State v. Bingham

2015 UT App 103

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
STEPHEN DALE BINGHAM,
Defendant and Appellant.

Opinion
No. 20130782-CA
Filed April 23, 2015

Fifth District Court, Cedar City Department
The Honorable G. Michael Westfall
No. 131500287

Matthew D. Carling, Attorney for Appellant
G. Tyler Romeril, Attorney for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGES GREGORY K. ORME and KATE A. TOOMEY concurred.

VOROS, Judge:

¶1 After a bench trial, Stephen Dale Bingham was convicted
of stalking, a class A misdemeanor. The trial court sentenced
Bingham to nine months in jail and imposed a fine of $1,000.
Bingham appeals his conviction. We affirm.
 State v. Bingham

BACKGROUND1

¶2 The trial court relied on three separate incidents to find
Bingham guilty of stalking. The first incident occurred on or
about May 22, 2013, after Bingham and his wife (Wife) had
separated. After receiving a text message from Bingham telling
her ‚to come and get *her+ crap out of the middle of the kitchen,‛
she came home to find her belongings thrown in a pile in her
kitchen. Wife called the police and filed a police report. Her
initial reaction was to think, ‚What an ass.‛ But the incident left
her fearful, she testified, because ‚*w+ith all *her+ belongings in
the kitchen, you could tell that there was rage[,] there was
purpose in doing it.‛

¶3 The second incident occurred about a week later, when
Bingham approached Wife at her workplace. Wife told Bingham,
‚I’m going to call security if you don’t leave,‛ to which Bingham
replied, ‚Go ahead.‛ She did. In the meantime, Bingham walked
away and ‚was talking to *her+ boss, harassing *her+ supervisor.‛
When a security officer arrived, Bingham said he would not
leave and that he would follow Wife. The security officer
removed Bingham from the building. Later, when it was time for
Wife to leave, a security officer walked her out to her car to
‚make sure *Bingham+ was not following *her+.‛ Finally, Wife
testified that ‚with me having to have security walk me out, I
was scared. I wanted him to leave me alone.‛

¶4 The final incident occurred the next day. Wife had just
leased a new apartment near her place of work. After leaving the

1. ‚When reviewing a bench trial, ‘*w+e recite the facts from the
record most favorable to the findings of the trial court.’‛ State v.
Layman, 953 P.2d 782, 784 n.1 (Utah Ct. App. 1998) (alteration in
original) (quoting State v. Moosman, 794 P.2d 474, 476 (Utah
1990)).

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 State v. Bingham

rental office, Wife and a friend drove straight to her new
apartment a few blocks away. When she arrived, she walked to
the door of the apartment, heard a motorcycle, and turned to see
Bingham. Wife testified that approximately seven minutes had
passed between signing the lease and seeing Bingham. Seeing
Bingham concerned and upset Wife because she wanted to keep
her new home private and ‚didn’t want to be harassed.‛ After
seeing Bingham, Wife got back into her car with her friend. Wife
confronted Bingham from inside her car and told him to leave
her alone. She also called 911 and asked 911 dispatch to send
Bingham’s parole officer over. Bingham’s parole officer and
another officer from Adult Probation and Parole responded to
the call, as did a Cedar City police officer. The police officer
arrested Bingham.

¶5 Bingham was charged with stalking under Utah Code
section 76-5-106.5. At his arraignment, Bingham pled not guilty
and the matter was set for a bench trial. At the close of the State’s
evidence, Bingham moved for a directed verdict, which the trial
court denied. After Bingham presented his defense, the trial
court found Bingham guilty and made specific findings.

