2023 UT 3

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,

Respondent,

v.

GREGORY RYAN MILLER,

Petitioner.

No. 20210617

Heard September 1, 2022

Filed March 16, 2023

On Certiorari to the Utah Court of Appeals 

Third District, West Jordan

The Honorable Bruce C. Lubeck

The Honorable A. Chelsea Koch

No. 151400888

Attorneys:

Simarjit S. Gill, Breanne M. Miller, Salt Lake City, for respondent

Nathalie S. Skibine, Salt Lake City, for petitioner

ASSOCIATE CHIEF JUSTICE PEARCE authored the opinion of the Court in 

which CHIEF JUSTICE DURRANT, JUSTICE PETERSEN, JUSTICE POHLMAN, 

and JUDGE PETTIT joined.

Having recused herself, JUSTICE HAGEN does not participate herein;

DISTRICT COURT JUDGE KARA L. PETTIT sat.

JUSTICE PEARCE, opinion of the Court:

INTRODUCTION

¶ 1 A jury convicted Gregory Miller of stalking Kendra, a former 

friend and coworker.1 The conviction rested, in large part, on emails 

that Miller sent to an attorney who represented Kendra and his 

_____________________________________________________________

1 Kendra is a pseudonym.
MILLER v. STATE

Opinion of the Court

2

former—and Kendra‘s then-current—employer. The district court 

judge who presided over the trial arrested the judgment, concluding 

that no reasonable jury could have convicted Miller of stalking based 

on those emails. The State appealed, and the court of appeals 

reversed. After some wrangling to ensure that appellate jurisdiction 

existed, we granted certiorari.

¶ 2 Miller nevertheless contends that we lack jurisdiction. The

State initially appealed the arrest of judgment from a non-final 

order. Miller argues that Utah Rule of Appellate Procedure 4(c)—

which allows the appeal of a non-final order to be effective upon the 

entry of a final order—does not apply to this appeal. Miller claims 

that the years-long delay between the announcement of the nonfinal order and the entry of the final order, as well as the fact that a 

different judge entered the final order, pulls this case out of rule 

4(c)‘s reach.

¶ 3 As for the substance of the court of appeals‘ decision, Miller 

argues that the court of appeals misinterpreted the statute when it 

held Miller could be guilty of stalking Kendra without the State 

proving that Miller knew or should have known that the emails he 

sent to the attorney who represented Kendra and her employer 

would be shared with Kendra. Miller further claims that there was 

insufficient evidence for the jury to conclude that he caused Kendra 

to suffer the emotional distress the statute requires.

¶ 4 We have jurisdiction. The court of appeals did not err when 

it interpreted the stalking statute. And when we indulge the 

inferences in favor of the verdict, there was sufficient evidence to 

sustain Miller‘s conviction. We affirm.

BACKGROUND

¶ 5 Gregory Miller met Kendra at work in 2003 or 2004 and 

began a friendship.

2 In 2011, Miller helped Kendra obtain an 

interview with his new employer, and soon they were again working 

_____________________________________________________________

2 When we review the court of appeals‘ opinion dealing with a 

district court‘s decision to arrest judgment, we recite the facts in the 

light most favorable to the jury‘s verdict. See State v. Stricklan, 2020 

UT 65, ¶¶ 2–3 n.1, 477 P.3d 1251. We also present conflicting 

evidence as necessary to understand issues raised on appeal. State v. 

Heaps, 2000 UT 5, ¶ 2, 999 P.2d 565. We have taken the facts here 

from—among other record sources—the testimony Kendra and 

Miller provided at trial.
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Opinion of the Court

3

at the same company. According to Miller, there were good times 

and there were bad times during their friendship. The summer of 

2012 was a bad time.

¶ 6 That summer, Miller found an invoice at work from a law 

firm for legal research into whether convicted felons can own an 

interest in a security system company. This invoice revealed that the

then-owner of the company where Miller worked had been 

convicted of a felony. Miller concluded that the company was 

operating illegally and confronted the owner. The company fired 

Miller.

¶ 7 A week later, the company offered Miller a proposed 

severance agreement. After a bit of back and forth, the company 

abruptly stopped negotiating. Miller testified that the company 

changed its approach because Kendra had given the company 

damaging information about him.

¶ 8 Shortly after Miller was fired, Kendra informed him that she 

no longer wanted any contact with him. Miller kept contacting her, 

both at home and at work, to discuss personal and work issues. He 

asked Kendra to be a positive work reference for him and suggested 

that, in exchange, Kendra could take time to find employment 

elsewhere before he contacted the authorities to have the company 

shut down.

¶ 9 In some of these communications, Miller used a variety of 

racial slurs to refer to Kendra‘s boyfriend. Miller also asked Kendra 

if he could meet her boyfriend. Kendra again asked Miller to stop 

contacting her.

¶ 10 In August 2013, Kendra obtained a civil stalking injunction 

against Miller. The injunction warned Miller not to contact either 

Kendra or Kendra‘s daughters ―directly or indirectly‖ and to stay 

away from Kendra‘s home and work. After the injunction was

issued, Miller stopped directly calling, texting, or emailing Kendra.

¶ 11 Miller filed complaints about the company with several 

regulatory agencies in the summer of 2013. The company filed a 

lawsuit against Miller. Sometime before August 2014, the company 

and Miller reached a settlement agreement.

¶ 12 The truce was short-lived. On August 11, 2014, Miller 

emailed the company‘s outside counsel, who also represented 

Kendra. This commenced the email chain at the center of this case.

¶ 13 Miller‘s email to the attorney had the subject line ―cutting 

connective tissue.‖ Miller wrote the attorney that he believed ―issues 
MILLER v. STATE

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4

pertaining to‖ complaints filed against the company with the Utah 

Division of Occupational and Professional Licensing were not 

covered by the settlement agreement and suggested that he could 

reference these complaints as part of a separate civil suit against the 

Division and the FBI.

¶ 14 Miller also informed the attorney that he had a job 

interview with one of the company‘s competitors. Miller told the 

attorney that he was planning on working with Utah legislators to 

―improve Utah‘s regulation of companies trafficking in sensitive 

consumer information.‖ Miller stated that he did not see these 

actions as a breach of his settlement agreement, but that if the 

settlement agreement ―could be construed to require a signer to 

offer advance notice of actions that might affect any other signer, I 

hereby offer such notice.‖

¶ 15 On August 12, the attorney replied that the actions Miller 

described in his email would indeed breach the settlement 

agreement.

¶ 16 Miller responded later that day and asked if the settlement 

agreement would be considered ineffectual. Miller also took the 

occasion to accuse Kendra and the company‘s owner of making up 

stalking charges against him. Miller also suggested that the owner 

was using Kendra‘s stalking allegations to take revenge on Miller.

¶ 17 The company‘s attorney began his August 13 response: ―I 

will not engage in further dialogue with you about these issues.‖

¶ 18 The next day, Miller proposed a new settlement 

agreement. One of Miller‘s proposed terms was:

Gregory Ryan Miller . . . [e]nters into a formal 

agreement with [the company] to refrain from pressing 

criminal charges or bringing civil actions against any 

related party, including [the owner] and [Kendra], for 

actions and statements alleged to have occurred prior 

to the date of signing of said formal agreement.

¶ 19 Less than an hour and a half later, the attorney responded: 

―Your offer is rejected.‖

¶ 20 Miller replied suggesting that the company re-employ him 

as a ―Strategic Consultant‖ and give him a six-figure salary and 

signing bonus. Miller also proposed:

[The company] pays to $zero balances the existing 

delinquent federal and state tax liabilities of [Kendra];
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5

[The company] establishes a fund for $25,000.00 to 

reimburse the tuition and other post-secondary 

educational expenses of [one of Kendra‘s daughters].

