State v. Baize

2019 UT App 202

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
NATHAN DAVID BAIZE,
Appellant.

Opinion
No. 20180326-CA
Filed December 12, 2019

Fourth District Court, American Fork Department
The Honorable Roger W. Griffin
No. 161100835

Douglas J. Thompson, Attorney for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES KATE APPLEBY and JILL M. POHLMAN concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Nathan David Baize appeals his convictions for violating
a protective order. We affirm.

BACKGROUND 1

¶2 Baize and his former wife (Victim) were married in 2010
and divorced in 2014. Victim had sole physical custody of their

1. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict and present conflicting
evidence only as necessary to understand issues raised on
appeal.” State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.
 State v. Baize

child and shared joint legal custody with Baize. After enduring
several instances of verbal and physical abuse, Victim sought a
protective order against Baize. The court issued a protective
order after a hearing, at which Baize was present, directing Baize
not to “commit, try to commit or threaten to commit any form of
violence” against Victim, including “stalking, harassing,
threatening, physically hurting, or causing any other form of
abuse.” Baize was also ordered, “Do not contact, phone, mail,
e-mail, or communicate in any way with [Victim], either directly
or indirectly,” with the exception that Baize could email Victim
about their child, provided his communications were “civil in
nature.”

¶3 After the entry of the protective order, Baize sent
numerous emails to Victim that were not about their child, not
civil in nature, and arguably abusive. Much of the content of the
emails was directed toward Victim’s qualities and character.
Baize sent emails to Victim telling her that she was a
“spoiled brat,” “lazy,” “irresponsible,” “vindictive,” “selfish,”
“uncooperative,” “incapable,” “fake,” and lacking “integrity.”
Baize also sent emails to Victim telling her to “[u]se your brain
blondie,” to “[k]eep it simple stupid, [Victim’s name],” and that
he was “sick and tired . . . of [Victim’s] blonde, lazy, messed up
approach to cooperation.” Additionally, on several occasions,
Baize threatened to call the police for “custodial interference
charges.”

¶4 On another occasion, Baize emailed Victim—with a
copy also sent to Victim’s new husband—complaining about
Victim and alleging that Victim engaged in certain
improprieties during their marriage. Victim’s husband spoke
to Baize at length and told him that he “need[ed] to stop
the belligerent, degrading emails to [Victim].” Baize
responded that his emails “will never stop.” Furthermore,
Baize told Victim that she was “a weak, weak person”
because she would “construe [his email comments] as personal
attacks.”

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¶5 The content of Baize’s emails to Victim prompted the
State to charge him with four counts of violating a protective
order. See Utah Code Ann. § 76-5-108 (LexisNexis Supp. 2018).
These charges were enhanced from misdemeanors to third
degree felonies because Baize already had a prior conviction for
violating the same protective order. See id. § 77-36-1.1(2)(c)
(Supp. 2019) (describing enhanced penalties for violating a
protective order). Baize moved to dismiss the charges, arguing
that the protective order was an unconstitutional prior restraint
of speech and that requiring his emails to be “civil in nature”
was unconstitutionally vague. Baize also asked the court to give
the jury an instruction defining the terms “harassing,”
“threatening,” and “abuse” in the protective order as “forms of
violence or threats of violence.” The court denied both motions.

¶6 At trial, Baize stated that while the tone in his emails
might indicate that he was “[f]rustrated,” “feeling dejected,”
“[h]elpless, hopeless, [and] concerned,” the emails were never
uncivil. Rather, Baize asserted that he was just being “honest”
and “clear.” However, Baize also testified that he suspected
Victim would be offended by the emails and that Victim was
“weak” for reading his emails as insults. Baize also admitted that
his emails were similar in tone and content to emails he had sent
previously to Victim, which formed the basis of his prior
conviction for violating the same protective order. The jury
found Baize guilty of three counts of violating a protective order.
Baize appeals.

ISSUES AND STANDARDS OF REVIEW

¶7 The first issue on appeal is whether the restriction in the
protective order requiring that Baize’s communication with
Victim be “civil in nature” rendered the order unconstitutionally
vague or acted as a prior restraint on speech. “Whether [an
order] is constitutional is a question of law that we review for
correctness, giving no deference to the trial court.” State v.
MacGuire, 2004 UT 4, ¶ 8, 84 P.3d 1171 (quotation simplified).

