Daniel James Sheeran v. Paul Thomas

¶1 Paul Thomas appeals from a civil stalking injunction entered

against him. We affirm the injunction, with two important

clarifications.

¶2 Daniel James Sheeran, who petitioned for the civil stalking

injunction against Thomas, had worked for several years with

Thomas's girlfriend. Thomas thought that Sheeran was harassing

and annoying his girlfriend at work and made efforts to stop what

he perceived to be unacceptable behavior. These efforts included

filing complaints with the company, contacting a lawyer, and

Sheeran v. Thomas

directly confronting Sheeran. Sheeran testified that Thomas made

him feel unsafe on three occasions.1

¶3 The first encounter occurred in mid-September 2013.

Thomas and his girlfriend drove to her workplace and parked next

to Sheeran's truck. Thomas got out of his truck and walked toward

a gate where Sheeran was standing. Sheeran testified that he

retreated to where another person was standing. As Sheeran

explained, "When [Thomas] got to the gate, I think he saw the

[other person], turned around and walked back.” Before driving

out of the parking lot, Thomas honked his horn several times.

¶4 The second encounter occurred on September 23, 2013.

According to a police report, Thomas was driving his truck when

he saw Sheeran parked on the opposite side of the road. Thomas

turned his car around, intending to confront Sheeran. Sheeran saw

Thomas turning around and tried to drive away to avoid a

confrontation. Thomas, however, caught up with Sheeran, flipped

him off, then maneuvered his truck in front of Sheeran's and

blocked the road by parking at an angle. Thomas got out of his

truck and yelled, "You fuckin messin with my family, man?”

Sheeran drove off the road to get around Thomas's truck and sped

away. At the evidentiary hearing convened at Thomas's request

following entry of a temporary injunction, Sheeran asked Thomas

if his intent was to harm him. Thomas responded,

No, I wanted to scare the bejeezus out of you, and I

did . . . . But I also drove away and let you drive

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. See Bel Courtyard Invs.,

Inc. v. Wolfe, 2013 UT App 217, ¶ 2 n.1, 310 P.3d 747. We thus do

not have occasion to outline the evidence offered by Thomas,

which was mostly contrary to the findings made by the court.

"[O]ur recitation of the facts also includes findings implicitly made

by the trial court and matters that are undisputed in the record.”

State v. Legg, 2014 UT App 80, ¶ 2, 324 P.3d 656.

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Sheeran v. Thomas

away at that point, too. If I had wanted to cause you

harm, I could have.2

¶5 The third encounter occurred on September 25, 2013.

Thomas tailed Sheeran and recorded video footage of Sheeran in

an attempt to catch him doing something illegal or unethical.

Thomas saw tires in the back of Sheeran's truck and thought he

may have stolen them. The video is part of the record on appeal. In

it, Thomas documents how Sheeran is using a cell phone while

driving—by means of using his own cell phone while driving to

make the video—and how Sheeran illegally passes a semi-truck on

the highway. In his testimony, Sheeran explained that when he saw

Thomas pull up behind him, he got out his cell phone and called

911. He also explained that he passed the semi-truck illegally only

to get away from Thomas.

¶6 As a result of these incidents, Sheeran requested and

received a temporary ex parte civil stalking injunction against

Thomas. Thomas, in turn, requested an evidentiary hearing to

dissolve the temporary injunction. After holding the requested

hearing, the trial court determined that the "purpose” of the tailing

and recording incident on September 25, 2013, was "not to

intimidate, annoy or harass [Sheeran], but rather to make a record

of what [Thomas] and his girlfriend viewed as suspicious activity.”

But the trial court also determined that, based on a preponderance

of the evidence, Thomas had stalked Sheeran, first, by honking at

Sheeran in the parking lot in mid-September and, second, by

blocking the road and yelling at Sheeran on September 23, 2013.

¶7 Based on the first two encounters, the trial court issued what

it termed a "permanent civil stalking injunction.” In issuing the

injunction, the trial court used a standard form, the last lines of

which read:

2. The trial court noted in its ruling that Thomas "clearly wants

petitioner to know that he is a former Army Ranger who is fully

capable of harming petitioner as soon as he chooses to do so, and

that petitioner's continued safety is entirely dependent on

respondent's continued restraint.”

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Sheeran v. Thomas

No guns or firearms! It is a federal crime for you to

have, possess, transport, ship, or receive any firearm

or ammunition, including hunting weapons, while

this civil stalking injunction is in effect.