¶ 21 Within fifteen minutes, the attorney responded: ―Your 

offer is rejected.‖

¶ 22 Miller‘s reply, on August 20, did not offer new settlement 

terms. He again suggested the owner was using Kendra to harm his 

career and reputation. Miller also said he would wait until the end 

of the week to receive a ―good faith and workable solution.‖

¶ 23 The attorney wrote back on August 21 and expressed that 

the company had hoped that entering into the settlement agreement 

meant that the company‘s conflicts with Miller ―would be a thing of 

the past,‖ and they continued to ―hope that is true.‖

¶ 24 Miller‘s response, on August 22, suggested he again found 

the original settlement agreement unworkable and believed a court 

would side with him. He signed off with: ―End of day approaches. 

Kindly present an offer.‖

¶ 25 The attorney responded the same day, asking Miller: ―[I]f 

we were to indulge you and begin negotiations anew . . . what 

guarantee would we have that you would abide by THAT 

agreement . . . ?‖

¶ 26 On August 25, Miller provided reasons he would follow 

his newly suggested terms, including:

[B]efore me is a once-in-a-lifetime and priceless 

opportunity to repay evil with good. In my estimation 

[Kendra] has been treacherous, ungrateful, thoughtless 

and vicious. She has caused tremendous harm to me 

and mine, such that instinct and worldly wisdom tell 

me to hate and humiliate her. But who would gain 

from this? Instead, it is my hope that to give up some 

of my advantage in order to ease her burden would 

serve to brighten her outlook, soften her disposition 

and perhaps even help her to escape the cycle of 

futility, despair and vice that has plagued her for many 

years.

¶ 27 The company attorney forwarded these messages to the 

company‘s owner and the company‘s in-house counsel. Kendra 

heard about these emails, which were later forwarded to the police.
MILLER v. STATE

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6

¶ 28 The State charged Miller with three counts of stalking. The 

first count accused Miller of violating the stalking statute based on 

his contact with Kendra between August 2012 and August 2013—

when Kendra obtained the stalking injunction. The second accused 

Miller of violating the stalking injunction when he shopped at a 

Harmons grocery store at the same time Kendra was there. The third 

accused Miller of violating the stalking statute and the injunction 

when he sent the emails to the company‘s attorney.

3

¶ 29 At trial, Kendra outlined how Miller‘s persistent efforts to 

be part of her life were part of what motivated her to seek a stalking 

injunction. She told the jury that after Miller was fired, but before she 

obtained the injunction, Miller consistently contacted her and offered 

to buy her gifts or give her money to encourage her to talk to him.

¶ 30 Kendra testified that, before she obtained the injunction,

Miller sent her a message stating:

In fact, as a show of good faith, I will buy you a 

Harmons gift card. Ask for it next Friday at the 

checkout station typically manned by the older redheaded woman. If it‘s not there, then they don‘t sell 

them. I need a shirt. Tomorrow at 3 I will be at Macy‘s 

to buy it. I might even be in a generous mood.

¶ 31 Kendra recounted that she rejected the gift card. She 

testified: ―I wouldn‘t accept it. I just said no, I want—because that‘s 

where I get my lunch most days, and I just said no, I don‘t want 

this.‖

¶ 32 Kendra testified that, with these offers, Miller ―was trying 

to buy me things. He was—he thought maybe if he gave me money I 

would talk to him.‖

_____________________________________________________________

3 We, like the court of appeals, cite to the version of the stalking 

statute from 2014, the year Miller sent the emails that form the basis 

of his conviction. State v. Miller, 2021 UT App 88, ¶ 19, 496 P.3d 282. 

Miller cites the 2012 statute, but he does not explain why he chose 

that version. Nor does he argue that the court of appeals erred in 

examining the 2014 version. Because there are no material 

differences between the 2012 and 2014 versions, we elect to cite to 

the 2014 statute to be consistent with the court of appeals.
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Opinion of the Court

7

¶ 33 Kendra also testified that Miller messaged her asking for a 

good job reference in exchange for helping Kendra find a job. He 

emailed Kendra and told her:

Agree to help me with a good reference and I‘ll wait 

until March to contact the authorities. This will give 

you ample time to find a new job. I‘ll even help you in 

any way that I can, otherwise I‘ll send off the emails 

and documents [to the authorities] next week.

¶ 34 In a subsequent phone call—but before Kendra obtained the 

stalking injunction—Miller again asked Kendra for a job reference. 

The jury heard a snippet of this call, where Miller told Kendra that he 

lied to get her a job, that he ―inflated things on [her] behalf,‖ and that 

he ―created that job and put [her] in it.‖

¶ 35 The jury also heard a recording of Miller telling Kendra:

―[T]here‘s a pretty good chance I‘ll be able to create a position for 

you if you need it or want it. Um, obviously before that there‘s a few 

things we‘d have to sit down and work out.‖

¶ 36 The State played another message for the jury in which

Miller told Kendra: ―I will legitimately reconsider my offer to, you 

know, throw a reasonable amount of money for your—your tax 

debts if you‘ll [inaudible] sit down with me and try to sort through, 

um, [inaudible], the source of the contention.‖

¶ 37 On cross-examination, Kendra testified that she did not 

want Miller‘s gifts or job offers. She testified: ―I don‘t want a job 

offer. I don‘t want presents. I don‘t want gifts. I don‘t want money. I 

wanted him to leave me alone.‖

¶ 38 After Kendra obtained the injunction, Miller did not 

directly contact her. But Kendra testified about learning that Miller 

had written about her in his post-injunction emails with the attorney 

and the effect that had on her. Kendra said: ―[I]t was a constant. . . . I 

had to hear how, um, I was being brought up. I was showed [sic] 

papers where he was demanding the company pay me money. Then 

he demanded the company pay my daughter money.‖

¶ 39 Kendra found these emails ―very disruptive.‖ She stated:

I couldn‘t concentrate on my job. You know, having 

feel—you know, knowing that people are talking about 

me, not knowing what, you know, was saying [sic] 

because I do not see what things he says about me. Um, 

I was feeling, you know, anxious, horrible. I was just—I 

was worried. I didn‘t know what was going on.‖
MILLER v. STATE

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¶ 40 About Miller‘s pre- and post-injunction behavior, Kendra 

testified:

It was one of the worst things I‘ve ever been through. It 

was horrible. I felt bullied. I felt—I mean, I just—it was 

a really rough time. I mean, there was probably a year 

that I had my phone at work called constantly. I mean, 

it was—I couldn‘t escape work. I couldn‘t—I felt like I 

was being followed. I felt like I—it was horrible. It was 

very emotional, very stressful, very—I would get 

angry. I would go through all the emotions. It was—

and it was—you know, I felt helpless. I thought there 

was nothing anybody was going to ever do to ever stop 

him.

¶ 41 The State‘s third count was based on the emails. The State

proffered two theories of guilt. The first was that Miller violated the 

stalking statute by participating in a course of conduct that he knew 

or should have known would cause Kendra emotional distress. The 

second was that Miller ―intentionally or knowingly violated a valid 

stalking injunction‖ when he sent the emails.

¶ 42 The jury acquitted Miller of two counts of stalking but 

convicted him on the third count. The jury was not asked to reveal 

which theory of guilt it used to convict Miller.

¶ 43 Miller moved the district court to arrest the jury verdict. 