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¶8 Baize’s second challenge on appeal is that the trial court
erred in denying his request to instruct the jury on the “legal
definitions” of terms in the protective order. This issue presents
a question of law, and both parties agree that we review the trial
court’s decision on this point for correctness. See State v. Dozah,
2016 UT App 13, ¶ 12, 368 P.3d 863 (“We review a district court’s
refusal to give a requested jury instruction for correctness.”).

ANALYSIS

I. Constitutional Challenges to the Protective Order

¶9 At the outset, we must determine whether Baize is
permitted, “in this criminal proceeding, [to] collaterally attack
the protective order entered in the prior civil proceeding.” See
State v. Hegbloom, 2014 UT App 213, ¶ 10, 362 P.3d 921. The State
contends that as “a threshold matter, this Court should not
address either constitutional claim because the collateral bar rule
precludes Baize from challenging the validity of the protective
order in a prosecution for violating that order.”

¶10 A collateral attack is “where a judgment is attacked in
other ways than by proceedings in the original action to have it
vacated or revised or modified or by a proceeding in equity to
prevent its enforcement.” Olsen v. Board of Educ. of Granite School
Dist., 571 P.2d 1336, 1338 (Utah 1977) (quotation simplified).
“Under the collateral bar doctrine, a party may not challenge a
district court’s order by violating it. Instead, [the party] must
move to vacate or modify the order, or seek relief in an appellate
court.” Iota LLC v. Davco Mgmt. Co., 2016 UT App 231, ¶ 13, 391
P.3d 239 (quotation simplified). “With rare exception, when a
court with proper jurisdiction enters a final judgment, . . . that
judgment can only be attacked on direct appeal.” State v.
Hamilton, 2003 UT 22, ¶ 25, 70 P.3d 111.

¶11 The proper forum for a defendant to challenge a
protective order’s terms is in the original action, not in a

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subsequent criminal case resulting from its violation. This court
has already addressed this issue in Hegbloom, where we stated
that a civil protective order is not subject to collateral attack and
that there is “nothing fundamentally unfair in not allowing a
litigant to challenge collaterally a judgment he could have
challenged directly had he chosen to do so.” 2014 UT App 213,
¶¶ 15, 22; see also Olsen, 571 P.2d at 1338 (explaining that when
an issue is erroneously decided, the proper remedy is to directly,
rather than collaterally, attack it); Iota, 2016 UT App 231, ¶ 18
(“The proper method for contesting an adverse ruling is to
appeal it, not to violate it.” (quotation simplified)). Courts in
other jurisdictions are in accord. 2

¶12 Thus, our precedent and that of other jurisdictions
make clear that the collateral bar rule applies to situations
in which a defendant seeks to attack the validity of a
protective order in a criminal proceeding for addressing a

2. Other jurisdictions also explicitly bar collateral attack in this
context. See, e.g., State v. Grindling, 31 P.3d 915, 918–19 (Haw.
2001) (stating that a domestic restraining order is not subject to
collateral attack in the criminal proceeding for its violation and
collecting cases stating the same); Wood v. Commonwealth, 178
S.W.3d 500, 513 (Ky. 2005) (stating that a party “may not launch
a collateral attack on the validity of an emergency protective
order in a subsequent prosecution for violation of that order”);
Truesdell v. State, 304 P.3d 396, 399 (Nev. 2013) (“[A] party may
not collaterally attack the validity of a [protective order] in a
subsequent criminal proceeding based on violation of the
[protective order].”); Best v. Marino, 2017-NMCA-073, ¶ 18, 404
P.3d 450 (“The collateral bar rule precludes a restrained party
from challenging the merits of [a protective order] after a finding
of contempt.”); City of Seattle v. May, 256 P.3d 1161, 1165 (Wash.
2011) (en banc) (“The collateral bar rule precludes challenges to
the validity . . . of a court order in a proceeding for violation of
such an order except for challenges to the issuing court’s
jurisdiction to issue the type of order in question.”).

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 State v. Baize

violation of that same protective order. See State v. Winter,
979 A.2d 608, 615 (Conn. App. Ct. 2009) (“The collateral bar rule
has been extended to apply to situations in which . . . the
defendant seeks to attack the validity of a court order in
a criminal proceeding, and the rule is justified on the ground
that it advances important societal interests in an orderly system
of government, respect for the judicial process and the rule
of law, and the preservation of civil order.” (quotation
simplified)).

