Carson v. Barnes

2016 UT App 214THE UTAH COURT OF APPEALS
TIM CARSON,
Appellee,
v.
TOM BARNES,
Appellant.
Opinion
No. 20150211-CA
Filed October 27, 2016
Third District Court, Tooele Department
The Honorable Robert W. Adkins
No. 140301827
Bart J. Johnsen and Alan S. Mouritsen, Attorneys
for Appellant
Jeremy M. Shorts, Attorney for Appellee
JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
STEPHEN L. ROTH and DAVID N. MORTENSEN concurred.
TOOMEY, Judge:
¶1 Tom Barnes appeals from a stalking injunction issued
against him, arguing that the underlying events did not meet the
statutory requirements for stalking. We affirm.
Carson v. Barnes
BACKGROUND1
¶2 In September 2013, a property owner leased
approximately forty acres in Tooele County, Utah, to Tim
Carson, an owner and principal of TCM Bertha LLC (Bertha).
Leading to the property is a gravel road with two gates, one at
the turnoff from the highway and one where a railroad track
intersects the road. The terms of the lease included ‚[u]se of the
existing gravel road that would allow access to the . . . property.‛
In May 2014, Barnes, a Texas resident, bought the property and
became Bertha’s landlord. Barnes thereafter purchased and
installed locks for the gates and gave Carson a key.
¶3 Bertha is a mining business that focuses on
‚concentrat[ing] . . . ore in an environmentally clean manner.‛
Part of its activities include sampling buckets of tailings or ore,
which it did on the property. To run the business, Carson and
mining consultants, Stewart Burgess and Crystal Burgess, a
married couple, moved a generator, ‚crushers,‛ and other
equipment onto the property.
¶4 Barnes owned properties in Texas, Florida, and Utah.
Because Barnes lived in Texas, Carson and Barnes had little
interaction with each other and did not meet until October 2014
when Barnes made a business trip to Utah. Sometime in early
October 2014, Barnes took the keys to the generator by cutting a
cable that connected them to the generator. Barnes testified that
he thought he was ‚doing *Carson+ a favor‛ by taking the keys
because he was concerned leaving the keys connected to the
generator ‚would allow somebody to come out there, start the
generator, [and] do whatever they wanted to out there.‛ The
1. ‚On appeal, when a trial court has made findings of fact to
support a civil stalking injunction, we will recite the facts in a
light most favorable to the trial court’s findings.‛ Sheeran v.
Thomas, 2014 UT App 285, ¶ 2 n.1, 340 P.3d 797.
20150211-CA 2 2016 UT App 214Carson v. Barnes
Burgesses and Carson were at the property working when
Barnes returned the generator keys. Carson ‚showed
him . . . around the property and what [they] were doing and
what was going on.‛ Stewart2 testified that Barnes was angry
with Carson for not shutting and locking the gates to the
property. The record indicates that Carson and Barnes had an
ongoing dispute over locking the gates on the road.
¶5 On October 27, 2014, the Burgesses traveled to the
property to work. While they were on their way, Carson called
them and told them to take the locks with them as they passed
through the gates to prevent Barnes from locking them in. The
Burgesses removed the locks and put them in their car. In the
late afternoon, while the couple was still working, Barnes
arrived looking for Carson. After discovering that Carson had
left for the day, Barnes told the Burgesses to ‚*g+et off the
property.‛ He refused to let them clean up or turn off the
generator and asked for the locks to the gates. Crystal went to
the car and retrieved the locks. Barnes testified that he saw
Crystal ‚go*+ to the far side of the vehicle,‛ open the door, and
reach in to get something. He was ‚concern*ed+ . . . that she had
reached in there to get a gun, or I don’t know what.‛ Crystal
asked Barnes if he was going to lock them in and testified that
Barnes got ‚very frustrated,‛ went to his vehicle, pulled out a
handgun, and loaded it. Barnes also testified that he reached in
his vehicle, got his gun, and ‚put a clip in.‛ At ‚pointblank
range,‛ Barnes pointed the gun at Stewart’s head and demanded
the locks. He then pointed the gun at Crystal and made the same
demand. Crystal gave Barnes the locks and the couple left. The
2. Because the Burgesses ‚share a last name, we refer to them by
their first names for clarity, with no disrespect intended by the
apparent informality.‛ See Earhart v. Earhart, 2015 UT App 308,
¶ 2 n.1, 365 P.3d 719.