¶8 Thomas first asserts that the trial court's findings are

insufficient to support the civil stalking injunction because they do

not meet all the statutory requirements.3 "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.” Bott v. Osburn, 2011 UT App 139, ¶ 5, 257 P.3d 1022

(citation and internal quotation marks omitted). If a trial court's

findings are inadequate to allow for meaningful review, a remand

for additional findings may be appropriate. See Towner v. Ridgway,

2008 UT 23, ¶ 16, 182 P.3d 347, superseded by statute on other grounds,

Utah Code Ann. § 76-5-106.5 (LexisNexis 2008), as recognized in Bott,

2011 UT App 139, ¶ 7. But even if the trial court did not explicitly

make a necessary finding or reveal the evidence it relied on, we

will not remand if "the evidence and statements contained in the

record make the evidentiary basis for this finding sufficiently

clear.” State v. Legg, 2014 UT App 80, ¶ 21, 324 P.3d 656. And we

will affirm the trial court's decision to grant the civil stalking

injunction unless it is against the clear weight of the evidence or we

reach a definite and firm conviction that there was a mistake. See

Kendall Ins., Inc. v. R & R Group, Inc., 2008 UT App 235, ¶ 9, 189

P.3d 114.

¶9 Under Utah law, stalking occurs when a person (1)

"intentionally or knowingly engages in a course of conduct

3. It is not entirely clear from Thomas's brief if he is challenging the

adequacy of the findings, the sufficiency of the evidence to support

the findings, or both. Because we conclude that the findings are

adequate for our review, we will primarily address this issue as a

challenge to the sufficiency of the evidence. See infra ¶ 10. This

approach is further justified by Thomas's failure to preserve the

issue of the adequacy of the findings by alerting the trial court to

any perceived deficiencies. See 438 Main St. v. Easy Heat, Inc., 2004

UT 72, ¶ 51, 99 P.3d 801; In re K.F., 2009 UT 4, ¶ 4, 201 P.3d 985.

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Sheeran v. Thomas

directed at a specific person” and (2) "knows or should know that

the course of conduct would cause a reasonable person . . . to fear

for the person's own safety or . . . to suffer other emotional

distress.” Utah Code Ann. § 76-5-106.5(2) (LexisNexis 2012).

"Course of conduct” is defined 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 . . . 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 . . . .

Id. § 76-5-106.5(1)(b).

¶10 In this case, we determine that the trial court's findings are

adequate to allow for meaningful review of all the elements of

stalking. In some respects, the trial court's findings are relatively

sparse, but the evidence and statements in the record make the

evidentiary basis for the ruling sufficiently clear. See Legg, 2014 UT

App 80, ¶ 21.

¶11 First, we must determine whether there was sufficient

evidence from which to conclude that Thomas had engaged in a

"course of conduct” as defined by Utah Code section 76-5-

106.5(1)(b), i.e., two or more acts directed at a specific person,

namely Sheeran. In doing so, we "do not read the plain language

of the Stalking Statute 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,

¶ 13, 253 P.3d 1121. Indeed, the statute's illustrative list of acts that

make up a course of conduct includes some activities which, taken

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Sheeran v. Thomas

in isolation, can be rather innocuous, such as observing a person or

communicating to or about a person. See Utah Code Ann. § 76-5-

106.5(1)(b).

¶12 In this case, ample evidence in the record supports the trial

court's conclusion that Thomas engaged in a course of conduct

directed toward Sheeran. During the first encounter in mid-

September, Thomas showed up at Sheeran's work, walked toward

Sheeran, and honked his horn at Sheeran. Thomas provides

alternative explanations for these actions, but the trial court, to

whom we must defer on factual determinations and questions of

credibility, determined that Thomas intentionally directed these

actions toward Sheeran. The second encounter, in which Thomas

blocked the road and yelled at Sheeran in an attempt to "scare the

bejeezus” out of him, is another act intentionally directed at

Sheeran. Finally, during the third encounter, Thomas followed and

recorded Sheeran. While the trial court did not explicitly identify

this event as an act within the overall course of conduct, we

recognize that it is precisely the kind of behavior that the statute

describes, i.e., "follow[ing], monitor[ing], observ[ing],

photograph[ing].” See id. No one disputes that Thomas intended to

do each of these actions. Accordingly, we conclude that the trial

court was correct to find, based on ample evidence, that Thomas

knowingly engaged in a course of conduct directed toward

Sheeran.

¶13 Next, we consider whether there was sufficient evidence to

determine that Thomas knew or should have known that his course

of conduct would cause a "reasonable person . . . to fear for the

person's own safety or . . . to suffer other emotional distress.” See

id. § 76-5-106.5(2). The trial court did not explicitly rule on whether

the overall course of conduct was objectively frightening or

emotionally disturbing, but it did make explicit findings about the

individual acts within the overall course of conduct.