The district court granted the motion in an oral ruling. The district 

court reasoned that, given ―the way [Miller‘s emails were] 

structured through the attorney[,] . . . there is just no reasonable 

basis on which to believe [Miller] could think . . . or intend that that 

was going to cause [Kendra] or did cause her emotional distress or 

any fear.‖ The district court asked the defendant to prepare a

written order reflecting the court‘s findings and decision. But it 

appears from the record that neither the defendant nor the State 

ever did.

¶ 44 The State appealed the oral order. The State primarily 

argued that the district court erred because there was sufficient 

evidence for the jury to convict Miller of participating in a course of 

conduct that qualified as stalking under the statute. The State also 

contended that there was sufficient evidence to permit the jury to 

find that Miller had violated the stalking injunction. The court of 

appeals reversed. State v. Miller, 2021 UT App 88, ¶ 1, 496 P.3d 282. 

The court determined that ―the State presented sufficient evidence 

from which a reasonable jury could find that, at the time that Miller 
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Opinion of the Court

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sent the emails, he knew or should have known that a reasonable 

person in [Kendra‘s] circumstances would suffer significant mental 

or psychological suffering.‖ Id. ¶ 23.

¶ 45 Because it concluded that there was sufficient evidence to 

permit a jury to infer that Miller‘s conduct could have caused a 

reasonable person emotional distress, the court of appeals declined 

to determine whether the emails constituted behavior that would 

violate the stalking injunction. Id. ¶ 19 n.3.

¶ 46 Miller sought certiorari review, which this court granted. 

Miller then filed a petition noting that the district court had never 

entered a final order. We vacated the court of appeals‘ opinion and 

remanded to allow the parties to seek entry of a final order. In May 

2020, the district court entered a written order.

¶ 47 In October 2020, the State moved the court of appeals to

reinstate its vacated opinion. The court of appeals denied that

motion. The court of appeals instead issued a new opinion almost 

identical to the one we had vacated. See id. ¶ 1 n.* (referencing State 

v. Miller, 2019 UT App 46, 440 P.3d 868, vacated by court order). Miller 

again petitioned for a writ of certiorari.

ISSUES AND STANDARDS OF REVIEW

¶ 48 Miller first contends that we lack jurisdiction over this 

matter. ―Whether this court has jurisdiction over an appeal is a 

question of law . . . .‖ In re Adoption of A.B., 2010 UT 55, ¶ 21, 245 

P.3d 711.

¶ 49 Miller next contends that the court of appeals erred when 

it overturned the district court‘s decision to arrest judgment. We 

review the court of appeals‘ decision to reverse the arrest of 

judgment for correctness, ―focusing on whether that court correctly 

reviewed the trial court‘s decision under the appropriate standard 

of review.‖ Drew v. Pac. Life Ins. Co., 2021 UT 55, ¶ 34, 496 P.3d 201 

(cleaned up). In other words, when we review a ―court of appeals‘ 

decision, we apply the same standard of review that [we] would

apply in reviewing the decision of the district court.‖ Id. (cleaned 

up).

¶ 50 ―We review a district court‘s grant or denial of a motion 

for directed verdict and to arrest judgment for correctness,‖ and we 

―uphold a denial of the motion for directed verdict [or to arrest 

judgment] based on an insufficiency of the evidence claim, if . . .

some evidence exists from which a reasonable jury could find that 

the elements of the crime had been proven beyond a reasonable 
MILLER v. STATE

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10

doubt.‖ State v. Stricklan, 2020 UT 65, ¶ 30, 477 P.3d 1251 (cleaned 

up). Thus, we ―reverse the denial of a motion to arrest judgment 

only if the evidence, viewed in the light most favorable to the 

verdict, is so inconclusive or so inherently improbable as to an 

element of the crime that reasonable minds must have entertained a 

reasonable doubt as to that element.‖ Id. ¶ 31 (cleaned up).

ANALYSIS

I. UTAH RULE OF APPELLATE PROCEDURE 4(C) APPLIES

TO THE STATE‘S PREMATURE APPEAL

¶ 51 Miller argues that we do not have jurisdiction because the 

State did not file a timely appeal. As we noted when we denied the 

State‘s first petition for certiorari, the State appealed from a nonfinal oral ruling. Our appellate jurisdiction over this dispute would 

have been triggered by a final order, which we did not have. So we 

vacated the court of appeals‘ first opinion and remanded the case to 

the court of appeals to allow the district court to enter a final order.

¶ 52 Utah Rule of Appellate Procedure 4(c) provides that ―[a]

notice of appeal filed after the announcement of a decision, 

judgment, or order but before entry of the judgment or order shall 

be treated as filed after such entry and on the day thereof.‖ UTAH R.

APP. P. 4(c). By its plain language, rule 4(c) applies to save the State‘s 

premature appeal. Miller contends, however, that rule 4(c) does not 

apply to the State‘s notice of appeal. He argues the rule does not 

apply because the final order was entered three years after the 

district court announced its decision—by a different district court 

and based upon a new set of filings.

¶ 53 Miller has something of a point. Rule 4(c) contemplates 

that the judgment or order be the document that finalizes the 

―announcement of a decision, judgment, or order‖ that the party 

prematurely appealed from. And Miller points to some factors—the 

passage of time, consideration of different materials, entry by a 

different judge—that in some cases might suggest that the document 

that is ultimately entered is not actually the finalization of the earlier 

―announcement of the decision, judgment, or order.‖

¶ 54 The problem for Miller is that there is no doubt here that 

the order entered three years after the announcement of the decision 
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Opinion of the Court

11

was the finalization of the district court‘s oral ruling that was the 

basis of the State‘s oversoon notice of appeal.

4

¶ 55 The district court judge who finalized the order wrote: ―It 

should be noted that this court did not hear the trial or the argument 

on the motions. . . . On remand, this court is attempting to interpret 

the basis of Judge Lubeck‘s order from the transcript of the 

hearing.‖

¶ 56 Moreover, when Miller raised the jurisdictional concern

and this court remanded to the court of appeals, we stated that ―it 

appears [4(c)] still would continue to preserve the Court of Appeals‘

ability to adjudicate an appeal upon the issuance of a final order by 

the district court if the matter is remanded to the Court of Appeals.‖

We remanded, anticipating ―the entry of a final order in the district 

court.‖

¶ 57 For these reasons, we can readily conclude that the order 

entered on remand embodied the ruling from which the State 

attempted to appeal. This is the scenario rule 4(c) contemplates. The 

appeal is timely, and we have jurisdiction.

¶ 58 Miller also contends that the State failed to make the final 

order part of the record and that, without that order in the record, 

we lack jurisdiction. Again, there is a rule for that. Utah Rule of 

Appellate Procedure 11(f) allows the parties to stipulate to—or a 

party to move to—supplement the record.

5 The State moved to 

_____________________________________________________________

4 Miller argues this court‘s strict interpretation of the thirty-day 

deadline to file an appeal in Utah Rule of Appellate Procedure 4(a) 

means that ―[w]hen a notice of appeal is over three years premature, 

the notice of appeal does not fall within the safe harbor‖ of 4(c). 

Miller cites nothing in the Utah Rules of Appellate Procedure to 

support this contention. And we see nothing in those rules to help 

him either. Unlike rule 4(a), rule 4(c) has no express time limitation.