¶6 With respect to the first incident, the trial court found
Wife’s testimony credible and found that the incident ‚would
cause a reasonable person to fear for their safety or suffer
emotional distress.‛ With respect to the second incident, the trial
court found that Bingham’s conduct left Wife ‚emotionally
distressed or fearful‛ and that otherwise ‚there would have been
no reason *for security+ to escort her out.‛ With respect to the
third incident, the trial court found that a ‚reasonable person
would be emotionally distressed‛ as a result of Bingham’s
conduct because ‚it’s just too big of a coincidence that *Wife]
gets a key to a new place; she goes there; and suddenly
*Bingham’s+ there.‛ The trial court made no express finding on
mental state. But when asked, ‚Isn’t it true that you know that
you scare [Wife+ with the repeated attempts you’ve made to

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 State v. Bingham

make contact with her?‛ Bingham replied, ‚Yes.‛ Ultimately the
trial court found ‚proof beyond a reasonable doubt that . . .
*Bingham+ is guilty of stalking.‛

ISSUES ON APPEAL

¶7 Bingham asserts four claims of error on appeal. First, he
contends that the evidence did not establish that he engaged in a
course of conduct under Utah Code section 76-5-106.5 as
required for his stalking conviction.2 Second, he contends that
the trial court erred by denying his directed verdict based on the
sufficiency of the evidence. Third, he contends that the trial court
erred by failing to make appropriate findings on the element of
intent. Finally, he contends that trial counsel rendered ineffective
assistance by not introducing medical evidence.

ANALYSIS

I. Sufficiency of the Evidence

¶8 Bingham contends that the evidence presented at trial
was insufficient to prove that the three incidents amounted to a
course of conduct that would support his stalking conviction.
‚When reviewing a bench trial for sufficiency of the evidence,
we must sustain the trial court’s judgment unless it is against the
clear weight of the evidence, or if [we] otherwise reach[] a

2. In his brief, Bingham framed this issue as a question of
statutory construction, contending that the court had
misinterpreted the stalking statute by finding that Bingham’s
behavior satisfied the statutory elements of stalking. However, at
oral argument, Bingham clarified that the gravamen of his claim
is that the evidence was insufficient to support a finding of
guilty. We address Bingham’s first issue accordingly.

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 State v. Bingham

definite and firm conviction that a mistake has been made.‛ State
v. Gordon, 2004 UT 2, ¶ 5, 84 P.3d 1167 (alterations in original)
(citation and internal quotation marks omitted). Thus, when
‚reviewing a bench trial for sufficiency of the evidence, we
require that the weight of the evidence, discounting questions of
credibility and demeanor, not oppose the verdict.‛ State v.
Goodman, 763 P.2d 786, 787 (Utah 1988).

¶9 Under the Utah stalking statute, one commits stalking by
intentionally or knowingly engaging in a course of conduct that
would cause a reasonable person to fear or experience emotional
distress:

[a] person is guilty of stalking who intentionally or
knowingly engages in a course of conduct directed
at a specific person and knows or should know that
the course of conduct would cause a reasonable
person . . . to fear for the person’s own safety . . . or
. . . to suffer other emotional distress.

Utah Code Ann. § 76-5-106.5(2) (LexisNexis 2012). Here, to
conclude that Bingham engaged in a course of conduct, the trial
court had to find that Bingham engaged in two or more
qualifying acts directed toward a specific person. An actor
commits a qualifying act when the actor:

(A) approaches or confronts a person;
(B) appears at the person’s workplace or contacts
the person’s employer or coworkers;
(C) appears at the person’s residence . . . or enters
property owned, leased, or occupied by a 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.

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 State v. Bingham

Id. § 76-5-106.5(1)(b)(ii). ‚As the statute makes clear, a single
isolated act cannot qualify as a course of conduct.‛ Butters v.
Herbert, 2012 UT App 329, ¶ 12, 291 P.3d 826. Rather, to qualify
as a course of conduct, the statute requires ‚two or more acts
directed at or toward a specific person.‛ Utah Code Ann.
§ 76-5-106.5(1)(b). Accordingly, ‚*s+talking, by its very nature, is
an offense of repetition and can be accomplished only if [two or
more+ acts directed at a specific person are linked together.‛
Butters, 2012 UT App 329, ¶ 12 (citation and internal quotation
marks omitted).

