State v. Fowers

2023 UT App 128THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellant,
v.
THOMAS FOWERS,
Appellee.
Opinion
No. 20220073-CA
Filed October 26, 2023
Fourth District Court, Provo Department
The Honorable Robert A. Lund
No. 201402484
Sean D. Reyes and Jeffrey D. Mann, Attorneys for
Appellant, assisted by law student Rebecca Barker 1
Douglas J. Thompson, Attorney for Appellee
JUDGE JOHN D. LUTHY authored this Opinion, in which
JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.
LUTHY, Judge:
¶1 Thomas Fowers’s ex-wife (Ex-Wife) is married to his
adopted brother (Brother). A court issued a protective order
directing Fowers not to “contact . . . or communicate in any way
with [Ex-Wife], either directly or indirectly,” and not to “threaten
to commit any form of violence against” her. Early one morning,
Fowers called Brother’s phone three times in two minutes from an
unrecognized number. The first two times, no one answered. The
third time, Ex-Wife answered, and Fowers said, “You and that
f***ing whore have it coming.”
1. See Utah R. Jud. Admin. 14-807 (governing law student practice
in the courts of Utah).
State v. Fowers
¶2 Fowers was charged with violating the protective order.
The district court declined to bind Fowers over and dismissed the
charge, determining that there was “no evidence in the record to
establish that Mr. Fowers . . . intentionally communicat[ed] either
directly or indirectly to [Ex-Wife]” since “the statement itself
clearly [was] directed at [Brother]” and Fowers did not tell
Brother “to direct the comment to [Ex-Wife].” The State appeals,
and we reverse.
BACKGROUND
¶3 Ex-Wife obtained a protective order against Fowers in
August 2017. The order included a “No Contact Order” stating,
“Do not contact, phone, mail, e-mail, or communicate in any way
with [Ex-Wife], either directly or indirectly.” It also included a
“Personal Conduct Order” stating, “Do not commit, try to commit
or threaten to commit any form of violence against [Ex-Wife] . . . .
This includes stalking, harassing, threatening, physically hurting,
or causing any other form of abuse.”
¶4 One morning in July 2020, Brother’s phone received three
calls between 4:57 a.m. and 4:58 a.m. from an unrecognized
number. At the time of the first call, Ex-Wife and Brother “were,
of course, sleeping.” As they awoke, they thought that maybe
someone was calling for help related to a wedding they were to
attend that day. When Ex-Wife answered the third call, she
recognized Fowers’s voice saying, “You and that f***ing whore
have it coming.”
¶5 Ex-Wife reported the calls to authorities, and Fowers was
charged with one third-degree felony count of violation of a
protective order with a domestic violence enhancement.
¶6 The district court held a preliminary hearing on the charge.
The State presented evidence that Fowers had been served with
the protective order. In addition to Ex-Wife, who testified about
20220073-CA 2 2023 UT App 128State v. Fowers
the phone calls, the deputy who received Ex-Wife’s report
testified that he had checked the number from which the calls had
been made against local records and found that the number was
attached to Fowers. The deputy also said that he called the
number and that, when he asked to speak to Fowers, the person
who answered identified himself as Fowers. Additionally, the
court accepted into evidence records of three prior convictions of
Fowers’s for violating this protective order and a previous
protective order because those convictions were “relevant to
establish under evidence [r]ule 404 both knowledge by the
defendant and intention.”
¶7 After the State presented its case, the court found “that the
[S]tate ha[d] not met its burden.” The court explained:
[A]lthough the direct and circumstantial evidence
establishes that Mr. Fowers made the call, the
number that he called was his adoptive brother’s
number, not the alleged victim’s number. . . .
[And] the statement itself clearly is directed
at [Brother], not at [Ex-Wife]. He say[s] “you and
that f’ing whore,” meaning that he’s directing his
comment toward [Brother] and not [Ex-Wife] . . . .
[W]hat is glaringly missing from the record here is
any statement by Mr. Fowers to [Brother] to direct
the comment to the alleged victim. Therefore, there
is no evidence in the record to establish that Mr.
Fowers intentionally violated this order by
intentionally communicating either directly or
indirectly to [Ex-Wife].
Based on those findings, I find that the [S]tate
has not—even drawing inferences in the light most
favorable to the [S]tate— . . . establish[ed] sufficient
evidence[,] and I decline to bind the charge over.
20220073-CA 3 2023 UT App 128State v. Fowers
The court dismissed the charge with prejudice, and the State now
appeals.
