to the attorney who represented Kendra and her employer
would be shared with Kendra. Miller further claims that there was
insufficient evidence for the jury to conclude that he caused Kendra
to suffer the emotional distress the statute requires.
¶ 4 We have jurisdiction. The court of appeals did not err when
it interpreted the stalking statute. And when we indulge the
inferences in favor of the verdict, there was sufficient evidence to
sustain Miller‘s conviction. We affirm.
BACKGROUND
¶ 5 Gregory Miller met Kendra at work in 2003 or 2004 and
began a friendship.2 In 2011, Miller helped Kendra obtain an
interview with his new employer, and soon they were again working
_____________________________________________________________
2 When we review the court of appeals‘ opinion dealing with a
district court‘s decision to arrest judgment, we recite the facts in the
light most favorable to the jury‘s verdict. See State v. Stricklan, 2020
UT 65, ¶¶ 2–3 n.1, 477 P.3d 1251. We also present conflicting
evidence as necessary to understand issues raised on appeal. State v.
Heaps, 2000 UT 5, ¶ 2, 999 P.2d 565. We have taken the facts here
from—among other record sources—the testimony Kendra and
Miller provided at trial.
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at the same company. According to Miller, there were good times
and there were bad times during their friendship. The summer of
2012 was a bad time.
¶ 6 That summer, Miller found an invoice at work from a law
firm for legal research into whether convicted felons can own an
interest in a security system company. This invoice revealed that the
then-owner of the company where Miller worked had been
convicted of a felony. Miller concluded that the company was
operating illegally and confronted the owner. The company fired
Miller.
¶ 7 A week later, the company offered Miller a proposed
severance agreement. After a bit of back and forth, the company
abruptly stopped negotiating. Miller testified that the company
changed its approach because Kendra had given the company
damaging information about him.
¶ 8 Shortly after Miller was fired, Kendra informed him that she
no longer wanted any contact with him. Miller kept contacting her,
both at home and at work, to discuss personal and work issues. He
asked Kendra to be a positive work reference for him and suggested
that, in exchange, Kendra could take time to find employment
elsewhere before he contacted the authorities to have the company
shut down.
¶ 9 In some of these communications, Miller used a variety of
racial slurs to refer to Kendra‘s boyfriend. Miller also asked Kendra
if he could meet her boyfriend. Kendra again asked Miller to stop
contacting her.
¶ 10 In August 2013, Kendra obtained a civil stalking injunction
against Miller. The injunction warned Miller not to contact either
Kendra or Kendra‘s daughters ―directly or indirectly‖ and to stay
away from Kendra‘s home and work. After the injunction was
issued, Miller stopped directly calling, texting, or emailing Kendra.
¶ 11 Miller filed complaints about the company with several
regulatory agencies in the summer of 2013. The company filed a
lawsuit against Miller. Sometime before August 2014, the company
and Miller reached a settlement agreement.
¶ 12 The truce was short-lived. On August 11, 2014, Miller
emailed the company‘s outside counsel, who also represented
Kendra. This commenced the email chain at the center of this case.
¶ 13 Miller‘s email to the attorney had the subject line ―cutting
connective tissue.‖ Miller wrote the attorney that he believed ―issues
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MILLER v. STATE
Opinion of the Court
pertaining to‖ complaints filed against the company with the Utah
Division of Occupational and Professional Licensing were not
covered by the settlement agreement and suggested that he could
reference these complaints as part of a separate civil suit against the
Division and the FBI.
¶ 14 Miller also informed the attorney that he had a job
interview with one of the company‘s competitors. Miller told the
attorney that he was planning on working with Utah legislators to
―improve Utah‘s regulation of companies trafficking in sensitive
consumer information.‖ Miller stated that he did not see these
actions as a breach of his settlement agreement, but that if the
settlement agreement ―could be construed to require a signer to
offer advance notice of actions that might affect any other signer, I
hereby offer such notice.‖
¶ 15 On August 12, the attorney replied that the actions Miller
described in his email would indeed breach the settlement
agreement.
¶ 16 Miller responded later that day and asked if the settlement
agreement would be considered ineffectual. Miller also took the
occasion to accuse Kendra and the company‘s owner of making up
stalking charges against him. Miller also suggested that the owner
was using Kendra‘s stalking allegations to take revenge on Miller.
¶ 17 The company‘s attorney began his August 13 response: ―I
will not engage in further dialogue with you about these issues.‖
¶ 18 The next day, Miller proposed a new settlement
agreement. One of Miller‘s proposed terms was:
Gregory Ryan Miller . . . [e]nters into a formal
agreement with [the company] to refrain from pressing
criminal charges or bringing civil actions against any
related party, including [the owner] and [Kendra], for
actions and statements alleged to have occurred prior
to the date of signing of said formal agreement.
¶ 19 Less than an hour and a half later, the attorney responded:
―Your offer is rejected.‖
¶ 20 Miller replied suggesting that the company re-employ him
as a ―Strategic Consultant‖ and give him a six-figure salary and
signing bonus. Miller also proposed:
[The company] pays to $zero balances the existing
delinquent federal and state tax liabilities of [Kendra];
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[The company] establishes a fund for $25,000.00 to
reimburse the tuition and other post-secondary
educational expenses of [one of Kendra‘s daughters].
¶ 21 Within fifteen minutes, the attorney responded: ―Your
offer is rejected.‖
¶ 22 Miller‘s reply, on August 20, did not offer new settlement
terms. He again suggested the owner was using Kendra to harm his
career and reputation. Miller also said he would wait until the end
of the week to receive a ―good faith and workable solution.‖
¶ 23 The attorney wrote back on August 21 and expressed that
the company had hoped that entering into the settlement agreement
meant that the company‘s conflicts with Miller ―would be a thing of
the past,‖ and they continued to ―hope that is true.‖
¶ 24 Miller‘s response, on August 22, suggested he again found
the original settlement agreement unworkable and believed a court
would side with him. He signed off with: ―End of day approaches.
Kindly present an offer.‖
¶ 25 The attorney responded the same day, asking Miller: ―[I]f
we were to indulge you and begin negotiations anew . . . what
guarantee would we have that you would abide by THAT
agreement . . . ?‖
¶ 26 On August 25, Miller provided reasons he would follow
his newly suggested terms, including:
[B]efore me is a once-in-a-lifetime and priceless
opportunity to repay evil with good. In my estimation
[Kendra] 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 perhaps even help her to escape the cycle of
futility, despair and vice that has plagued her for many
years.
¶ 27 The company attorney forwarded these messages to the
company‘s owner and the company‘s in-house counsel. Kendra
heard about these emails, which were later forwarded to the police.
