Peter David Zappe v. Kristie Bulluck

¶1 Kristie Bullock appeals the district court's entry of a civil

stalking injunction against her. Bullock argues that the district

court's ruling was not supported by sufficient evidence and that

the district court erred by prohibiting her from impeaching

petitioner Peter David Zappe with evidence of a prior felony

conviction. We affirm.

Zappe v. Bullock

I. Sufficiency of the Evidence

¶2 We first address Bullock's argument that the district court

did not base its entry of the civil stalking injunction on sufficient

evidence. For a court to issue a civil stalking injunction it must

determine "by a preponderance of the evidence that stalking of the

petitioner by the respondent has occurred.” Utah Code Ann. § 77-

3a-101(7) (LexisNexis 2012). What constitutes "stalking” in this

context is based on the definition of stalking provided in the

criminal code, see id. § 77-3a-101(1), which states,

A person is guilty of stalking who intentionally or

knowingly engages in a course of conduct directed at

a specific person and knows or should know that the

course of conduct would cause a reasonable person:

(a) to fear for the person's own safety or the

safety of a third person; or

(b) to suffer other emotional distress,

id. § 76-5-106.5(2).

¶3 Bullock specifically challenges the district court's findings

supporting the "course of conduct” element of stalking. "'[C]ourse

of conduct' means two or more acts directed at or toward a specific

person, including . . . acts in which the actor . . . threatens . . . a

person, or interferes with a person's property . . . .” Id. § 76-5-

106.5(1)(b).

¶4 "[W]hether the defendant engaged in a course of conduct . . .

that would cause a reasonable person emotional distress is a

question of fact.” Baird v. Baird, 2014 UT 8, ¶ 29, 322 P.3d 728

(omission in original) (citation and internal quotation marks

omitted). "[W]e review the trial court's findings of fact for clear

error, reversing only where [a] finding is against the clear weight

of the evidence, or if we otherwise reach a firm conviction that a

mistake has been made.” Ellison v. Stam, 2006 UT App 150, ¶ 17,

136 P.3d 1242 (alterations in original) (citation and internal

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Zappe v. Bullock

quotation marks omitted). We "resolv[e] all disputes in the

evidence in a light most favorable to the trial court's

determination.” State v. Perea, 2013 UT 68, ¶ 32, 322 P.3d 624

(citation and internal quotation marks omitted).

¶5 Here, the district court ruled that an incident occurring on

or around December 19, 2012 (the knife incident) and a series of

incidents occurring on December 25, 2012 (collectively, the

Christmas incident) satisfied the course of conduct element. Bullock

challenges only the findings surrounding the knife incident.

¶6 The knife incident took place in the kitchen of Bullock's

home while Bullock and Zappe discussed the new car Zappe

helped buy for his then-girlfriend and now-wife Paige. Paige is

Bullock's daughter. Bullock was holding a kitchen knife during this

interaction and, at one point, held the knife within inches of

Zappe's body and warned him against "interfering with her

relationship with Paige.” The court found that Bullock also

described to Zappe her gun collection and the "other people who

could do harm to [him] and to Paige” in order "to impress upon

[Zappe] how serious [she] was.”1

¶7 Bullock argues that the only evidence that she threatened

Zappe both orally and with a knife came exclusively from Zappe's

own testimony and that Zappe "repeatedly showed himself to be

a difficult witness, lacking in credibility.” Bullock argues that the

district court's "specific findings regarding Zappe's inappropriate

1. The Christmas incident began with Bullock upset that Paige

invited Zappe to their Christmas gathering. Bullock became

argumentative and belligerent, to the point that Paige's sister left

the house to get away from all of the arguing. Bullock's behavior

gradually escalated to include covering the hood of Paige's new car

with bags of garbage, locking herself and Paige in Paige's bedroom,

grabbing and shaking Paige, and knocking Zappe's cell phone out

of his hands after Zappe threatened to call police.

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Zappe v. Bullock

behavior towards the other involved parties” suggest that "to some

extent, the trial court had concerns about Zappe's character and

credibility.” In addition, Bullock points out various discrepancies

in Zappe's testimony that she contends "call into question Zappe's

credibility” and "make Zappe's version of at least some of the

events highly improbable.”

¶8 "As we have often said, credibility is an issue for the trier of

fact,” which in this case is the district court. See State v. Dunn, 850

P.2d 1201, 1213 (Utah 1993). And here, the district court's findings

adequately support the court's judgment and demonstrate the

reasoning employed by the court in reaching "the ultimate

conclusion on each factual issue.” See Armed Forces Ins. Exch. v.

