2019 UT App 96

THE UTAH COURT OF APPEALS

JEDEDIAH WELLS HIGLEY,

Appellee,

v.

BRYAN DEAN BUHLER,

Appellant.

Per Curiam Opinion

No. 20180925-CA

Filed June 6, 2019

First District Court, Logan Department

The Honorable Brian G. Cannell

No. 180100393

Glen R. Thomas, Attorney for Appellant

Jedediah Wells Higley, Appellee Pro Se

Before JUDGES GREGORY K. ORME, KATE APPLEBY,

and DIANA HAGEN.

PER CURIAM:

¶1 Bryan Dean Buhler appeals a permanent civil stalking 

injunction entered against him in favor of Jedediah Wells Higley. 

We affirm.

¶2 “On appeal, when a trial court has made findings of fact 

to support a civil stalking injunction, we will recite the facts in a 

light most favorable to the trial court’s findings.” Carson v. 

Barnes, 2016 UT App 214, ¶ 2 n.1, 385 P.3d 744 (quotation 

simplified). 

¶3 On September 28, 2018, Higley requested an ex parte civil 

stalking injunction against Buhler. Higley listed three stalking 

events in which Buhler allegedly drove by Higley’s house a 

number of times on August 16, 2018, September 6, 2018, and 
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September 22, 2018. The request contained allegations regarding 

Buhler’s earlier alleged assault of Higley, listing a pending 

assault case involving Higley and Buhler with a court case 

number. Higley also attached two police reports. One described 

a call to police about alleged harassment on August 16, 2018. The 

other police report described the investigation of the alleged 

assault and demonstrated that the investigation culminated in 

Buhler’s arrest for assaulting Higley. 

¶4 Buhler requested a hearing after the entry of the 

temporary civil stalking injunction. See Utah Code Ann. § 77-3a101(6) (LexisNexis 2017). At the hearing, Buhler conceded that 

there was a fight on July 7, 2018, between Higley and Buhler and 

that Higley’s injuries required medical attention. But Buhler 

challenged the credibility of Higley’s account of the events that 

led to the fight. Buhler also did not directly dispute that he drove 

by Higley’s residence on one or more of the dates alleged in the 

request for a civil stalking injunction and flipped him off.

¶5 Higley testified and also presented the testimony of his 

mother, who lived next door to him and had seen Buhler drive 

by her as she was walking and flip her off. Higley’s adult sister 

testified that she also encountered Buhler, that she heard him 

refer to her as a “bitch,” and that he flipped her off as he drove 

away. Higley stated that his family felt threatened, unsafe, and 

uneasy. They were concerned that they did not know what 

Buhler was “capable of anymore.”

¶6 Buhler argued that his conduct could not meet the 

definition of stalking, claiming that flipping someone off is 

“protected speech” that cannot constitute an act of stalking 

unless it is accompanied “with fighting words or some sort of 

threat.” The court inquired about considering the gesture in the 

context of the fight between the two men. Buhler argued that the 

events were “so remote in time and place . . . and not even 

related to the same people. The flipping off would have to put 
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20180925-CA 3 2019 UT App 96

them under some sort of emotional distress, which they didn’t 

offer any testimony to that effect.”1 Buhler also argued that there 

was no proof of significant mental or psychological suffering 

and that there were credibility issues with Higley’s account.

¶7 The court refocused the parties on the statutory 

requirements for a civil stalking injunction. In response to the 

court, Buhler conceded that the fight occurred, that Higley was 

harmed, and that he had to go to the hospital for treatment. The 

court then asked Higley about the allegations in the request for a 

civil stalking injunction “that there were multiple events in 

which Mr. Buhler drove by your place of residence. . . . How 

many times did he go by your place where you see him going by 

and he gave you the finger?” Higley responded that he saw 

Buhler do this “three or four times” after the July 7 fight, “like a 

day or two after he got out of jail from being released from the 

initial arrest for this, . . . a day or two after that.” These three or 

four additional events after the fight caused him to be in fear of 

harm. The court inquired whether Buhler wished to reexamine 

Higley, and his counsel declined. 

¶8 The district court found that there was a fight between 

Higley and Buhler that resulted in some level of harm to Higley. 

The court found that there was an additional witness—Mr. 

Higley’s mother—who testified that she witnessed “an event of 

her own being flipped off.” The district court found that Buhler 

had options other than driving past Higley’s residence to reach 

the landfill when he needed to go there for purposes of his work. 

Buhler also could have driven past the Higley residence without 

taking the additional action of flipping off Higley (or his 

mother). The district court found that, regardless of any claim of 

“free speech,” when considered in the context of the July 7, 2018,

 

1. This argument is only pertinent if counsel was referring to the 

actions of flipping off Higley’s mother and sister.
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20180925-CA 4 2019 UT App 96

fight—“where there apparently was significant harm”—the

court was required under the stalking statute to address the later 

instances as acts “where . . . the respondent directly observed or 

communicated to this petitioner,” and determine whether those 

actions “would cause a reasonable person to suffer emotional 

distress or be afraid for that person’s own safety.” The court 

considered the ensuring actions in “the context of the fight and 

the resulting harm to Mr. Higley.” Accordingly, the district court 

concluded that it was “required . . . at this point to confirm the 

status associated with that civil stalking injunction and have it 

remain in place.”