¶13 Here, Baize was ordered not to “commit, try to commit
or threaten to commit any form of violence” against Victim,
including “stalking, harassing, threatening, physically hurting,
or causing any other form of abuse.” The relevant portion of
the protective order also provided the following prohibition:
“Do not contact, phone, mail, e-mail or communicate in any
way with [Victim], either directly or indirectly,” the only
exception being that Baize could contact Victim “via email
about Child,” provided the emails were “civil in nature.” Not
only did Baize sign the protective order as a whole, but
he initialed each provision of the order, including those he
now challenges on constitutional grounds. Thus, at the outset
and even before he signed it, Baize had the opportunity to
seek clarification of any provision in the order that he
believed was too restrictive or vague. And after the protective
order was entered by the court, Baize still could have
challenged the order on direct appeal. But he never did so.
Instead, Baize raised his prior restraint and vagueness
challenges to the protective order only after he was criminally
charged a second time with violating the order.

¶14 Precedent—both that of Utah and other jurisdictions—
states that a defendant cannot attack the validity of a protective
order in a prosecution for violating the order. And that is exactly
what Baize attempts to do here. Thus, we conclude that Baize
cannot collaterally attack a protective order arising from a civil
proceeding in this criminal proceeding. Put simply, this is not

20180326-CA 6 2019 UT App 202
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the proper forum to address constitutional challenges to the
protective order’s terms. 3

II. Legal Definitions in the Protective Order

¶15 The protective order prohibited Baize from “stalking,
harassing, threatening, physically hurting, or causing any other
form of abuse” to Victim. Baize argues that the trial court erred
when it denied his request to define for the jury certain “legal
terms” contained in the protective order.

¶16 Jury instructions require no specific form as long as they
accurately convey the law. “To determine if jury instructions
correctly state the law, we look at the jury instructions in their
entirety and will affirm when the instructions taken as a whole
fairly instruct the jury on the law applicable to the case.” State v.

3. Even if we were to conclude that Baize could attack the
validity of the civil protective order here and agree with him that
the “civil in nature” language in the protective order is
unconstitutionally vague, Baize ignores the alternative
restriction imposed on him by the protective order, namely that
his communication with Victim must pertain to their child.
Baize’s emails to Victim appear to have violated this provision.
Baize’s communications variously described Victim in
unflattering terms and accused her of indiscretions. Indeed, our
review of the record reveals that Baize’s emails to Victim are
replete with examples of Baize directing his comments to
Victim’s alleged attributes rather than a discussion of co-
parenting needs or the needs of the child.
We find the argument that Baize’s comments took place
in the context of communication about their child unpersuasive.
Baize’s concerns regarding their child’s well-being or Victim’s
parenting could have been effectively communicated without
personal commentary about Victim. In fact, Baize admitted at
trial that he was “[g]ambling on” Victim construing the
comments he made in his emails as “personal attacks.”

20180326-CA 7 2019 UT App 202
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Painter, 2014 UT App 272, ¶ 6, 339 P.3d 107 (quotation
simplified); see also State v. Hobbs, 2003 UT App 27, ¶ 31, 64 P.3d
1218 (stating that jury instructions will be upheld when they
“fairly tender the case to the jury even where one or more of the
instructions, standing alone, are not as full or accurate as they
might have been” (quotation simplified)).

¶17 Baize was charged with violating a protective order. See
Utah Code Ann. § 76-5-108 (LexisNexis Supp. 2018) (stating that
any person who is “subject to a protective order” and “who
intentionally or knowingly violates that order after having been
properly served” is guilty of a misdemeanor or felony,
depending on the circumstances). The court instructed the jury
that to find Baize guilty of violating the protective order, it
would need to find beyond a reasonable doubt the following
elements:

1. Nathan David Baize;
2. While subject to a protective order issued by a
Utah Court;
3. After having been properly served with the
protective order;
4. Intentionally or knowingly violated the
protective order; and
5. Is or was a cohabitant of the alleged victim.

¶18 Baize contends that the court erred when it denied his
motion requesting a jury instruction that defined the terms
“stalking, harassing, threatening, physically hurting, or causing
any other form of abuse” as forms of violence or the threat of
violence. Baize argues that “because the protective order only
prohibits stalking, harassing, threats, and abuse insofar as these
terms could mean violence or a threat of violence,” the
definitions of those terms should be “limited . . . to that realm.”
(Quotation simplified.) Specifically, Baize requested that the
court instruct the jury on the definitions of harassment and
physical harm as those terms are defined in Utah’s criminal code
or in the Cohabitant Abuse Procedures Act. See Utah Code Ann.

