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MEMORANDUM DECISION ON RESPONDENT'S MOTION TO DISSOLVE TEMPORARY CIVIL STALKING INJUNCTION

Introduction

The Court conducted evidentiary hearings regarding the Respondent’s Motion to Dissolve the Temporary Civil Stalking Injunction. These hearings took place on June 25, June 26, June 30, July 1, and July 8, 2008. Due to the Court’s full schedule, these hearings were held over multiple dates, which the Court regrets. The parties were represented by counsel: Joanna Sagers represented the Petitioner, while Kay Burningham represented the Respondent. Following the hearings, both parties submitted final arguments in writing, and on July 22, 2008, the Petitioner filed a Request to Submit for Decision.

Having reviewed the evidence and considered the arguments presented by counsel, the Court issues the following Memorandum Decision.

Background

The Petitioner filed a Request for a Civil Stalking Injunction on May 1, 2008, alleging two separate incidents of stalking by the Respondent. Specifically, the Request outlined incidents on March 14, 2008, at Estillo Salon, and on April 14, 2008, at Dr. William Burns’s Dental Office. The Petitioner claims that the Respondent's actions caused her significant emotional distress and a fear of physical harm.

The Petitioner's Request details the history of her relationship with the Respondent, which began as a romantic involvement and ultimately led to their engagement. However, the engagement was broken off, and the Petitioner sought to remain on amicable terms with the Respondent.

Despite her wishes, the Respondent’s conduct escalated. The Petitioner describes several troubling incidents that occurred in 2006, including an instance where the Respondent trespassed at her home and another in which he allegedly detained her against her will at his residence. Both of these incidents were reported to law enforcement. In response to these events, the Petitioner ceased contact with the Respondent.

In December 2007, the Petitioner discovered that the Respondent still viewed their relationship as ongoing, despite her clear communication that they were no longer involved. The Respondent continued to send gifts and make unwanted contact with the Petitioner.

Allegations of Stalking

The Petitioner's allegations of stalking are summarized as follows:

March 13, 2008 Incident at Estillo Salon: The Respondent appeared at the Petitioner's hair salon and requested personal information about her.

March 2008 Text Messages: The Respondent allegedly sent a series of text messages to the Petitioner, including statements such as, "God meant for us to be together, you will always be mine, I will never let you go."

March 28, 2008 Incident: The Petitioner once again informed the Respondent that she wanted no further contact with him. The Respondent’s response was reportedly dismissive, stating, "Your life is my business, and you will never belong to anyone else."

Repeated Harassment at the Petitioner's Workplace: Over the following weeks, the Respondent visited the Petitioner's place of business on multiple occasions, attempting to obtain information about her from her coworkers. Additionally, he made after-hours phone calls to her workplace.

April 19, 2008 Incident: The Respondent arrived at the Petitioner’s place of work, where he was instructed to leave. During this encounter, the Respondent allegedly became angry and was escorted out of the premises. Notably, it was reported that the Respondent was carrying a concealed weapon at the time of this incident.

Cease and Desist Letter and Further Violations: Despite receiving a cease-and-desist letter, the Respondent reportedly sent a package to the Petitioner's workplace. The Petitioner reported these subsequent incidents to law enforcement, providing police reports and a detailed log of the stalking incidents in support of her Request for a Civil Stalking Injunction.

Temporary Civil Stalking Injunction

In response to the Petitioner's Request, the District Court issued a Temporary Civil Stalking Injunction, which ordered the Respondent to cease all acts of stalking, refrain from contacting the Petitioner, and stay away from the Petitioner's workplace, residence, and other specified locations, including the Petitioner's vehicle, her hair salon, and Sugar Post Pottery. The temporary injunction also prohibited the Respondent from contacting individuals connected to the Petitioner, including Hal Peacock, Goldie Peacock, Lois Peacock, Dr. William Burns, and Kathy Wolfe.

Respondent’s Motion to Dissolve the Temporary Injunction

The Respondent filed a Motion to Dissolve the Temporary Civil Stalking Injunction, asserting that the allegations of stalking were either exaggerated or unfounded. The Motion was filed in a timely manner and was the subject of the evidentiary hearings conducted over the course of several days.

Analysis and Decision

The Court has carefully reviewed the testimony presented during the evidentiary hearings, as well as the written submissions of the parties. Based on the evidence presented, the Court finds that the Petitioner has established that the Respondent’s conduct constitutes stalking under the applicable legal standards. The Respondent's repeated unwanted contact, including trespassing, harassment at the Petitioner's workplace, and the sending of gifts and messages despite the Petitioner’s clear requests for no further contact, demonstrate a pattern of behavior that caused the Petitioner to experience emotional distress and fear for her safety.

