Zappe v. Bullock

2014 UT App 250_________________________________________________________
THE UTAH COURT OF APPEALS
PETER DAVID ZAPPE,
Petitioner and Appellee,
v.
KRISTIE BULLOCK,
Respondent and Appellant.
Memorandum Decision
No. 20130557-CA
Filed October 23, 2014
Third District Court, Tooele Department
The Honorable Robert W. Adkins
No. 130300161
Staci A. Visser, Attorney for Appellant
Heidi M. Nestel and Spencer Banks, Attorneys
for Appellee
JUDGE JAMES Z. DAVIS authored this Memorandum Decision, in
which JUDGES J. FREDERIC VOROS JR. and JOHN A. PEARCE
concurred.
DAVIS, Judge:
¶1 Kristie Bullock appeals the district court’s entry of a civil
stalking injunction against her. Bullock argues that the district
court’s ruling was not supported by sufficient evidence and that
the district court erred by prohibiting her from impeaching
petitioner Peter David Zappe with evidence of a prior felony
conviction. We affirm.
Zappe v. Bullock
I. Sufficiency of the Evidence
¶2 We first address Bullock’s argument that the district court
did not base its entry of the civil stalking injunction on sufficient
evidence. For a court to issue a civil stalking injunction it must
determine “by a preponderance of the evidence that stalking of the
petitioner by the respondent has occurred.” Utah Code Ann. § 77-
3a-101(7) (LexisNexis 2012). What constitutes “stalking” in this
context is based on the definition of stalking provided in the
criminal code, see id. § 77-3a-101(1), which states,
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 the
course of conduct would cause a reasonable person:
(a) to fear for the person’s own safety or the
safety of a third person; or
(b) to suffer other emotional distress,
id. § 76-5-106.5(2).
¶3 Bullock specifically challenges the district court’s findings
supporting the “course of conduct” element of stalking. “‘[C]ourse
of conduct’ means two or more acts directed at or toward a specific
person, including . . . acts in which the actor . . . threatens . . . a
person, or interferes with a person’s property . . . .” Id. § 76-5-
106.5(1)(b).
¶4 “[W]hether the defendant engaged in a course of conduct . . .
that would cause a reasonable person emotional distress is a
question of fact.” Baird v. Baird, 2014 UT 8, ¶ 29, 322 P.3d 728(omission in original) (citation and internal quotation marks
omitted). “[W]e review the trial court’s findings of fact for clear
error, reversing only where [a] finding is against the clear weight
of the evidence, or if we otherwise reach a firm conviction that a
mistake has been made.” Ellison v. Stam, 2006 UT App 150, ¶ 17,
136 P.3d 1242 (alterations in original) (citation and internal
20130557-CA 2 2014 UT App 250Zappe v. Bullock
quotation marks omitted). We “resolv[e] all disputes in the
evidence in a light most favorable to the trial court’s
determination.” State v. Perea, 2013 UT 68, ¶ 32, 322 P.3d 624(citation and internal quotation marks omitted).
¶5 Here, the district court ruled that an incident occurring on
or around December 19, 2012 (the knife incident) and a series of
incidents occurring on December 25, 2012 (collectively, the
Christmas incident) satisfied the course of conduct element. Bullock
challenges only the findings surrounding the knife incident.
¶6 The knife incident took place in the kitchen of Bullock’s
home while Bullock and Zappe discussed the new car Zappe
helped buy for his then-girlfriend and now-wife Paige. Paige is
Bullock’s daughter. Bullock was holding a kitchen knife during this
interaction and, at one point, held the knife within inches of
Zappe’s body and warned him against “interfering with her
relationship with Paige.” The court found that Bullock also
described to Zappe her gun collection and the “other people who
could do harm to [him] and to Paige” in order “to impress upon
[Zappe] how serious [she] was.”1
¶7 Bullock argues that the only evidence that she threatened
Zappe both orally and with a knife came exclusively from Zappe’s
own testimony and that Zappe “repeatedly showed himself to be
a difficult witness, lacking in credibility.” Bullock argues that the
district court’s “specific findings regarding Zappe’s inappropriate
1. The Christmas incident began with Bullock upset that Paige
invited Zappe to their Christmas gathering. Bullock became
argumentative and belligerent, to the point that Paige’s sister left
the house to get away from all of the arguing. Bullock’s behavior
gradually escalated to include covering the hood of Paige’s new car
with bags of garbage, locking herself and Paige in Paige’s bedroom,
grabbing and shaking Paige, and knocking Zappe’s cell phone out
of his hands after Zappe threatened to call police.
20130557-CA 3 2014 UT App 250Zappe v. Bullock
behavior towards the other involved parties” suggest that “to some
extent, the trial court had concerns about Zappe’s character and
credibility.” In addition, Bullock points out various discrepancies
in Zappe’s testimony that she contends “call into question Zappe’s
credibility” and “make Zappe’s version of at least some of the
events highly improbable.”