20150211-CA 3 2016 UT App 214Carson v. Barnes
Burgesses called Carson and told him about the incident. Carson
called the police.
¶6 After Barnes threatened the Burgesses with a gun, Carson
‚fear[ed] for *his+ safety‛ and decided to move his operation off
the property. On November 3, Carson, with the help of the
Burgesses and a few other people, began to move his equipment.
While they were doing so, Barnes arrived, ‚*g+ot in *Carson’s]
face,‛ and ‚took some pictures of what they were doing.‛
Carson called the sheriff. The sheriff was delayed in arriving
because Barnes had locked the gates as he came in, and Carson
had to travel out to unlock them for the sheriff.
¶7 The next day, November 4, as Carson continued to
remove his equipment from the property, he noticed Barnes
following him. Carson testified that it was dark, he ‚pulled over
off the side of the road‛ due to some construction on the
highway, and he saw Barnes ‚pull up and come in front of
*him+.‛ Carson redirected his route and headed into town
behind Barnes. He watched Barnes turn into a parking lot, then
pull out of it to follow Carson. Barnes continued to follow
Carson to Carson’s shop, then ‚turned off his lights and *sat+
there‛ while Carson unloaded his trailer. Carson called the
police, but Barnes pulled away as they arrived. Barnes testified
he followed Carson because he ‚was curious *about+ where [he
was] going.‛ According to Barnes, ‚*I+t was [his] understanding
that [Carson] should have left that equipment and those
improvements out there. And yet he was hauling them off. So
[Barnes] thought it would be helpful to know where [Carson]
was hauling them.‛
¶8 On November 6, Carson and his brother were moving
equipment and drove down the street where Carson lived.
Approaching from the opposite direction, they saw Barnes
‚going really slow past *Carson’s+ house.‛ Carson called the
police, turned around, and followed Barnes. The police
20150211-CA 4 2016 UT App 214Carson v. Barnes
dispatcher instructed Carson to stop following Barnes and to go
to the police department, which he did.
¶9 After these events Carson filed a request for a civil
stalking injunction. The district court issued an ex parte order
instructing Barnes to stay away from Carson’s house and shop
and prohibiting him from possessing any firearms while the
injunction was in effect.
¶10 The court held an evidentiary hearing on February 11,
2015, and expressed concern that Barnes had cut a cable and
taken generator keys that did not belong to him. The court found
that, although the lease gave Barnes ‚some reasonable right to
inspect the premises,‛ Barnes’s ‚numerous visits to the lease
property‛ ‚went beyond that reasonable right.‛ The court
further found that the Burgesses’ testimony was ‚more credible
than the testimony of . . . Barnes,‛ that they ‚would fall into the
category of coworkers,‛ and that Barnes’s actions toward them,
‚at a very minimum, . . . constituted brandishing a weapon.‛ The
court determined that stalking had been established under
section 76-5-106.5 of the Utah Code based on Barnes’s
confrontation with the Burgesses, ‚*t+he cutting of the cable to
get the [generator] keys,‛ and the instances of Barnes following
Carson and driving past his house. The court found that Carson
reasonably feared for the safety of his family due to these
incidents, especially because they involved a firearm. The court
therefore ordered ‚*t+he stalking injunction *to] remain in place
. . . with the same terms and conditions as the temporary civil
stalking injunction‛ for three years.
¶11 After the court stated its findings, Barnes asked whether
the injunction ‚would only prohibit *him+ from
owning/possessing a firearm in the State of Utah‛ or if it would
apply in other states. The court indicated the restriction would
apply in Utah and the court was ‚not going to opine as to what
other states may do.‛ The court stated, ‚How the other states
20150211-CA 5 2016 UT App 214Carson v. Barnes
will interpret it will be up to those other states and [the] federal
government.‛ Barnes appeals.
ISSUES AND STANDARDS OF REVIEW
¶12 Barnes raises two issues on appeal. First, he contends the
events leading up to the stalking injunction request do not meet
the statutory requirements for imposing the injunction. ‚The
proper interpretation and application of a statute is a question of
law which we review for correctness, affording no deference to
the district court’s legal conclusion.‛ Baird v. Baird, 2014 UT 08,
¶ 16, 322 P.3d 728 (citation and internal quotation marks
omitted).
¶13 Second, Barnes contends the ‚injunction unlawfully
restricts‛ his constitutional right to own and carry a firearm.