ISSUE AND STANDARD OF REVIEW
¶8 The State contends that it presented evidence establishing
probable cause that Fowers violated the protective order and that
the district court therefore erred by not binding Fowers over. In
essence, the State argues that the court applied the wrong legal
standard by not viewing the evidence and all reasonable
inferences that can be drawn from it in favor of the prosecution.
A district court’s “decision to bind over a criminal defendant for
trial presents a mixed question of law and fact and requires the
application of the appropriate bindover standard to the
underlying factual findings. As a result, in reviewing a bindover
decision, an appellate court should afford the decision limited
deference.” In re I.R.C., 2010 UT 41, ¶ 12, 232 P.3d 1040 (cleaned
up). “Applying the wrong legal standard . . . will always exceed
whatever limited discretion the [court] has in the bindover
decision.” State v. Ramirez, 2012 UT 59, ¶ 7, 289 P.3d 444.
ANALYSIS
¶9 Our supreme court has explained that the evidentiary
threshold for bindover is a low bar:
Although the guarantee of a preliminary hearing is
fundamental, the evidentiary threshold at such
hearing is relatively low. As we have emphasized, a
showing of “probable cause” entails only the
presentation of evidence sufficient to support a
reasonable belief that the defendant committed the
charged crime. . . . To justify binding a defendant
over for trial, the prosecution need not present
evidence capable of supporting a finding of guilt
20220073-CA 4 2023 UT App 128State v. Fowers
beyond a reasonable doubt. Nor is the prosecution
required to eliminate alternative inferences that
could be drawn from the evidence in favor of the
defense. All that is required is reasonably believable
evidence—as opposed to speculation—sufficient to
sustain each element of the crime(s) in question.
State v. Ramirez, 2012 UT 59, ¶ 9, 289 P.3d 444 (cleaned up). Here,
the State needed to present “evidence sufficient to support a
reasonable belief” that Fowers violated the protective order, id.(cleaned up), and the court was required to “view all evidence in
the light most favorable to the prosecution and . . . draw all
reasonable inferences in favor of the prosecution,” State v. Clark,
2001 UT 9, ¶ 10, 20 P.3d 300 (cleaned up).
¶10 A person commits the crime of violation of a protective
order if the person “(a) is the respondent or defendant subject to
a protective order . . . and (b) intentionally or knowingly violates
that order after having been properly served” with it. Utah Code
§ 76-5-108(2). A person acts intentionally “when it is his conscious
objective or desire to engage in the conduct.” Id. § 76-2-103(1).
And a person acts knowingly “when he is aware of the nature of
his conduct or the existing circumstances.” Id. § 76-2-103(2).
¶11 There is no dispute that Fowers was subject to the
protective order at issue, and the State showed that Fowers was
served with that protective order. Thus, the only issue before us
is whether the State offered evidence supporting a reasonable
belief that Fowers intentionally or knowingly violated the
protective order. On this point, the State first argues that it put on
evidence sufficient to establish probable cause that Fowers
violated the No Contact Order portion of the protective order by
“intentionally or knowingly contact[ing] Ex-Wife at least
indirectly” because “[i]t was reasonable to infer that Fowers knew
or intended that his contact and [message] . . . would be relayed
to Ex-Wife.” The State then argues that Fowers’s statement “You
and that f***ing whore have it coming” can also be reasonably
20220073-CA 5 2023 UT App 128State v. Fowers
interpreted as a threat of violence in violation of the Personal
Conduct Order portion of the protective order. We agree with
each of the State’s arguments. 2
¶12 The State put on evidence establishing probable cause that
Fowers intentionally or knowingly contacted Ex-Wife at least
2. Fowers asserts that the State did not preserve “the arguments”
it now makes on appeal because the prosecutor “did not raise
[them] in a way that gave the district court the opportunity . . . to
address [them].” “An issue is preserved by presenting it to the
trial court in such a way that the trial court has an opportunity to
rule on that issue.” Vierig v. Therriault, 2023 UT App 67, ¶ 43, 532
P.3d 568 (cleaned up); see id. ¶ 44 (“Of note, issues must be
preserved, not arguments for or against a particular ruling on an
issue raised below. By contrast, new arguments, when brought
under a properly preserved issue or theory, do not require an
exception to preservation.” (cleaned up)).