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§ 76-5-106(1) (LexisNexis 2017) (defining harassment as
intentionally frightening or harassing another by communicating
“a written or recorded threat to commit any violent felony”); id.
§ 77-36-1(4) (Supp. 2019) (defining domestic violence as “any
criminal offense involving violence or physical harm or threat of
violence or physical harm”). 4

¶19 The violence-based definitional language Baize requested
is not found in the protective order or in the statute he was
accused of violating. But Baize asserts that because Utah Code
section 76-5-108 does not define the terms in the protective order
(namely, harassing and threatening), the court should have
given the jury the statutory meanings of those terms pulled from
other provisions of the criminal code instead of allowing the jury
to rely on the general understanding of the terms. Baize’s
argument misses the mark. He was not charged with harassing
or any other violent behavior pursuant to a separate statute.
Rather, he was charged pursuant to Utah Code section 76-5-108
with four counts of violating the protective order, and the jury
instructions on those four counts closely tracked the language of
that section. Moreover, Baize presents no evidence that the

4. Baize also argues on appeal that the jury should have been
instructed on the definition of stalking. But at trial, the State
stipulated that the court would consider instructing the jury on
the definition of stalking only “[i]f the State [brought] in
evidence of stalking.” The State did not attempt to introduce
evidence of stalking, and Baize did not again request that the
trial court instruct the jury on the issue of stalking.
Consequently, Baize waived this aspect of his argument below
and cannot raise it on appeal. See State v. Johnson, 2017 UT 76,
¶ 16 n.4, 416 P.3d 443 (“Waiver, in the context of raising an issue
before a court, is generally the relinquishment or abandonment
of an issue before a trial or appellate court. . . . If an issue has
been waived in the trial court, that issue is not preserved for
appeal.”).

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 State v. Baize

protective order adopted the specific violence-based statutory
definitions he proposed.

¶20 We conclude that the trial court did not err when it
denied Baize’s request that the jury be instructed using Baize’s
restrictive definitions of certain terms and allowed the jury to
determine whether Baize violated the protective order based on
common definitions of the terms contained in the protective
order.5

5. We resolve this aspect of Baize’s appeal by declining to apply
strict statutory definitions, but we note that the language of the
relevant provisions of the protective order was written broadly
and did not suggest that Baize was prohibited from engaging in
only physically violent behavior or in making threats of violence.
Baize’s violence-based reading of the protective order’s terms
conflicts with the public policy underlying the entire domestic
violence statutory scheme:
Because of the serious, unique, and highly
traumatic nature of domestic violence crimes, the
high recidivism rate of violent offenders, and the
demonstrated increased risk of continued acts of
violence subsequent to the release of a perpetrator
who is convicted of domestic violence, it is the
finding of the Legislature that domestic violence
crimes warrant the issuance of continuous
protective orders . . . because of the need to
provide ongoing protection for the victim . . . .
[T]he court shall issue a continuous protective
order at the time of the conviction or sentencing
limiting the contact between the perpetrator and
the victim unless the court determines by clear and
convincing evidence that the victim does not . . .
have a reasonable fear of future harm or abuse.
(continued…)

20180326-CA 10 2019 UT App 202
 State v. Baize

CONCLUSION

¶21 We hold that the proper forum for Baize to challenge the
protective order was the original civil proceeding pursuant to
which the order was entered. Because Baize had notice and the
opportunity to appeal the protective order, he is barred from
collaterally challenging it in the subsequent criminal proceeding
resulting from its violation. We also conclude that the trial court
did not err in denying Baize’s request to define for the jury
certain terms contained in the protective order. Accordingly, the
judgment of the trial court is affirmed.

(…continued)
Utah Code Ann. § 77-36-5.1(6)(a)–(b) (LexisNexis Supp. 2019); see
also State v. Hardy, 2002 UT App 244, ¶ 17, 54 P.3d 645 (“The state
has an inarguably significant interest in protecting the health
and well-being of its citizens. In furtherance of this goal, the state
has created a mechanism whereby the victims of domestic
violence may obtain civil orders of protection against their
abusers. As part of this protection, the court may prohibit the
abuser from having any contact, direct or indirect, with the
victim or the victim’s family.”). Thus, the statute’s purpose is to
protect domestic abuse victims from further abusive behavior in
the broad sense, including psychological abuse and other forms
of controlling behavior. Baize’s violence-based interpretation of
the protective order’s terms appears to run contrary to the
significant interest the State has in protecting the overall health
and emotional well-being of its citizens.

20180326-CA 11 2019 UT App 202