Bott v. Osburn

• Decision Date: 05 May 2011
• Docket Number: No. 20100232–CA.,20100232–CA.
• Citation: 2011 UT App 139,257 P.3d 1022,681 Utah Adv. Rep. 4
• Parties: Amy B. BOTT, Plaintiff and Appellee,v.Jessie Lee OSBURN, Defendant and Appellant.
• Court: Utah Court of Appeals

257 P.3d 1022

681 Utah Adv. Rep. 4

2011 UT App 139

Amy B. BOTT, Plaintiff and Appellee,

v.Jessie Lee OSBURN, Defendant and Appellant.

No. 20100232–CA.

Court of Appeals of Utah.

May 5, 2011.

Scott H. York, Salt Lake City, for Appellant.Amy B. Bott, Provo, Appellee Pro Se.Before Judges McHUGH, THORNE, and ROTH.

OPINION

McHUGH, Associate Presiding Judge:

¶ 1 Jessie Lee Osburn (Girlfriend) appeals from the trial court's order entering a civil stalking injunction against her and in favor of Amy B. Bott (Wife), pursuant to Utah Code section 77–3a–101 (civil stalking statute), see Utah Code Ann. § 77–3a–101 (2008). Specifically, Girlfriend challenges the trial court's underlying determination that she committed the criminal offense of stalking as defined in Utah Code section 76–5–106.5 (criminal stalking statute), see Utah Code Ann. § 76–5–106.5 (2008), a prerequisite for the issuance of a civil stalking injunction under the civil stalking statute. We affirm.

BACKGROUND ¹

¶ 2 In June of 2008, Wife discovered that Girlfriend was having an affair with Wife's husband, Shane Bott (Husband). Not surprisingly, this discovery resulted in discord between the two women. That August, Wife and Girlfriend filed petitions for civil stalking injunctions against each other, but after Husband returned home in an attempt to reconcile with Wife, each woman agreed to dismiss her petition against the other.

¶ 3 On December 7, 2009, Wife learned that Husband and Girlfriend had resumed their affair. That same day, Wife placed a phone call to Girlfriend during which Girlfriend told Wife that she intended to “shoot [Wife's] ass” with a gun Husband had allegedly purchased for her to use to deal with Wife's harassment. On December 13, 2009, Wife called Husband on his cell phone. During the call, Girlfriend took the phone from Husband and again stated that she intended to shoot Wife.

¶ 4 On January 19, 2010, Wife filed a petition for a civil stalking injunction against Girlfriend; the trial court granted a temporary injunction the next day.² The trial court then held a hearing on the matter and granted a civil stalking injunction in favor of Wife. The trial court found that Girlfriend made two verbal threats directed at Wife, which “would cause a reasonable person to be afraid of [Girlfriend] and cause [Wife] great emotional distress.” Girlfriend now appeals.

ISSUES AND STANDARD OF REVIEW

¶ 5 Girlfriend argues that the trial court made several errors in its interpretation and application of both the civil and criminal stalking statutes. See Utah Code Ann. § 77–3a–101; Utah Code Ann. § 76–5–106.5. To begin, Girlfriend maintains that the trial court failed to find that all of the required elements of the criminal stalking statute were met. She then argues that the lack of specific factual findings prevents meaningful appellate review and that the findings that the trial court did make are against the clear weight of the evidence.³ See Utah Code Ann. § 76–5–106.5. Girlfriend also asserts that the trial court did not consider the totality of the circumstances when deciding whether Girlfriend engaged in a “course of conduct” that violated the criminal stalking statute. See id. § 76–5–106.5(b). In addition, Girlfriend argues that the trial court misinterpreted the criminal stalking statute by ignoring the relevant standards for “emotional distress” and the definition of “reasonable person.” See id. § 76–5–106.5(1)(d)–(e). “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.” Ellison v. Stam, 2006 UT App 150, ¶ 16, 136 P.3d 1242 (quoting Gutierrez v. Medley, 972 P.2d 913, 914–15 (Utah 1998)).

ANALYSIS

I. The Trial Court Did Not Err in Its Application of the Criminal Stalking Statute.

A. The Elements of a Civil Stalking Injunction.

¶ 6 Under the civil stalking statute a trial court may enter a civil stalking injunction upon finding that “an offense of stalking has occurred.” See Utah Code Ann. § 77–3a–101(5) (2008). “ ‘[S]talking’ means the crime of stalking as defined in [the criminal stalking statute].” Id. § 77–3a–101(1). In 2008, the Utah Legislature made several substantive amendments to the criminal stalking statute. See Utah Code Ann. § 76–5–106.5 amend. notes (2008). The criminal stalking statute now provides,

(2) 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 emotional distress.

