M.K. v. Sean Doyle

¶1 Sean Doyle appeals the trial court's grant of M.K.'s petition

for a civil stalking injunction against him. We affirm.

¶2 In order to obtain a civil stalking injunction, M.K. was

required to prove, by a preponderance of the evidence, that Doyle

intentionally or knowingly engaged in a course of conduct directed

at her that he knew or should have known would cause a

reasonable person to fear for her safety or to suffer emotional

distress. See Utah Code Ann. § 77-3a-101(1), (5)(a) (LexisNexis

2012); id. § 76-5-106.5(2). Doyle argues that he could not have

known that M.K. would fear for her safety or suffer emotional

distress as a result of his behavior because Doyle and M.K. were in

M.K. v. Doyle

1. The significance of the ongoing relationship is a question of fact.

Because Doyle has explicitly declined to challenge the trial court's

factual findings, we need not consider this issue further.

20120897-CA 2 2014 UT App 160

an ongoing consensual relationship. Whether this type of

relationship precludes application of the stalking statute is a

question of law, which we review for correctness. See Bott v. Osborn,

2011 UT App 139, ¶ 5, 257 P.3d 1022 ("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

conclusions.”).

¶3 In Towner v. Ridgeway, our supreme court rejected the idea

that an attempt to obtain a civil stalking injunction may be

thwarted where the victim and alleged stalker maintained "'normal

relations'” between stalking incidents. 2008 UT 23, ¶ 14, 182 P.3d

347, superseded on other grounds by statute as stated in Bott, 2011 UT

App 139. The court explained that the parties need not "maintain

an adversarial relationship between incidents” and that

"intervening conciliatory gestures will not preclude a court from

finding a course of conduct.” Id. Doyle asserts that this case is

distinguishable from Towner because there was "significant

consensual contact between the parties after the alleged offending

conduct.”

¶4 However, we are not convinced that even significant

consensual contact necessarily negates the intent element of the

stalking statute, as Doyle suggests, and the facts of this case

illustrate the absurdity of such a conclusion. M.K. testified that,

among other things, Doyle repeatedly forced her to engage in

sexual activity despite her physical and verbal attempts to prevent

him from doing so. Thus, to reach the conclusion Doyle advocates,

we would have to conclude that he could not reasonably have

known that sexually abusing M.K. would lead her to fear for her

safety or suffer emotional distress simply because they were in a

relationship at the time the abuse occurred. While the existence of

an ongoing relationship could undermine evidence supporting the

imposition of a stalking injunction,1 it does not as a matter of law

preclude such an injunction. Ellison v. Stam, 2006 UT App 150, ¶ 27,

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136 P.3d 1242 (explaining that in evaluating whether a reasonable

person would suffer fear or distress as a result of the respondent's

actions, the court must consider his conduct "in the context of all

the facts and circumstances existing in the case”).

¶5 Doyle next argues that the trial court erred in taking judicial

notice of an "Axis I disorder that battered women tend to have.”

The trial judge's reference to "Axis I disorder” came during his

explanation of why he found credible M.K.'s testimony that she

suffered emotional distress as a result of Doyle's abuse despite the

fact that she continued contact with him after the abuse:

First, it is undisputed that on November 13th,

2011, there was an act of forcible sexual assault on

[M.K.] by [Doyle], that she attempted to fight back

. . . , [and] that he sat on her with his full weight,

causing her not to be able to breathe. . . . [A]

reasonable person would suffer . . . physical harm

and severe emotional distress from an event like that

and, in fact, it's undisputed that [M.K.] did suffer

that. She testified to that.

The only testimony to the contrary . . . or the

only evidence to the contrary would be [M.K.'s]

continued contact with [Doyle] and also the fact that

she appeared cheerful while in [Doyle's] home.

That's a fairly minor point in the Court's

mind, given the nature of the—this Axis I disorder

that battered women tend to have where they—and

I . . . don't understand why this happens, we only

know that it happens . . .—it's something that the

Court can certainly take notice of as it considers this

issue of severe emotional distress.

The legislature's intended that the Court be

allowed to use its experience [of] this nature,

otherwise we would have to have a psychologist in

on every one of these hearings. And so we don't

know . . . why, particularly, women tend to stay with

M.K. v. Doyle

20120897-CA 4 2014 UT App 160

batterers and so forth but they do. And . . . it's

usually something that requires some type of

therapeutic intervention.

¶6 Doyle asserts that an Axis I clinical diagnosis is outside the

information "'generally known'” to a trial court judge and could

not be considered without any evidence or expert testimony on the

subject. See Utah R. Evid. 201(b) ("The court may judicially notice

a fact that is not subject to reasonable dispute because it: (1) is

generally known within the trial court's territorial jurisdiction; or

(2) can be accurately and readily determined from sources whose

accuracy cannot reasonably be questioned.”). We conclude that,

taken in context, the court's reference to "Axis I disorder” was not

an attempt to bring in a clinical diagnosis through judicial notice

but, rather, an allusion to an increasingly familiar psychological

concept that the judge used simply to describe knowledge gleaned

from his own experience.