A. The First Incident

¶10 Bingham contends that the first incident does not support
a finding that he engaged in a course of conduct, because he still
lived with Wife at the time and thus had a right to enter her
apartment. Bingham points out that the trial court did not make
an express factual finding as to whether Bingham and Wife still
lived together at the time. This argument seems to presume that
cohabiting with the victim is a defense to the crime of stalking.
But the stalking statute actually elevates the offense if the
perpetrator ‚has been or is at the time of the offense a cohabitant
. . . of the victim.‛ See Utah Code Ann. § 76-5-106.5(7)(e).

¶11 In any event, sufficient evidence supported the trial
court’s findings with respect to the first incident. Wife testified
that Bingham threw her belongings into a pile on the kitchen
floor, that he sent her a text message telling her to ‚come get
*her+ crap out of the kitchen,‛ that she called the police, and that
she felt fearful as a result of the incident. Bingham denied any
part in the incident. The trial court found Wife’s testimony
believable.

¶12 When reviewing a bench trial ‚we accord deference to the
trial court’s ability and opportunity to evaluate credibility and
demeanor.‛ Goodman, 763 P.2d at 787; see also State v. Lafferty,
2001 UT 19, ¶ 45, 20 P.3d 342 (‚We give deference to the trial

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 State v. Bingham

court’s factual findings because of its superior position to assess
credibility.‛). Viewed through this lens, the trial court’s finding
is not against the clear weight of the evidence. The evidence
supports the finding that Bingham ‚enter[ed] property owned,
leased, or occupied by [Wife+,‛ Utah Code Ann.
§ 76-5-106.5(1)(b)(ii)(C), that he ‚use*d+ . . . text messaging . . . to
commit an act that is a part of the course of conduct,‛ id.
§ 76-5-106.5(1)(b)(ii)(F), and that he knew or should have known
that his conduct would have caused a reasonable person in
Wife’s circumstances to fear for her own safety, or suffer other
emotional distress, id. § 76-5-106.5(2).

¶13 Accordingly, sufficient evidence supports a finding that
the first incident occurred, that Bingham was responsible for its
occurrence, and that he knew or should have known the effect it
would have on a reasonable person.

B. The Second Incident

¶14 Bingham contends that the second incident cannot
support a finding of a course of conduct because he had a right
to visit Wife’s workplace. Bingham asserts that ‚[t]he trial court
erroneously held Bingham’s actions against him for declining
the invitation to leave the *workplace+ when asked‛ because he
‚could rightfully decline to leave.‛ Bingham also asserts that
‚*t+here were no allegations that he was a disruption or any
evidence presented as to how [Wife] reacted to the
circumstances.‛

¶15 Bingham’s argument seems to assert two points: (1) that
the trial court’s interpretation of the statute contravened his
constitutionally guaranteed freedom of movement by
criminalizing visiting a public place, and (2) that even if the
statute fairly reaches behavior occurring in a public place,
insufficient evidence existed to show Bingham’s conduct ‚would
cause a reasonable person to fear for [their] own safety . . . or to

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 State v. Bingham

suffer other emotional distress.‛ Utah Code Ann. § 76-5-106.5(2)
(LexisNexis 2012).

¶16 We decline to address Bingham’s first point. Bingham did
not raise an as-applied constitutional challenge to the stalking
statute in his opening brief. While he does raise such a challenge
in his reply brief, we decline to consider ‚issues raised by an
appellant in the reply brief that were not presented in the
opening brief.‛ Brown v. Glover, 2000 UT 89, ¶ 23, 16 P.3d 540.
Even if we could construe Bingham’s opening brief as raising an
as-applied challenge, neither brief adequately analyzes the issue.
‚To satisfy our adequate briefing requirement, a party’s brief
must contain meaningful legal analysis. Specifically, [a] brief
must go beyond providing conclusory statements and fully
identify, analyze, and cite its legal arguments.‛ Hess v. Canberra
Dev. Co., 2011 UT 22, ¶ 25, 254 P.3d 161 (alteration in original)
(citations and internal quotation marks omitted). Accordingly,
Bingham’s constitutional challenge fails in any event. See State v.
Worwood, 2007 UT 47, ¶ 19, 164 P.3d 397.

