2021 UT App 27

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

JERRY DUNCAN NILSSON JR.,

Appellant.

Opinion

No. 20181046-CA

Filed March 11, 2021

Fourth District Court, American Fork Department

The Honorable Roger W. Griffin

No. 171100694

Aaron P. Dodd and Kara H. North, Attorneys

for Appellant

Sean D. Reyes and Jonathan S. Bauer, Attorneys

for Appellee

SENIOR JUDGE KATE APPLEBY authored this Opinion, in which 

JUDGES GREGORY K. ORME and DIANA HAGEN concurred.1

APPLEBY, Senior Judge:

¶1 Jerry Duncan Nilsson Jr. appeals from his conviction of 

witness retaliation. He argues that because the evidence was 

insufficient to support the charged crime, the district court erred 

by submitting the case to the jury and his trial counsel was 

ineffective in not moving for a directed verdict. We see no error

nor ineffective assistance and affirm.

 

1. Senior Judge Kate Appleby sat by special assignment as 

authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
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BACKGROUND

¶2 Nilsson and the victim (Victim) lived together in a 

romantic relationship for several years before they broke up in 

2015. After the relationship ended, Victim filed multiple police 

reports alleging that Nilsson was stalking her,2 and the State 

consequently charged Nilsson with criminal stalking in 2016.

Shortly thereafter, Victim obtained a permanent civil stalking 

injunction, which included a no-contact order. 

¶3 One day in April 2017, Victim went to court to testify 

against Nilsson on the criminal stalking charge. While she was 

waiting to testify, she saw that Nilsson had recently made a 

social media post, with the ability to view it restricted solely to 

her. Nilsson’s lengthy post started by saying that he was 

“getting ready to go to court to listen to some delusional 

bullshit.” Nilsson berated Victim, saying she was lying, calling 

her “a coward” and “ignorant,” and stating that her head is “so 

fucked up.” Nilsson continued: 

i was helping you but you would not listen well 

you can grandstand all you want for all your new 

friends and people that give you things feeling 

sorry for you the victim. but i will not back down 

to you! and you can just go sell your soul but it 

wont be at my expence this is just the beginning 

see there is no justice unless you wait till you cant 

make up any more bull shit then i drag you 

through a civil case and sue for defimation of 

 

2. In recent years, Victim has changed gender labels and 

personal pronouns. In the interest of clarity, we use the 

pronouns Victim used at the time of the underlying criminal 

actions, intending no disrespect with this usage.
State v. Nilsson

20181046-CA 3 2021 UT App 27

carictor. wrongfull prosicution, pergery and filing 

false documents in a court of law . . . .

Following the advice of the prosecutor with whom she had been 

waiting, Victim filed a police report regarding Nilsson’s post.

¶4 Based on the post, the State charged Nilsson with witness 

retaliation and stalking. Victim testified that the post made her 

feel “scared,” both because of the disruption that baseless 

litigation would have on her schedule and because she would 

have to be around Nilsson again. She stated, “I felt scared. I felt 

like—I felt really intimidated. It was—it was kind of like, you 

know, with how scary he is, like I already felt like it was hard to 

testify, and then this, I was even more scared.” Responding 

specifically about the “i will not back down to you!” language, 

Victim testified, “[T]hat’s really scary for me considering the 

previous history of things that have happened.” Victim further 

testified she was unaware of any grounds for Nilsson to sue her. 

Instead, she was certain Nilsson was threatening her and “trying 

to scare [her] to not testify.” The jury convicted Nilsson on both 

charges, and he appeals the witness retaliation conviction.

ISSUES AND STANDARD OF REVIEW

¶5 Nilsson argues, for the first time on appeal, that the 

evidence was insufficient to support the witness retaliation 

charge. “A failure to preserve an issue in the trial court generally 

precludes a party from arguing that issue in an appellate court, 

absent a valid exception.” State v. Johnson, 2017 UT 76, ¶ 18, 416 

P.3d 443. Nilsson makes his argument under the exceptions of 

plain error and ineffective assistance of counsel—asserting that 

the district court plainly erred by submitting the witness 

retaliation count to the jury and that his trial counsel rendered 

ineffective assistance by failing to move for a directed verdict on 

that count. See generally id. ¶ 19 (recognizing these exceptions to 

the preservation rule). “Plain error is a question of law reviewed 
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20181046-CA 4 2021 UT App 27

for correctness.” State v. Smit, 2004 UT App 222, ¶ 7, 95 P.3d 

1203. Similarly, “[w]here, as here, a claim of ineffective 

assistance of counsel is raised for the first time on appeal 

without a prior evidentiary hearing, it presents a question of 

law.” State v. Bryant, 965 P.2d 539, 542 (Utah Ct. App. 1998). 