5 The rule states:

If anything material to either party is omitted from or 

misstated in the record by error of the trial court or 

court personnel, by accident, or because the appellant 

did not order a transcript of proceedings that the 

appellee needs to respond to issues raised in the 

appellant‘s brief, the omission or misstatement may be 

corrected and a supplemental record may be created 

and forwarded:

(continued . . .)
MILLER v. STATE

Opinion of the Court

12

supplement. We grant the motion because the final order was 

attached to both briefs and there is no factual dispute about what 

the order is or says.

II. THE COURT OF APPEALS CORRECTLY INTERPRETED

THE STALKING STATUTE

¶ 59 Miller‘s merits arguments can be divided into two 

categories. In the first batch of arguments, Miller avers that the court 

of appeals erred in its interpretation of the stalking statute. The 

second group attacks the court of appeals‘ conclusion that the State 

introduced sufficient evidence of Miller‘s guilt such that the district 

court erred when it arrested judgment.

¶ 60 Miller first argues that the court of appeals misinterpreted 

the statute when it concluded that the statute did not require that 

Miller knew or should have known his emails would reach Kendra.

Miller next argues that the court of appeals erred when it 

interpreted the statute because its interpretation raises constitutional 

issues. Miller last contends that the court of appeals‘ statutory 

interpretation improperly expanded the range of behaviors that 

could be considered stalking under Utah law.

A. The Court of Appeals Correctly Interpreted the Stalking Statute when

It Held that the Statute Does Not Always Require that a Defendant Know

His Conduct Will Actually Reach the Intended Victim of that Conduct

¶ 61 Miller first argues that the court of appeals misinterpreted 

the statute because it held that the statute‘s requirement—a person 

―knows or should know‖ their actions would cause emotional 

distress—does not require the State to prove someone ―knows or

should know‖ their actions will reach the intended victim.

¶ 62 The court of appeals held: ―The statute does not require 

that the perpetrator intend for his message to reach the victim 

through the victim‘s employer or co-workers.‖ State v. Miller, 2021 

UT App 88, ¶ 20, 496 P.3d 282.

¶ 63 The statute specifies that a person commits the crime of 

stalking if the person:

 

(A) on stipulation of the parties;

(B) by the trial court before or after the record has 

been forwarded; or

(C) by the appellate court on a motion from a party.

UTAH R. APP. P. 11(f)(2).
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(2) [I]ntentionally 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.

UTAH CODE § 76-5-106.5(2) (2014).

6

¶ 64 Emotional distress ―means significant mental or 

psychological suffering, whether or not medical or other 

professional treatment or counseling is required.‖ Id. § 76-5-

106.5(1)(d).

¶ 65 The court‘s goal in statutory interpretation ―is to ascertain 

the intent of the legislature,‖ the best evidence of which ―is the plain 

language of the statute itself.‖ Castro v. Lemus, 2019 UT 71, ¶ 17, 456 

P.3d 750 (cleaned up).

¶ 66 Miller‘s argument turns on what the court of appeals 

meant when it held that the perpetrator need not intend the conduct 

―reach‖ the victim. If the court of appeals meant by ―reach‖ that a 

victim need not feel the effects of a course of conduct, that would be 

a misreading of the statute. But that is not how we understand the 

court of appeals‘ opinion. By ―reach,‖ the court of appeals meant 

that a victim need not necessarily know that the defendant‘s course 

of conduct is the source of the emotional distress they are 

experiencing. And that reading comports with the statute‘s plain 

language.

¶ 67 To commit stalking, the defendant must know or should 

know his course of conduct would cause a reasonable person to 

_____________________________________________________________

6 A person can also be guilty of stalking if they violate a criminal 

or civil stalking injunction. UTAH CODE § 76-5-106.5(3) (2014). In 

addition to his claim of insufficient evidence for violating the 

stalking statute based on a course of conduct that would cause 

emotional distress, Miller asks us to hold that there was insufficient 

evidence that his emails violated the injunction. Since we affirm the 

court of appeals‘ holding that there was sufficient evidence to 

convict Miller on the State‘s theory that he engaged in a course of 

conduct that caused Kendra emotional distress, we do not need to 

determine if he also violated the injunction.
MILLER v. STATE

Opinion of the Court

14

suffer emotional distress. That articulation leaves open the 

possibility that a defendant commits stalking when the defendant 

knows or should know that the intended victim will be affected by

the course of conduct—in the form of emotional distress—even if 

the intended victim is unaware of the defendant‘s actions.

¶ 68 To be clear, in many cases, to prove stalking, the State will 

need to introduce proof that the defendant knew or should have 

known that the intended victim would be aware of the conduct. But 

that will depend on the facts of the individual case.

¶ 69 The following example illustrates one way someone could 

experience emotional distress without knowing about a specific 

course of conduct. Patrick crafts a plan to make Gary miserable. 

Patrick sends several anonymous letters to Gary‘s spouse. The 

letters claim that Gary is cheating on his spouse. Patrick knows Gary 

and his spouse well enough to know that Gary‘s spouse will never 

tell Gary about the letters. But Patrick also knows that the letters 

will change the way Gary‘s spouse interacts with him and that the 

spouse will begin alienating Gary. And indeed, Gary‘s spouse 

begins to mistreat Gary, causing him emotional distress.

¶ 70 By its plain language, the statute would not require the

State to prove that Patrick knew or should have known that Gary 

would receive the letters or that the letters would be shared with 

him. The statute only requires that the State prove Patrick ―know[] 

or should know‖ that his ―course of conduct‖ directed at Gary 

would ―cause a reasonable person‖ in Gary‘s circumstances to 

―suffer . . . emotional distress.‖ UTAH CODE § 76-5-106.5(2) (2014). On 

this fact pattern, the State might be able to establish that a 

reasonable person in Gary‘s shoes would suffer emotional distress 

without becoming aware of the letters Patrick sent.

¶ 71 The court of appeals interpreted the statute consistent with 

its plain language. The statute did not require the State to prove that 

Miller knew or should have known that Kendra would learn that he 

had sent emails to the attorney. The statute required that the State 

prove that Miller directed the content of his emails at Kendra and 

that Miller knew or should have known that sending the emails to 

the attorney would cause emotional distress to a reasonable person 

in Kendra‘s circumstances.
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15

B. Miller Has Not Demonstrated that the Court of Appeals’

Interpretation Is Unconstitutional

¶ 72 Miller next argues that the court of appeals interpreted the 

statute in an unconstitutional fashion. Miller contends that the court 

of appeals, in line with our precedent, interpreted the statute to 

make it ―a crime to communicate about a person, regardless of 

whether the person hears about the communication.‖ Miller argues 

that this interpretation raises ―First Amendment concerns‖ and 

potentially makes the statute unconstitutionally overbroad.

¶ 73 Although Miller raises the specter of unconstitutionality, 

he concedes that his ―case is not directly about a constitutional 

challenge to the stalking statute.‖ Likewise, Miller never argues that 

the statute, either on its face or as applied to him, violates his rights.

¶ 74 Miller instead argues that the court of appeals‘ 

interpretation raises First Amendment concerns because it may be 

overly broad.7 Miller contends that these concerns ―counsel against 

an overbroad construction of our criminal laws.‖ (Quoting State v. 

Bagnes, 2014 UT 4, ¶ 35, 322 P.3d 719.) And he asks us to read the 

statute differently than the court of appeals did to avoid those 

constitutional concerns.

¶ 75 Although he does not call it by its name, Miller seems to 

invoke the canon of constitutional avoidance. That canon provides 

that when a court is presented with two plausible readings of a 

statute, and one raises constitutional concerns, the court should 

choose the interpretation that steers clear of the constitutional 

issues.