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¶ 28 The State charged Miller with three counts of stalking. The
first count accused Miller of violating the stalking statute based on
his contact with Kendra between August 2012 and August 2013—
when Kendra obtained the stalking injunction. The second accused
Miller of violating the stalking injunction when he shopped at a
Harmons grocery store at the same time Kendra was there. The third
accused Miller of violating the stalking statute and the injunction
when he sent the emails to the company‘s attorney.3
¶ 29 At trial, Kendra outlined how Miller‘s persistent efforts to
be part of her life were part of what motivated her to seek a stalking
injunction. She told the jury that after Miller was fired, but before she
obtained the injunction, Miller consistently contacted her and offered
to buy her gifts or give her money to encourage her to talk to him.
¶ 30 Kendra testified that, before she obtained the injunction,
Miller sent her a message stating:
In fact, as a show of good faith, I will buy you a
Harmons gift card. Ask for it next Friday at the
checkout station typically manned by the older red-
headed woman. If it‘s not there, then they don‘t sell
them. I need a shirt. Tomorrow at 3 I will be at Macy‘s
to buy it. I might even be in a generous mood.
¶ 31 Kendra recounted that she rejected the gift card. She
testified: ―I wouldn‘t accept it. I just said no, I want—because that‘s
where I get my lunch most days, and I just said no, I don‘t want
this.‖
¶ 32 Kendra testified that, with these offers, Miller ―was trying
to buy me things. He was—he thought maybe if he gave me money I
would talk to him.‖
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3 We, like the court of appeals, cite to the version of the stalking
statute from 2014, the year Miller sent the emails that form the basis
of his conviction. State v. Miller, 2021 UT App 88, ¶ 19, 496 P.3d 282.
Miller cites the 2012 statute, but he does not explain why he chose
that version. Nor does he argue that the court of appeals erred in
examining the 2014 version. Because there are no material
differences between the 2012 and 2014 versions, we elect to cite to
the 2014 statute to be consistent with the court of appeals.
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¶ 33 Kendra also testified that Miller messaged her asking for a
good job reference in exchange for helping Kendra find a job. He
emailed Kendra and told her:
Agree to help me with a good reference and I‘ll wait
until March to contact the authorities. This will give
you ample time to find a new job. I‘ll even help you in
any way that I can, otherwise I‘ll send off the emails
and documents [to the authorities] next week.
¶ 34 In a subsequent phone call—but before Kendra obtained the
stalking injunction—Miller again asked Kendra for a job reference.
The jury heard a snippet of this call, where Miller told Kendra that he
lied to get her a job, that he ―inflated things on [her] behalf,‖ and that
he ―created that job and put [her] in it.‖
¶ 35 The jury also heard a recording of Miller telling Kendra:
―[T]here‘s a pretty good chance I‘ll be able to create a position for
you if you need it or want it. Um, obviously before that there‘s a few
things we‘d have to sit down and work out.‖
¶ 36 The State played another message for the jury in which
Miller told Kendra: ―I will legitimately reconsider my offer to, you
know, throw a reasonable amount of money for your—your tax
debts if you‘ll [inaudible] sit down with me and try to sort through,
um, [inaudible], the source of the contention.‖
¶ 37 On cross-examination, Kendra testified that she did not
want Miller‘s gifts or job offers. She testified: ―I don‘t want a job
offer. I don‘t want presents. I don‘t want gifts. I don‘t want money. I
wanted him to leave me alone.‖
¶ 38 After Kendra obtained the injunction, Miller did not
directly contact her. But Kendra testified about learning that Miller
had written about her in his post-injunction emails with the attorney
and the effect that had on her. Kendra said: ―[I]t was a constant. . . . I
had to hear how, um, I was being brought up. I was showed [sic]
papers where he was demanding the company pay me money. Then
he demanded the company pay my daughter money.‖
¶ 39 Kendra found these emails ―very disruptive.‖ She stated:
I couldn‘t concentrate on my job. You know, having
feel—you know, knowing that people are talking about
me, not knowing what, you know, was saying [sic]
because I do not see what things he says about me. Um,
I was feeling, you know, anxious, horrible. I was just—I
was worried. I didn‘t know what was going on.‖
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MILLER v. STATE
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¶ 40 About Miller‘s pre- and post-injunction behavior, Kendra
testified:
It was one of the worst things I‘ve ever been through. It
was horrible. I felt bullied. I felt—I mean, I just—it was
a really rough time. I mean, there was probably a year
that I had my phone at work called constantly. I mean,
it was—I couldn‘t escape work. I couldn‘t—I felt like I
was being followed. I felt like I—it was horrible. It was
very emotional, very stressful, very—I would get
angry. I would go through all the emotions. It was—
and it was—you know, I felt helpless. I thought there
was nothing anybody was going to ever do to ever stop
him.
¶ 41 The State‘s third count was based on the emails. The State
proffered two theories of guilt. The first was that Miller violated the
stalking statute by participating in a course of conduct that he knew
or should have known would cause Kendra emotional distress. The
second was that Miller ―intentionally or knowingly violated a valid
stalking injunction‖ when he sent the emails.
¶ 42 The jury acquitted Miller of two counts of stalking but
convicted him on the third count. The jury was not asked to reveal
which theory of guilt it used to convict Miller.
¶ 43 Miller moved the district court to arrest the jury verdict.
The district court granted the motion in an oral ruling. The district
court reasoned that, given ―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 [Kendra] or did cause her emotional distress or
any fear.‖ The district court asked the defendant to prepare a
written order reflecting the court‘s findings and decision. But it
appears from the record that neither the defendant nor the State
ever did.
¶ 44 The State appealed the oral order. The State primarily
argued that the district court erred because there was sufficient
evidence for the jury to convict Miller of participating in a course of
conduct that qualified as stalking under the statute. The State also
contended that there was sufficient evidence to permit the jury to
find that Miller had violated the stalking injunction. The court of
appeals reversed. State v. Miller, 2021 UT App 88, ¶ 1, 496 P.3d 282.
The court determined that ―the State presented sufficient evidence
from which a reasonable jury could find that, at the time that Miller
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sent the emails, he knew or should have known that a reasonable
person in [Kendra‘s] circumstances would suffer significant mental
or psychological suffering.‖ Id. ¶ 23.
¶ 45 Because it concluded that there was sufficient evidence to
permit a jury to infer that Miller‘s conduct could have caused a
reasonable person emotional distress, the court of appeals declined
to determine whether the emails constituted behavior that would
violate the stalking injunction. Id. ¶ 19 n.3.
¶ 46 Miller sought certiorari review, which this court granted.
Miller then filed a petition noting that the district court had never
entered a final order. We vacated the court of appeals‘ opinion and
remanded to allow the parties to seek entry of a final order. In May
2020, the district court entered a written order.