Id. § 76–5–106.5(2). The new version of the criminal stalking statute includes definitions for terms that had not been previously defined by the legislature and also modifies certain definitions included in the prior version of the statute.⁴ For example, the definition of “[c]ourse of conduct” has been revised and is now defined in relevant part as “two or more acts directed at or toward a specific person, including ... acts in which the actor ... threatens ... a person ... (A) directly, indirectly, or through any third party; and (B) by any action, method, device, or means.” Id. § 76–5–106.5(1)(b)(i)(A)–(B). Further, the previously undefined term “[e]motional distress” has now been defined by the legislature as “significant mental or psychological suffering, whether or not medical or other professional treatment or counseling is required,” id. § 76–5–106.5(1)(d), and the term “[r]easonable person” has now been defined as “a reasonable person in the victim's circumstances,” id. § 76–5–106.5(1)(e).

¶ 7 Based on the language of the 2003 version of the criminal stalking statute, the supreme court in Towner v. Ridgway, 2008 UT 23, 182 P.3d 347, delineated three elements that the trial court must find to enter a civil stalking injunction: (1) “the alleged stalker intentionally or knowingly engaged in a course of conduct that would cause a reasonable person to fear bodily injury or suffer emotional distress”; (2) “the accused stalker had or should have had knowledge that the victim of his stalking would fear bodily injury or suffer emotional distress”; and (3) “the victim actually feared bodily injury or suffered emotional distress as a result of the accused stalker's conduct.” Id. ¶¶ 14–15 (internal quotation marks omitted). Girlfriend claims that a stalking injunction was not appropriate here because Wife did not prove that she actually feared bodily injury as a result of Girlfriend's threats. However, Girlfriend's assertion ignores the fact that the stalking statute was amended in 2008, after the supreme court decided Towner. See Utah Code Ann. § 76–5–106.5 amend. notes (2008). The 2008 version of the statute, which is relevant here, omits the language that stated that a person commits stalking “whose conduct: (i) induces fear in the specific person of bodily injury to himself or a member of his immediate family; or (ii) causes emotional distress in the specific person or a member of his immediate family.” Id. § 76–5–106.5(2)(c) (2003). Thus, we must determine whether Towner still accurately identifies the elements the trial court must find before entering a stalking injunction under the 2008 version of the statute.

¶ 8 The “goal when confronted with questions of statutory interpretation ‘is to evince the true intent and purpose of the Legislature.’ ” Anderson v. Bell, 2010 UT 47, ¶ 9, 234 P.3d 1147 (quoting Duke v. Graham, 2007 UT 31, ¶ 16, 158 P.3d 540). “It is axiomatic that the best evidence of legislative intent is ‘the plain language of the statute itself.’ ” Id. (quoting Duke, 2007 UT 31, ¶ 16, 158 P.3d 540). Looking to the plain language of the 2008 version of the criminal stalking statute, we conclude that although the trial court must still find that the alleged stalker had the requisite intent to engage in a course of conduct that he or she knows or should know would cause a reasonable person to fear or suffer emotional distress, there is no requirement that the trial court also find that the victim was actually afraid or distressed. See Utah Code Ann. § 76–5–106.5(2) (2008); see also Gohler v. Wood, 919 P.2d 561, 565–66 (Utah 1996) (holding that where express language of statute did not include an actual reliance element, court will not add one). Thus, the statute is plain on its face and no further analysis is necessary to discern the legislature's intent. See Harold Selman, Inc. v. Box Elder Cnty., 2011 UT 18, ¶ 18, 251 P.3d 804 (“When the plain meaning of the statute can be discerned from its language, no other interpretative tools are needed.” (internal quotation marks omitted)).

¶ 9 Further, even if the language of the criminal stalking statute left us with doubt as to the current elements of stalking, the fact that the legislature deleted the language imposing a requirement that the defendant's conduct actually induce fear or cause emotional distress “ ‘can mean nothing but that the legislature's purpose deliberately was to remove’ ” the requirement. See Sindt v. Retirement Bd., 2007 UT 16, ¶ 13, 157 P.3d 797 (quoting State v. Delmotte, 665 P.2d 1314, 1315 (Utah 1983)). When the legislature undertakes to amend a statute, it indicates a legislative intent “to change the law.” 1A Norman J. Singer, Sutherland Statutory Construction, § 22.30 (6th ed. 2002) quoted in Sindt, 2007 UT 16, ¶ 13, 157 P.3d 797. The omission of the subject language here shows a legislative purpose to eliminate proof of the victim's actual fear or actual distress as an element of stalking.

¶ 10 Finally, our interpretation of the current statutory language is consistent with the anti-stalking code promulgated by the National Center for Victims of Crime, see National Ctr. for Victims of Crime, The Model Stalking Code Revisited (2007), upon which the revised version of the criminal stalking statute...