Harrison, 2003 UT 14, ¶ 28, 70 P.3d 35 (emphasis, citation, and

internal quotation marks omitted).

¶9 The district court entered its findings orally at the close of

the evidentiary hearing on Zappe's petition for a civil stalking

injunction. The court first noted that there were a number of

"unsettling” things about the case, including the "unfortunate”

relationship between Bullock and Paige that was marked by their

apparent inability to "be civil to each other when they're together.”

The court also described as "bizarre” uncontested testimony that

Zappe had thrown cold water on Paige's twin sister while she was

in the shower. The court recognized that Zappe and Bullock

disagreed on what occurred, particularly with respect to the knife

incident, and it noted in its findings when and how the parties'

versions of the events differed. However, the court concluded that

"much of what [Zappe] claims is . . . corroborated by either

[Bullock] or [Bullock's] witnesses.” The court observed that

Zappe's version of the Christmas incident was largely corroborated

by Bullock's witnesses, bolstering Zappe's credibility. The district

court concluded that, "based on all of the evidence,” a "course of

conduct” had occurred. Accordingly, the district court's findings

are not against the clear weight of the evidence and its ruling is

supported by sufficient evidence. See Ellison v. Stam, 2006 UT App

150, ¶ 17, 136 P.3d 1242.

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II. Impeachment Evidence

¶10 Next, Bullock argues that the district court erred by

prohibiting her from impeaching Zappe's testimony with evidence

of his prior felony conviction, as permitted by rule 609(a) of the

Utah Rules of Evidence. Rule 609(a) governs a party's ability to

attack "a witness's character for truthfulness [with] evidence of a

criminal conviction” and states,

(a)(1) for a crime that, in the convicting jurisdiction,

was punishable by death or by imprisonment for

more than one year, the evidence:

(a)(1)(A) must be admitted, subject to Rule

403, in a civil case . . . ; and

. . . .

(a)(2) for any crime regardless of the punishment, the

evidence must be admitted if the court can readily

determine that establishing the elements of the crime

required proving—or the witness's admitting—a

dishonest act or false statement.

Utah R. Evid. 609(a).

¶11 "Although a trial court's determination on the admissibility

of evidence is a question of law reviewed for correctness, its

decision is generally accorded a good deal of discretion by an

appellate court.” State v. Betha, 957 P.2d 611, 616 (Utah Ct. App.

1998) (citations and internal quotation marks omitted).

Accordingly, we will not reverse a district court's ruling on the

admissibility of evidence "unless a substantial right of the party has

been affected.” Id. (citation and internal quotation marks omitted).

"In determining whether a 'substantial right of the party is

affected,' we look at the evidence as a whole in the context of the

trial to determine if, absent the error [in admitting or excluding the

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evidence], there is a reasonable likelihood that a different result

would have been reached.” State v. Speer, 750 P.2d 186, 189 (Utah

1988). In other words, "we will reverse only if the error was

harmful.” Dunn, 850 P.2d at 1221.

¶12 Zappe described his third-degree-felony conviction as

involving "an informal business arrangement where there were

unclear expectations.” He explained that the oral agreement was

for Zappe to repair and sell two vehicles on behalf of the victims,

in exchange for which Zappe would keep $200 from the sale of

each vehicle. Zappe repaired and sold the first vehicle and returned

the proceeds to the victims. Zappe testified that the second vehicle

was unexpectedly expensive for Zappe to repair and that the

parties disagreed as to whether the costs Zappe incurred in fixing

the vehicles were sufficiently satisfied by the terms of their

agreement. The victims felt that Zappe had been adequately

compensated, and Zappe felt he was owed more. To resolve the

dispute, Zappe simply kept the money from the sale of the second

vehicle, prompting his arrest. He entered a guilty plea to theft

charges and paid restitution.

¶13 The district court determined that Zappe's conviction did

not involve a dishonest act or a false statement and excluded the

impeachment evidence on that basis, as required by rule 609(a)(2).

Bullock argues that the district court's ruling that Zappe's prior

conviction did not involve a dishonest act is incorrect and argues

that the evidence should have nonetheless been admitted pursuant

to rule 609(a)(1) because it is relevant and is probative of Zappe's

credibility.

¶14 First, we agree with the district court that Zappe's felony

conviction did not involve a crime of dishonesty and that the

impeachment evidence was therefore properly excluded under rule

609(a)(2). "The focus of [rule 609(a)(2)] concerns impeachment

based on the probability that a particular witness may not be telling

the truth as evidenced by prior acts of dishonesty on the part of

that witness.” State v. Morrell, 803 P.2d 292, 294 (Utah Ct. App.