¶ 47 In October 2020, the State moved the court of appeals to
reinstate its vacated opinion. The court of appeals denied that
motion. The court of appeals instead issued a new opinion almost
identical to the one we had vacated. See id. ¶ 1 n.* (referencing State
v. Miller, 2019 UT App 46, 440 P.3d 868, vacated by court order). Miller
again petitioned for a writ of certiorari.
ISSUES AND STANDARDS OF REVIEW
¶ 48 Miller first contends that we lack jurisdiction over this
matter. ―Whether this court has jurisdiction over an appeal is a
question of law . . . .‖ In re Adoption of A.B., 2010 UT 55, ¶ 21, 245
P.3d 711.
¶ 49 Miller next contends that the court of appeals erred when
it overturned the district court‘s decision to arrest judgment. We
review the court of appeals‘ decision to reverse the arrest of
judgment for correctness, ―focusing on whether that court correctly
reviewed the trial court‘s decision under the appropriate standard
of review.‖ Drew v. Pac. Life Ins. Co., 2021 UT 55, ¶ 34, 496 P.3d 201(cleaned up). In other words, when we review a ―court of appeals‘
decision, we apply the same standard of review that [we] would
apply in reviewing the decision of the district court.‖ Id. (cleaned
up).
¶ 50 ―We review a district court‘s grant or denial of a motion
for directed verdict and to arrest judgment for correctness,‖ and we
―uphold a denial of the motion for directed verdict [or to arrest
judgment] based on an insufficiency of the evidence claim, if . . .
some evidence exists from which a reasonable jury could find that
the elements of the crime had been proven beyond a reasonable
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Opinion of the Court
doubt.‖ State v. Stricklan, 2020 UT 65, ¶ 30, 477 P.3d 1251 (cleaned
up). Thus, we ―reverse the denial of a motion to arrest judgment
only if 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.‖ Id. ¶ 31 (cleaned up).
ANALYSIS
I. UTAH RULE OF APPELLATE PROCEDURE 4(C) APPLIES
TO THE STATE‘S PREMATURE APPEAL
¶ 51 Miller argues that we do not have jurisdiction because the
State did not file a timely appeal. As we noted when we denied the
State‘s first petition for certiorari, the State appealed from a non-
final oral ruling. Our appellate jurisdiction over this dispute would
have been triggered by a final order, which we did not have. So we
vacated the court of appeals‘ first opinion and remanded the case to
the court of appeals to allow the district court to enter a final order.
¶ 52 Utah Rule of Appellate Procedure 4(c) provides that ―[a]
notice of appeal filed after the announcement of a decision,
judgment, or order but before entry of the judgment or order shall
be treated as filed after such entry and on the day thereof.‖ UTAH R.
APP. P. 4(c). By its plain language, rule 4(c) applies to save the State‘s
premature appeal. Miller contends, however, that rule 4(c) does not
apply to the State‘s notice of appeal. He argues the rule does not
apply because the final order was entered three years after the
district court announced its decision—by a different district court
and based upon a new set of filings.
¶ 53 Miller has something of a point. Rule 4(c) contemplates
that the judgment or order be the document that finalizes the
―announcement of a decision, judgment, or order‖ that the party
prematurely appealed from. And Miller points to some factors—the
passage of time, consideration of different materials, entry by a
different judge—that in some cases might suggest that the document
that is ultimately entered is not actually the finalization of the earlier
―announcement of the decision, judgment, or order.‖
¶ 54 The problem for Miller is that there is no doubt here that
the order entered three years after the announcement of the decision
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was the finalization of the district court‘s oral ruling that was the
basis of the State‘s oversoon notice of appeal.4
¶ 55 The district court judge who finalized the order wrote: ―It
should be noted that this court did not hear the trial or the argument
on the motions. . . . On remand, this court is attempting to interpret
the basis of Judge Lubeck‘s order from the transcript of the
hearing.‖
¶ 56 Moreover, when Miller raised the jurisdictional concern
and this court remanded to the court of appeals, we stated that ―it
appears [4(c)] still would continue to preserve the Court of Appeals‘
ability to adjudicate an appeal upon the issuance of a final order by
the district court if the matter is remanded to the Court of Appeals.‖
We remanded, anticipating ―the entry of a final order in the district
court.‖
¶ 57 For these reasons, we can readily conclude that the order
entered on remand embodied the ruling from which the State
attempted to appeal. This is the scenario rule 4(c) contemplates. The
appeal is timely, and we have jurisdiction.
¶ 58 Miller also contends that the State failed to make the final
order part of the record and that, without that order in the record,
we lack jurisdiction. Again, there is a rule for that. Utah Rule of
Appellate Procedure 11(f) allows the parties to stipulate to—or a
party to move to—supplement the record.5 The State moved to
_____________________________________________________________
4 Miller argues this court‘s strict interpretation of the thirty-day
deadline to file an appeal in Utah Rule of Appellate Procedure 4(a)
means that ―[w]hen a notice of appeal is over three years premature,
the notice of appeal does not fall within the safe harbor‖ of 4(c).
Miller cites nothing in the Utah Rules of Appellate Procedure to
support this contention. And we see nothing in those rules to help
him either. Unlike rule 4(a), rule 4(c) has no express time limitation.
5 The rule states:
If anything material to either party is omitted from or
misstated in the record by error of the trial court or
court personnel, by accident, or because the appellant
did not order a transcript of proceedings that the
appellee needs to respond to issues raised in the
appellant‘s brief, the omission or misstatement may be
corrected and a supplemental record may be created
and forwarded:
(continued . . .)
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supplement. We grant the motion because the final order was
attached to both briefs and there is no factual dispute about what
the order is or says.
II. THE COURT OF APPEALS CORRECTLY INTERPRETED
THE STALKING STATUTE
¶ 59 Miller‘s merits arguments can be divided into two
categories. In the first batch of arguments, Miller avers that the court
of appeals erred in its interpretation of the stalking statute. The
second group attacks the court of appeals‘ conclusion that the State
introduced sufficient evidence of Miller‘s guilt such that the district
court erred when it arrested judgment.
¶ 60 Miller first argues that the court of appeals misinterpreted
the statute when it concluded that the statute did not require that
Miller knew or should have known his emails would reach Kendra.
Miller next argues that the court of appeals erred when it
interpreted the statute because its interpretation raises constitutional
issues. Miller last contends that the court of appeals‘ statutory
interpretation improperly expanded the range of behaviors that
could be considered stalking under Utah law.
A. The Court of Appeals Correctly Interpreted the Stalking Statute when
It Held that the Statute Does Not Always Require that a Defendant Know
His Conduct Will Actually Reach the Intended Victim of that Conduct
¶ 61 Miller first argues that the court of appeals misinterpreted
the statute because it held that the statute‘s requirement—a person
―knows or should know‖ their actions would cause emotional
distress—does not require the State to prove someone ―knows or
should know‖ their actions will reach the intended victim.