While the Respondent has raised arguments to the contrary, including claims that some of the actions were mischaracterized or exaggerated, the Court finds that the evidence supports the Petitioner's claims of stalking. The Respondent's actions were not only unwelcome but also persisted despite clear and repeated requests for the Respondent to cease.

The Statute Civil stalking is proved by establishing the same elements as criminal stalking.

Utah Code §77-3a-1 01 (1). The applicable provision of the Code provides as follows:2

(1) As used in this section:

(a) "Course of conduct" means repeatedly maintaining a visual or

2The statute was amended effective May 5, 2008, Because the Petitioner's Request was submitted some days earlier, the prior version of the statute is applicable.

physical proximity to a person or repeatedly conveying verbal or written threats or threats implied by conduct or a combination thereof directed at or toward a person.

(b) "Immediate family" means a spouse, parent, child, sibling, or any other person who regularly resides in the household or who regularly resided in the household within the prior six months.

(2) A person is guilty of stalking who:

(a) intentionally or knowingly engages in a course of conduct directed at a specific person that wo_ld cause a reasonable person:

(i) to fear bodily injury to himself. . . ; or

(ii) to suffer emotional distress to himself. . . ;

(b) has knowledge or should have knowledge that the specific person:

(i) will be placed in reasonable fear of bodily injury to himself . . . ; or

(ii) will suffer emotional distress. . . . ; and

( c) whose conduct:

(i) induces fear in the specific person of bodily injury tohimself. . . : or

(ii) causes emotional distress inJhe specific person. . . .

Utah Code § 76-5-106.5.

The Petitioner has the burden of showing by a preponderance of the evidence that the Respondent has stalked the Petitioner. Id. at § 77-3a-101(6)(a). At the hearing, the Court may modify, revoke, or continue the injunction. Id. at § 77-3a-7.

The Evidentiary Hearing The Court heard testimony from the Petitioner; the Petitioner's colleague Kathleen Wolfe; the Petitioner's employer Dr. William Burns; the Petitioner's colleague

Michelle Hawkins; the Petitioner's mother Lois Peacock; Division of Child and Family Services employee Leland Robinson; the Respondent's friend and business associate Douglas Osmond; the Respondent's son Danny Buttars; the Respondent's friend and business partner Vincent Romney; the Respondent, and the Respondent's friend and co-worker Steve Garretson.

The Petitioner and the Respondent have known each other for several years, during which time they have had an intermittent romantic relationship including an engagement to be married, punctuated by periods of friendship. Even during periods when they ostensibly were "just friends," they have been intensely involved in one another's lives. This has included the Petitioner redecorating the Respondent's house, providing extended periods of child care for his son, and spending the night at the Respondent's house on holiday visits. Their relationship, however it is characterized, has ended, and the Petitioner has accused the Respondent of stalking her. Although the Request specified but two instances of alleged stalking, the'

description refers to a number of instances which could be construed as a longstanding pattern. Further, considerable portions of the hearing were devoted to numerous instances which, in the Petitioner's view, cumulatively demonstrate stalking.

Accordingly, the following analysis looks at these alleged instances, and –repeatedly inquires: (1) Did the Respondent intentionally or knowingly engage in conduct that would cause a reasonable person to fear bodily injury or suffer emotional distress? (2) Did the Respondent have, or should he have had, knowledge that the Petitioner would fear bodily injury or suffer emotional distress? and (3) Did the Petitioner actually fear bodily injury or suffer emotional distress as a result of the Respondent's conduct?

The September 2006 Incident in Summit County The Petitioner testified that on a visit to the Respondent's house in September 2006 she told him she was not in love with him, and that he became "outraged" and grabbed her wrists. He trapped her in his upstairs bedroom for "hours and hours."After she got away, she went down the stairs and he threw framed pictures at her and pulled curtain rods off the wall. She was hit by the picture frames. She testified that the incident scared her.

The Respondent also testified about the circumstances leading up to the Petitioner's departure that night. The Petitioner was planning to stay the night, and the two of them were in bed together but got "carried away" despite a mutual decision not to have sex. She was going to leave, but was crying and upset and he was concerned about her driving in that condition. He acknowledges standing in front of her "for about two seconds, and admits dropping her photo off the stairwell in a symbolic gesture. Further, he testified that this could have been interpreted as violent, but he does not believe she was afraid. He denies any intent to harm her.