¶8 “As we have often said, credibility is an issue for the trier of
fact,” which in this case is the district court. See State v. Dunn, 850
P.2d 1201, 1213 (Utah 1993). And here, the district court’s findings
adequately support the court’s judgment and demonstrate the
reasoning employed by the court in reaching “the ultimate
conclusion on each factual issue.” See Armed Forces Ins. Exch. v.
Harrison, 2003 UT 14, ¶ 28, 70 P.3d 35 (emphasis, citation, and
internal quotation marks omitted).
¶9 The district court entered its findings orally at the close of
the evidentiary hearing on Zappe’s petition for a civil stalking
injunction. The court first noted that there were a number of
“unsettling” things about the case, including the “unfortunate”
relationship between Bullock and Paige that was marked by their
apparent inability to “be civil to each other when they’re together.”
The court also described as “bizarre” uncontested testimony that
Zappe had thrown cold water on Paige’s twin sister while she was
in the shower. The court recognized that Zappe and Bullock
disagreed on what occurred, particularly with respect to the knife
incident, and it noted in its findings when and how the parties’
versions of the events differed. However, the court concluded that
“much of what [Zappe] claims is . . . corroborated by either
[Bullock] or [Bullock’s] witnesses.” The court observed that
Zappe’s version of the Christmas incident was largely corroborated
by Bullock’s witnesses, bolstering Zappe’s credibility. The district
court concluded that, “based on all of the evidence,” a “course of
conduct” had occurred. Accordingly, the district court’s findings
are not against the clear weight of the evidence and its ruling is
supported by sufficient evidence. See Ellison v. Stam, 2006 UT App
150, ¶ 17, 136 P.3d 1242.
20130557-CA 4 2014 UT App 250Zappe v. Bullock
II. Impeachment Evidence
¶10 Next, Bullock argues that the district court erred by
prohibiting her from impeaching Zappe’s testimony with evidence
of his prior felony conviction, as permitted by rule 609(a) of the
Utah Rules of Evidence. Rule 609(a) governs a party’s ability to
attack “a witness’s character for truthfulness [with] evidence of a
criminal conviction” and states,
(a)(1) for a crime that, in the convicting jurisdiction,
was punishable by death or by imprisonment for
more than one year, the evidence:
(a)(1)(A) must be admitted, subject to Rule
403, in a civil case . . . ; and
....
(a)(2) for any crime regardless of the punishment, the
evidence must be admitted if the court can readily
determine that establishing the elements of the crime
required proving—or the witness’s admitting—a
dishonest act or false statement.
Utah R. Evid. 609(a).
¶11 “Although a trial court’s determination on the admissibility
of evidence is a question of law reviewed for correctness, its
decision is generally accorded a good deal of discretion by an
appellate court.” State v. Betha, 957 P.2d 611, 616 (Utah Ct. App.
1998) (citations and internal quotation marks omitted).
Accordingly, we will not reverse a district court’s ruling on the
admissibility of evidence “unless a substantial right of the party has
been affected.” Id. (citation and internal quotation marks omitted).
“In determining whether a ‘substantial right of the party is
affected,’ we look at the evidence as a whole in the context of the
trial to determine if, absent the error [in admitting or excluding the
20130557-CA 5 2014 UT App 250Zappe v. Bullock
evidence], there is a reasonable likelihood that a different result
would have been reached.” State v. Speer, 750 P.2d 186, 189 (Utah
1988). In other words, “we will reverse only if the error was
harmful.” Dunn, 850 P.2d at 1221.
¶12 Zappe described his third-degree-felony conviction as
involving “an informal business arrangement where there were
unclear expectations.” He explained that the oral agreement was
for Zappe to repair and sell two vehicles on behalf of the victims,
in exchange for which Zappe would keep $200 from the sale of
each vehicle. Zappe repaired and sold the first vehicle and returned
the proceeds to the victims. Zappe testified that the second vehicle
was unexpectedly expensive for Zappe to repair and that the
parties disagreed as to whether the costs Zappe incurred in fixing
the vehicles were sufficiently satisfied by the terms of their
agreement. The victims felt that Zappe had been adequately
compensated, and Zappe felt he was owed more. To resolve the
dispute, Zappe simply kept the money from the sale of the second
vehicle, prompting his arrest. He entered a guilty plea to theft
charges and paid restitution.
¶13 The district court determined that Zappe’s conviction did
not involve a dishonest act or a false statement and excluded the
impeachment evidence on that basis, as required by rule 609(a)(2).
Bullock argues that the district court’s ruling that Zappe’s prior
conviction did not involve a dishonest act is incorrect and argues
that the evidence should have nonetheless been admitted pursuant
to rule 609(a)(1) because it is relevant and is probative of Zappe’s
credibility.
¶14 First, we agree with the district court that Zappe’s felony
conviction did not involve a crime of dishonesty and that the
impeachment evidence was therefore properly excluded under rule
609(a)(2). “The focus of [rule 609(a)(2)] concerns impeachment
based on the probability that a particular witness may not be telling
the truth as evidenced by prior acts of dishonesty on the part of
that witness.” State v. Morrell, 803 P.2d 292, 294 (Utah Ct. App.