¶ 62 The court of appeals held: ―The statute does not require
that the perpetrator intend for his message to reach the victim
through the victim‘s employer or co-workers.‖ State v. Miller, 2021
UT App 88, ¶ 20, 496 P.3d 282.
¶ 63 The statute specifies that a person commits the crime of
stalking if the person:
(A) on stipulation of the parties;
(B) by the trial court before or after the record has
been forwarded; or
(C) by the appellate court on a motion from a party.
UTAH R. APP. P. 11(f)(2).
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(2) [I]ntentionally 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.
UTAH CODE § 76-5-106.5(2) (2014).6
¶ 64 Emotional distress ―means significant mental or
psychological suffering, whether or not medical or other
professional treatment or counseling is required.‖ Id. § 76-5-
106.5(1)(d).
¶ 65 The court‘s goal in statutory interpretation ―is to ascertain
the intent of the legislature,‖ the best evidence of which ―is the plain
language of the statute itself.‖ Castro v. Lemus, 2019 UT 71, ¶ 17, 456
P.3d 750 (cleaned up).
¶ 66 Miller‘s argument turns on what the court of appeals
meant when it held that the perpetrator need not intend the conduct
―reach‖ the victim. If the court of appeals meant by ―reach‖ that a
victim need not feel the effects of a course of conduct, that would be
a misreading of the statute. But that is not how we understand the
court of appeals‘ opinion. By ―reach,‖ the court of appeals meant
that a victim need not necessarily know that the defendant‘s course
of conduct is the source of the emotional distress they are
experiencing. And that reading comports with the statute‘s plain
language.
¶ 67 To commit stalking, the defendant must know or should
know his course of conduct would cause a reasonable person to
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6 A person can also be guilty of stalking if they violate a criminal
or civil stalking injunction. UTAH CODE § 76-5-106.5(3) (2014). In
addition to his claim of insufficient evidence for violating the
stalking statute based on a course of conduct that would cause
emotional distress, Miller asks us to hold that there was insufficient
evidence that his emails violated the injunction. Since we affirm the
court of appeals‘ holding that there was sufficient evidence to
convict Miller on the State‘s theory that he engaged in a course of
conduct that caused Kendra emotional distress, we do not need to
determine if he also violated the injunction.
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suffer emotional distress. That articulation leaves open the
possibility that a defendant commits stalking when the defendant
knows or should know that the intended victim will be affected by
the course of conduct—in the form of emotional distress—even if
the intended victim is unaware of the defendant‘s actions.
¶ 68 To be clear, in many cases, to prove stalking, the State will
need to introduce proof that the defendant knew or should have
known that the intended victim would be aware of the conduct. But
that will depend on the facts of the individual case.
¶ 69 The following example illustrates one way someone could
experience emotional distress without knowing about a specific
course of conduct. Patrick crafts a plan to make Gary miserable.
Patrick sends several anonymous letters to Gary‘s spouse. The
letters claim that Gary is cheating on his spouse. Patrick knows Gary
and his spouse well enough to know that Gary‘s spouse will never
tell Gary about the letters. But Patrick also knows that the letters
will change the way Gary‘s spouse interacts with him and that the
spouse will begin alienating Gary. And indeed, Gary‘s spouse
begins to mistreat Gary, causing him emotional distress.
¶ 70 By its plain language, the statute would not require the
State to prove that Patrick knew or should have known that Gary
would receive the letters or that the letters would be shared with
him. The statute only requires that the State prove Patrick ―know[]
or should know‖ that his ―course of conduct‖ directed at Gary
would ―cause a reasonable person‖ in Gary‘s circumstances to
―suffer . . . emotional distress.‖ UTAH CODE § 76-5-106.5(2) (2014). On
this fact pattern, the State might be able to establish that a
reasonable person in Gary‘s shoes would suffer emotional distress
without becoming aware of the letters Patrick sent.
¶ 71 The court of appeals interpreted the statute consistent with
its plain language. The statute did not require the State to prove that
Miller knew or should have known that Kendra would learn that he
had sent emails to the attorney. The statute required that the State
prove that Miller directed the content of his emails at Kendra and
that Miller knew or should have known that sending the emails to
the attorney would cause emotional distress to a reasonable person
in Kendra‘s circumstances.
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B. Miller Has Not Demonstrated that the Court of Appeals’
Interpretation Is Unconstitutional
¶ 72 Miller next argues that the court of appeals interpreted the
statute in an unconstitutional fashion. Miller contends that the court
of appeals, in line with our precedent, interpreted the statute to
make it ―a crime to communicate about a person, regardless of
whether the person hears about the communication.‖ Miller argues
that this interpretation raises ―First Amendment concerns‖ and
potentially makes the statute unconstitutionally overbroad.
¶ 73 Although Miller raises the specter of unconstitutionality,
he concedes that his ―case is not directly about a constitutional
challenge to the stalking statute.‖ Likewise, Miller never argues that
the statute, either on its face or as applied to him, violates his rights.
¶ 74 Miller instead argues that the court of appeals‘
interpretation raises First Amendment concerns because it may be
overly broad.7 Miller contends that these concerns ―counsel against
an overbroad construction of our criminal laws.‖ (Quoting State v.
Bagnes, 2014 UT 4, ¶ 35, 322 P.3d 719.) And he asks us to read the
statute differently than the court of appeals did to avoid those
constitutional concerns.
¶ 75 Although he does not call it by its name, Miller seems to
invoke the canon of constitutional avoidance. That canon provides
that when a court is presented with two plausible readings of a
statute, and one raises constitutional concerns, the court should
choose the interpretation that steers clear of the constitutional
issues.
¶ 76 It is important to remember that this canon is ―a means of
giving effect to [legislative] intent, not of subverting it.‖ Utah Dep’t
of Transp. v. Carlson, 2014 UT 24, ¶ 23, 332 P.3d 900 (cleaned up).
―Constitutional avoidance rests on the reasonable presumption that
where there is more than one plausible interpretation of a statute,
the legislature did not intend the interpretation which raises serious
constitutional doubts.‖ State v. Garcia, 2017 UT 53, ¶ 59, 424 P.3d 171(cleaned up). We employ the canon to give effect to the law, but we
_____________________________________________________________
7 A statute may be struck for overbreadth if a petitioner
successfully argues ―(1) the statute reaches a substantial amount of
constitutionally protected conduct . . . and (2) the statute is not
readily subject to a narrowing construction.‖ Provo City Corp. v.
Thompson, 2004 UT 14, ¶ 11, 86 P.3d 735 (cleaned up).