The Petitioner left the Respondent's house in Summit County and headed hom to Salt Lake City. She testified that on her way down the canyon, she hit something in the road. Instead of calling 911 or for other emergency assistance, she called the Respondent. She testified that she "doesn't know" why she called the Respondent instead of 911. She testified that he did not answer the call. Thereafter, she testified that she drove herself to an emergency room, where she did not report that she had been hit by objects allegedly thrown by the Respondent.

The Respondent testified that he answered the Petitioner's call, she told him about the accident, said she was all right, and they agreed to speak in the morning. When he called her the next day, she told him that she had been to the emergency room. He contends that during that call, the Petitioner said it was all right for him to visit her, and that she would unlock the door. His visit to her house is the subject of the next section.

Danny Buttars, the Respondent's son, was in the house during the incident in which the Petitioner allegedly was held for hours against her will. His proffered testimony is to the effect that he believes he would have heard the incident if it had happened as the Petitioner alleges, but did not hear anything like that.

Approximately a week after this incident, the Petitioner reported it to the Summit County police, but did not mention that she was held for "hours and hours" or that she had been assaulted by the Respondent throwing objects at her. The report suggests, and the Petitioner's testimony confirmed, that what she told the police was that "he stepped in front of her so she could not get by." The Respondent raised his voice, then "grabbed her by the arm and pushed her into a dresser." There is no mention of an accident in the canyon or a trip to the emergency room.

The Court finds that (1) in this instance, the Respondent did not intentionally or knowingly engage in conduct that would cause a reasonable person to fear bodily injury or suffer emotional distress;

(2) the Respondent did not have, nor should he have had, knowledge tha

the Petitioner would fear bodily injury or suffer emotional distress and

(3) the Petitioner did not actually fear bodily injury or suffer emotional distress as a

result of the Respondent's conduct. The Petitioner's testimony about this incident was not credible. Among other things, her long-after-the-fact report to the police is not consistent with her testimony in these proceedings that the Respondent detained her "for hours and hours," and the Court therefore finds that this incident did not transpire in the manner described by the Petitioner. Further, the Court finds that the Petitioner did not actually fear bodily injury or suffer significant emotional distress from their argument, inasmuch as she chose to telephone the Respondent immediately after she allegedly fled from having been detained for "hours and hours," and made no mention of objects striking her when she went to the emergency room.

The Respondent's Visit to the Petitioner's House The Petitioner lives with her mother, Lois Peacock, in a house in Salt Lake City. Ms. Peacock testified that on September 1O, 2006, she was in the kitchen with the Petitioner when the Respondent arrived, came into the house uninvited and without ringing the doorbell, and began "hollering" at the Petitioner. He was told to leave but refused, the police were called, and he left.

The Petitioner also testified that the Respondent was screaming and yelling when he came into the house, and that she and her mother were scared, prompting her to call the police. The Respondent left before the police arrived. The Respondent, as noted above, testified that he was invited to the house. The Salt Lake Police Department report of the incident states that the Petitioner told the police "of the abuse, that suspect David Buttars had done to her on Wednesday night in Park City." The Petitioner told the officers that the Respondent entered the house without permission, but left when she called police. After this incident, the Petitioner "decided to try again."

The Court finds that (1) in this instance, whether he was invited or not, the Respondent by coming into the house and yelling at the Petitioner, then failing to leave until the police had been summoned, intentionally or knowingly engaged in conduct that would cause a reasonable person to suffer emotional distress; and (2) the Respondent had, or should have had, knowledge that the Petitioner would suffer emotional distress.

Whether the emotional distress was significant is debatable, however. The Court does not find, however, that the Petitioner actually suffered significant emotional distress as a result of the Respondent's conduct. Her decision to engage in continued relations with the Respondent is inconsistent with the level of emotional distress encompassed by the stalking statute. Whereas the Court is cognizant of the fact that "intervening conciliatory gestures will not preclude a court from finding a course of conduct, (Towner v. Ridgway, 182 P.3d 347 (Utah 2008)). Petitioner's distress over this instance was short-lived and not significant.

Christmas 2006

The Petitioner and her mother celebrated Christmas with the Respondent. Ms. Peacock testified that as dinner was being prepared, the Respondent's stove top broke and he became upset and "threw" it. The Respondent denies throwing any part of the stove.

