Anderson v. Deem

• Docket Number: 20210558-CA
• Decision Date: 11 May 2023
• Parties: Ellie ANDERSON, Appellant, v. Jackson DEEM, Appellee.
• Court: Utah Court of Appeals

530 P.3d 945

Ellie ANDERSON, Appellant,

v.Jackson DEEM, Appellee.

No. 20210558-CA

Court of Appeals of Utah.

Filed May 11, 2023

Jason B. Fida and Patricia Abbott Lammi, Attorneys for Appellant

Emily Adams and Freyja Johnson, Salt Lake City, Attorneys for Appellee

Judge David N. Mortensen authored this Opinion, in which Judges Gregory K. Orme and Ryan D. Tenney concurred.

Opinion

MORTENSEN, Judge:

¶1 Jackson Deem used social media to send several messages to Ellie Anderson, his teenaged schoolmate. Anderson requested a civil stalking injunction, and the district court issued a temporary order. Deem requested a hearing, at which the court revoked the injunction and dismissed the case. The court considered each incident separately as to its emotional or fear-inducing effect to reach a conclusion that Deem had not engaged in a course of conduct as required by the civil stalking statute. In addition, the court justified its decision by referring to Deem's autism

and to the potential availability of a no-contact order in an unadjudicated criminal case. Anderson appeals, claiming that the district court applied the wrong standard in its evaluation of the issues. We agree, reverse the revocation and dismissal of the petition (thereby reinstating the injunction), and remand this matter to the district court so that it may apply the correct standard.

BACKGROUND¹

¶2 Deem and Anderson were schoolmates, having intermittently attended elementary through high school together. As it is material in this case, we note that Deem was diagnosed with autism

when he was around nine or ten years old.

¶3 The troubles underlying the present case stem from an incident in August 2018 when Anderson and Deem were starting tenth grade. Deem posted a message on Instagram stating that he was considering suicide. Seeing this message, Anderson called 911 to request a welfare check on Deem. Shortly after this, Deem posted that he was upset that someone had made the call. Notably, the record does not state that Deem ever said he knew who made the call, and Anderson testified that she was "not sure if he realized" that it was her.

¶4 After this incident, Anderson alleged that Deem sent her a series of unwelcome communications over a period of about three years.

The Incidents of Alleged Stalking

¶5 First Incident : Allegedly—there is no evidence of this event apart from Anderson's testimony—Deem posted a "hit list" on Instagram about a week after he posted the message alluding to suicide. According to Anderson, this message "stated that [Deem] wanted to shoot up the school and ... listed people [he] was going to be targeting," and she and her friend "were on there." Anderson asserted that she provided a screenshot of the message to her principal but did not otherwise save it or report it.

Deem categorically denied posting such a list.

¶6 Second Incident : In July 2019, on the occasion of Anderson's sixteenth birthday, Deem posted a message to her Facebook page expressing the sentiment, "die, bitch." After this post, Anderson attempted to block Deem from contacting her on social media.

¶7 Third Incident : In May 2021, Deem, using a different account, sent Anderson a series of Instagram messages. Anderson testified that the first message was an apology stating that Deem "didn't think" Anderson was "going to take all of [his] threats seriously." This message was deleted and does not appear in the record; it was followed by four messages, which do appear in the record, from Deem over a period of about three hours.

¶8 In the first of these messages, Deem wrote,

I don't know if you saw my apology from before, but I take it back. I wish nothing but the absolute worst for you in life. You being angry at what I said is one thing, but telling other people and blackballing me is another entirely. Why even care about what I said? No one values my opinion. I can scream at people how much I hate them all I want, but it doesn't erase the fundamental power imbalance. You and all the other people who've mistreated me over the years have destroyed my mental health irreparably. And the worst part is that no one cares or even acknowledges how they've hurt me. There's no reason why anyone should remember me because they have great lives today. But I don't have that luxury of not caring about the past because I have no future. Now there's not a single person from those schools who doesn't hate me, so those memories are tainted now.

In the next message, apparently sent immediately afterward, Deem stated,

Unlike you, I acknowledge that I'm a terrible person. But you go about it in a different way. All those times you were nice to me were purely self-serving.