¶ 76 It is important to remember that this canon is ―a means of 

giving effect to [legislative] intent, not of subverting it.‖ Utah Dep’t

of Transp. v. Carlson, 2014 UT 24, ¶ 23, 332 P.3d 900 (cleaned up).

―Constitutional avoidance rests on the reasonable presumption that 

where there is more than one plausible interpretation of a statute, 

the legislature did not intend the interpretation which raises serious 

constitutional doubts.‖ State v. Garcia, 2017 UT 53, ¶ 59, 424 P.3d 171

(cleaned up). We employ the canon to give effect to the law, but we 

_____________________________________________________________

7 A statute may be struck for overbreadth if a petitioner 

successfully argues ―(1) the statute reaches a substantial amount of 

constitutionally protected conduct . . . and (2) the statute is not 

readily subject to a narrowing construction.‖ Provo City Corp. v.

Thompson, 2004 UT 14, ¶ 11, 86 P.3d 735 (cleaned up).
MILLER v. STATE

Opinion of the Court

16

do not use it to write a law different from the one the Legislature 

passed. ―Even when we are trying to save a statute from 

constitutional concerns, we are not at liberty to rewrite the statute or 

to inject the statute with our policy judgments. Our job is to 

interpret the statute as the legislature wrote it.‖ Id.

¶ 77 It is not enough for a party to spot a lurking constitutional 

issue. We have noted that the ―mere presence of potential 

constitutional issues does not trigger the canon of constitutional

avoidance.‖ State v. Hatfield, 2020 UT 1, ¶ 39, 462 P.3d 330. Rather, a 

party seeking to invoke the canon must show that ―the statute [is] 

genuinely susceptible to two constructions.‖ Carlson, 2014 UT 24,

¶ 24 (cleaned up). Because ―[o]ur job is to interpret the statute as the 

legislature wrote it,‖ a party who cannot point to a plausible 

interpretation of the text cannot invoke the doctrine of constitutional 

avoidance. See Garcia, 2017 UT 53, ¶ 59. In that case, the party would 

need to challenge the statue as unconstitutional. See Carlson, 2014 UT 

24, ¶¶ 24–25.

¶ 78 State v. Garcia provides an example of this canon in action. 

In Garcia, we were asked to interpret the phrase ―unlawful user‖ in 

the definition of ―unlawful user of a controlled substance.‖ Garcia,.

2017 UT 53, ¶ 54 (quoting UTAH CODE §§ 76-10-503(1)(b)(iii), 58-37-

2(1)(ii), 58-37-4(2)(b)(i)(D)). Garcia argued that the phrase ―unlawful

user‖ was open to various interpretations and that the statute would

be unconstitutionally vague without a narrow interpretation from

this court. Id.

¶ 79 Garcia offered two different interpretations of the phrase

―unlawful user.‖ Id. ¶ 58. We rejected Garcia‘s preferred

interpretation because it strayed from the text. Id. ¶¶ 59–60. We

opined that to read the statute the way Garcia preferred ―would

require us to rewrite the statute to include a concept of 

contemporaneous use [of firearms and substances] that the plain 

text does not require and is not necessary to preserve the statute‘s 

constitutionality.‖ Id. ¶ 60. We chose Garcia‘s other proffered

interpretation because it both adhered to the statute‘s text and

avoided the constitutional vagueness concern. Id. ¶ 61.

¶ 80 Miller may ultimately have an argument about the breadth 

of the stalking statute. He certainly cites to other courts that have 

identified First Amendment problems with their jurisdictions‘

stalking statutes. See People v. Relerford, 104 N.E.3d 341, 349–51 (Ill. 

2017); State v. Shackelford, 825 S.E.2d 689, 699 (N.C. Ct. App. 2019).

But what Miller has not done is proffer an interpretation of the 
Cite as: 2023 UT 3

Opinion of the Court

17

statute that both adheres to the text and avoids the constitutional 

problem. Nor has he directly challenged the statute‘s 

constitutionality. Without one or the other, we cannot use the 

looming shadow of constitutional issues to vary the outcome the 

text requires.

C. The Court of Appeals Correctly Interpreted the Statute to Permit

the State to Point to a Broad Range of Behaviors that Could Cause

Emotional Distress

¶ 81 Miller next claims the court of appeals misinterpreted the 

statute because it incorrectly ―broadened the conduct that could be 

considered to cause significant mental or psychological suffering.‖

Miller argues the court of appeals did this in two ways.

¶ 82 Miller first claims the court of appeals erred when it 

interpreted the statute to consider behavior that was not listed in

Baird v. Baird, 2014 UT 08, 322 P.3d 728. In Baird, we examined 

statutory language that required that the course of conduct be 

something that would cause ―a reasonable person‖ emotional 

distress. See id. ¶¶ 23–26. We noted the statute defines ―reasonable 

person‖ as ―a reasonable person in the victim‘s circumstances.‖ Id.

¶ 23 (quoting UTAH CODE § 76-5-106.5(1)(e)). We explained that,

―[b]y including  ̳in the victim‘s circumstances‘ as part of the 

 ̳reasonable person‘ definition, the Stalking Statute provides for an 

individualized objective standard.‖ Id. ¶ 26.

¶ 83 We then proceeded to list several factors to which a trier of 

fact might look to assess whether the course of conduct would cause 

emotional distress to a reasonable person in the victim‘s 

circumstances. Id. ¶ 27. We mentioned, as relevant considerations,

the ―victim‘s background, the victim‘s knowledge of and 

relationship with the defendant, any history of abuse between the 

parties, the location of the alleged stalking and its proximity to the 

victim‘s children, if any, and the cumulative effect of defendant‘s 

repetitive conduct.‖ Id. (cleaned up).

¶ 84 The court of appeals here followed our lead and provided 

some additional examples of behavior—not listed in Baird—that 

might inflict emotional distress. Miller, 2021 UT App 88, ¶ 22. This 

included behavior that might cause ―[d]amage to one‘s reputation, 

relationships, or livelihood.‖ Id.

8

_____________________________________________________________

8 The court of appeals quoted the National Center for Victims of 

Crime on other behavior that might inflict emotional distress, which 

(continued . . .)
MILLER v. STATE

Opinion of the Court

18

¶ 85 Miller argues that this impermissibly extended the stalking 

statute‘s reach. We disagree. Baird itself made clear that the factors it 

outlined were just a list of factors that ―[c]ourts applying this 

individualized objective standard have considered.‖ Baird, 2014 UT 

8, ¶ 27. Nowhere in Baird did we suggest that we intended to 

provide an exhaustive list of relevant factors.

¶ 86 Moreover, the factors the court of appeals referenced are 

entirely appropriate as additional examples of behavior that could, 

in certain circumstances, cause a victim emotional distress. We see 

nothing wrong with the court of appeals adding to the examples we 

highlighted in Baird.

¶ 87 Miller next contends that the court of appeals failed to 

account for the context in which his conduct occurred: contentious 

litigation. He argues that communications like those he engaged in 

with the company‘s attorney are commonplace in litigation and 

cannot form the basis of a stalking claim.

¶ 88 Miller argues that in circumstances where ―the potential for

emotional distress is so omnipresent[,] . . . criminal or civil liability 

should lie only in the most extreme of circumstances.‖ (Quoting

Allen v. Anger, 2011 UT App 19, ¶ 20, 248 P.3d 1001.)