The Petitioner and her mother both spent the night at the Respondent's house, with, the Petitioner sleeping with the Respondent in his bedroom. The Court finds that even assuming that the Respondent displayed an angry outburst concerning a malfunctioning stove, (1) the Respondent did not intentionally or knowingly engage in conduct that would cause a reasonable person to fear bodily injury or suffer emotional distress; (2) the Respondent did not have, nor should he have had,knowledge that the Petitioner would fear bodily injury or suffer emotional distress; and

(3) the Petitioner did not actually fear bodily injury or suffer emotional distress as a result of the Respondent's conduct. Among other things, the Petitioner's overnight stay demonstrates that she was neither emotionally distressed nor afraid of the Respondent in the aftermath of the incident involving the stove top.

June 2007

At the Petitioner's suggestion, she and the Respondent took a trip together. The Petitioner testified she was not afraid of the Respondent then. The relationship cooled again after that.

Christmas 2007

The Petitioner and her mother spent Christmas 2007 with the Respondent and his son at the Respondent's house. This Petitioner spent the night with the Respondent in the Respondent's bedroom.

January 2008

The Petitioner testified that she broke off the relationship again in January 2008. She nevertheless stayed with Danny that month while the Respondent and Danny's mother were both out of town. Upon his return, she met the Respondent at the airport, and by the Respondent's account and that of Steven Gerritson and Douglas Osmond, gave him a "passionate kiss." The Respondent also testified that she said "I love you" when she met him at the airport.

Valentine's Day 2008

The Respondent came to the Petitioner's house on Valentine's Day at a time when he did not expect her to be there, but when the Petitioner's mother, Ms. Peacock, was present. The Respondent's visit was not expected, and he came in the back door, which was his customary access. Ms. Peacock testified that she was "scared."

The Respondent testified that he brought the Petitioner "friendship gifts"-a bear, and some chocolates. He believed she would not be there, and: planned to leave them with her mother. Ms. Peacock let him in. The Petitioner was horne, however, and by the Respondent's account, thanked and hugged him. He left, and although the Petitioner considered the gifts inappropriate in view of the lack of a romantic relationship between them, the Petitioner called him later and they talked for approximately one hour. She testified that she was not afraid of him during these encounters. Although the Petitioner called the Respondent several times on February 16 and they talked for more than three hours, they had little contact after that. He testified that he was tired of the intermittent nature of their relationship, and there was a corresponding decrease in the number and duration of their phone calls, a decrease corroborated by the telephone billing records.

March 2008

The Respondent mailed the Petitioner an Easter card, which caused her "concern." The pre-printed message states" There's no one quite like you, with your warm and gentle way, There are no words to tell you what your friendship means each day. .. You're always such a pleasure and a special joy to know, And Easter is the perfect time for me to tell you so. Happy Easter." A hand-written portion states, "Hey Julie, I do and always will love you. I treasure what we had, have & will have in the future. I'm only a quick call away. Have a happy and peaceful Easter. Love always DAVID." The Respondent denied underlining the phrase in the portion he hand-wrote; the Petitioner testified it was underlined when she received the card. The Respondent also testified that he intended the card as a card between friends.

The Petitioner called the Respondent on March 19, 2008 because she had "tife threatening surgery coming up." She testified that she felt comfortable calling him, and that they had an hour-long conversation about breast cancer. The Respondent confirmed that they had a long conversation about mortality that day, and the Petitioner told him she had additional biopsies and surgery scheduled April 1. Both parties testified that at this point, there was no romantic relationship between them.

The Court finds that (1) by sending the Petitioner an Easter card with this particular message, the Respondent did not intentionally or knowingly engage in conduct that would cause a reasonable person to fear bodily injury or suffer emotional distress; (2) the Respondent d!d not have, nor should he have had, knowledge that the Petitioner would fear bodily injury or suffer emotional distress; and (3) the Petitioner did not actually fear bodily injury or suffer emotional distress as a result of the Easter card. The message of the card, even the hand-written portions, is benign and in keeping with the parties' long history of involvement with one another, and the Respondent had no reason to think that it would .rlot be happily received. Moreover, the fact that the Petitioner called the Respondent a few days later when she had just received an alarming medical diagnosis demonstrates that she perceived the card as it was intended: an invitation to call him if she needed or wanted him.

The Respondent's Visits to the Dental Office

The Petitioner has worked in the dental office of Dr. William D. Burns since May 2006. Her colleagues include Kathy Wolfe, who is the office manager. Ms. Wolfe testified that she knows the Respondent through the Petitioner and as a patient at Dr. Burns's office. Michelle Hawkins, another colleague, was also involved in some of the following interactions. The Respondent received dental services at Dr. Burns's office in January, February, and March 2007, making his appointments through the Petitioner. The Respondent's son Danny also received dental services at Dr. Burns's office in August 2007.