‚Constitutional issues are questions of law that we review for
correctness.‛ State v. Palmer, 2008 UT App 206, ¶ 6, 189 P.3d 69(citation and internal quotation marks omitted).
ANALYSIS
I. The Stalking Injunction
¶14 A district court may issue ‚a permanent injunction after a
hearing if *a+ petitioner establishes ‘by a preponderance of the
evidence that stalking of the petitioner by the respondent has
occurred.’‛ Baird, 2014 UT 08, ¶ 22, (quoting Utah Code Ann.
§ 77-3a-101(7)). The ‚essential statutory element is proof of
‘stalking,’‛ as defined by Utah Code section 76-5-106.5. Id.¶¶ 22–23. That statute provides,
A person is guilty of stalking who intentionally or
knowingly engages in a course of conduct directed
at a specific person and knows or should know that
20150211-CA 6 2016 UT App 214Carson v. Barnes
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 Ann. § 76-5-106.5(2) (LexisNexis 2012). Barnes argues
the district court erred in imposing the stalking injunction for
two reasons: ‚First, the primary incident concerning the district
court was not ‘directed at’ Mr. Carson. Second, two of the acts at
issue do not form part of a ‘course of conduct’ that would cause
a reasonable commercial tenant to be afraid.‛
¶15 When interpreting a statute, we begin with ‚the plain
language of the statute.‛ Dahl v. Dahl, 2015 UT 79, ¶ 159. ‚Our
primary goal . . . is to effectuate the intent of the Legislature‛ and
‚we read the plain language of the statute as a whole, and
interpret its provisions in harmony with other statutes in the
same chapter and related chapters.‛ Id. (citations and internal
quotation marks omitted).
¶16 Barnes asserts that the ‚entry of the injunction
generally . . . was based on the incident on October 27‛ when
Barnes took a handgun from his vehicle and confronted the
Burgesses. He contends that ‚*t+he court’s reliance on this
incident to enter an injunction‛ is problematic because Carson
was not present, and therefore his actions on that day were not
‚directed at‛ Carson as the statute requires. But the statute does
not require the victim to be physically present for an act to be
considered in the ‚course of conduct.‛
¶17 The statute defines ‚course of conduct‛ as
two 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 . . . directly,
20150211-CA 7 2016 UT App 214Carson v. Barnes
indirectly, or through any third party . . . or (ii)
when the actor . . . approaches or confronts a
person . . . *or+ appears at the person’s workplace
or contacts the person’s employer or coworkers.
Utah Code Ann. § 76-5-106.5(1)(b). By the plain language of the
statute, the threatening act need not be direct, and it includes
situations in which the actor comes to the ‚person’s workplace‛
or ‚contacts the person’s . . . coworkers,‛ without requiring the
presence of the victim. Id.¶18 In this case, the Burgesses were Carson’s business
associates. They collaborated with him on research and worked
together on projects. The Burgesses were present when Barnes
returned the generator keys. Although the Burgesses and Barnes
did not speak to each other that day, Carson ‚showed
[Barnes] . . . around the property and what [they] were doing
and what was going on.‛ We therefore conclude that, although
Carson was not physically present when Barnes threatened the
Burgesses with a handgun, the district court did not err in
considering the confrontation to be part of Barnes’s course of
conduct because he went ‚to the lease premises and
contacted . . . the Burgesses, who would fall into the category of
coworkers.‛ See Co-worker, Webster’s Third New International
Dictionary (1968) (‚*O+ne who works with another.‛).
¶19 Barnes also argues that the events of November 4
(following Carson) and November 6 (driving past Carson’s
house) ‚would not have caused a reasonable commercial tenant
to fear for himself or for third persons‛ and therefore ‚do not
form part of a ‘course of conduct.’‛ Rather, ‚[he] was merely
carrying out his responsibilities as landlord.‛ Barnes justifies
following Carson on the ground that Carson ‚should have left
that equipment and those improvements out there‛ and Barnes
was therefore ‚curious‛ and ‚interested in where *Carson was]
going.‛ Barnes also told the court he drove past Carson’s house
because Barnes had started the ‚eviction process‛ against Carson
20150211-CA 8 2016 UT App 214Carson v. Barnes
and wanted to verify that Carson lived at the address listed on
his rent checks. Barnes complains that ‚*t+he district court never
addressed [his] explanation for the November 4 incident and
never explained why [his] actions were concerning in light of the
parties’ relationship and in light of *his+ rights under the
agreement.‛
¶20 But as this court has previously stated,
[w]e . . . do not read the plain language of the
[section 76-5-106.5(2)] to require that each act or
incident independently be such as to cause a
reasonable person to fear for his or her safety;
rather, it is the pattern of behavior or the course of
conduct considered in the context of the
circumstances that must have that cumulative
effect.