¶ 89 Miller points to Meyer v. Aposhian and Allen v. Anger to 

highlight that the court of appeals has recognized that certain 

contexts can be emotionally charged and that triers of fact should be 

careful to take that into account. See Meyer v. Aposhian, 2016 UT App 

47, ¶ 22, 369 P.3d 1284; Allen, 2011 UT App 19, ¶ 20. Miller contends 

that, in his case, the court of appeals should have relied on the logic 

of those cases and read the statute to carve out conduct related to

contentious litigation in all but the most extreme circumstances.

¶ 90 Meyer and Allen are neither binding on our analysis nor 

particularly helpful to Miller‘s argument. In Meyer, for example, the 

court of appeals opined that when a trier of fact assesses whether a 

defendant‘s course of conduct has caused emotional distress, it 

 

included ―making repeated telephone calls to a victim at a 

workplace, possibly endangering her job, or engaging in conduct 

that destroys the victim‘s credit history.‖ Miller, 2021 App 88, ¶ 22 

(quoting National Center for Victims of Crime, The Model Stalking 

Code Revisited: Responding to the New Realities of Stalking 40 (2007), 

https://victimsofcrime.org/docs/default-source/src/modelstalking-code.pdf?sfvrsn=12 [https://perma.cc/Z5DS-2GAT]).
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Opinion of the Court

19

should consider the context in which the conduct occurred. Meyer, 

2016 UT App 47, ¶ 22. The court noted that the fact finder must 

consider the ―individualized objective standard‖ articulated in 

Baird, and therefore “must consider the entire context surrounding 

defendant‘s conduct.‖ Id. (quoting Baird, 2014 UT 08, ¶ 26).

¶ 91 We agree with all of that. In fact, we said something similar 

in Ragsdale v. Fishler, 2021 UT 29, 491 P.3d 835. There, we

emphasized that the statute requires the fact finder to take into 

account the victim‘s circumstances to determine whether a 

reasonable person in those circumstances would suffer emotional 

distress. We said:

[A] petitioner need only show that the respondent‘s 

conduct would affect a reasonable person in the 

petitioner’s circumstances. In applying this standard, 

courts must consider the entire context surrounding a 

respondent‘s conduct. They must consider the conduct 

cumulatively, accounting for the facts and 

circumstances of the individual case.

Id. ¶ 45 (cleaned up).

¶ 92 We further emphasized the importance of context, noting 

that ―acts that seem perfectly innocent or even well intentioned may 

constitute stalking. For example, conduct such as sending the victim 

a dozen roses may seem benign and loving to the casual observer, 

but could mean a very different thing when understood in the 

context of the victim‘s experience.‖ Id. (cleaned up). We recognize 

that the converse of this can also be true, that behavior that might 

seem egregious in some circumstances can be understood 

differently in certain contexts.

¶ 93 We agree with Miller that the context of behavior matters 

and that behavior undertaken in the context of contentious litigation 

might land differently than behavior occurring outside of a pitched 

legal battle. And we agree with Miller that the trier of fact should

take that context into consideration when it determines if a 

reasonable person in the victim‘s shoes would suffer emotional 

distress. But to the extent Miller argues that the court of appeals 

erred because it did not recognize a per se rule that stalking cannot 

occur in the context of contentious litigation, we reject that 

argument.

¶ 94 The court of appeals did not err when it interpreted the 

statute.
MILLER v. STATE

Opinion of the Court

20

III. THE COURT OF APPEALS CORRECTLY HELD THAT

SUFFICIENT EVIDENCE EXISTED FROM WHICH A

REASONABLE JURY COULD FIND THAT MILLER KNEW OR

SHOULD HAVE KNOWN HIS ACTIONS WOULD CAUSE

KENDRA EMOTIONAL DISTRESS

¶ 95 Miller also claims that the court of appeals erred when it 

concluded that there was sufficient evidence for the jury to convict 

him.

¶ 96 After the jury reached its verdict, Miller asked the district 

court to arrest the judgment. A court can arrest judgment where

―the evidence, viewed in the light most favorable to the verdict, is so 

inconclusive or so inherently improbable as to an element of the 

crime that reasonable minds must have entertained a reasonable 

doubt as to that element.‖ State v. Workman, 852 P.2d 981, 984 (Utah 

1993).

¶ 97 The district court arrested the jury‘s verdict, finding that 

there was ―no reasonable basis on which to believe‖ that Miller 

―could think . . . or intend‖ that his emails would cause a reasonable 

person in Kendra‘s shoes emotional distress. The court of appeals

overturned the district court, holding that ―the State presented 

sufficient evidence from which a reasonable jury could find that‖

Miller knew or should have known his emails would cause a person 

in Kendra‘s circumstances emotional distress. State v. Miller, 2021 

UT App 88, ¶ 23, 496 P.3d 282.

¶ 98 Miller argues that the court of appeals erred because there 

was insufficient evidence to permit the jury to find that he knew or 

should have known his emails would cause a person in Kendra‘s 

circumstances emotional distress. He first contends that there was 

insufficient evidence of emotional distress such that a reasonable 

jury could not conclude that Miller knew or should have known that 

his course of conduct would cause a person in Kendra‘s 

circumstances emotional distress. He next argues that the court of 

appeals improperly considered evidence that supported counts on 

which the jury did not convict. He finally argues that the court of 

appeals erred when it failed to recognize that Miller‘s conduct 

would not cause a reasonable person in Kendra‘s circumstances 

emotional distress because she enjoyed the protection of an existing 

civil stalking protective order.
Cite as: 2023 UT 3

Opinion of the Court

21

A. The Court of Appeals Correctly Held that There Was Sufficient

Evidence to Permit a Reasonable Jury to Find Miller Knew or

Should Have Known His Conduct Would Cause a Person in Kendra’s

Circumstances Emotional Distress

¶ 99 Miller argues the court of appeals incorrectly held there was 

sufficient evidence for a reasonable jury to find him guilty. Miller 

claims the evidence presented against him was insufficient in two

ways: (1) the jury could not reasonably conclude that he knew or 

should have known that his conduct would cause a person in 

Kendra‘s circumstances emotional distress; and (2) the jury could 

not reasonably conclude that a person in the midst of contentious 

litigation would suffer emotional distress from emails like the ones 

he sent.

¶ 100 The court of appeals determined that ―the State presented 

sufficient evidence from which a reasonable jury could find that, at 

the time that Miller sent the emails, he knew or should have known 

that a reasonable person in [Kendra‘s] circumstances would suffer 

significant mental or psychological suffering.‖ Miller, 2021 UT App 

88, ¶ 23. The court came to this conclusion based on Kendra‘s 

testimony ―that she  ̳wanted nothing to do with‘ Miller or  ̳anything 

he was doing.‘‖ Id. The court held there was sufficient evidence such 

that

the jury could reasonably infer that Miller‘s emails 

were designed to damage [Kendra‘s] reputation and 

endanger her job and that Miller knew or should have 

known that such interference would cause a reasonable 

person, who had repeatedly requested that Miller leave 

her alone and had received a stalking injunction 

against him, to suffer emotional distress.

Id. ¶ 24.

¶ 101 Miller claims that the court of appeals erred because, 

without the State showing Miller knew his emails would reach 

Kendra, there could not have been sufficient evidence for a jury to 

find that he knew his emails would cause a person in Kendra‘s 

circumstances emotional distress. The court of appeals concluded 

that a ―jury could reasonably find this element satisfied even if 

Miller had no reason to know that the emails would be relayed to 

[Kendra].‖ Id. ¶ 22. As discussed above, this accurately reads the 

statute: the test is not whether Miller knew (or should have known)

the emails would reach Kendra, but whether Miller knew (or should 
MILLER v. STATE

Opinion of the Court

22

have known) the emails would cause a person in Kendra‘s 

circumstances emotional distress.