ANALYSIS

¶6 Nilsson first argues that the district court plainly erred by 

submitting the witness retaliation charge to the jury because the 

evidence was insufficient to support each element of the charge. 

“[T]o establish plain error, a defendant must demonstrate first 

that the evidence was insufficient to support a conviction of the 

crime charged and second that the insufficiency was so obvious 

and fundamental that the trial court erred in submitting the case 

to the jury.” State v. Holgate, 2000 UT 74, ¶ 17, 10 P.3d 346.

¶7 Relatedly, Nilsson next argues that because the evidence 

was insufficient to support each element of the charge, his trial 

counsel provided ineffective assistance in not moving for a 

directed verdict on that basis. “In order to bring a successful 

ineffective assistance of counsel claim, appellant must show that 

his trial counsel’s performance was deficient, in that it fell below 

an objective standard of reasonableness, and that the deficient 

performance prejudiced the outcome of the trial.” State v. Bryant, 

965 P.2d 539, 542 (Utah Ct. App. 1998) (quotation simplified). 

¶8 Each of Nilsson’s arguments is based on his assertion that 

his social media post did not meet the elements of the charged 

crime.3 Under the witness retaliation statute,

 

3. Nilsson also argues that the more appropriate charge for the 

facts of the case would have been electronic communication 

harassment, see Utah Code Ann. § 76-9-201 (LexisNexis Supp. 

(continued...)
State v. Nilsson

20181046-CA 5 2021 UT App 27

A person is guilty of the third degree felony of 

retaliation against a witness, victim, or informant 

if, believing that an official proceeding or 

investigation is pending, is about to be instituted, 

or has been concluded, he: 

(a)(i) makes a threat of harm; or 

 (ii) causes harm; and 

(b) directs the threat or action: 

 (i) against a witness or an informant 

regarding an official proceeding, a victim of 

any crime, or any person closely associated 

with a witness, victim, or informant; and 

(ii) as retaliation or retribution against the 

witness, victim, or informant. 

Utah Code Ann. § 76-8-508.3(2) (LexisNexis 2017). Nilsson 

specifically takes issue with the element listed in subsection (a), 

making a threat of harm or causing harm. 

¶9 Nilsson argues the social media post cannot be considered 

a threat of harm because it merely stated “his intent to seek legal 

redress,” which redress is permitted under the witness 

retaliation statute. Nilsson is correct that the witness retaliation 

statute “does not prohibit any person from seeking any legal 

redress to which the person is otherwise entitled.” Id. § 76-8-

508.3(3). Thus, pursuing appropriate legal action would not 

qualify as harm under the statute. Yet the activity at issue here is 

 

(...continued)

2020). But “the decision whether or not to prosecute, and what 

charge to file, generally rests entirely in the prosecutor’s

discretion, so long as it is not based upon an unjustifiable 

standard such as race, religion, or other arbitrary classification.” 

State v. Lopez, 2020 UT App 101, ¶ 22, 468 P.3d 604 (quotation 

simplified).
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20181046-CA 6 2021 UT App 27

not Nilsson actually seeking appropriate legal redress, but his 

threat to bring a litany of claims against Victim. And the statute 

makes no exception for such a communication. Therefore, the 

post should be treated as any other communication under the 

statute: prohibited if it constitutes a harm or threat of harm to 

the witness. 

¶10 The witness retaliation statute defines harm as “physical, 

emotional, or economic injury or damage to a person or to his 

property, reputation, or business interests.” Id. § 76-8-508.3(1)(b). 

Therefore, a communication toward a witness that results in 

emotional injury would meet the harm element of the witness 

retaliation statute. Granted, it may be that simply notifying a 

witness of one’s intent to seek appropriate legal recourse would 

not meet the harm element of the statute. But when that 

notification takes the form of an angry, ranting, expletive-laden 

threat to “drag [the witness] through” a barrage of dubious legal 

claims, that action may rise to a harm in and of itself; this is 

especially so when the communication is made just before the 

witness is scheduled to testify and there is a protective order in 

place prohibiting any contact with the witness. Simply put, 

context matters. See State v. Spainhower, 1999 UT App 280, ¶ 6, 

988 P.2d 452 (addressing a previous version of the witness 

retaliation statute and stating that “it is appropriate for the jury 

to consider both the content of the statement and the context in 

which it was spoken”). Thus, we are satisfied that the menacing 

communication at issue here was sufficient to support a jury’s 

finding of harm under the statute. 