15
MILLER v. STATE
Opinion of the Court
do not use it to write a law different from the one the Legislature
passed. ―Even when we are trying to save a statute from
constitutional concerns, we are not at liberty to rewrite the statute or
to inject the statute with our policy judgments. Our job is to
interpret the statute as the legislature wrote it.‖ Id.¶ 77 It is not enough for a party to spot a lurking constitutional
issue. We have noted that the ―mere presence of potential
constitutional issues does not trigger the canon of constitutional
avoidance.‖ State v. Hatfield, 2020 UT 1, ¶ 39, 462 P.3d 330. Rather, a
party seeking to invoke the canon must show that ―the statute [is]
genuinely susceptible to two constructions.‖ Carlson, 2014 UT 24,
¶ 24 (cleaned up). Because ―[o]ur job is to interpret the statute as the
legislature wrote it,‖ a party who cannot point to a plausible
interpretation of the text cannot invoke the doctrine of constitutional
avoidance. See Garcia, 2017 UT 53, ¶ 59. In that case, the party would
need to challenge the statue as unconstitutional. See Carlson, 2014 UT
24, ¶¶ 24–25.
¶ 78 State v. Garcia provides an example of this canon in action.
In Garcia, we were asked to interpret the phrase ―unlawful user‖ in
the definition of ―unlawful user of a controlled substance.‖ Garcia,.
2017 UT 53, ¶ 54 (quoting UTAH CODE §§ 76-10-503(1)(b)(iii), 58-37-
2(1)(ii), 58-37-4(2)(b)(i)(D)). Garcia argued that the phrase ―unlawful
user‖ was open to various interpretations and that the statute would
be unconstitutionally vague without a narrow interpretation from
this court. Id.
¶ 79 Garcia offered two different interpretations of the phrase
―unlawful user.‖ Id. ¶ 58. We rejected Garcia‘s preferred
interpretation because it strayed from the text. Id. ¶¶ 59–60. We
opined that to read the statute the way Garcia preferred ―would
require us to rewrite the statute to include a concept of
contemporaneous use [of firearms and substances] that the plain
text does not require and is not necessary to preserve the statute‘s
constitutionality.‖ Id. ¶ 60. We chose Garcia‘s other proffered
interpretation because it both adhered to the statute‘s text and
avoided the constitutional vagueness concern. Id. ¶ 61.
¶ 80 Miller may ultimately have an argument about the breadth
of the stalking statute. He certainly cites to other courts that have
identified First Amendment problems with their jurisdictions‘
stalking statutes. See People v. Relerford, 104 N.E.3d 341, 349–51 (Ill.
2017); State v. Shackelford, 825 S.E.2d 689, 699 (N.C. Ct. App. 2019).
But what Miller has not done is proffer an interpretation of the
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statute that both adheres to the text and avoids the constitutional
problem. Nor has he directly challenged the statute‘s
constitutionality. Without one or the other, we cannot use the
looming shadow of constitutional issues to vary the outcome the
text requires.
C. The Court of Appeals Correctly Interpreted the Statute to Permit
the State to Point to a Broad Range of Behaviors that Could Cause
Emotional Distress
¶ 81 Miller next claims the court of appeals misinterpreted the
statute because it incorrectly ―broadened the conduct that could be
considered to cause significant mental or psychological suffering.‖
Miller argues the court of appeals did this in two ways.
¶ 82 Miller first claims the court of appeals erred when it
interpreted the statute to consider behavior that was not listed in
Baird v. Baird, 2014 UT 08, 322 P.3d 728. In Baird, we examined
statutory language that required that the course of conduct be
something that would cause ―a reasonable person‖ emotional
distress. See id. ¶¶ 23–26. We noted the statute defines ―reasonable
person‖ as ―a reasonable person in the victim‘s circumstances.‖ Id.
¶ 23 (quoting UTAH CODE § 76-5-106.5(1)(e)). We explained that,
―[b]y including ‗in the victim‘s circumstances‘ as part of the
‗reasonable person‘ definition, the Stalking Statute provides for an
individualized objective standard.‖ Id. ¶ 26.
¶ 83 We then proceeded to list several factors to which a trier of
fact might look to assess whether the course of conduct would cause
emotional distress to a reasonable person in the victim‘s
circumstances. Id. ¶ 27. We mentioned, as relevant considerations,
the ―victim‘s background, the victim‘s knowledge of and
relationship with the defendant, any history of abuse between the
parties, the location of the alleged stalking and its proximity to the
victim‘s children, if any, and the cumulative effect of defendant‘s
repetitive conduct.‖ Id. (cleaned up).
¶ 84 The court of appeals here followed our lead and provided
some additional examples of behavior—not listed in Baird—that
might inflict emotional distress. Miller, 2021 UT App 88, ¶ 22. This
included behavior that might cause ―[d]amage to one‘s reputation,
relationships, or livelihood.‖ Id.8
_____________________________________________________________
8The court of appeals quoted the National Center for Victims of
Crime on other behavior that might inflict emotional distress, which
(continued . . .)
17
MILLER v. STATE
Opinion of the Court
¶ 85 Miller argues that this impermissibly extended the stalking
statute‘s reach. We disagree. Baird itself made clear that the factors it
outlined were just a list of factors that ―[c]ourts applying this
individualized objective standard have considered.‖ Baird, 2014 UT
8, ¶ 27. Nowhere in Baird did we suggest that we intended to
provide an exhaustive list of relevant factors.
¶ 86 Moreover, the factors the court of appeals referenced are
entirely appropriate as additional examples of behavior that could,
in certain circumstances, cause a victim emotional distress. We see
nothing wrong with the court of appeals adding to the examples we
highlighted in Baird.
¶ 87 Miller next contends that the court of appeals failed to
account for the context in which his conduct occurred: contentious
litigation. He argues that communications like those he engaged in
with the company‘s attorney are commonplace in litigation and
cannot form the basis of a stalking claim.
¶ 88 Miller argues that in circumstances where ―the potential for
emotional distress is so omnipresent[,] . . . criminal or civil liability
should lie only in the most extreme of circumstances.‖ (Quoting
Allen v. Anger, 2011 UT App 19, ¶ 20, 248 P.3d 1001.)
¶ 89 Miller points to Meyer v. Aposhian and Allen v. Anger to
highlight that the court of appeals has recognized that certain
contexts can be emotionally charged and that triers of fact should be
careful to take that into account. See Meyer v. Aposhian, 2016 UT App
47, ¶ 22, 369 P.3d 1284; Allen, 2011 UT App 19, ¶ 20. Miller contends
that, in his case, the court of appeals should have relied on the logic
of those cases and read the statute to carve out conduct related to
contentious litigation in all but the most extreme circumstances.