Coombs v. Dietrich, 2011 UT App 136, ¶¶ 2, 13, 253 P.3d 1121.
Thus even actions that, ‚viewed in isolation,‛ might ‚be
insufficient to cause a reasonable person in [the same] position to
fear for his safety‛ can, taken together, cause fear. Id. Indeed,
‚*s+talking, by its very nature, is an offense of repetition,‛ and
the events should not be considered ‚in a vacuum.‛ Ellison v.
Stam, 2006 UT App 150, ¶ 28, 136 P.3d 1242.
¶21 Here, it is significant that the November 4 and
November 6 incidents occurred after Barnes’s confrontation with
the Burgesses. Carson already had an acrimonious relationship
with Barnes and knew Barnes had threatened the Burgesses with
a handgun. We agree with Carson that the ‚threshold incident
with the gun impacted all future actions taken by Barnes against
Carson.‛
¶22 Barnes also stated that when he saw Carson moving his
equipment he was ‚curious‛ and so ‚followed them, I don’t
know, maybe a mile.‛ He later said he ‚didn’t follow them.‛
20150211-CA 9 2016 UT App 214Carson v. Barnes
Carson’s testimony gives more detail: it was dark; Barnes was
following him, then pulled in front of him; Carson detoured into
town; Barnes passed him again, pulled into the parking lot of a
hotel and then pulled out again behind Carson; Barnes followed
Carson to Carson’s shop; Barnes ‚turned off his lights and *sat+
there‛ while Carson unloaded his trailer; and Barnes pulled
away as the police arrived.
¶23 The district court acknowledged that ‚the lease gives
*Barnes+ some reasonable right to inspect the premises,‛ but
determined that Barnes’s ‚actions went beyond that reasonable
right.‛ In addition, the court found that ‚there was no real
reason that [Barnes] needed to drive to *Carson’s+ residence‛
because Barnes already had Carson’s address on Carson’s rent
check.
¶24 It is evident from the record that the court considered
these incidents in the context of the other events. After noting
that Barnes was ‚observed‛ when he drove by Carson’s
residence, the court stated that Carson was ‚rightfully‛
concerned ‚under these circumstances, when *Barnes+ had
displayed the gun in the presence of the Burgesses and had
engaged in the other conduct[:] [t]he cutting of the cable to get
the [generator] keys, and the prior times when there was this
confrontation between [Carson] and [Barnes] on the lease
premises.‛ The court then went on to recount the incident
during which Barnes followed Carson.
¶25 We agree with the district court that, ‚considered in the
context of the circumstances,‛ this ‚pattern of behavior‛ has a
‚cumulative effect‛ that would cause a reasonable person in
Carson’s position to fear for his safety or the safety of his family.
See Coombs v. Dietrich, 2011 UT App 136, ¶ 13, 253 P.3d 1121. We
therefore conclude the court did not err in considering Barnes’s
following Carson and driving past Carson’s house part of a
course of conduct that constituted stalking.
20150211-CA 10 2016 UT App 214Carson v. Barnes
¶26 We determine that the district court did not err either in
considering Barnes’s confrontation with the Burgesses as part of
a course of conduct against Carson, or in determining that
following Carson and driving past Carson’s house could cause a
reasonable person in Carson’s circumstances to fear for the
safety of his family. Thus, we conclude the district court did not
err in issuing the stalking injunction against Barnes.
II. The Firearms Restriction
¶27 Barnes also contends that, ‚even if the injunction was
properly entered, its restriction on *Barnes’s] right to own and
possess firearms cannot stand.‛ Barnes’s argument on this issue
is somewhat unclear, but he seems to argue the restriction
violates his constitutional rights and would be contrary to Utah
law. This issue is unpreserved.
¶28 In 438 Main Street v. Easy Heat, Inc., 2004 UT 72, 99 P.3d
801, our supreme court explained,
[I]n order to preserve an issue for appeal[,] the
issue must be presented to the trial court in such a
way that the trial court has an opportunity to rule
on that issue. This requirement puts the trial judge
on notice of the asserted error and allows for
correction at that time in the course of the
proceeding. For a trial court to be afforded an
opportunity to correct the error (1) the issue must
be raised in a timely fashion[,] (2) the issue must be
specifically raised[,] and (3) the challenging party
must introduce supporting evidence or relevant
legal authority. Issues that are not raised at trial are
usually deemed waived.