¶7 The determination of witness credibility is a matter within

the province of the finder of fact. Iacono v. Hicken, 2011 UT App 377,

¶ 28, 265 P.3d 116; see also Hale v. Big H Constr., Inc., 2012 UT App

283, ¶ 16, 288 P.3d 1046 ("Assessing the credibility of a witness is

within the trial court's domain.”). "We are keenly aware that

[finders of fact] are in the best position to make determinations

about credibility and veracity.” Rawlings v. Rawlings, 2010 UT 52,

¶ 45, 240 P.3d 754. Accordingly, due regard must be given to a

court's assessment of whether a witness ought to be believed. Utah

R. Civ. P. 52(a).

The Utah Supreme Court has recognized that

in performing their duties as finders of fact [the judge

or jurors] are the exclusive judges of the credibility of

the evidence. In so doing, they may consider all of

the facts affirmatively shown, as well as any

unexplained areas, and draw whatever inferences

may fairly and reasonably be drawn therefrom in the

light of their own experience and judgment.

State v. John, 586 P.2d 410, 412 (Utah 1978) (emphasis added)

(citation omitted). In other words, "[f]act finders are not required

M.K. v. Doyle

20120897-CA 5 2014 UT App 160

to divorce themselves of common sense, but rather should apply to

facts which they find proven such reasonable inferences as are

justified in the light of their experience as to the natural inclinations

of human beings.” Commonwealth v. Russell, 705 N.E.2d 1144, 1146

(Mass. App. Ct. 1999) (citation and internal quotation marks

omitted); see also Peterson v. Peterson, 863 A.2d 1059, 1064 (N.J.

Super. Ct. App. Div. 2005) (explaining that "[c]ourts must consider

the totality of the circumstances” in determining whether the

harassment statute has been violated and that "'a finding of a

purpose to harass may be inferred from the evidence presented'

and from '[c]ommon sense and experience'” (second alteration in

original) (citations omitted)).

¶8 In the case of a stalking injunction, the trial court is the

finder of fact. Utah Code Ann. § 77-3a-101(5)(a) (LexisNexis 2012)

("If the court determines that there is reason to believe that an

offense of stalking has occurred, an ex parte civil stalking

injunction may be issued . . . .” (emphasis added)). And judges, by

virtue of the duties of their office, are regularly exposed to

evidence of incidents of domestic violence and the persons

involved in such incidents, including victims. For example,

domestic violence may be a significant issue in the context of a

request for a protective order or stalking injunction, a petition for

divorce, or a trial on a criminal offense, such as assault (physical or

sexual), abuse, or homicide. In presiding over these proceedings,

a trial judge has many opportunities to become familiar with the

behavioral interactions of people in abusive relationships. And

although this experience alone does not qualify a judge to diagnose

a particular medical or psychological condition, judges cannot be

expected to "divorce themselves” from the knowledge they have

attained by their experience. See Russell, 705 N.E.2d at 1146. Indeed,

the trial judge in this case recognized that by tasking judges with

the responsibility to determine whether a stalking injunction ought

to issue, the "legislature[] intended that the Court be allowed to use

its experience [of] this nature.”

¶9 The trial judge here did exactly that. He heard M.K.'s

testimony that she felt compelled to stay in a relationship with

Doyle, that Doyle repeatedly used force to engage her in sexual

M.K. v. Doyle

20120897-CA 6 2014 UT App 160

activity after she physically and verbally refused him, and that she

suffered emotional distress as a result of Doyle's behavior. Doyle

attempted to undercut this testimony by pointing out that after the

abuse occurred, M.K. continued a consensual relationship with him

and seemed cheerful in his presence. Based on the trial judge's

explanation as a whole, it is reasonable to conclude that the judge

rejected this argument as "a fairly minor point” of contention

because he viewed such behavior as not unusual in victims of

abuse. That assessment was clearly informed by the judge's

frequent exposure to the conduct of persons in relationships

involving domestic violence in the course of his judicial duties.

Applying this experience, the judge determined that M.K.'s

behavior—continuing a relationship with Doyle after he abused

her—was common enough among victims of domestic violence

that it did not materially undermine his overall judgment that M.K.

was a credible witness when she testified that she suffered severe

emotional distress from Doyle's continued contact with her.