¶ 90 Meyer and Allen are neither binding on our analysis nor
particularly helpful to Miller‘s argument. In Meyer, for example, the
court of appeals opined that when a trier of fact assesses whether a
defendant‘s course of conduct has caused emotional distress, it
included ―making repeated telephone calls to a victim at a
workplace, possibly endangering her job, or engaging in conduct
that destroys the victim‘s credit history.‖ Miller, 2021 App 88, ¶ 22
(quoting National Center for Victims of Crime, The Model Stalking
Code Revisited: Responding to the New Realities of Stalking 40 (2007),
https://victimsofcrime.org/docs/default-source/src/model-
stalking-code.pdf?sfvrsn=12 [https://perma.cc/Z5DS-2GAT]).
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should consider the context in which the conduct occurred. Meyer,
2016 UT App 47, ¶ 22. The court noted that the fact finder must
consider the ―individualized objective standard‖ articulated in
Baird, and therefore “must consider the entire context surrounding
defendant‘s conduct.‖ Id. (quoting Baird, 2014 UT 08, ¶ 26).
¶ 91 We agree with all of that. In fact, we said something similar
in Ragsdale v. Fishler, 2021 UT 29, 491 P.3d 835. There, we
emphasized that the statute requires the fact finder to take into
account the victim‘s circumstances to determine whether a
reasonable person in those circumstances would suffer emotional
distress. We said:
[A] petitioner need only show that the respondent‘s
conduct would affect a reasonable person in the
petitioner’s circumstances. In applying this standard,
courts must consider the entire context surrounding a
respondent‘s conduct. They must consider the conduct
cumulatively, accounting for the facts and
circumstances of the individual case.
Id. ¶ 45 (cleaned up).
¶ 92 We further emphasized the importance of context, noting
that ―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.‖ Id. (cleaned up). We recognize
that the converse of this can also be true, that behavior that might
seem egregious in some circumstances can be understood
differently in certain contexts.
¶ 93 We agree with Miller that the context of behavior matters
and that behavior undertaken in the context of contentious litigation
might land differently than behavior occurring outside of a pitched
legal battle. And we agree with Miller that the trier of fact should
take that context into consideration when it determines if a
reasonable person in the victim‘s shoes would suffer emotional
distress. But to the extent Miller argues that the court of appeals
erred because it did not recognize a per se rule that stalking cannot
occur in the context of contentious litigation, we reject that
argument.
¶ 94 The court of appeals did not err when it interpreted the
statute.
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MILLER v. STATE
Opinion of the Court
III. THE COURT OF APPEALS CORRECTLY HELD THAT
SUFFICIENT EVIDENCE EXISTED FROM WHICH A
REASONABLE JURY COULD FIND THAT MILLER KNEW OR
SHOULD HAVE KNOWN HIS ACTIONS WOULD CAUSE
KENDRA EMOTIONAL DISTRESS
¶ 95 Miller also claims that the court of appeals erred when it
concluded that there was sufficient evidence for the jury to convict
him.
¶ 96 After the jury reached its verdict, Miller asked the district
court to arrest the judgment. A court can arrest judgment where
―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).
¶ 97 The district court arrested the jury‘s verdict, finding that
there was ―no reasonable basis on which to believe‖ that Miller
―could think . . . or intend‖ that his emails would cause a reasonable
person in Kendra‘s shoes emotional distress. The court of appeals
overturned the district court, holding that ―the State presented
sufficient evidence from which a reasonable jury could find that‖
Miller knew or should have known his emails would cause a person
in Kendra‘s circumstances emotional distress. State v. Miller, 2021
UT App 88, ¶ 23, 496 P.3d 282.
¶ 98 Miller argues that the court of appeals erred because there
was insufficient evidence to permit the jury to find that he knew or
should have known his emails would cause a person in Kendra‘s
circumstances emotional distress. He first contends that there was
insufficient evidence of emotional distress such that a reasonable
jury could not conclude that Miller knew or should have known that
his course of conduct would cause a person in Kendra‘s
circumstances emotional distress. He next argues that the court of
appeals improperly considered evidence that supported counts on
which the jury did not convict. He finally argues that the court of
appeals erred when it failed to recognize that Miller‘s conduct
would not cause a reasonable person in Kendra‘s circumstances
emotional distress because she enjoyed the protection of an existing
civil stalking protective order.
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A. The Court of Appeals Correctly Held that There Was Sufficient
Evidence to Permit a Reasonable Jury to Find Miller Knew or
Should Have Known His Conduct Would Cause a Person in Kendra’s
Circumstances Emotional Distress
¶ 99 Miller argues the court of appeals incorrectly held there was
sufficient evidence for a reasonable jury to find him guilty. Miller
claims the evidence presented against him was insufficient in two
ways: (1) the jury could not reasonably conclude that he knew or
should have known that his conduct would cause a person in
Kendra‘s circumstances emotional distress; and (2) the jury could
not reasonably conclude that a person in the midst of contentious
litigation would suffer emotional distress from emails like the ones
he sent.
¶ 100 The court of appeals determined that ―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 [Kendra‘s] circumstances would suffer
significant mental or psychological suffering.‖ Miller, 2021 UT App
88, ¶ 23. The court came to this conclusion based on Kendra‘s
testimony ―that she ‗wanted nothing to do with‘ Miller or ‗anything
he was doing.‘‖ Id. The court held there was sufficient evidence such
that
the jury could reasonably infer that Miller‘s emails
were designed to damage [Kendra‘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.
Id. ¶ 24.
¶ 101 Miller claims that the court of appeals erred because,
without the State showing Miller knew his emails would reach
Kendra, there could not have been sufficient evidence for a jury to
find that he knew his emails would cause a person in Kendra‘s
circumstances emotional distress. The court of appeals concluded
that a ―jury could reasonably find this element satisfied even if
Miller had no reason to know that the emails would be relayed to
[Kendra].‖ Id. ¶ 22. As discussed above, this accurately reads the
statute: the test is not whether Miller knew (or should have known)
the emails would reach Kendra, but whether Miller knew (or should
21
MILLER v. STATE
Opinion of the Court
have known) the emails would cause a person in Kendra‘s
circumstances emotional distress.
¶ 102 The jury could properly infer on this record that
communicating to the company‘s lawyer about Kendra in this
fashion would cause a person in Kendra‘s shoes emotional distress
because it was a continuation of the type of behavior that caused her
to seek a protective order.
¶ 103 As Miller himself points out, ―regardless of whether Miller
was not suing [Kendra] directly, she was involved in the lawsuit.‖ A
jury could reasonably conclude that Miller knew or should have
known that, given Kendra‘s involvement in the lawsuit, the emails
he sent to the attorney—who represented Kendra in addition to the
company—would hurt Kendra. This is especially so where the
emails referenced her, suggested that she and her daughter receive
payments from the company, and called on her to release him from
claims. A jury could reasonably conclude that on these facts, Miller
should have known his emails would have an impact on Kendra.