¶ 102 The jury could properly infer on this record that 

communicating to the company‘s lawyer about Kendra in this 

fashion would cause a person in Kendra‘s shoes emotional distress 

because it was a continuation of the type of behavior that caused her 

to seek a protective order.

¶ 103 As Miller himself points out, ―regardless of whether Miller 

was not suing [Kendra] directly, she was involved in the lawsuit.‖ A 

jury could reasonably conclude that Miller knew or should have 

known that, given Kendra‘s involvement in the lawsuit, the emails 

he sent to the attorney—who represented Kendra in addition to the 

company—would hurt Kendra. This is especially so where the 

emails referenced her, suggested that she and her daughter receive 

payments from the company, and called on her to release him from 

claims. A jury could reasonably conclude that on these facts, Miller 

should have known his emails would have an impact on Kendra.

¶ 104 Miller also argues that the court of appeals got it wrong 

because ―there was insufficient evidence that any distress brought 

about by [the emails] . . . was more than the distress inherent in 

contentious litigation.‖ Miller compares civil employment lawsuits 

to divorces and emancipation procedures, arguing that ―[c]ivil 

employment lawsuits, like the one Miller was engaged in with his 

former employer, are like contentious divorces and emancipation 

procedures —  ̳by nature,‘ they  ̳cause emotional distress.‘‖ (Quoting 

Meyer v. Aposhian, 2016 UT App 47, ¶ 16, 369 P.3d 1284.)

¶ 105 We take Miller‘s point that the State needed to put proof in 

front of the jury to demonstrate that it was Miller‘s course of 

conduct, directed at Kendra, and not just the contentious context in 

which that conduct occurred, that caused Kendra to suffer 

emotional distress. But we agree with the court of appeals that if we 

draw inferences from the evidence in favor of the verdict, the State 

met its burden, and the district court‘s decision to arrest judgment 

was erroneous.

¶ 106 When we view the evidence in a light most favorable to the 

verdict, Miller‘s conduct was not just litigation-related 

communications; it was a continuation of the pattern of behavior 

that motivated Kendra to seek a stalking injunction.

¶ 107 The jury heard that Miller had a history of offering gifts or 

money to Kendra to encourage her to talk with him. For example, 
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Opinion of the Court

23

Miller offered Kendra a gift card to a Harmons grocery store ―as a 

show of good faith.‖ The jury heard Miller, in a phone message, tell 

Kendra, ―I will legitimately reconsider my offer to, you know, throw 

a reasonable amount of money for your—your tax debts if you‘ll 

[inaudible] sit down with me and try to sort through, um, 

[inaudible], the source of the contention.‖

¶ 108 The jury heard Kendra testify that this distressed her. She 

stated: ―I don‘t want a job offer. I don‘t want presents. I don‘t want 

gifts. I don‘t want money. I wanted him to leave me alone. For three, 

four or five years, that‘s all I have to say.‖

¶ 109 In light of this history, Miller asking the company to pay 

Kendra‘s debts and to establish a college fund for her daughter were

more than just outlandish settlement offers; they were echoes of his 

past behavior that he knew troubled Kendra.

¶ 110 Similarly, the State introduced evidence that some of the 

behavior that caused Kendra to obtain a stalking injunction involved 

Miller alternatively promising her employment opportunities or 

threatening her employment. Miller had made comments indicating 

he had initially controlled her hiring and had leverage to eliminate 

her job. The jury heard a clip of Miller telling Kendra he ―lied to get 

[her the] job,‖ that he ―inflated things on [her] behalf,‖ and that he 

―created that job and put [her] in it.‖ At trial, Kendra read an email 

from Miller telling her that he needed her to give him an 

employment reference, and if she didn‘t, he would send information 

to authorities that would cause the company to close and Kendra to 

lose her job.

¶ 111 Against this backdrop, a reasonable jury could conclude 

that Miller‘s emails to an attorney who represented Kendra and her 

employer were designed to continue the pattern of making Kendra 

feel that Miller was responsible for her employment and that her 

continued employment turned on how Miller felt about her. Miller 

wrote the attorney, stating: ―In my estimation [Kendra] has been 

treacherous, ungrateful, thoughtless and vicious,‖ but that it was 

Miller‘s hope that if he could ―give up some of [his] advantage in 

order to ease her burden[,] [it] would serve to brighten her outlook, 

soften her disposition and perhaps even help her to escape the cycle 

of futility, despair and vice that has plagued her for many years.‖

¶ 112 Viewed in the light most favorable to the guilty verdict, 

this is sufficient to permit the jury to conclude that these emails 
MILLER v. STATE

Opinion of the Court

24

would cause a reasonable person in Kendra‘s circumstances

emotional distress and that Miller knew or should have known it.9

B. The Court of Appeals Correctly Held that the Jury Could Consider

Evidence Presented Throughout the Trial

¶ 113 Miller argues there was insufficient evidence to convict 

him because ―[t]he [jury] instructions specified that the conviction at 

issue was for the allegations about Miller‘s emails alone,‖ and he 

was ―acquitted on the counts related to his earlier conduct.‖ Miller

claims that, because ―the State chose to charge Miller‘s earlier 

conduct [before the injunction] separately‖ from the conduct 

relating to the emails, the jury‘s acquittals on the first two counts 

means that any evidence relating to these counts should not impact 

our analysis of his guilt on the third.

¶ 114 The jury was instructed:

Separate offenses charged in each count of this 

information, each charge of the offense and the 

evidence pertaining to it should be considered 

separately. The fact that you may find the defendant 

guilty or not guilty as to one count, is not to control 

your verdict as to any other count. Each count is to be 

considered separately.

¶ 115 The court of appeals did not directly address the issue of 

whether evidence from the trial that might pertain to charges one 

and two could also inform the jury‘s decision on count three. But it 

cited Kendra‘s testimony that she ― ̳wanted nothing to do with‘

_____________________________________________________________

9 The court of appeals opined that this evidence would have 

caused a reasonable person to fear losing her job and that this fear 

would cause a reasonable person emotional distress. Miller, 2021 UT 

App 88, ¶ 22 (citing State v. Askham, 86 P.3d 1224, 1230 (Wash. Ct. 

App. 2004)). Miller attacks this conclusion and argues that there was 

no evidence before the jury that Kendra would be fired or that her 

reputation would be harmed, so any emotional distress was 

unreasonable. But the question is whether a reasonable person in 

Kendra‘s situation would suffer emotional distress from Miller‘s 

course of conduct. This could come from a fear of being fired, but it 

could also come from the continuation of the behavior that led to the 

stalking injunction. Because there is sufficient evidence of the latter, 

we need not opine on whether the State introduced sufficient 

evidence of the former.
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Opinion of the Court

25

Miller or  ̳anything he was doing,‘‖ that she felt ― ̳bullied‘ and 

 ̳horrible‘ throughout the duration of the time that Miller was 

contacting her,‖ and that ―his prior unwelcome behavior toward 

[Kendra] had distressed her to such a degree‖ that she obtained a 

stalking injunction against him. Miller, 2021 UT App 88, ¶ 23.

¶ 116 The court of appeals correctly looked at evidence that was 

presented to support the other counts to conclude there was 

sufficient evidence to support the conviction. Although the jury 

found that this prior conduct did not constitute stalking, it remained 

relevant to understand Miller and Kendra‘s relationship, the history 

they shared, and, therefore, whether Miller knew or should have 

known his emails would cause a reasonable person in Kendra‘s 

position emotional distress. See UTAH CODE § 76-5-106.5(2) (2014). 