Ms. Wolfe considered it "odd" that the Respondent sought treatment there in view of the "strained relationship" with the Petitioner after their broken engagement, which had occurred before the Petitioner began working for Dr. Burns. The Respondent testified, as did Dr. Burns, that there had been some discussion between them about the poor quality of work performed by the Respondent's usual dentist. Because of this, the Respondent sought treatment for himself and for Danny from Dr. Burns.

Dr. Burns testified that he rarely treats children, and that he doesn't consider the Respondent a "regular" patient whom he treated in a comprehensive way. With respect to Danny's treatment, Dr. Bums noted that his condition was an emergency, but not for the reasons the Respondent considered it an emergency. On April 3, 2008 the Respondent went to the office seeking treatment for his son

Danny. Ms. Wolfe testified he had no appointment; the Respondent testified that he did. The Petitioner was not present, and the Respondent knew she would not be present. The Respondent initiated a conversation with Ms. Wolfe that included expressions of concern about the Petitioner, and questions about her friend Michael.

The Respondent came back that afternoon, and the conversation "made her uncomfortable" and she felt concerned for her own safety. Michelle Hawkins was present during part of this conversation, and corroborated its content. A few days later, the Respondent telephoned Ms. Wolfe on a Sunday, ostensibly to inquire about Danny's post-operation swelling, but segueing il:1to unrelated topics which included questions about the Petitioner, and also the Petitioner's friend Michael.

On April 14, 2008, the Respondent demanded a refund and requested the return and deletion from Dr. Burns's computer of his own and Danny's dental records. Dr. Burns characterized his demands as a "rant" and "irrational," but also testified that the Respondent did not use foul language, and the Respondent left when he was asked to leave. Dr. Burns sent the Respondent a letter requesting that he stay away from the office and leave the staff alone. (The "package" the Respondent subsequently mailed that office was a formal written demand for his and his son's medical records. The Petitioner did not pursue this allegation as part of the alleged stalking incidents.)

Ms. Wolfe testified that she believes there were a couple of other phone calls from the Respondent. She acknowledges it was possible the Respondent regarded her as a friend, inasmuch as she had been entertained at his house., She testified that she never saw the Respondent with a gun at the dentist's office, and that she had never seen the Respondent threaten the Petitioner. Dr. Burns also testified that he never saw the Respondent with a gun, and although the Respondent was speaking loudly and saying things that "didn't make sense," there was nothing threatening about the incident. Moreover, he regards these proceedings as "a crock," and "much ado about nothing," over things that escalated out of proportion to the degree of the problem.

Ms. Hawkins never saw the Respondent with a gun. The Respondent testified that he took Danny to Dr. Burns's office because of his concern about the quality of dental care he had received from his Park City dentist. He deliberately requested appointments when he knew the Petitioner was absent from work so as to avoid causing a "ruckus" at the office. He was surprised by Dr. Burns's letter indicating .he was not welcome on the premises, among other things because Danny's treatment was not yet complete. He also testified that he did not bring a gun to Dr. Burns's office. As noted above, the Petitioner's Request alleged that in April 2008, the Respondent came to her place of employment several times, and attempted to get information about the Petitioner from her co-workers. He also called them after hours.

On April 19, he was told to leave and not return, but became angry and was escorted out. "[D]uring this incident, the Respondent was carrying a concealed weapon."

The "Stalking Incident Log" maintained by the Petitioner states that on the Respondent's Apri/14, 2008_visit with Danny to Dr. Burns's office for the purpose of having Danny's stitches removed, "David was wearing a gun." The Petitioner's allegations that the Respondent was carrying a gun when he went to Dr. Burns's office are incorrect, as is her statement that he had to be escorted out. Indeed, both statements appear to be outright fabrications.

The Court finds that (1) in connection with his visits to Dr. Burns's dental office, the Respondent did not intentionally or knowingly engage in conduct that would cause a reasonable person to fear bodily injury or suffer emotional distress. He had legitimate reasons to seek treatment there for Danny. To be sure, other options were available, such as finding a new dentist, but the mere fact that he brought his son to the office is not conduct that would cause a reasonable person to fear bodily, injury or suffer emotional distress. The fact that he engaged in conversation about the Petitioner, who was away from the office because she was in the midst of a medical crisis, with one of the Petitioner's friends and colleagues likewise would not cause fa reasonable person to fear bodily injury or suffer emotional distress. Further, (2) the Respondent did not have, nor should he have had, knowledge that the Petitioner would fear bodily injury or suffer emotional. distress upon being informed that the Respondent and his son had been at the dentist's office; and (3) the Petitioner did not actually fear bodily injury or suffer emotional distress as a result of the Respondent's conduct.

