Hardy v. Hardy
| Decision Date | 07 October 2020 |
| Docket Number | 20200528,20190496 |
| Citation | 467 P.3d 931 |
| Court | Utah Supreme Court |
| Parties | Hardy v. Hardy |
¶1 Brian Neil Hardy appeals the district court's entry of a civil stalking injunction against him. We reverse.
¶2 Brian and his former wife, Karen Hardy,1 had a strained relationship following their divorce. Brian believed that Karen was taking their child to a particular therapist he did not approve of, which would have been a violation of their divorce decree. To confirm his suspicions, he went to the therapist's office at the time when he believed Karen had an appointment scheduled for their child. Brian observed Karen in her vehicle outside the therapist's office and took two photographs to use as evidence.
¶3 Karen saw Brian's car at the therapist's office and filed a request for a civil stalking injunction the same day. The petition alleged a separate stalking incident in addition to the incident at the therapist's office, but the district court determined that the other incident did not amount to stalking. Nevertheless, the court found that by both observing and photographing Karen at the therapist's office, Brian had engaged in a course of conduct that amounted to stalking. The court found that "the addition of the photographing is a separate act, over and above observing," because "the purpose for photographing is different than ... the purpose for observing or monitoring something." Additionally, the court found that the actions were directed at Karen and that Brian knew or should have known that they would cause her emotional distress. Accordingly, the court granted the civil stalking injunction. Brian now appeals.
¶4 Brian raises only one issue on appeal. He asserts that the district court erred in determining that observing and photographing Karen on the day in question could be considered a "course of conduct" under the Utah Code. Whether someone has engaged in a course of conduct under the stalking statute is a question of law, which we review for correctness. Judd v. Irvine, 2015 UT App 238, ¶ 8, 360 P.3d 793 (per curiam).
Id. § 76-5-106.5(2) (Supp. 2019). A "course of conduct" is defined as "two or more acts directed at or toward a specific person" and can include, among other things, "acts in which the actor follows, monitors, observes, photographs, surveils, [or] threatens ... a person." Id. § 76-5-106.5(1)(b)(i).
¶6 We agree with Brian that observing and photographing Karen at the same time and for the same purpose was not sufficient to establish a course of conduct under the stalking statute. Observing someone is generally inherent in the act of photographing them, especially in the context of the stalking statute where the photography must be knowing and directed toward a specific person.2 See id. § 76-5-106.5(2). If we were to classify observing and photographing as separate acts in this context, it would mean that in virtually all circumstances where the other elements of the statute are met, the act of photographing would necessarily establish a course of conduct. We do not believe this is consistent with the statute's stated intent that a course of conduct be composed of "two or more acts." See id. § 76-5-106.5(1)(b). Further, it is inconsistent with the nature of stalking, which is inherently "an offense of repetition."3 See Ellison v. Stam, 2006 UT App 150, ¶ 28, 136 P.3d 1242.
¶7 We also consider the purpose of the conduct to be relevant in assessing whether two separate acts have occurred. The district court observed that "the purpose for photographing is different than ... the purpose for observing or monitoring something." But nothing in the facts of this case supports a finding that the observing and photographing served different purposes. Rather, they were part of a single act intended to expose Karen for allegedly...
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Anderson v. Deem
...who came to mind" when he wanted to lash out.8 The third incident likely established a course of conduct by itself. In Hardy v. Hardy , 2020 UT App 88, 467 P.3d 931, cert. denied , 474 P.3d 948 (Utah 2020), our court said, "We could conceive of a circumstance in which a single event with mu......