The court of appeals did not err when it recognized this and 

included this prior evidence in its recitation of evidence the jury 

could properly rely on to convict Miller.

C. The Court of Appeals Did Not Err When It Concluded that a Reasonable

Jury Could Conclude that an Existing Stalking Injunction Would Not

Mitigate the Effect of Miller’s Emails

¶ 117 Before the court of appeals, Miller argued that a 

reasonable jury could not find that Kendra suffered emotional 

distress because she had obtained a stalking injunction against 

Miller. Miller argued that this mitigated any emotional distress that 

Miller‘s communications to the attorney would have caused Kendra.

¶ 118 In front of us, Miller avers that the court of appeals erred 

when it rejected that argument. See Miller, 2021 UT App 88, ¶ 23.

¶ 119 A reasonable jury could conclude that the injunction did 

not mitigate the emotional distress. Rather than feeling protected by 

the injunction, Kendra testified that she ―felt helpless‖ and ―thought 

there was nothing anybody was going to ever do to ever stop 

[Miller].‖ A reasonable jury could infer that, in these circumstances, 

the stalking injunction did not eliminate the emotional distress 

Miller‘s behavior caused; behavior that had already motivated her

to seek the injunction.

IV. MILLER ENGAGED IN A ―COURSE OF CONDUCT‖

¶ 120 Miller also argues that the court of appeals erred when it 

failed to address his argument that his actions did not constitute a 

―course of conduct‖ under the statute. He argues that his emails did 

not constitute the ―two or more acts‖ required for a ―course of 

conduct,‖ because ―the alleged actions must be distinct in time or 
MILLER v. STATE

Opinion of the Court

26

purpose.‖ Miller claims that his emails, which were contained in one 

thread, were a singular event with one purpose.

¶ 121 Although the court of appeals characterized his actions as 

a ―course of conduct,‖ it did not explicitly address Miller‘s

contention that the emails he sent did not meet the statutory 

definition. Any failure to address that argument is harmless, 

however, because there was ample evidence that Miller engaged in 

a course of conduct.

¶ 122 Stalking requires that the defendant engage in a course of 

conduct. UTAH CODE § 76-5-106.5(2) (2014).

10 The statute defines 

―course of conduct‖ as

(b) [T]wo or more acts directed at or 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; or

(ii) when the actor engages in any of the following 

acts or causes someone else to engage in any of these 

acts:

(A) approaches or confronts a person;

(B) appears at the person‘s workplace or 

contacts the person‘s employer or coworkers;

. . . .

(D) sends material by any means to the person

or for the purpose of obtaining or disseminating 

information about or communicating with the person 

to a member of the person‘s family or household, 

_____________________________________________________________

10 Alternatively, stalking can require that the defendant violate a 

pre-existing stalking injunction. UTAH CODE § 76-5-106.5(3) (2014). 

This opinion does not address Miller‘s guilt under that theory. See

supra ¶ 63 n.6.
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Opinion of the Court

27

employer, coworker, friend, or associate of the person;

[or]

. . . .

(F) uses a computer, the Internet, text 

messaging, or any other electronic means to commit an 

act that is a part of the course of conduct.

UTAH CODE § 76-5-106.5(1)(b) (2014).

¶ 123 Miller argues his emails did not constitute a course of 

conduct but were instead ―all part of a single email chain 

conversation and related to the same topic of the settlement 

agreement.‖ Miller claims that ―[b]ecause the email chain in this 

case consisted of one back-and-forth conversation,‖ Miller sending 

the emails cannot ―constitute[] two or more acts,‖ and therefore 

cannot be a ―course of conduct.‖ Miller correctly states that the court 

of appeals ―implicitly held that the email chain constituted two or 

more acts.‖11

¶ 124 Miller supports this argument with the court of appeals‘

decision in Hardy v. Hardy, 2020 UT App 88, 467 P.3d 931.12 Hardy‘s 

_____________________________________________________________

11 Miller also claims that the court of appeals erred when it 

described a course of conduct in which ―Miller both communicated 

about [Kendra] indirectly or through a third party and disseminated 

information about [Kendra] to her employer, either of which may 

constitute a  ̳course of conduct‘ prohibited by the statute.‖ Miller, 

2021 UT App 88, ¶ 21. To the extent that the court of appeals meant 

Miller participated in a course of conduct because a single email 

communicated and disseminated information about Kendra, Miller is 

right. But we read the court of appeals‘ conclusion differently. The 

court seems to suggest Miller‘s emails constitute a course of conduct 

because there were two or more acts that communicated about 

Kendra or because the emails constituted two or more acts each of 

which disseminated information about Kendra.

12 Miller also cites Allen v. Anger for the proposition that one 

incident ―cannot constitute a course of conduct.‖ (Quoting Allen v.

Anger, 2011 UT App 19, ¶ 22, 248 P.3d 1001.) There, Anger 

distributed flyers that directed readers to a website that encouraged 

them to criticize Allen‘s parenting and facilitated this criticism by 

providing Allen‘s contact information. Allen, 2011 UT App 19, ¶ 4. 

The court of appeals, without analyzing the meaning of ―single 

(continued . . .)
MILLER v. STATE

Opinion of the Court

28

ex-wife sought a civil stalking injunction against him after he 

photographed her taking their child to a therapist he did not 

approve of. Id. ¶¶ 2–3. Even though Hardy only took photographs 

on this single occasion, Hardy‘s ex-wife argued that this was a 

course of conduct because the statute lists both observing and 

photographing as acts that constitute stalking. Id. ¶ 8. The district 

court granted the stalking injunction, and Hardy appealed. Id. ¶ 3.

¶ 125 The court of appeals reversed. It held that a man 

―observing and photographing [an individual] at the same time and 

for the same purpose was not sufficient to establish a course of 

conduct under the stalking statute.‖ Id. ¶ 6. The court further 

reasoned that ―actions must be distinct in time or purpose‖ to 

constitute a course of conduct. Id. ¶ 8 (emphasis added).

¶ 126 Using Hardy’s logic, Miller argues that he did not engage in 

a course of conduct because all of his emails were sent as part of one 

email chain and all were sent for the same purpose. Miller may be 

right that all of the emails occurred in the same thread, but that does 

not convert each of his separate emails into a single act. Miller sent 

several emails over two weeks. Just because Miller kept replying to 

the same thread, rather than sending separate emails, does not mean 

he engaged in a single act. Simply stated, by sending several emails 

over the course of several days, Miller acted more than once.

CONCLUSION

¶ 127 This court has jurisdiction. The court of appeals correctly 

analyzed the statute and did not err when it concluded that the 

evidence, when viewed in the light most favorable to the verdict, 

was sufficient to sustain Miller‘s conviction. The court of appeals 

properly reversed the district court‘s arrest of judgment. We affirm.

 

incident,‖ held that this was ―[a] single incident‖ and, therefore, not 

a course of conduct. Id. ¶ 22. But Allen is not binding precedent and 

was based on analysis of a now-defunct standard. Id. ¶ 21 (relying on 

Salt Lake City v. Lopez, 935 P.2d 1259, 1264 (Utah Ct. App. 1997),

superseded by statute, UTAH CODE § 76–5–106.5(1)(d), as recognized in

Baird v. Baird, 2014 UT 08, ¶¶ 33–39, 322 P.3d 728). Additionally, we 

were not asked to review that decision, and nothing in Allen

convinces us to alter our conclusion that, in this case, multiple emails 

sent over the course of two weeks constitute more than one act.