State v. Fouse
| Citation | 753 Utah Adv. Rep. 5,319 P.3d 778 |
| Decision Date | 30 January 2014 |
| Docket Number | No. 20120003–CA.,20120003–CA. |
| Court | Court of Appeals of Utah |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Brian Allen FOUSE, Defendant and Appellant. |
OPINION TEXT STARTS HERE
Lori J. Seppi, for Appellant.
Sean D. Reyes and Karen A. Klucznik, Salt Lake City, for Appellee.
¶ 1 Defendant Brian Fouse appeals his convictions on one count of stalking, a third degree felony, seeUtah Code Ann. § 76–5–106.5 (LexisNexis 2012); three counts of felony violation of a protective order, see id.§§ 76–5–108, 77–36–1.1; and three counts of class A misdemeanor violation of a protective order, see id.§ 76–5–108.2 We affirm.
¶ 2 Defendant and Victim were married for six years before separating in 2011. Following an incident of domestic violence, Victim obtained a temporary protective order directed at Defendant. The address listed on that order was that of a friend (Friend) with whom Victim, Defendant, and their three children had been living. Shortly after their separation, Defendant called Victim's workplace and left the following message: “Can you please tell my wife that I need her to come identify a dead body.” There was no dead body, but Victim was “really scared” and called the police, and Defendant was arrested. He pled guilty to violating a protective order.
¶ 3 A few days after Defendant's arrest, Victim obtained a permanent protective order. The order required Defendant to not “contact, phone, mail, email, or communicate in any way with [Victim] either directly or indirectly” and to “stay away” from the address listed. The address listed on this order was the apartment of one of Victim's sisters, where Victim and the children were staying. The apartment was one unit of a four-plex, and another of Victim's sisters lived next door. Each of the apartments had its own unique street address, as opposed to the entire four-plex sharing an address and each of the apartments being distinguished by an apartment or unit number. The order did not list either of Victim's sisters as protected persons.
¶ 4 About a week after the permanent order was entered, Defendant mailed an envelope to the address listed on the protective order with the designation “Apt. # 1 or 2.” The envelope was addressed to both of Victim's sisters, but the first letter inside was written to the sister who lived next door. It expressed Defendant's love for Victim, mentioned his desire that Victim drop the protective order, and asked the sister to please send him photos of his family. He closed the letter by writing, The envelope also contained two letters written to Victim, in which Defendant apologized for his past behavior and asked for forgiveness. The final letter contained the following statement:
¶ 5 Another envelope was sent the next day. It was also directed to the address listed on the protective order but with the notation “Apt. # 1 or 2 maybe 3” and with the name of the sister who lived next door to Victim. The letter informed the sister that “things are starting to look a lot better” because Friend, who was an alleged victim in a prior altercation with Defendant, had recanted his statement to the police. Defendant also stated that he was considering suing Victim for lying in connection with obtaining the protective order and that consequently Victim might be facing “serious charges” of her own, but that Victim had the power to stop all that by dropping the protective order.
¶ 6 Less than a week later, Defendant mailed a letter to the same sister with a similar apartment designation. In the letter, he thanked the sister for her friendship, said he wanted to save his marriage, and told the sister about the harm that divorce would cause Victim. The letter also contained a line that said, The letter then asked the sister, “Please hold this poem it expresses my feelings towards [Victim], but I don't want to lose it in here.” 3 The back of the included poem addressed Victim directly and asked her to “make things right for us and our beautiful boys.”
¶ 7 The next month Victim found a box on her back doorstep. The box contained Victim's wedding dress, bridesmaids' dresses, a picture of Defendant and Victim dancing at their wedding, various letters, and a bride and groom figurine from the top of their wedding cake. The groom's head was broken off. Most of the letters were addressed to no one in particular, but one was addressed to God and “my wife my # 1 Love & boys.” Another was addressed only to the three children, who were also listed on the protective order as persons whom Defendant could not contact. Defendant apologized to Victim in these letters and asked for her forgiveness. The box also purportedly contained “everything [Defendant] own[ed]” and a letter addressed, in Defendant's words, to “All of you who honestly think your truely better than me and who wants to take my place in my family's life.” The letter chastised family members for meddling in Defendant's marriage.
¶ 8 Sometime between receiving the letters and receiving the box, Victim also received two voicemail messages. The first one was muffled, but Victim described the voice as “kind of like that scary, scary voice sound on that scary movie.” Victim identified the voice on the second message as Defendant's. The message stated that he loved and missed her. A police officer listened to the messages before they were accidentally erased, but there was no documentation of the telephone numbers from which the messages originated.
¶ 9 During this same period, Defendant also mailed court documents to the address listed on the protective order. One envelope was addressed to both of Victim's sisters but listed no apartment number and contained, among other things, Defendant's request to dismiss the protective order, his answer and counterclaim to the divorce proceedings, a form related to a parent-time dispute, and a document containing Friend's recantation. Another envelope was addressed to Friend but listed no mailing address. The return address listed Victim's name and address, which is how she found it in her mailbox—marked by the Postal Service as “Return to Sender.” Victim testified that the envelope was addressed in Defendant's handwriting and contained duplicates of some of the previously mailed documents as well as information about the couple's storage unit and Victim's retirement plan.
¶ 10 When each of these communications arrived at the four-plex, the sisters gave them to Victim. Victim testified that Defendant “was very controlling and made [her] feel like [she] was the one that did things wrong.” She said that she chose to report the letters, voicemails, and box because she had tried to leave Defendant before, but, she testified,
¶ 11 Defendant was charged with six counts of violation of a protective order, a third degree felony when committed within five years of another domestic violence offense. SeeUtah Code Ann. § 77–36–1.1 (LexisNexis 2012). Three of the charges were later reduced to class A misdemeanors. Defendant was additionally charged with one count of stalking, also a third degree felony.
¶ 12 During jury selection, the trial court asked the potential jurors to alert the court if they thought they would have any trouble being fair. The judge explained to the potential jurors the reasoning behind the jury selection process and why attorneys are allowed to eliminate potential jurors. The judge explained that she herself had once been called as a potential juror. She remembered pondering whether or not she could be fair:
And I thought, okay, yeah, I have been a prosecutor for 30 years, but, frankly, I think I could be fair. I don't think the Defense thought I could be fair. But I thought, you know, when a case came in to me as a prosecutor I didn't just automatically assume people were guilty. You know, I looked at the case. I looked at it very carefully. I looked at the evidence that was brought in by the law enforcement. And if I didn't think that there was enough evidence to get a conviction I didn't file the case. But I thought, you know, I can be fair. I have been fair. I am fair when I look at a case that's brought in to be filed. So, you know, I answered that I could be fair.
The judge went on to explain that a sidebar was held at the trial in which she was called as a potential juror and she could tell that the defense attorney had requested that she be removed. The judge presiding over that trial disagreed, but ultimately she was not selected because a full jury was selected before her number was called.
¶ 13 She then explained that our justice system needed jurors who could be fair and so the selection process allowed both sides to strike people from the jury pool for The trial court then stated, “So that's what they are doing now,” and asked if any members of the jury pool had questions before the attorneys were...
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