2013 UT App 111

_________________________________________________________



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

J ERI B OOTH W ILLIAMS

,

Petitioner and Appellee,

v.

C LARK E DWARD W ILLIAMS

,

Respondent and Appellant.

Memorandum Decision

No. 20120208

‐ CA

Filed May 2, 2013

Third District, West Jordan Department

The Honorable Andrew H. Stone

No. 110417432

T. Jake Hinkins and Aaron S. Gwilliam, Attorneys

for Appellant

Steve S. Christensen, Craig L. Pankratz, and

Samuel J. Sorensen, Attorneys for Appellee

J UDGE G REGORY K. O RME authored this Memorandum Decision,

in which J UDGES J AMES Z. D AVIS and W ILLIAM A. T HORNE J R

. concurred.

ORME, Judge:

¶1 Clark Williams appeals from a civil stalking injunction

issued against him in favor of his ex

‐ wife, Jeri Williams. We affirm.

¶2 Following their separation in 2011, Jeri asked Clark not to

contact her anymore and directed him to speak with her attorney

about any matters related to their ongoing divorce proceeding. SheWilliams v. Williams

20120208

‐ CA 2013 UT App 111 2 also changed residences and redacted all of her new information

from their divorce documents to keep Clark from knowing where

she lived. Despite her clear requests for no contact, Clark sent Jeri

a photograph of her new home in a text message in August 2011.

Jeri reported this incident to police, who in turn contacted Clark.

Clark assured the police that he would not contact Jeri anymore.

He also sent Jeri an email with the subject line, “i promise not to

contact you anymore.”

¶3 Clark was not true to his word. On the contrary, he

continued his attempts to interact with Jeri. Between the months of

August and November 2011, he sent at least sixteen more emails to

a shared family email account, to which Jeri had direct access, that

were either addressed specifically to her or addressed to their

children but that discussed her. One email accused Jeri of

“destroy[ing] the family” and of infidelity. Another pleaded with

Jeri to meet Clark in person so that they could resolve their

differences.

¶4 A November email called Jeri a “con” and accused her of

being sexually active with multiple partners in high school. In this

same email, Clark claimed to be in possession of nude photographs

of Jeri and threatened to send them both to her and to her church

leader, apparently as a way to expose what he claimed was her

“two faced” nature. Clark and Jeri both testified that a short while

later, Clark sent Jeri an envelope containing two photographs of a

nude woman.

¶5 In addition to sending emails and nude photographs, Clark

made other contact with Jeri after August 2011. Clark mailed two

letters to Jeri related to their divorce and some jointly owned

property in direct contravention of an October 2011 no

‐ contact

order issued by the California court responsible for the couple’s

pending divorce. He called Jeri’s cell phone multiple times after

unblocking his number on her phone—by using her social security

number to portray the request made of her phone company as

being authorized by her—and he told Jeri that he had hired anWilliams v. Williams

1. Because the statutory provisions in effect at the relevant time do

not differ materially from the statutory provisions now in effect, we

cite the current version of the Utah Code as a convenience to the

reader.

20120208

‐ CA 2013 UT App 111 3 investigator to watch her. Clark also went to Jeri’s home, and when

she shut the door after seeing he was there, he continued to try to

talk to her.

¶6 By his own admission at the stalking injunction hearing,

Clark had hundreds of contacts with Jeri after she, the police, and

the California divorce court had all directed him to leave her alone.

He testified, “The hundreds of letters that she got and texts, the

emails, everything, they were—they were expressions of love and

concern, that I wanted a second chance.

. . . I wanted to leave no

doubt in her mind how I felt.” When asked directly if he followed

through on his commitment to leave her alone, he said, “No.”

¶7 “In order to enter a civil stalking injunction, the district court

must conclude that an offense of stalking has occurred that meets

the criteria for the crime of stalking.” Coombs v. Dietrich

, 2011 UT

App 136, ¶ 2, 253 P.3d 1121 (citation and internal quotation marks

omitted). See Allen v. Anger

, 2011 UT App 19, ¶¶ 1, 14, 248 P.3d

1001. A person commits the offense of stalking when he or she

“intentionally or knowingly engages in a course of conduct

directed at a specific person” and “knows or should know” that the

conduct would cause a reasonable person to fear for his or her

safety or “suffer other emotional distress.” Utah Code Ann. § 76

‐ 5

‐ 106.5(2) (LexisNexis 2012). 1 A “course of conduct” is defined as

“two or more acts directed at or toward a specific person,”

including “acts in which the actor

. . . surveils, threatens, or

communicates to or about a person

. . . directly, indirectly, or

through any third party.” Id. § 76

‐ 5

‐ 106.5(1)(b).

¶8 Clark argues that because the district court’s written

findings mention only his phone calls, text messages, and theWilliams v. Williams

2. Clark himself admits that “he had directly attempted

communication with Jeri on two or more occasions through text

messaging or phone calls.”