20130557-CA 6 2014 UT App 250Zappe v. Bullock
1990). The district court determined, based on Zappe’s description
of the circumstances surrounding his conviction, that the third-
degree-felony theft conviction did not constitute “a crime of false
statement.” Bullock argues that Zappe’s acts resulting in his
conviction were inherently dishonest where he purposefully
absconded with the victims’ money and without seeking a more
conventional solution to the parties’ disagreement.
¶15 “While all crimes involve, in some broad sense, an element
of dishonesty,” State v. Wight, 765 P.2d 12, 18 (Utah Ct. App. 1988),
Utah courts have specifically ruled that “[t]heft is not a crime
involving dishonesty or false statement within the meaning of rule
609(a)(2),” State v. Bruce, 779 P.2d 646, 656 (Utah 1989) (citation and
internal quotation marks omitted). Rather, theft “involves stealth
and demonstrates a lack of respect for the persons or property of
others[ and] is not characterized by an element of deceit or
deliberate interference with a court’s ascertainment of truth.” Bruce,
779 P.2d at 656 (citation and internal quotation marks omitted). A
theft conviction may, however, “be admissible under the rule if in
fact the crime was committed by fraudulent or deceitful means.” Id.
(citation and internal quotation marks omitted); cf. Wight, 765 P.2d
at 18 (“[T]he crime of robbery is not necessarily one of dishonesty
or false statement for purposes of 609(a)(2) admissibility.”).
However, Bullock’s argument, without more, does not convince us
that Zappe’s prior conviction involved fraud, deceit, or dishonesty.
Accordingly, we affirm the district court’s decision to exclude the
impeachment evidence under rule 609(a)(2).
¶16 Last, we address the admissibility of the conviction evidence
under rule 609(a)(1). Zappe challenges Bullock’s arguments under
this rule as unpreserved. For purposes of our analysis, we will
assume, without deciding, that the district court erred by not
addressing the conviction evidence under rule 609(a)(1). From this
starting point, we need address only whether the presumed error
was harmful, regardless of whether we review Bullock’s arguments
as preserved or under a plain error standard. See State v. Dunn, 850
P.2d 1201, 1208 (Utah 1993) (explaining that to establish plain error,
20130557-CA 7 2014 UT App 250Zappe v. Bullock
an appellant must demonstrate, among other things, that “the error
is harmful, i.e., absent the error, there is a reasonable likelihood of
a more favorable outcome for the appellant”); State v. Brown, 771
P.2d 1093, 1095 (Utah Ct. App. 1989) (noting that a district court’s
error in admitting evidence “is reversible only if a review of the
record persuades us that without the error there was a reasonable
likelihood of a more favorable result for the defendant”).
¶17 Bullock asserts that the relevance of the felony evidence is
derived from the notion that all of the evidence presented at trial
was testimonial, thereby making the credibility of the witnesses
essentially outcome determinative. But see State v. Templin, 805 P.2d
182, 188 (Utah 1990) (recognizing that a person can be convicted of
a crime based “solely on the testimony of the victim”). However,
as discussed above, because Zappe’s conviction did not involve a
crime of dishonesty, the evidence speaks little of Zappe’s
propensity for truthfulness in the situation before us. The
conviction evidence’s relevance, Bullock argues, follows from the
fact that it reflects negatively on Zappe and implies a propensity
for poor judgment, similar to the evidence of Zappe’s behavior of
splashing Paige’s sister with cold water while she showered.
Although the excluded evidence carries with it the stigma of a
felony offense,2 we are not persuaded that it would have had any
greater bearing on the district court’s decision than the shower
evidence or that the cumulative effect of the shower evidence and
conviction evidence would create a “reasonable likelihood of a
more favorable outcome” for Bullock. See Dunn, 850 P.2d at 1208;
accord Brown, 771 P.2d at 1095. Ultimately the district court
acknowledged the discrepancies between Zappe’s and Bullock’s
testimonies, including their conflicting accounts of the knife
incident, but found Zappe more credible because his testimony was
otherwise largely corroborated by other witnesses, which Bullock
2. Zappe’s counsel suggested that the conviction may have been
charged as a felony purely as a result of a prior misdemeanor
conviction that was on Zappe’s record at the time of that offense.
20130557-CA 8 2014 UT App 250Zappe v. Bullock
does not dispute. Thus, even assuming that the exclusion of the
conviction evidence under rule 609(a)(1) was in error, the error was
not harmful and does not warrant reversal.
III. Conclusion
¶18 The district court’s decision to grant a civil stalking
injunction against Bullock is supported by sufficient evidence, and
the court properly excluded evidence of Zappe’s prior felony
conviction under rule 609(a)(2). Assuming, without deciding, that
the district court erred by excluding the conviction evidence under
rule 609(a)(1), the error was harmless. Affirmed.
20130557-CA 9 2014 UT App 250