The DCFS Investigation

The Petitioner testified that she reported the Respondent to the Division of Child and Family Services (HDCFS") after the incidents involving her work, and told them about the Respondent having guns and his threats to kill her family. DCFS employee Levan Robinson testified about a DCFS investigation in April 2008 into allegations that the "Respondent had made a threat with a firearm in the presence of a child. After interviewing Danny, his mother, and the Respondent, the matter was closed on May 6, 2008 with a finding that there was no merit to the complaint.

The Narrative Section of the DCFS report [Exhibit 6] summarizes allegations similar to those stated above concerning the Respondent's to Dr. Burns's office, including: “This man will bring his son with him, holding a gun, and making threats to kill - her family." Further, during an instance in which he prevented her from leaving his house for four hours, "[h]e threatened to kill her and had a gun." Finally, the allegation that "this man came into her work and threatened to kill her and has his gun out. Police were called. He has his son with him on this occasion as welL"

These allegations were found non-meritorious by DCFS, but the Court notes them because the Petitioner accused the Respondent of "holding a gun," and having a gun "out," but there is simply no evidence of this. The Court reiterates: no one at Dr. Burns's office saw a gun; Danny did not see a gun; the Petitioner herself did not see a gun for she was not there; and the Respondent denies having had a gun in the dentist's office. The Petitioner also accused the Respondent of "threatening to kill her" at her place of work, but no such threats were made, and police were not called. Again, these statements appear to be outright fabrications.

The Use of Guns and Violence

Ms. Peacock testified that when she first met the Respondent, he told her he carries a gun for protection. She has never seen him with a gun, and has never seen the Respondent physically threaten the Petitioner.

The Petitioner testified that the Respondent has never pointed a gun at her northreatened her with one, but "said disturbing things" such as indicating that having a gun would ensure that the Petitioner did not get far from him. Danny Butters's proffered testimony is that he has never seen the Respondent brandish a firearm in an inappropriate manner.

In the last few years, the Respondent has acquired several firearms and obtained a weapons permit in May 2007. He showed the Petitioner a gun he kept in his night stand when he was leaving town and the Petitioner was going to be staying- with Danny. He denies making a comment about using it to keep her in line. TheRespondent testified that the Petitioner also keeps a gun in her dresser at home; he has seen it, she knows how to use it, and she is not afraid of them. The Respondent denies taking a gun to the dentist's office. The Respondent testified that he has never hit the Petitioner, and has never intended to cause her fear for her safety.

The Court finds that with respect to showing the Petitioner the gun in his night stand when he was leaving her in charge of his household and his son, (1) the Respondent did not intentionally or knowingly engage in conduct that would cause a reasonable person to fear bodily injury or suffer emotional distress; (2) the Respondent did not have, nor should he have had, knowledge that the Petitioner would fear bodily injury or suffer emotional distress; and (3) the Petitioner did not actually fear bodily injury or suffer emotional distress as a result of the Respondent's conduct.

The Rescission Letter

The Respondent is a owner of a company known as Ellipse Technology ("Ellipse"). The Petitioner and her mother have a subscription agreement for the purchase of stock in Ellipse.

The Respondent testified that during a March 27 phone call initiated by the Petitioner, she informed the Respondent that Ellipse is "a lousy company" and she wishes she had never invested in it. This prompted the Respondent to meet with Vince Romney, his business partner. They decided to offer the Petitioner and her mother an opportunity to rescind their investment. Mr. Romney prepared and sent the Petitioner and her mother a letter [Exhibit 13] concerning their investment in Ellipse containing what the Petitioner considers an"ultimatum" and a demand for a response. Mr. Romney testified that he prepared theletter because the Respondent had related to him the Petitioner's discontent with theinvestment, and they wanted to give her an opportunity to "get out."

The letter offered to rescind the offer and sale of the stock purchase. It states: "Should you decide to accept this offer of rescission, kindly sign and return this letter indicating your acceptance. . .. If you decide not to accept this rescission offer, kindly sign and return your copy of this letter indicating that you have declined this offer." The offer would remain open for thirty days, suggests they may wantto consult an attorney, and states, "If you fail to accept this offer in writing within thirty (30) days, any right to sue under the securities laws of the State of Utah will be extinguished."