20120208

‐ CA 2013 UT App 111 4 photograph of Jeri’s home, that only those contacts can be

considered as evidence of stalking, and that these acts by

themselves do not support the district court’s conclusion that their

“volume” supported the issuance of a stalking injunction.

However, it is clear from the transcript of the injunction hearing

that the district court was concerned not only with these specific

contacts, but with all of the evidence presented, including the

emails sent to Jeri and Clark’s efforts to “undo[]” Jeri’s attempts to

block communication with him. The court stated, “While

individually they don’t add up to much, I’m concerned about

. . . the quantity of them.” In any event, we can affirm the district

court’s injunction on any grounds apparent to us from the record,

see Bailey v. Bayles

, 2002 UT 58, ¶¶ 9–12, 52 P.3d 1158, and the

relevant stalking statute does not require myriad contacts but only

two or more, see Utah Code Ann. § 76

‐ 5

‐ 106.5(1)(b). The record

clearly supports a determination that Clark engaged in two or more

contacts with Jeri that involved threats, surveillance, or

communication to or about Jeri. 2 See id

.

¶9 Clark argues that even if he is found to have engaged in two

or more acts directed toward Jeri, he did not do so intentionally or

knowingly and his contact with her would not cause a reasonable

person to suffer emotional distress. He argues that the requisite

emotional distress must be more than “mere anxiety or annoyance”

and that stalking only occurs when there is repeated conduct that

is “outrageous and intolerable” and “evoke[s] outrage or

revulsion,” going beyond conduct that is merely “unreasonable,

unkind, or unfair.” See Allen v. Anger

, 2011 UT App 19, ¶ 16, 248

P.3d 1001 (citation and internal quotation marks omitted). Clark

attempts to characterize his contacts with Jeri as those typical of

failed familial relationships, contending that they “were not

threats” but “pleas that she return to him” offered by a manWilliams v. Williams

20120208

‐ CA 2013 UT App 111 5 “desperately trying to preserve a 34

‐ year

‐ old marriage.” We are not

convinced.

¶10 Jeri correctly points out that the “outrageousness”

requirement Clark cites from Allen was included in the 2003

version of the stalking statute and not the version of the statute in

effect today or at the time of Clark’s course of conduct. Utah courts

have not yet determined whether the revisions made to the stalking

statute since 2003 were “intended to overrule the outrageousness

requirement.” Id

. ¶ 16 n.4. But we need not determine whether the

outrageousness requirement set forth in Salt Lake City v. Lopez

, 935

P.2d 1259, 1264 (Utah Ct. App. 1997), has been overruled because

Clark’s behavior in this case clearly rises to a level that would cause

a reasonable person to suffer emotional distress under almost any

standard, including that of outrageousness.

¶11 Emotional distress is defined as “significant mental or

psychological suffering, whether or not medical or other

professional treatment or counseling is required.” Utah Code Ann.

§ 76

‐ 5

‐ 106.5(1)(d) (LexisNexis 2012). Each individual act does not

have to be sufficient to cause emotional distress by itself. Ellison v.

Stam

, 2006 UT App 150, ¶¶ 28–29, 136 P.3d 1242. Instead, the

cumulative effect of the acts can be taken into account in

determining whether mental or psychological suffering would

result. Id. Here, Clark ignored orders from Jeri, the police, and a

California divorce court to cease contacting her. He threatened to

send nude photographs of Jeri to her religious leader. He sent

emails to their children via an email account to which Jeri had

ready access, in which he called Jeri names and accused her of

infidelity and sexual promiscuity. Despite her efforts to conceal her

new address, Clark discovered where she lived, sent her a text

message with a photograph of her new residence, and showed up

there in person. Clark used her social security number when

contacting the phone company to undo her efforts to block him

from texting or calling her. The fact that he did all of these things

with the intent, as he himself put it, “to leave no doubt in her mind

how I felt” and was fully aware that he was not respecting herWilliams v. Williams

3. The Utah Rules of Appellate Procedure require that a party

seeking “attorney’s fees incurred on appeal shall state the request

explicitly and set forth the legal basis for such an award” in the

argument section of the party’s brief. Utah R. App. P. 24(a)(9). Jeri

did not request fees in the manner contemplated by rule 24.

Instead, she requested an award of her attorney fees incurred on

appeal in a separate motion filed after briefing was concluded.

Accordingly, her request is denied.

20120208

‐ CA 2013 UT App 111 6 wishes is a clear indication that his behavior was both intentional

and knowing. We easily determine that when considering the

cumulative effects of Clark’s actions, a reasonable person subjected

to such conduct would suffer “significant mental or psychological

suffering.” See Utah Code Ann. § 76

‐ 5

‐ 106.5(1)(d) (LexisNexis

2012).

¶12 Affirmed. 3