¶17 Bingham’s second argument is that the State provided
insufficient evidence ‚as to how *Wife] reacted to the
circumstances‛ of the second incident. However, a finding of
stalking does not require any particular reaction on the part of
the victim. ‚Under the *s+talking *s+tatute’s solely objective
standard, the subjective effect of the [actor’s+ conduct on the
[victim+ is irrelevant.‛ Baird v. Baird, 2014 UT 08, ¶ 25, 322 P.3d
728. The statute requires proof only that the actor’s conduct
would cause a reasonable person in the victim’s circumstances to
fear for his or her own safety or suffer other emotional distress.
See id.; see also Utah Code Ann. § 76-5-106.5(1)(e) (defining
reasonable person to mean ‚a reasonable person in the victim’s
circumstances‛).

¶18 The evidence here satisfied that standard. When Bingham
appeared at Wife’s workplace, he refused to leave when

20130782-CA 8 2015 UT App 103
 State v. Bingham

requested and told her he would follow her. A security officer
removed Bingham from the premises and escorted Wife to her
car at the end of her shift to ensure that Bingham was not
following her. Further, when the prosecutor asked Bingham,
‚Isn’t it true that you know that you scare *Wife] with the
repeated attempts you’ve made to make contact with her?‛
Bingham replied, ‚Yes.‛ Moreover, Wife testified that ‚with
[her] having to have security walk *her+ out, *she+ was scared.‛

¶19 We are not convinced that the trial court’s findings that
Bingham ‚appear*ed+ at *Wife’s+ workplace,‛ Utah Code Ann.
§ 76-5-106.5(1)(b)(ii)(B), and that he ‚kn*ew+ or should *have+
know[n] that [doing so] would cause a reasonable person to fear
for [their] own safety . . . or to suffer other emotional distress,‛
id. § 76-5-106.5(2), contravenes the clear weight of the evidence.
Because the second incident, in tandem with the first, qualifies as
a course of conduct, the evidence presented at trial was sufficient
to support Bingham’s stalking conviction. See id.

C. The Third Incident

¶20 Bingham contends that the third incident cannot support
a finding of a course of conduct, because Bingham arrived on
Wife’s street by accident—i.e., insufficient evidence exists to find
that he intended to confront Wife at her new residence. Bingham
further asserts that during the third incident Wife confronted
him (rather than vice versa), a fact that, he argues, refutes the
court’s finding that the incident would cause a reasonable
person to experience the ‚fear‛ or ‚emotional distress‛
‚necessary to find stalking had occurred.‛

¶21 We disagree. Within minutes of Wife’s signing the lease
and driving a few blocks to her new apartment, Bingham
showed up. When she saw Bingham in front of her apartment on
his motorcycle, she testified that ‚*h+e saw me. I saw him. He
pulled his motorcycle over and [made a U-turn] and parked in
front of the apartment.‛ She got in her car (where a friend was

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 State v. Bingham

seated), pulled up next to Bingham, told him to leave her alone,
and called 911.

¶22 The trial court found that under the circumstances, ‚a
reasonable person would be emotionally distressed,‛ and that
‚it’s just too big of a coincidence‛—a phrase we understand to
express disbelief—that Bingham appeared at Wife’s residence by
accident. Thus, we are not convinced that the finding that
Bingham ‚appear*ed+ at *Wife’s+ residence,‛ Utah Code Ann.
§ 76-5-106.5(1)(b)(ii)(C), and that he knew or should have known
his appearance would have caused a reasonable person to suffer
emotional distress, id. § 76-5-106.5(2)(b), goes against the clear
weight of the evidence.

¶23 In sum, sufficient evidence exists to support the finding
that the three incidents established a course of conduct under the
statute that Bingham intentionally or knowingly engaged in that
conduct and that he knew or should have known that his
conduct would have caused a reasonable person in Wife’s
circumstances to fear for her safety or to suffer other emotional
distress. Accordingly, sufficient evidence supports Bingham’s
stalking conviction.