¶14 In regard to the first act, the trial court found that Thomas

honked his horn at Sheeran "with a purpose of placing [Sheeran]

in fear for his safety.” The trial court also found that Thomas "flatly

admits a purpose to place [Sheeran] in fear for his safety on

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Sheeran v. Thomas

September 23, 2013.” In regard to the third act—the instance of

Thomas following and videotaping Sheeran—the trial court found

that "to the disinterested observer” the behavior was "officious at

best, and vindictive at worst.” Based on these findings, we readily

conclude that the overall effect of Thomas's course of conduct was

to cause a reasonable person to fear for his safety.4

¶15 It is true that the trial court appears to have equated Sheeran

with the "reasonable person” contemplated in the statute. See id.

This, however, does not mean that the trial court has applied a

subjective standard while the statute requires an objective one.

Rather, it suggests—and plausibly so, in the context of this

case—that the trial court considered Sheeran to be a reasonable

person. And Sheeran was scared. In other words, Thomas's course

of conduct would cause a reasonable person, Sheeran included, to

fear for his safety. Accordingly, we do not conclude that the trial

court's decision to grant the civil stalking injunction went against

the clear weight of the evidence, nor are we convinced that the trial

court made a mistake of law in granting the injunction.

¶16 Thomas argues that we should nevertheless vacate the civil

stalking injunction because the trial court's ruling that

accompanied the injunction referred to it as a "permanent civil

stalking injunction.” In general, civil stalking injunctions are not

permanent but expire after three years. See Utah Code Ann. § 77-

3a-101(9) (LexisNexis 2012). The trial court most likely used the

word "permanent” to distinguish the civil stalking injunction from

the temporary ex parte injunction that the court issued prior to the

evidentiary hearing. Thomas suggests that the trial court should

have used the phrase "long-term” to describe the civil stalking

injunction instead of "permanent.” But while this is a fine

suggestion—and simply calling it a three-year injunction is an even

better one—it is not a basis for vacating the injunction as Thomas

requests. See Utah R. Civ. P. 61 ("The court at every stage of the

proceeding must disregard any error or defect in the proceeding

which does not affect the substantial rights of the parties.”). We

4. We would reach the same conclusion even if we disregarded

entirely the third episode, as the trial court essentially did.

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Sheeran v. Thomas

also note that the terms of the order itself do not indicate that it is

anything other than a standard three-year civil stalking injunction.

¶17 Finally, Thomas requests that we vacate the order because

it incorrectly states that federal law prohibits Thomas from

possessing a firearm. The trial court used a civil stalking injunction

form approved by the Board of District Court Judges in June 2013.

After the admonitory terms of the civil stalking injunction are set

out, the order contains a final paragraph titled, "Warnings to the

Respondent.” One of these warnings states, "No guns or firearms!

It is a federal crime for you to have . . . any firearm or ammunition

. . . while this civil stalking injunction is in effect.” This warning

likely refers to United States Code title 18 section 922, which

prohibits a person subject to a stalking injunction for the protection

of an "intimate partner” from possessing a firearm. See 18 U.S.C.

§ 922(g)(8) (2012). In a situation such as the instant one, where

Thomas and Sheeran are not now and never have been intimate

partners, the federal restriction on firearm possession simply does

not apply. See Towner v. Ridgway, 2012 UT App 35, ¶ 10, 272 P.3d

765. Indeed we note that the Board of District Court Judges

updated the civil stalking injunction form on January 22, 2014, to

read, with our emphasis, "It may be a federal crime for you to

have . . . any firearm . . . .” See Civil Stalking Injunction,

http://www.utcourts.gov/resources/forms/civilstalking/docs/CSI.

pdf (last visited Nov. 24, 2014).

¶18 But the simple warning about federal law contained in the

preprinted final paragraph of the civil stalking injunction does not

create additional terms or requirements, nor is it a definitive

statement of applicable law. It is only a warning, albeit one that

may be wide of the mark in the circumstances of this case. And

while it would have been advisable for the trial court to have

warned that it "may be a federal crime” instead of warning that it

"is a federal crime,” or even to have put a big "X” through the

inapplicable language on the injunction form if it undisputedly did

not apply to Thomas, this is not a basis for vacating a civil stalking

injunction. See Utah R. Civ. P. 61.

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Sheeran v. Thomas

¶19 Because the trial court's findings are adequate and there is

sufficient evidence to support the civil stalking injunction, we

conclude that the trial court did not err in granting it. Furthermore,

any deficiencies in the trial court's ruling and the text of the

injunction document are not significant enough to justify vacating

the civil stalking injunction.

¶20 The term of the injunction, unless earlier dissolved, is three

years, and the injunction has no bearing on Thomas’s federal rights

concerning firearms. With those clarifications, the injunction is

affirmed.