¶11 Nilsson argues that a claim of emotional harm “must have 

at least some manifestation of mental or physical symptoms” 

that accompanies a witness’s fear. As support, Nilsson cites 

precedent regarding what is required to demonstrate “severe 

emotional harm” under the torts addressing the infliction of 

emotional distress. See Mower v. Baird, 2018 UT 29, ¶¶ 83, 86, 422 

P.3d 837. His logic is that if severe emotional harm requires a 
State v. Nilsson

20181046-CA 7 2021 UT App 27

showing of severe mental or physical symptoms, then emotional 

harm should require at least some showing of mental or physical 

symptoms. But Nilsson cites no case law supporting such an 

extrapolation of the law on torts, and more importantly, the 

statute at issue here includes its own unambiguous definition of 

harm, rendering it unnecessary for us to look to other sources for 

guidance on this definition. See State v. Candelario, 909 P.2d 277, 

278 (Utah Ct. App. 1995) (“When interpreting statutory 

language, we look first to the plain meaning of the statute. We 

only resort to other methods if the language is ambiguous.”

(quotation simplified)); cf. Baird v. Baird, 2014 UT 8, ¶ 38, 322 

P.3d 728 (refusing to extend the tort definition of emotional 

distress to the criminal stalking statute, stating that to do 

otherwise would “effectively be amending the statutory 

standard” and that “clear and unambiguous statutory language 

preempts supplementation by the common law”). Instead, we

simply apply the definition contained in the statute itself, which 

does not suggest that a physical manifestation is required for an 

action to qualify as emotional injury. See Utah Code Ann. § 76-8-

508.3(1)(b) (defining harm as “physical, emotional, or economic 

injury or damage to a person or to his property, reputation, or 

business interests”).

¶12 In addition to deciding there was sufficient evidence from 

which a jury could have determined that the social media post 

constituted a harm itself, we also note there was sufficient 

evidence from which the jury could have found that the 

communication constituted a threat of harm. The anger-infused 

social media post included language that “this is just the 

beginning,” that Nilsson “will not back down,” and that he 

planned to “drag [Victim] through” a civil case, and the post was 

timed to reach Victim just before she was scheduled to testify 

against him, see Spainhower, 1999 UT App 280, ¶ 7 (“[T]he jury’s 

determination whether appellant’s statement was threatening 

depends as much on the inferences to be drawn from the context 

in which the words were spoken as on the words themselves.”). 
State v. Nilsson

20181046-CA 8 2021 UT App 27

The jury could have concluded from this that Nilsson wanted to 

retaliate against Victim and was threatening to do it in a way 

that would cause her future emotional or economic harm or 

would damage her reputation. And any such conclusion also 

would have supported a finding of harm under the witness 

retaliation statute.4 See Utah Code Ann. § 76-8-508.3(1)(b). 

¶13 Because we have determined that there was sufficient 

evidence to support the harm element of witness retaliation, it 

was not error for the district court to submit the case to the jury.

See State v. Salgado, 2018 UT App 139, ¶ 37, 427 P.3d 1228 (“If 

there is any evidence, however slight or circumstantial, which 

tends to show guilt of the crime charged, the court must submit 

the case to the jury.” (quotation simplified)). Furthermore, under 

these circumstances, a motion for a directed verdict would have 

been futile, and trial counsel’s failure to make a futile motion is 

clearly not deficient performance. State v. Johnson, 2015 UT App 

312, ¶ 16, 365 P.3d 730. Therefore, Nilsson’s claim of ineffective 

assistance also fails. 

 

4. Nilsson also argues that any economic injury was 

unsupported by the evidence because Victim’s testimony did not 

include a statement that the threatened litigation would cost her 

money in attorney fees, nor was there testimony that lawsuits 

inevitably cost money. But such testimony would not be 

required here where the issue is not whether Victim would have 

incurred economic injury but, rather, whether Nilsson was 

threatening economic injury. And we think it would be a 

permissible inference here for the jury to conclude that Nilsson 

was threatening to file a long list of claims for the purpose of 

causing Victim economic and emotional injury, regardless of 

whether he would have been successful in causing such injury. 
State v. Nilsson

20181046-CA 9 2021 UT App 27

CONCLUSION

¶14 Because there was sufficient evidence to support the harm 

element of the charged offense, it was not plain error for the 

district court to submit the case to the jury and trial counsel was 

not ineffective in failing to move for a directed verdict. We 

affirm.