II. Directed Verdict

¶24 Bingham contends that the trial court erred in denying his
motion for a directed verdict based on insufficiency of the
evidence. Motions for a directed verdict are generally filed only
in jury trials. ‚*T+he term ‘directed verdict’ applies when the
judge ‘orders the jury to return a verdict’ for the moving party
because, as a matter of law, ‘the party with the burden of proof
has failed to make out a prima facie case.’‛ Grossen v. DeWitt,
1999 UT App 167, ¶ 7, 982 P.2d 581 (quoting Black’s Law
Dictionary 1560 (6th ed. 1990)). Bingham moved for a directed
verdict, but because this was a bench trial we construe his
motion as a motion to dismiss. See Bair v. Axiom Design, LLC,
2001 UT 20, ¶ 9, 20 P.3d 388 (construing a motion for a directed

20130782-CA 10 2015 UT App 103
 State v. Bingham

verdict in a civil bench trial as a motion for involuntary
dismissal).

¶25 ‚A defendant’s motion to dismiss for insufficient
evidence at the conclusion of the State’s case in chief requires the
trial court to determine whether the defendant must proceed
with the introduction of evidence in his defense.‛ State v. Noren,
704 P.2d 568, 570 (Utah 1985); see also Utah Code Ann. § 77-17-3
(LexisNexis 2012); Utah R. Crim. P. 17(p). ‚A trial court’s grant
or denial of a motion to dismiss is a question of law,‛ and we
review the trial court’s ruling ‚for correctness, giving no
deference to the decision of the trial court.‛ State v. Arave, 2011
UT 84, ¶ 25, 268 P.3d 163 (citation and internal quotation marks
omitted).

¶26 We have already concluded that sufficient evidence
supports Bingham’s stalking conviction. The State introduced
this evidence in its case in chief. Accordingly, the trial court
correctly denied the motion and ruled that Bingham ‚must
proceed with the introduction of evidence in his defense.‛ See
Noren, 704 P.2d at 570.

¶27 We therefore hold that the trial court did not err in
denying Bingham’s motion to dismiss.

III. Findings on Intent

¶28 Bingham contends that the trial court erred in failing to
make findings with respect to ‚whether Bingham intentionally
or knowingly engaged in a course of conduct that violated Utah
Code [section] 76-5-106.5(2).‛ Where the law requires findings,
we may under appropriate circumstances assume that the court
found the facts in accord with its decision:

[I]n cases in which factual issues are presented to
and must be resolved by the trial court but no
findings of fact appear in the record, we assume

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 State v. Bingham

that the trier of facts found them in accord with its
decision, and we affirm the decision if from the
evidence it would be reasonable to find facts to
support it.

State v. Ramirez, 817 P.2d 774, 787 (Utah 1991) (citation, footnote,
and internal quotation marks omitted). ‚If the ambiguity of the
facts makes this assumption unreasonable, however, we remand
for a new trial.‛ Id. at 788.

¶29 Utah Code section 76-5-106.5(2) required the State to
show, in relevant part, that Bingham ‚intentionally or
knowingly engage[d] in a course of conduct directed at a specific
person.‛ ‚Knowledge or intent is a state of mind generally to be
inferred from the person’s conduct viewed in light of all the
accompanying circumstances.‛ State v. Kihlstrom, 1999 UT App
289, ¶ 10, 988 P.2d 949 (citing Harline v. Barker, 912 P.2d 433, 442
(Utah 1996); State v. James, 819 P.2d 781, 789, 792 (Utah 1991)
(holding a jury could infer intent from overall circumstances of
murder); State v. Eagle, 611 P.2d 1211, 1213 (Utah 1980) (allowing
a jury instruction stating that ‚[a] person’s state of mind is not
always susceptible of proof by direct and positive evidence, and,
if not, may ordinarily be inferred from acts, conduct, statements
or circumstances‛)).

