2020 UT App 88

THE UTAH COURT OF APPEALS

KAREN HARDY,

Appellee,

v.

BRIAN NEIL HARDY,

Appellant.

Opinion

No. 20190496-CA

Filed June 11, 2020

Fifth District Court, St. George Department

The Honorable Michael Leavitt

No. 190500106

Lewis P. Reece and Devon James Herrmann, 

Attorneys for Appellant

Benjamin Lusty and Stephanie Lenhart, Attorneys

for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, 

in which JUDGES GREGORY K. ORME and KATE APPLEBY concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Brian Neil Hardy appeals the district court’s entry of a 

civil stalking injunction against him. We reverse.
Hardy v. Hardy

20190496-CA 2 2020 UT App 88

BACKGROUND

¶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.

ISSUE AND STANDARD OF REVIEW

¶4 Brian raises only one issue on appeal. He asserts that the 

district court erred in determining that observing and 

 

1. As is our practice in cases where both parties share a last 

name, we refer to the parties by their first names with no 

disrespect intended by the apparent informality.
Hardy v. Hardy

20190496-CA 3 2020 UT App 88

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).

ANALYSIS

¶5 Utah Code section 77-3a-101 allows for the entry of a 

civil stalking injunction upon a district court finding that “an 

offense of stalking has occurred.” Utah Code Ann. § 77-3a101(5)(a) (LexisNexis 2017). Under Utah law, stalking occurs 

when a person

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 other emotional distress.

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 
Hardy v. Hardy

20190496-CA 4 2020 UT App 88

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 

 

2. Karen asserts that people can be photographed “randomly, in 

an impromptu fashion, or coincidentally,” as well as “remotely” 

or automatically by surveillance cameras. But such situations 

would be highly unlikely to fall within the stalking statute in the 

first place, as it would be difficult to demonstrate that the act of 

photographing someone was either knowing or directed at the 

person if it was accomplished without observation.

3. Karen correctly points out that in 2008, the Utah Legislature 

modified the definition of “course of conduct” in the stalking 

statute by removing the reference to “repeatedly” and changing 

the course-of-conduct requirement from “two or more 

occasions” to “two or more acts.” See Act of March 18, 2008, ch. 

356, § 2, 2008 Utah Laws 2290, 2292. But we do not believe these 

changes are as significant as Karen argues. “Stalking, by its very 

nature, is an offense of repetition,” and “conduct is rendered . . . 

more threatening because it is repeated.” Ellison v. Stam, 2006 UT 

App 150, ¶ 28, 136 P.3d 1242 (emphasis added).
Hardy v. Hardy

20190496-CA 5 2020 UT App 88

purposes. Rather, they were part of a single act intended to 

expose Karen for allegedly violating the parties’ divorce decree 

by taking their child to a therapist unapproved by Brian.4

¶8 We also do not assign the same significance to the listing 

of possible acts of stalking included in the statute that Karen 

does. Just because observing and photographing are listed 

separately in the statute does not mean that they are distinct acts 

when they occur simultaneously and where one is inherent in 

the other. Indeed, many of the examples of stalking listed in the 

statute may overlap. For example, monitoring (“to watch, 

observe, or check”), observing (“to take notice [or] be attentive”), 

and surveilling (to keep “close watch . . . over one or more 

persons”) are essentially synonyms in most cases. See Monitor, 

Webster’s Third New Int’l Dictionary (1986); id. Observance; id. 

Surveillance. And following, like photographing, cannot be 

accomplished without some degree of monitoring, observing, or 

surveilling. Thus, the fact that a single action may be described 

by more than one named example in the statutory list does not 

mean multiple acts of stalking have occurred. Rather, the alleged 

actions must be distinct in time or purpose. In this case, the 

photographing and observing together were a single “act” and 

cannot constitute a course of conduct.

 

4. We could conceive of a circumstance in which a single event

with multiple distinct acts undertaken for different purposes or 

separated by some amount of time might constitute a course of 

conduct. For example, if Brian had followed Karen to learn 

where she was going and then photographed her to prove that 

she was engaging in inappropriate conduct, the following and 

photographing/observing might constitute two separate acts. But 

in this case, nothing indicates that the observation was distinct 

either in time or purpose from the photographing. The 

photographing and observing occurred essentially 

simultaneously and furthered a single purpose of proving that

Karen was taking the child to therapy.
Hardy v. Hardy

20190496-CA 6 2020 UT App 88

CONCLUSION

¶9 Because the observing and photographing constituted a 

single act for purposes of the stalking statute, they did not 

constitute a course of conduct, and the district court therefore 

erred in granting the stalking injunction. Accordingly, we 

reverse the district court’s decision and vacate the stalking 

injunction.