¶ 104 Miller also argues that the court of appeals got it wrong
because ―there was insufficient evidence that any distress brought
about by [the emails] . . . was more than the distress inherent in
contentious litigation.‖ Miller compares civil employment lawsuits
to divorces and emancipation procedures, arguing that ―[c]ivil
employment lawsuits, like the one Miller was engaged in with his
former employer, are like contentious divorces and emancipation
procedures — ‗by nature,‘ they ‗cause emotional distress.‘‖ (Quoting
Meyer v. Aposhian, 2016 UT App 47, ¶ 16, 369 P.3d 1284.)
¶ 105 We take Miller‘s point that the State needed to put proof in
front of the jury to demonstrate that it was Miller‘s course of
conduct, directed at Kendra, and not just the contentious context in
which that conduct occurred, that caused Kendra to suffer
emotional distress. But we agree with the court of appeals that if we
draw inferences from the evidence in favor of the verdict, the State
met its burden, and the district court‘s decision to arrest judgment
was erroneous.
¶ 106 When we view the evidence in a light most favorable to the
verdict, Miller‘s conduct was not just litigation-related
communications; it was a continuation of the pattern of behavior
that motivated Kendra to seek a stalking injunction.
¶ 107 The jury heard that Miller had a history of offering gifts or
money to Kendra to encourage her to talk with him. For example,
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Miller offered Kendra a gift card to a Harmons grocery store ―as a
show of good faith.‖ The jury heard Miller, in a phone message, tell
Kendra, ―I will legitimately reconsider my offer to, you know, throw
a reasonable amount of money for your—your tax debts if you‘ll
[inaudible] sit down with me and try to sort through, um,
[inaudible], the source of the contention.‖
¶ 108 The jury heard Kendra testify that this distressed her. She
stated: ―I don‘t want a job offer. I don‘t want presents. I don‘t want
gifts. I don‘t want money. I wanted him to leave me alone. For three,
four or five years, that‘s all I have to say.‖
¶ 109 In light of this history, Miller asking the company to pay
Kendra‘s debts and to establish a college fund for her daughter were
more than just outlandish settlement offers; they were echoes of his
past behavior that he knew troubled Kendra.
¶ 110 Similarly, the State introduced evidence that some of the
behavior that caused Kendra to obtain a stalking injunction involved
Miller alternatively promising her employment opportunities or
threatening her employment. Miller had made comments indicating
he had initially controlled her hiring and had leverage to eliminate
her job. The jury heard a clip of Miller telling Kendra he ―lied to get
[her the] job,‖ that he ―inflated things on [her] behalf,‖ and that he
―created that job and put [her] in it.‖ At trial, Kendra read an email
from Miller telling her that he needed her to give him an
employment reference, and if she didn‘t, he would send information
to authorities that would cause the company to close and Kendra to
lose her job.
¶ 111 Against this backdrop, a reasonable jury could conclude
that Miller‘s emails to an attorney who represented Kendra and her
employer were designed to continue the pattern of making Kendra
feel that Miller was responsible for her employment and that her
continued employment turned on how Miller felt about her. Miller
wrote the attorney, stating: ―In my estimation [Kendra] has been
treacherous, ungrateful, thoughtless and vicious,‖ but that it was
Miller‘s hope that if he could ―give up some of [his] advantage in
order to ease her burden[,] [it] would serve to brighten her outlook,
soften her disposition and perhaps even help her to escape the cycle
of futility, despair and vice that has plagued her for many years.‖
¶ 112 Viewed in the light most favorable to the guilty verdict,
this is sufficient to permit the jury to conclude that these emails
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MILLER v. STATE
Opinion of the Court
would cause a reasonable person in Kendra‘s circumstances
emotional distress and that Miller knew or should have known it.9
B. The Court of Appeals Correctly Held that the Jury Could Consider
Evidence Presented Throughout the Trial
¶ 113 Miller argues there was insufficient evidence to convict
him because ―[t]he [jury] instructions specified that the conviction at
issue was for the allegations about Miller‘s emails alone,‖ and he
was ―acquitted on the counts related to his earlier conduct.‖ Miller
claims that, because ―the State chose to charge Miller‘s earlier
conduct [before the injunction] separately‖ from the conduct
relating to the emails, the jury‘s acquittals on the first two counts
means that any evidence relating to these counts should not impact
our analysis of his guilt on the third.
¶ 114 The jury was instructed:
Separate offenses charged in each count of this
information, each charge of the offense and the
evidence pertaining to it should be considered
separately. The fact that you may find the defendant
guilty or not guilty as to one count, is not to control
your verdict as to any other count. Each count is to be
considered separately.
¶ 115 The court of appeals did not directly address the issue of
whether evidence from the trial that might pertain to charges one
and two could also inform the jury‘s decision on count three. But it
cited Kendra‘s testimony that she ―‗wanted nothing to do with‘
_____________________________________________________________
9 The court of appeals opined that this evidence would have
caused a reasonable person to fear losing her job and that this fear
would cause a reasonable person emotional distress. Miller, 2021 UT
App 88, ¶ 22 (citing State v. Askham, 86 P.3d 1224, 1230 (Wash. Ct.
App. 2004)). Miller attacks this conclusion and argues that there was
no evidence before the jury that Kendra would be fired or that her
reputation would be harmed, so any emotional distress was
unreasonable. But the question is whether a reasonable person in
Kendra‘s situation would suffer emotional distress from Miller‘s
course of conduct. This could come from a fear of being fired, but it
could also come from the continuation of the behavior that led to the
stalking injunction. Because there is sufficient evidence of the latter,
we need not opine on whether the State introduced sufficient
evidence of the former.
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Miller or ‗anything he was doing,‘‖ that she felt ―‗bullied‘ and
‗horrible‘ throughout the duration of the time that Miller was
contacting her,‖ and that ―his prior unwelcome behavior toward
[Kendra] had distressed her to such a degree‖ that she obtained a
stalking injunction against him. Miller, 2021 UT App 88, ¶ 23.
¶ 116 The court of appeals correctly looked at evidence that was
presented to support the other counts to conclude there was
sufficient evidence to support the conviction. Although the jury
found that this prior conduct did not constitute stalking, it remained
relevant to understand Miller and Kendra‘s relationship, the history
they shared, and, therefore, whether Miller knew or should have
known his emails would cause a reasonable person in Kendra‘s
position emotional distress. See UTAH CODE § 76-5-106.5(2) (2014).
The court of appeals did not err when it recognized this and
included this prior evidence in its recitation of evidence the jury
could properly rely on to convict Miller.