¶30 The State presented no direct evidence of Bingham’s state
of mind when he engaged in the course of conduct, and the trial
court made no express findings with respect to Bingham’s
mental state. However, the trial court found Bingham guilty
beyond a reasonable doubt of stalking. We assume that the
court, as ‚the trier of facts[,] found [the facts] in accord with its
decision,‛ Ramirez, 817 P.2d at 787, specifically, that it ‚inferred
from *Bingham’s+ conduct viewed in light of all the
accompanying circumstances,‛ Kihlstrom, 1999 UT App 289, ¶ 10,
that Bingham ‚intentionally or knowingly engage[d] in a course
of conduct directed at a specific person,‛ Utah Code Ann.

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 State v. Bingham

§ 76-5-106.5(2) (LexisNexis 2012). Further, given all the evidence
presented in this case, evidence we have determined sufficient to
support Bingham’s conviction, no ambiguity of fact makes this
assumption unreasonable. See Ramirez, 817 P.2d at 787.

¶31 While Bingham claimed that he suffered from dementia,
he claimed only that the dementia affected his ability to
remember. He never claimed that his dementia prevented him
from forming the requisite intent to engage in a course of
conduct under the stalking statute. However, even if we were to
construe Bingham’s argument in that fashion, we would
nevertheless conclude that the evidence of Bingham’s dementia
does not create an ambiguity requiring a remand for additional
fact-finding.

¶32 Accordingly, we hold that Bingham’s ‚conduct viewed in
light of all the accompanying circumstances,‛ Kihlstrom, 1999 UT
App 289, ¶ 10, allowed the trial court to find—and that the
court’s ruling reflects that it did in fact find—that Bingham
‚intentionally or knowingly engage*d+ in a course of conduct
directed at a specific person,‛ Utah Code Ann. § 76-5-106.5(2).

IV. Ineffective Assistance of Counsel

¶33 Finally, Bingham contends that he received ineffective
assistance of counsel because his trial counsel failed to present
evidence of the effects of Bingham’s dementia.

¶34 ‚*T+o demonstrate ineffective assistance of counsel,
[Bingham] must satisfy the two-prong test established in
Strickland v. Washington . . . .‛ State v. Featherhat, 2011 UT App
154, ¶ 34, 257 P.3d 445. Under Strickland, Bingham ‚must show
that counsel’s performance was deficient‛ and ‚that the deficient
performance prejudiced the defense.‛ 466 U.S. 668, 687 (1984).
‚When reviewing ineffective assistance of counsel claims, we
strongly presume that trial counsel provided adequate assistance
and that any action complained of was sound trial strategy.‛

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 State v. Bingham

State v. Munguia, 2011 UT 5, ¶ 30, 253 P.3d 1082. Further, ‚*t+o
show prejudice . . . , [Bingham] bears the burden of proving that
counsel’s errors actually had an adverse effect on the defense
and that there is a reasonable probability that, but for counsel’s
errors, the result of the proceeding would have been different.‛
Id. (citation and internal quotation marks omitted). Finally,
‚proof of ineffective assistance of counsel cannot be a
speculative matter but must be a demonstrable reality.‛ Id.
(citation and internal quotation marks omitted).

¶35 We conclude that Bingham has failed to establish either
deficient performance or prejudice. Merely arguing that an
expert witness should have been called ‚fails to establish
deficiency or prejudice because [Bingham] does not identify the
witness[] or the content of [his or her] expected testimony.‛ State
v. Gunter, 2013 UT App 140, ¶ 33, 304 P.3d 866 (citing Fernandez
v. Cook, 870 P.2d 870, 877 (Utah 1993)). Bingham’s ineffectiveness
claim rests on a single citation to the Mayo Clinic’s website
describing general symptoms of dementia. The record does not
disclose what an expert would have testified or how that
testimony would have related to Bingham’s criminal culpability.
Without seeing the purportedly crucial expert testimony we are
in no position to determine either that any reasonable trial
counsel would have offered the testimony or that the testimony
was reasonably likely to have altered the outcome of trial. See id.

¶36 Accordingly, Bingham has not shown that his trial
counsel rendered ineffective assistance of counsel.

CONCLUSION

¶37 The judgment of the trial court is affirmed.

____________

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