Fowers is mistaken when he says that the State did not meet
this preservation standard here. At the close of the preliminary
hearing, the State referenced “paragraph 1 and 2 of the protective
order”; identified those paragraphs as the Personal Conduct
Order and No Contact Order respectively; and noted that they
prohibited Fowers from “threatening [Ex-Wife] in any way” and
from “communicating in any way with [Ex-Wife] either directly
or indirectly.” The State then highlighted the evidence that
Fowers “called the husband of [Ex-Wife] in the early morning
hours when they would presumably be together and made a
statement against her to [her] then husband,” which is the same
evidence that the State emphasizes here. By presenting evidence
and arguing below for bindover based on an alleged violation of
both the Personal Conduct Order and the No Contact Order, the
State gave the district court an opportunity to rule on the same
questions we are now asked to rule on. So regardless of whether
those questions are characterized as arguments or issues—and we
express no opinion as to the proper characterization here—
Fowers’s preservation argument fails.
20220073-CA 6 2023 UT App 128State v. Fowers
indirectly. In State v. Fouse, 2014 UT App 29, 319 P.3d 778, cert.
denied, 329 P.3d 36 (Utah 2014), this court affirmed a conviction for
violation of a protective order where the defendant mailed
envelopes to the victim’s sisters rather than to the victim, his
estranged wife. Id. ¶¶ 4–7, 43. The victim was living with one of
the sisters, and the other sister lived in the apartment next door.
Id. ¶ 3. While some of the letters in the envelopes were addressed
to the victim, others contained statements such as, “Please hold
onto this. . . . [E]ven though I can’t send nor talk to my wife or
kids[,] . . . writing sure does help.” Id. ¶ 4. Nonetheless, we
reasoned that a factfinder “could readily infer that
communication directed to or dealing with one’s ex-spouse, and
sent to the ex-spouse’s siblings, will routinely and predictably be
conveyed by the siblings to their family member.” Id. ¶ 40. And
we noted, “Such an inference is particularly sound in this case,
given the jury’s awareness that [the victim] and her sisters were
close—in both senses of that term.” Id.
¶13 The same reasoning applies here. A factfinder could
readily infer that calls Fowers placed to Brother or statements
Fowers made to him would “routinely and predictably be
conveyed” to Ex-Wife, Brother’s spouse, especially where a
factfinder could reasonably infer that Brother and Ex-Wife were
“close” “in both senses of that term.” Id. Indeed, a factfinder could
infer that Fowers’s decision to call Brother just before 5:00 a.m.—
a time when spouses could reasonably be assumed to be
together—manifested his intent to catch Brother and Ex-Wife
together. Therefore, we have no trouble concluding that the
State’s evidence was sufficient to support a reasonable belief that
Fowers, by calling Brother’s phone when he did, intentionally or
knowingly contacted Ex-Wife directly or indirectly. Fowers did
not need to explicitly direct Brother to communicate his message
to Ex-Wife, and the court erred in suggesting as much.
¶14 The State also asserts that Fowers’s statement “You and
that f***ing whore have it coming” can be reasonably interpreted
as a threat of violence. We agree. In State v. Spainhower, 1999 UT
20220073-CA 7 2023 UT App 128State v. Fowers
App 280, 988 P.2d 452, this court recognized that the admittedly
“vague and indirect” statement, “‘I’m going to get you,’ surely
may connote a threat of bodily injury” because “among the many
dictionary definitions of the verb ‘get’ are: ‘to bring to retribution,
take vengeance on, KILL’ and ‘to strike with force, HIT.’” Id. ¶¶ 6–
7 (cleaned up). Likewise, the words at issue here, though perhaps
similarly vague and indirect, could carry either a violent or a
nonviolent meaning and must be interpreted by the factfinder in
light of “the inferences to be drawn from the context in which the
words were spoken.” Id. ¶ 7. And again, at the preliminary
hearing stage, a court must “view all evidence in the light most
favorable to the prosecution and must draw all reasonable
inferences in favor of the prosecution.” Clark, 2001 UT 9, ¶ 10
(cleaned up). Accordingly, at this stage, the court should have
interpreted Fowers’s words to be capable of conveying, in context,
a threat of violence.
CONCLUSION
¶15 The protective order’s No Contact Order forbade Fowers
from contacting, phoning, mailing, e-mailing, or communicating
in any way with Ex-Wife, either directly or indirectly. Its Personal
Conduct Order forbade him from threatening violence against Ex-
Wife. Plainly there is “reasonably believable evidence—as
opposed to speculation—sufficient to” show that Fowers violated
one or both of these provisions. State v. Ramirez, 2012 UT 59, ¶ 9,
289 P.3d 444. By not viewing the evidence and the reasonable
inferences to be drawn from it in the light most favorable to the
State—and instead requiring a statement by Fowers to Brother to
direct the comment at issue to Ex-Wife—the district court applied
the wrong legal standard and exceeded “whatever limited
discretion” it had in the bindover decision. Id. ¶ 7. We therefore
reverse and remand this matter to the district court for further
proceedings consistent with this opinion.
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