With respect to the written offer to rescind the stock, the Court finds that (1) the Respondent did not intentionally or knowingly engage in conduct that would cause a reasonable person to fear bodily injury or suffer emotional distress. The letter was written and sent by someone- other than the Respondent, and merely offered to let the Petitioner and her mother out of their investment, which the Petitioner had come to regret. The language of the letter is not something a reasonable person would perceive as a threat. Consistent with this, (2) the Respondent did not have, nor should he have had, knowledge that the Petitioner would fear bodily injury or suffer emotional distress. It was merely an offer, which could be accepted or refused. It is possible, but the Court is skeptical, that (3) the Petitioner did actually fear bodily injury or suffer emotional distress as a result of the Respondent's conduct.

The Telephone Calls

The Petitioner and the Respondent had regular telephone contact throughout their relationship. Of particular relevance is the frequency and duration of phone calls in early 2008. These calls were often initiated by the Petitioner, land undercut her testimony that the Respondent's attentions were unwanted. Estillo Salon The Petitioner alleged that in early March 2008, the Respbndent went to Estillo Salon, the Petitioner's hair salon, and requested personal information about the Petitioner. There was no admissible evidence concerning the Respondent's visits to the Estillo Salon.

Text Messages

The Petitioner testified that in March, the Petitioner repeatedly sent her text messages stating things like, "God meant for us to be together, you will always be mine, I will never let you go." These allegations are unsupported by a'1ything other than the Petitioner's testimony, and the Court does not find it credible.

Attorney's Fees

The statute provides that "After a hearing with notice to the affected party, the court may enter an order requiring any party to pay the costs of the action, including reasonable attorney's fees." Utah Code § 77-3a-102. Whether to award fees is a matter of discretion. See Ellison v. Starn, 136 P.3d 1242 (Ut. App. 2006). The Respondent has requested an award of fees and costs "in accordance with th evidence and law to be submitted hereafter." The Court reserves this issue for decision until an appropriate motion is filed and the matter is thoroughly briefed.

ORDER

In the overall context of the parties' longstanding relationship, the Court cannot find two or more instances of civil stalking, and because the Petitioner has not borne her burden by a preponderance of the evidence, the temporary stalking injunction is hereby REVOKED.

This Memorandum Decision shall stand as the order of the Court.

Keith Smith

1 note · View note

rfhtimess · 16 years ago

Text

MAT Student at Westminister College Lies to Obtain Stalking Injunction

Julie Ray Peacock, MAT Student @ Westminister College Lying to Obtain Stalking Injunction

Court findings of Julie Ray Peacock Lying to obtain a stalking injunction.

Saturday, August 16, 2008

MAT Student at Westminister College Lies to Obtain Stalking Injunction

IN THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT

IN AND FOR SALT LAKE COUNTY, STATE OF UTAH

-------------------

JULIE RAY PEACOCK,

MEMORANDUM DECISION

Petitioner,

CASE NO. 080907276

vs.

DATE: AUGUST 10, 2008

DAVID BRUCE BUTTARS,

Respondent.

-------------------

The Court conducted evidentiary hearings on the Respondent's Motion to Dissolve Temporary Civil Stalking Injunction. These hearings were conducted on June 25, June 26, June 30, July 1; and July 8, 2008. (The Court's already full schedule necessitated conducting these hearings in a piecemeal fashion, a circumstance which the Court regrets. The parties were present and represented by counsel: Joanna Sagers represented the Petitioner; Kay Burningham represented the Respondent. Final arguments were thereafter submitted by counsel in writing, and the Petitioner filed a Request to Submit for Decision on July 22,2008. The Court having received evidence and considered the arguments of counsel now enters this Memorandum Decision.

The Request for Civil Stalking Injunction The Petitioner's May 1, 2008 Request for Civil Stalking Injunction ("Request") alleged two events of stalking: March 14,2008 at Estillo Salon and April 14, 2008 at Dr. William Burns's Dental Office.

The Request described what the Respondent allegedly did and why it caused her emotional distress or fear of physical harm. These allegations are summarized as follows. The parties dated and eventually became engaged, but the Petitioner broke the engagement yet "wished to remain friendly."