C. The Court of Appeals Did Not Err When It Concluded that a Reasonable
Jury Could Conclude that an Existing Stalking Injunction Would Not
Mitigate the Effect of Miller’s Emails
¶ 117 Before the court of appeals, Miller argued that a
reasonable jury could not find that Kendra suffered emotional
distress because she had obtained a stalking injunction against
Miller. Miller argued that this mitigated any emotional distress that
Miller‘s communications to the attorney would have caused Kendra.
¶ 118 In front of us, Miller avers that the court of appeals erred
when it rejected that argument. See Miller, 2021 UT App 88, ¶ 23.
¶ 119 A reasonable jury could conclude that the injunction did
not mitigate the emotional distress. Rather than feeling protected by
the injunction, Kendra testified that she ―felt helpless‖ and ―thought
there was nothing anybody was going to ever do to ever stop
[Miller].‖ A reasonable jury could infer that, in these circumstances,
the stalking injunction did not eliminate the emotional distress
Miller‘s behavior caused; behavior that had already motivated her
to seek the injunction.
IV. MILLER ENGAGED IN A ―COURSE OF CONDUCT‖
¶ 120 Miller also argues that the court of appeals erred when it
failed to address his argument that his actions did not constitute a
―course of conduct‖ under the statute. He argues that his emails did
not constitute the ―two or more acts‖ required for a ―course of
conduct,‖ because ―the alleged actions must be distinct in time or
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MILLER v. STATE
Opinion of the Court
purpose.‖ Miller claims that his emails, which were contained in one
thread, were a singular event with one purpose.
¶ 121 Although the court of appeals characterized his actions as
a ―course of conduct,‖ it did not explicitly address Miller‘s
contention that the emails he sent did not meet the statutory
definition. Any failure to address that argument is harmless,
however, because there was ample evidence that Miller engaged in
a course of conduct.
¶ 122 Stalking requires that the defendant engage in a course of
conduct. UTAH CODE § 76-5-106.5(2) (2014).10 The statute defines
―course of conduct‖ as
(b) [T]wo or more acts directed at or toward a specific
person, including:
(i) acts in which the actor follows, monitors,
observes, photographs, surveils, threatens, or
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:
(A) approaches or confronts a person;
(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,
_____________________________________________________________
10 Alternatively, stalking can require that the defendant violate a
pre-existing stalking injunction. UTAH CODE § 76-5-106.5(3) (2014).
This opinion does not address Miller‘s guilt under that theory. See
supra ¶ 63 n.6.
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employer, coworker, friend, or associate of the person;
[or]
....
(F) uses a computer, the Internet, text
messaging, or any other electronic means to commit an
act that is a part of the course of conduct.
UTAH CODE § 76-5-106.5(1)(b) (2014).
¶ 123 Miller argues his emails did not constitute a course of
conduct but were instead ―all part of a single email chain
conversation and related to the same topic of the settlement
agreement.‖ Miller claims that ―[b]ecause the email chain in this
case consisted of one back-and-forth conversation,‖ Miller sending
the emails cannot ―constitute[] two or more acts,‖ and therefore
cannot be a ―course of conduct.‖ Miller correctly states that the court
of appeals ―implicitly held that the email chain constituted two or
more acts.‖11
¶ 124 Miller supports this argument with the court of appeals‘
decision in Hardy v. Hardy, 2020 UT App 88, 467 P.3d 931.12 Hardy‘s
_____________________________________________________________
11 Miller also claims that the court of appeals erred when it
described a course of conduct in which ―Miller both communicated
about [Kendra] indirectly or through a third party and disseminated
information about [Kendra] to her employer, either of which may
constitute a ‗course of conduct‘ prohibited by the statute.‖ Miller,
2021 UT App 88, ¶ 21. To the extent that the court of appeals meant
Miller participated in a course of conduct because a single email
communicated and disseminated information about Kendra, Miller is
right. But we read the court of appeals‘ conclusion differently. The
court seems to suggest Miller‘s emails constitute a course of conduct
because there were two or more acts that communicated about
Kendra or because the emails constituted two or more acts each of
which disseminated information about Kendra.
12 Miller also cites Allen v. Anger for the proposition that one
incident ―cannot constitute a course of conduct.‖ (Quoting Allen v.
Anger, 2011 UT App 19, ¶ 22, 248 P.3d 1001.) There, Anger
distributed flyers that directed readers to a website that encouraged
them to criticize Allen‘s parenting and facilitated this criticism by
providing Allen‘s contact information. Allen, 2011 UT App 19, ¶ 4.
The court of appeals, without analyzing the meaning of ―single
(continued . . .)
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Opinion of the Court
ex-wife sought a civil stalking injunction against him after he
photographed her taking their child to a therapist he did not
approve of. Id. ¶¶ 2–3. Even though Hardy only took photographs
on this single occasion, Hardy‘s ex-wife argued that this was a
course of conduct because the statute lists both observing and
photographing as acts that constitute stalking. Id. ¶ 8. The district
court granted the stalking injunction, and Hardy appealed. Id. ¶ 3.
¶ 125 The court of appeals reversed. It held that a man
―observing and photographing [an individual] at the same time and
for the same purpose was not sufficient to establish a course of
conduct under the stalking statute.‖ Id. ¶ 6. The court further
reasoned that ―actions must be distinct in time or purpose‖ to
constitute a course of conduct. Id. ¶ 8 (emphasis added).
¶ 126 Using Hardy’s logic, Miller argues that he did not engage in
a course of conduct because all of his emails were sent as part of one
email chain and all were sent for the same purpose. Miller may be
right that all of the emails occurred in the same thread, but that does
not convert each of his separate emails into a single act. Miller sent
several emails over two weeks. Just because Miller kept replying to
the same thread, rather than sending separate emails, does not mean
he engaged in a single act. Simply stated, by sending several emails
over the course of several days, Miller acted more than once.
CONCLUSION
¶ 127 This court has jurisdiction. The court of appeals correctly
analyzed the statute and did not err when it concluded that the
evidence, when viewed in the light most favorable to the verdict,
was sufficient to sustain Miller‘s conviction. The court of appeals
properly reversed the district court‘s arrest of judgment. We affirm.
incident,‖ held that this was ―[a] single incident‖ and, therefore, not
a course of conduct. Id. ¶ 22. But Allen is not binding precedent and
was based on analysis of a now-defunct standard. Id. ¶ 21 (relying on
Salt Lake City v. Lopez, 935 P.2d 1259, 1264 (Utah Ct. App. 1997),
superseded by statute, UTAH CODE § 76–5–106.5(1)(d), as recognized in
Baird v. Baird, 2014 UT 08, ¶¶ 33–39, 322 P.3d 728). Additionally, we
were not asked to review that decision, and nothing in Allen
convinces us to alter our conclusion that, in this case, multiple emails
sent over the course of two weeks constitute more than one act.
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