¶10 Under the circumstances, it seems reasonable to conclude

that the judge's labeling of his understanding of the behavior of

victims of domestic violence as an "Axis I disorder that battered

women tend to have” did not amount to judicial notice that M.K.

was actually suffering from the condition. Instead, it is clear that

the judge made his credibility determination after hearing her

testimony and seeing her demeanor and then refining his judgment

in the context of other evidence and in light of his experience with

the behavior of victims of domestic violence. It was that experience

that enabled the judge to reconcile M.K.'s seemingly inconsistent

behavior with her testimony that she was emotionally distressed by

Doyle's abuse and coercion. And although the judge inartfully

labeled it with a DSM tag, he sufficiently stated that his finding was

based on his experience: "[T]he Court [is] allowed to use its

experience in [cases involving domestic violence], otherwise we

would have to have a psychologist in on every one of these

hearings. And so we don't know . . . why, particularly, women tend

to stay with batterers and so forth but they do.” A trial court is well

equipped to make this kind of determination due to its opportunity

to "view[] the witnesses firsthand, to assess their demeanor and to

consider their testimonies in the context of the proceedings as a

whole.” Henshaw v. Henshaw, 2012 UT App 56, ¶ 12, 271 P.3d 837;

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State v. Graham, 2011 UT App 332, ¶ 32, 263 P.3d 569 ("The fact that

the evidence may be in conflict does not undermine its sufficiency

to support the finding. It is within the province of the . . . finder of

fact[] to make credibility determinations.”).

¶11 Accordingly, we affirm. Because M.K. was granted attorney

fees below and has prevailed on appeal, we grant her request for

attorney fees incurred on appeal. See Valcarce v. Fitzgerald, 961 P.2d

305, 319 (Utah 1998) ("[W]hen a party who received attorney fees

below prevails on appeal, the party is also entitled to fees

reasonably incurred on appeal.” (citation and internal quotation

marks omitted)). We remand to the district court to determine the

amount of that award.

DAVIS, Judge (concurring in part and dissenting in part):

¶12 I agree with the majority that M.K.'s ongoing relationship

with Doyle did not preclude her from obtaining a civil stalking

injunction against him. However, I disagree with the majority's

characterization of the trial court's comments regarding "Axis I

disorder” as a mere credibility determination.

¶13 In weighing the evidence before it, the trial court took

judicial notice of an "Axis I disorder that battered women tend to

have where they . . . tend to stay with batterers.” By using this fact

as a basis for disregarding evidence that M.K. had "continued

contact” with Doyle after he abused her and "that she appeared

cheerful while in [Doyle's] home,” the trial court implicitly

determined not simply that this evidence was not credible or was

outweighed by other evidence, but that M.K. suffered from a

psychological disorder that caused her to behave in a particular

way.

¶14 While the trial judge could appropriately judge the parties'

credibility "in the light of [its] own experience and judgment,” State

v. John, 586 P.2d 410, 412 (Utah 1978), the trial court went too far in

this case by attributing a psychological disorder to M.K. without

being presented with any evidence that she actually suffered from

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that disorder. The majority considers the trial court's "Axis I

disorder” label to have been simply "inartful ” and asserts that the

trial court was merely acknowledging the disorder rather than

diagnosing M.K. with it. I do not think the trial court's comments

can be dismissed so easily.

¶15 While it is possible that the trial court did not actually intend

to diagnose M.K., its comments strongly suggest that it considered

her to be suffering from an Axis I disorder. While the court may

have rejected the evidence contradicting M.K.'s claims of emotional

distress even without such a diagnosis, its "inartful” language

referring to a specific psychological disorder and implying a

diagnosis suggests a misunderstanding of the bounds of judicial

notice. By dismissing this language as inconsequential and

attempting to interpret what the court meant rather than relying on

what it said, I fear that the majority may have opened the door for

judges to rely on their own knowledge of psychology in making

factual determinations rather than on the evidence presented to

them. Cf. Brown v. Sandy City Appeal Bd., 2014 UT App 158,

¶¶ 19–20 (determining that it was inappropriate for an appeals

board to play "armchair psychologist” by finding that certain

behaviors exhibited by an employee were consistent with a

psychological disorder the employee had been diagnosed with);

Allied Constr. & Dev., Inc. v. Labor Comm'n Appeals Bd., 2013 UT App

224, ¶¶ 6–7, 310 P.3d 1230 (holding that an administrative law

judge's determination that a panel could not have been removed

without knocking over a shovel leaning against it "was a product

of speculation” because the judge "relied on her own view of

physics to decide the case”).

¶16 It is my opinion that, having been presented with no

evidence regarding the symptoms of an Axis I disorder or any

evidence indicating that M.K. in fact suffered from any such

symptoms, the trial court's stated basis for rejecting the evidence

that contradicted M.K.'s claims of emotional distress is

unsupported. We have no way of knowing whether the trial court

would have weighed the evidence in the same way had it not

applied its own knowledge of psychology to decide the case. I

would therefore remand for the trial court to determine, without

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attributing the Axis I disorder to M.K., whether the evidence

supported findings on the necessary elements of the stalking

statute.

¶11 Accordingly, we affirm. Because M.K. was granted attorney

fees below and has prevailed on appeal, we grant her request for

attorney fees incurred on appeal. See Valcarce v. Fitzgerald, 961 P.2d

305, 319 (Utah 1998) (“[W]hen a party who received attorney fees

below prevails on appeal, the party is also entitled to fees

reasonably incurred on appeal.” (citation and internal quotation

marks omitted)). We remand to the district court to determine the

amount of that award.