¶9 About two hours later, Anderson messaged Deem, "[P]lease stop harassing me or I will be going to the police." About an hour later, Deem expressed his discontent with her response by sending two messages of his own. The first read, "I'll be waiting for you in hell." And the second was the capitalized epithet "FUCK YOU"—followed by 529 exclamation points.

The Injunction and Dismissal

¶10 After receiving the May 2021 messages, Anderson requested a civil stalking injunction against Deem, citing the three incidents described above and one other incident.² See Utah Code § 78B-7-701(1)(a)(i) ("[A]n individual who believes that the individual is the victim of stalking may file a verified written petition for a civil stalking injunction against the alleged stalker with the district court in the district in which the individual or respondent resides, is temporarily domiciled, or in which any of the events occurred."). The district court granted that request and issued a temporary stalking injunction, ordering Deem to have no contact with Anderson and to stay away from Anderson's home, work, and school. See id. § 78B-7-701(3)(a). Deem requested a hearing on the temporary stalking injunction. See id. § 78B-7-701(4)(a) ("[T]he respondent is entitled to request, in writing, an evidentiary hearing on the civil stalking injunction.").³

¶11 At the hearing, Anderson, Deem, and Deem's mother (Mother) testified. Anderson testified about the incidents described above, namely the suicide threat and the three incidents. Apart from the hit list, Anderson had screenshots of the communications that she referred to in her testimony. She also testified that she last saw Deem in person during their sophomore year of high school, sometime in 2018.

¶12 Deem testified that he had not posted a hit list. He also testified that he never intended to cause Anderson fear or emotional distress. Rather, he said he "lashed out" on social media and had no intent to follow up, noting that Anderson was "just ... the first person who came to mind as someone [he would] like to say those things to." Deem also testified that he was homebound, did not drive or have a license, and never left his house without his parents. And he stated that he understood that he could not have any contact with Anderson and that he "did potentially cause [Anderson] emotional distress." Finally, he testified that he did not know where Anderson lived.

¶13 Mother testified that she did not recall being informed by the school that Deem sent a hit list or threatened to shoot up the school in 2018. She testified that apart from an incident in fourth grade, she did not know Deem to be physically violent. However, she testified that Deem does "lash out with his words" from "behind a computer screen." And concerning his mobility, she testified that Deem does not drive or leave the house without her or his father.

¶14 After hearing the evidence, the district court concluded that Anderson had "failed to meet the standard [of] by a preponderance of the evidence for a continuation of the injunction." See id. § 78B-7-701(5) ("At the hearing, the court may modify, revoke, or continue the injunction. ... [T]he burden is on the petitioner to show by a preponderance of the evidence that stalking of the petitioner by the respondent has occurred.").

¶15 In arriving at its decision, the court considered the three incidents to determine if there was a course of conduct under the stalking statute: "An actor commits stalking if the actor intentionally or knowingly ... engages in a course of conduct directed at a specific individual and knows or should know that the course of conduct would cause a reasonable person: (i) to fear for the individual's own safety or the safety of a third individual; or (ii) to suffer other emotional distress ...." Id. § 76-5-106.5(2)(a).

¶16 Regarding the first incident, the court determined that it was "disputed and there was no independent evidence provided that the list was created or that ... Anderson's name was on it." Concerning the second incident, the court stated that it "certainly" consisted of "conduct that could qualify under the statute as something that would create emotional distress." And about the third incident, the court noted that it "contain[ed] two potentially concerning language references." The first was the profane expression of "FUCK YOU," but the court observed that this phrase is "so ubiquitous in our culture" as to have "no significance at all" or to be in "any way threatening." The court stated, "[I]t's not a term that causes emotional distress. It's replete in our culture, in our language, in our entertainment." Accordingly, the court found "that saying that to someone alone is not a basis to support the petition" for a stalking injunction. The court reasoned that the other phrase—"I'll be waiting for you in hell"—"conveys that both parties have engaged in a pattern that makes them worthy of being relegated to hell" and that it was "not threatening on its face."

¶17 The court reasoned that because "two of those events [did not] meet the standard for potentially satisfying the requirements of the statute," it was left "with one [incident] that occur[red] over the period of three years," which failed "to meet the course of conduct requirement of the statute." See id...