¶9 After the court ruled, Buhler’s counsel inquired about 

potential issues regarding the school where both men had 

children attending. The court directed the parties to stay away 

from each other if they were both at the school. Buhler did not 

object at that time to the inclusion of other family members in 

the injunction’s coverage. 

¶10 Buhler argues that the district court erred in its 

interpretation and application of the statutory requirements for a 

civil stalking injunction. We review the “interpretation and 

application of a statute” for correctness, “affording no deference 

to the district court’s legal conclusion.” Baird v. Baird, 2014 UT 

08, ¶ 16, 322 P.3d 728 (quotation simplified). 

¶11 To obtain a civil stalking injunction, a petitioner must 

establish the elements necessary to meet the definition of 

stalking in the criminal code. See Utah Code Ann. § 77-3a-101(1).

(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: 
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20180925-CA 5 2019 UT App 96

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

of a third person; or 

(b) to suffer other emotional distress.

Utah Code Ann. § 76-5-106.5(2) (LexisNexis Supp. 2018). A 

“reasonable person” is defined as “a reasonable person in the 

victim’s circumstances.” Id. § 76-5-106.5(1)(e). A course of 

conduct requires “two or more acts directed toward a specific 

person, including:”

(i) acts in which the actor follows, monitors, 

observes, photographs, surveils, threatens, or 

communicates to or about a person, or interferes 

with a person’s property:

(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).

¶12 The inclusion of the phrase “in the victim’s 

circumstances” in the statutory definition of “reasonable 

person,” “provides for an individualized objective standard.”

Baird, 2014 UT 08, ¶ 26 (quotation simplified). “Under this 

standard, a court must consider the entire context surrounding 

[respondent’s] conduct.” Id. Thus, a court may consider whether 

a respondent “had knowledge of a particular vulnerability of the 

victim and then acted with full knowledge of the victim’s 

vulnerability.” Id. ¶ 27 (quotation simplified). “Thus even 

actions that, viewed in isolation, might be insufficient to cause a 

reasonable person in the same position to fear for his safety can, 

taken together, cause fear.” Carson v. Barnes, 2016 UT App 214, 

¶ 20, 385 P.3d 744 (quotation simplified); see also Meyer v. 

Aposhian, 2016 UT App 47, ¶ 13, 369 P.3d 1284 (stating a court 
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does not view the incidents in isolation when determining 

whether a reasonable person in the petitioner’s position would 

fear for his safety).

¶13 Buhler claims that the evidence was insufficient to 

establish a course of conduct that constituted stalking. He first

claims that flipping someone off is constitutionally protected 

speech. This specific argument was not presented to the district 

court for a ruling. In order to preserve an issue for appeal, it 

“must be specifically raised in a timely manner and must be 

supported by evidence and relevant legal authority.” See Meyer, 

2016 UT App 47, ¶ 26 (quotation simplified). While Buhler 

argued in the district court that flipping a person off was 

protected speech unless combined with other “fighting words,” 

the specific constitutional argument contained in his appellate 

brief was not presented to the district court and is not preserved 

for appeal. We do not consider it further.

¶14 Buhler also argues that the court improperly considered 

irrelevant evidence and that the evidence was otherwise 

insufficient to establish a course of conduct under the civil 

stalking injunction statute. In this case, the district court was 

required to consider the individual circumstances of the 

petitioner—Higley—and determined that Buhler’s actions 

constituted a course of conduct. See Utah Code Ann. § 76-5-

106.5(1)(e) (defining a “reasonable person” as “a reasonable 

person in the victim’s circumstances”). As such, the court 

properly considered whether repeatedly driving past Higley’s 

residence within days of Buhler’s release from jail after his arrest 

for allegedly assaulting Higley would place a reasonable person 

in Higley’s circumstances in fear for his and his family’s safety. 

See Carson, 2016 UT App 214, ¶ 21 (stating that the district court 

did not err in determining that a threshold incident involving a 

threat with a gun “impacted all future actions” taken by the 

respondent directed toward the petitioner (quotation 

simplified)). In addition, the court properly considered the acts 
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directed toward Higley’s mother as corroborating evidence of 

the course of conduct, as well as Buhler’s contacts with other 

members of Higley’s family.

¶15 The district court did not err in determining that Higley 

demonstrated by a preponderance of the evidence that the civil 

stalking injunction should remain in place. Considered in 

context, Buhler’s “pattern of behavior ha[d] a cumulative effect 

that would cause a reasonable person in [the petitioner’s] 

position to fear for his safety or the safety of his family.” Id. ¶ 25

(quotation simplified). Buhler’s conduct—flipping off Higley 

and his family members—was conduct that “communicates to or 

about a person,” see Utah Code Ann. § 76-5-106.5(1)(b)(i), and it 

was properly considered by the district court in the context of 

the earlier fight between the two men and other evidence 

presented to the district court. The court did not err in 

concluding that the evidence taken as a whole supported 

continuation of the civil stalking injunction.

¶16 Accordingly, we affirm the decision to enter a permanent 

civil stalking injunction.