Id. ¶ 51. (alterations in original) (citations and internal quotation
marks omitted).
20150211-CA 11 2016 UT App 214Carson v. Barnes
¶29 Here, Barnes did not object in the district court based on
the United States Constitution or Utah law, either during the
hearing or in his written objection to the drafted order. Although
Barnes mentioned his ‚constitutional right to own and possess a
firearm‛ at the hearing, it was with reference to Carson’s
motivation for the injunction and not in the form of an objection.
For example, Barnes’s counsel stated, ‚*Barnes+ believes that Mr.
Carson’s doing this to try and get at his right to carry a firearm,‛
and, ‚We truly believe that Mr. Carson is simply doing this to
try and affect my client’s right to own and possess a firearm here
in the state of Utah for the next three years.‛ ‚General mention
of the issue is not enough; parties must specifically identify the
issue in a timely manner and provide supporting evidence or
relevant legal authority.‛ State v. Floyd, 2014 UT App 53, ¶ 6, 321
P.3d 1170 (citation and internal quotation marks omitted); see also
State v. Worwood, 2007 UT 47, ¶ 16, 164 P.3d 397 (‚*P+erfunctorily
mentioning an issue, without more, does not preserve it for
appeal.‛). In addition, ‚a party that makes an objection based on
one ground does not preserve any alternative grounds for
objection for appeal.‛ Oseguera v. State, 2014 UT 31, ¶ 10, 332
P.3d 963.
¶30 In his written objection to the drafted order, Barnes stated
he did ‚not believe that the Court specifically ordered [him] not
to own or possess any firearms during this action . . . and
request[ed] that [that] language be taken out.‛ Further, he stated
that ‚*t+he standard terms of a Civil Stalking Injunction,
providing for [Barnes] not to own or possess a firearm within the
State of Utah should apply.‛3 He also asserted that ‚the language
3. In his motion, Barnes assumed that the standard terms of a
stalking injunction in Utah include a provision prohibiting
ownership or possession of a firearm. He argued that the
restriction should have effect only in Utah as opposed to
(continued…)
20150211-CA 12 2016 UT App 214Carson v. Barnes
regarding potential Federal violations or applicability should be
deleted from the draft of the Order.‛ The rest of the written
objection raised Barnes’s concern about the ‚breadth of the order
and the firearms restrictions‛—specifically, whether it would
apply outside of Utah—and requested that the court modify the
proposed order or set a hearing for Barnes ‚to be heard prior to
entering the draft of the Civil Stalking Injunction as currently
prepared.‛ Nowhere in the written objection does Barnes
articulate a constitutional argument or assert that the restriction
itself is contrary to Utah law. Because this issue was not
‚specifically raised,‛ together with ‚supporting evidence or
relevant legal authority,‛ it was not presented to the court in
such a way that the court had an opportunity to rule on it, and it
is unpreserved. See id. (citation and internal quotation marks
omitted).
¶31 ‚When a party raises on issue an appeal without having
properly preserved the issue below, we require that the party
articulate an appropriate justification for appellate review;
specifically, the party must argue either ‘plain error’ or
‘exceptional circumstance.’‛ State v. Winfield, 2006 UT 4, ¶ 14, 128
P.3d 1171 (quoting State v. Pinder, 2005 UT 15, ¶ 45, 114 P.3d
551); see also Hatch v. Davis, 2004 UT App 378, ¶ 56, 102 P.3d 774(‚Absent plain error or exceptional circumstances . . . an
appellate court will not consider an issue—even a constitutional
issue—which is raised for the first time on appeal.‛). Because
Barnes ‚did not properly preserve his objections below and has
failed to argue plain error or demonstrate exceptional
circumstances justifying appellate review,‛ his arguments are
waived and we decline to address them. See Pinder, 2005 UT 15,
¶ 42.
(…continued)
anywhere in the United States. Significantly, he did not argue
that the prohibition should not be in place at all.
20150211-CA 13 2016 UT App 214Carson v. Barnes
CONCLUSION
¶32 We conclude the district court did not err in issuing the
stalking injunction against Barnes, and Barnes has not preserved
his constitutional argument against the firearms restriction.
¶33 Affirmed.
20150211-CA 14 2016 UT App 214