On September 10, 2006, the Respondent trespassed at her house and the police were called and a report made. Also in 2006, the Respondent detained the Petitioner in his house, refusing to let her leave. This was reported to the Summit County Sheriff. After these incidents, "the Petitioner cut off all contact with the Respondent." In December 2007, the Petitioner learned that the Respondent still regarded them as being in a dating relationship, but told him again that they were not. "From that point on, the Respondent continued to contact the Petitioner and send her gifts.

On March 13, 2008, the Respondent went to the Petitioner's hair salon and requested personal information about the Petitioner. That month, he repeatedly sentmher text messages stating things like, "God meant for us to be together, you will alwaysmbe mine, I will never let you go."

On March 28, 2008, the Petitioner again told the Respondent that she wanted him to stop contacting her. His reaction was to tell her that her life is his business, and "you will never belong to anyone else."

Over the next several weeks, the Respondent came to the Petitioner's place of business several times, and attempted to get information about the Petitioner from he co-workers. He also called them after hours. On April 19, when he appeared at her work, he was told to leave and not return, but became angry and was escorted out. "[D]uring this incident, the Respondent was carrying a concealed weapon." Despite receiving a cease and desist letter, the Petitioner sent a package to the Petitioner's place of business. The Petitioner reported these incidents to the police. The Petitioner supported her Request with police reports and a stalking incident log. The District Court issued a Temporary Civil Stalking Injunction ordering the Respondent to refrain from stalking the Petitioner, contacting her and Hal Peacock,

Goldie Peacock, Lois Peacock, Dr. William Burns, and Kathy Wolfe. The temporary injunction also ordered the Respondent to stay away from the Respondent's vehicle, job, school, and home, as well as her hair salon, and "Sugar Post Pottery." The Respondent's request to dissolve the injunction ensued and was filed in a timely fashion.

The Statute Civil stalking is proved by establishing the same elements as criminal stalking.

Utah Code §77-3a-1 01 (1). The applicable provision of the Code provides as follows:2

(1) As used in this section:

(a) "Course of conduct" means repeatedly maintaining a visual or

2The statute was amended effective May 5, 2008, Because the Petitioner's Request was submitted some days earlier, the prior version of the statute is applicable.

physical proximity to a person or repeatedly conveying verbal or written threats or threats implied by conduct or a combination thereof directed at or toward a person.

(b) "Immediate family" means a spouse, parent, child, sibling, or any other person who regularly resides in the household or who regularly resided in the household within the prior six months.

(2) A person is guilty of stalking who:

(a) intentionally or knowingly engages in a course of conduct directed at a specific person that wo_ld cause a reasonable person:

(i) to fear bodily injury to himself. . . ; or

(ii) to suffer emotional distress to himself. . . ;

(b) has knowledge or should have knowledge that the specific person:

(i) will be placed in reasonable fear of bodily injury to himself . . . ; or

(ii) will suffer emotional distress. . . . ; and

( c) whose conduct:

(i) induces fear in the specific person of bodily injury tohimself. . . : or

(ii) causes emotional distress inJhe specific person. . . .

Utah Code § 76-5-106.5.

The Evidentiary Hearing The Court heard testimony from the Petitioner; the Petitioner's colleague Kathleen Wolfe; the Petitioner's employer Dr. William Burns; the Petitioner's colleague

The Court finds that (1) in this instance, the Respondent did not intentionally or knowingly engage in conduct that would cause a reasonable person to fear bodily injury or suffer emotional distress;

(2) the Respondent did not have, nor should he have had, knowledge tha

the Petitioner would fear bodily injury or suffer emotional distress and

(3) the Petitioner did not actually fear bodily injury or suffer emotional distress as a

Christmas 2006

June 2007

At the Petitioner's suggestion, she and the Respondent took a trip together. The Petitioner testified she was not afraid of the Respondent then. The relationship cooled again after that.

Christmas 2007

The Petitioner and her mother spent Christmas 2007 with the Respondent and his son at the Respondent's house. This Petitioner spent the night with the Respondent in the Respondent's bedroom.

January 2008

Valentine's Day 2008

March 2008

The Respondent's Visits to the Dental Office

On April 19, he was told to leave and not return, but became angry and was escorted out. "[D]uring this incident, the Respondent was carrying a concealed weapon."

The DCFS Investigation

The Use of Guns and Violence

The Rescission Letter

The Respondent is a owner of a company known as Ellipse Technology ("Ellipse"). The Petitioner and her mother have a subscription agreement for the purchase of stock in Ellipse.

The Telephone Calls

Text Messages

Attorney's Fees

ORDER

This Memorandum Decision shall stand as the order of the Court.

Bertha Johnson

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