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Zappe v. Bullock

1990). The district court determined, based on Zappe's description

of the circumstances surrounding his conviction, that the thirddegree-

felony theft conviction did not constitute "a crime of false

statement.” Bullock argues that Zappe's acts resulting in his

conviction were inherently dishonest where he purposefully

absconded with the victims' money and without seeking a more

conventional solution to the parties' disagreement.

¶15 "While all crimes involve, in some broad sense, an element

of dishonesty,” State v. Wight, 765 P.2d 12, 18 (Utah Ct. App. 1988),

Utah courts have specifically ruled that "[t]heft is not a crime

involving dishonesty or false statement within the meaning of rule

609(a)(2),” State v. Bruce, 779 P.2d 646, 656 (Utah 1989) (citation and

internal quotation marks omitted). Rather, theft "involves stealth

and demonstrates a lack of respect for the persons or property of

others[ and] is not characterized by an element of deceit or

deliberate interference with a court's ascertainment of truth.” Bruce,

779 P.2d at 656 (citation and internal quotation marks omitted). A

theft conviction may, however, "be admissible under the rule if in

fact the crime was committed by fraudulent or deceitful means.” Id.

(citation and internal quotation marks omitted); cf. Wight, 765 P.2d

at 18 ("[T]he crime of robbery is not necessarily one of dishonesty

or false statement for purposes of 609(a)(2) admissibility.”).

However, Bullock's argument, without more, does not convince us

that Zappe's prior conviction involved fraud, deceit, or dishonesty.

Accordingly, we affirm the district court's decision to exclude the

impeachment evidence under rule 609(a)(2).

¶16 Last, we address the admissibility of the conviction evidence

under rule 609(a)(1). Zappe challenges Bullock's arguments under

this rule as unpreserved. For purposes of our analysis, we will

assume, without deciding, that the district court erred by not

addressing the conviction evidence under rule 609(a)(1). From this

starting point, we need address only whether the presumed error

was harmful, regardless of whether we review Bullock's arguments

as preserved or under a plain error standard. See State v. Dunn, 850

P.2d 1201, 1208 (Utah 1993) (explaining that to establish plain error,

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an appellant must demonstrate, among other things, that "the error

is harmful, i.e., absent the error, there is a reasonable likelihood of

a more favorable outcome for the appellant”); State v. Brown, 771

P.2d 1093, 1095 (Utah Ct. App. 1989) (noting that a district court's

error in admitting evidence "is reversible only if a review of the

record persuades us that without the error there was a reasonable

likelihood of a more favorable result for the defendant”).

¶17 Bullock asserts that the relevance of the felony evidence is

derived from the notion that all of the evidence presented at trial

was testimonial, thereby making the credibility of the witnesses

essentially outcome determinative. But see State v. Templin, 805 P.2d

182, 188 (Utah 1990) (recognizing that a person can be convicted of

a crime based "solely on the testimony of the victim”). However,

as discussed above, because Zappe's conviction did not involve a

crime of dishonesty, the evidence speaks little of Zappe's

propensity for truthfulness in the situation before us. The

conviction evidence's relevance, Bullock argues, follows from the

fact that it reflects negatively on Zappe and implies a propensity

for poor judgment, similar to the evidence of Zappe's behavior of

splashing Paige's sister with cold water while she showered.

Although the excluded evidence carries with it the stigma of a

felony offense,2 we are not persuaded that it would have had any

greater bearing on the district court's decision than the shower

evidence or that the cumulative effect of the shower evidence and

conviction evidence would create a "reasonable likelihood of a

more favorable outcome” for Bullock. See Dunn, 850 P.2d at 1208;

accord Brown, 771 P.2d at 1095. Ultimately the district court

acknowledged the discrepancies between Zappe's and Bullock's

testimonies, including their conflicting accounts of the knife

incident, but found Zappe more credible because his testimony was

otherwise largely corroborated by other witnesses, which Bullock

2. Zappe's counsel suggested that the conviction may have been

charged as a felony purely as a result of a prior misdemeanor

conviction that was on Zappe's record at the time of that offense.

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does not dispute. Thus, even assuming that the exclusion of the

conviction evidence under rule 609(a)(1) was in error, the error was

not harmful and does not warrant reversal.

¶18 The district court’s decision to grant a civil stalking

injunction against Bullock is supported by sufficient evidence, and

the court properly excluded evidence of Zappe’s prior felony

conviction under rule 609(a)(2). Assuming, without deciding, that

the district court erred by excluding the conviction evidence under

rule 609(a)(1), the error was harmless. Affirmed.