2019 UT App 96
THE UTAH COURT OF APPEALS
JEDEDIAH WELLS HIGLEY,
Appellee,
v.
BRYAN DEAN BUHLER,
Appellant.
Per Curiam Opinion
No. 20180925-CA
Filed June 6, 2019
First District Court, Logan Department
The Honorable Brian G. Cannell
No. 180100393
Glen R. Thomas, Attorney for Appellant
Jedediah Wells Higley, Appellee Pro Se
Before JUDGES GREGORY K. ORME, KATE APPLEBY,
and DIANA HAGEN.
PER CURIAM:
¶1 Bryan Dean Buhler appeals a permanent civil stalking
injunction entered against him in favor of Jedediah Wells Higley.
We affirm.
¶2 “On appeal, when a trial court has made findings of fact
to support a civil stalking injunction, we will recite the facts in a
light most favorable to the trial court’s findings.” Carson v.
Barnes, 2016 UT App 214, ¶ 2 n.1, 385 P.3d 744 (quotation
simplified).
¶3 On September 28, 2018, Higley requested an ex parte civil
stalking injunction against Buhler. Higley listed three stalking
events in which Buhler allegedly drove by Higley’s house a
number of times on August 16, 2018, September 6, 2018, and
Higley v. Buhler
September 22, 2018. The request contained allegations regarding
Buhler’s earlier alleged assault of Higley, listing a pending
assault case involving Higley and Buhler with a court case
number. Higley also attached two police reports. One described
a call to police about alleged harassment on August 16, 2018. The
other police report described the investigation of the alleged
assault and demonstrated that the investigation culminated in
Buhler’s arrest for assaulting Higley.
¶4 Buhler requested a hearing after the entry of the
temporary civil stalking injunction. See Utah Code Ann. § 77-3a-
101(6) (LexisNexis 2017). At the hearing, Buhler conceded that
there was a fight on July 7, 2018, between Higley and Buhler and
that Higley’s injuries required medical attention. But Buhler
challenged the credibility of Higley’s account of the events that
led to the fight. Buhler also did not directly dispute that he drove
by Higley’s residence on one or more of the dates alleged in the
request for a civil stalking injunction and flipped him off.
¶5 Higley testified and also presented the testimony of his
mother, who lived next door to him and had seen Buhler drive
by her as she was walking and flip her off. Higley’s adult sister
testified that she also encountered Buhler, that she heard him
refer to her as a “bitch,” and that he flipped her off as he drove
away. Higley stated that his family felt threatened, unsafe, and
uneasy. They were concerned that they did not know what
Buhler was “capable of anymore.”
¶6 Buhler argued that his conduct could not meet the
definition of stalking, claiming that flipping someone off is
“protected speech” that cannot constitute an act of stalking
unless it is accompanied “with fighting words or some sort of
threat.” The court inquired about considering the gesture in the
context of the fight between the two men. Buhler argued that the
events were “so remote in time and place . . . and not even
related to the same people. The flipping off would have to put
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them under some sort of emotional distress, which they didn’t
offer any testimony to that effect.” 1 Buhler also argued that there
was no proof of significant mental or psychological suffering
and that there were credibility issues with Higley’s account.
¶7 The court refocused the parties on the statutory
requirements for a civil stalking injunction. In response to the
court, Buhler conceded that the fight occurred, that Higley was
harmed, and that he had to go to the hospital for treatment. The
court then asked Higley about the allegations in the request for a
civil stalking injunction “that there were multiple events in
which Mr. Buhler drove by your place of residence. . . . How
many times did he go by your place where you see him going by
and he gave you the finger?” Higley responded that he saw
Buhler do this “three or four times” after the July 7 fight, “like a
day or two after he got out of jail from being released from the
initial arrest for this, . . . a day or two after that.” These three or
four additional events after the fight caused him to be in fear of
harm. The court inquired whether Buhler wished to reexamine
Higley, and his counsel declined.
¶8 The district court found that there was a fight between
Higley and Buhler that resulted in some level of harm to Higley.
The court found that there was an additional witness—Mr.
Higley’s mother—who testified that she witnessed “an event of
her own being flipped off.” The district court found that Buhler
had options other than driving past Higley’s residence to reach
the landfill when he needed to go there for purposes of his work.
Buhler also could have driven past the Higley residence without
taking the additional action of flipping off Higley (or his
mother). The district court found that, regardless of any claim of
“free speech,” when considered in the context of the July 7, 2018,
1. This argument is only pertinent if counsel was referring to the
actions of flipping off Higley’s mother and sister.
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Higley v. Buhler
fight—“where there apparently was significant harm”—the
court was required under the stalking statute to address the later
instances as acts “where . . . the respondent directly observed or
communicated to this petitioner,” and determine whether those
actions “would cause a reasonable person to suffer emotional
distress or be afraid for that person’s own safety.” The court
considered the ensuring actions in “the context of the fight and
the resulting harm to Mr. Higley.” Accordingly, the district court
concluded that it was “required . . . at this point to confirm the
status associated with that civil stalking injunction and have it
remain in place.”
¶9 After the court ruled, Buhler’s counsel inquired about
potential issues regarding the school where both men had
children attending. The court directed the parties to stay away
from each other if they were both at the school. Buhler did not
object at that time to the inclusion of other family members in
the injunction’s coverage.
¶10 Buhler argues that the district court erred in its
interpretation and application of the statutory requirements for a
civil stalking injunction. We review the “interpretation and
application of a statute” for correctness, “affording no deference
to the district court’s legal conclusion.” Baird v. Baird, 2014 UT
08, ¶ 16, 322 P.3d 728 (quotation simplified).
¶11 To obtain a civil stalking injunction, a petitioner must
establish the elements necessary to meet the definition of
stalking in the criminal code. See Utah Code Ann. § 77-3a-101(1).
(2) 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:
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(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 Ann. § 76-5-106.5(2) (LexisNexis Supp. 2018). A
“reasonable person” is defined as “a reasonable person in the
victim’s circumstances.” Id. § 76-5-106.5(1)(e). A course of
conduct requires “two or more acts directed 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.
Id. § 76-5-106.5(1)(b)(i).
¶12 The inclusion of the phrase “in the victim’s
circumstances” in the statutory definition of “reasonable
person,” “provides for an individualized objective standard.”
Baird, 2014 UT 08, ¶ 26 (quotation simplified). “Under this
standard, a court must consider the entire context surrounding
[respondent’s] conduct.” Id. Thus, a court may consider whether
a respondent “had knowledge of a particular vulnerability of the
victim and then acted with full knowledge of the victim’s
vulnerability.” Id. ¶ 27 (quotation simplified). “Thus even
actions that, viewed in isolation, might be insufficient to cause a
reasonable person in the same position to fear for his safety can,
taken together, cause fear.” Carson v. Barnes, 2016 UT App 214,
¶ 20, 385 P.3d 744 (quotation simplified); see also Meyer v.
Aposhian, 2016 UT App 47, ¶ 13, 369 P.3d 1284 (stating a court
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does not view the incidents in isolation when determining
whether a reasonable person in the petitioner’s position would
fear for his safety).
¶13 Buhler claims that the evidence was insufficient to
establish a course of conduct that constituted stalking. He first
claims that flipping someone off is constitutionally protected
speech. This specific argument was not presented to the district
court for a ruling. In order to preserve an issue for appeal, it
“must be specifically raised in a timely manner and must be
supported by evidence and relevant legal authority.” See Meyer,
2016 UT App 47, ¶ 26 (quotation simplified). While Buhler
argued in the district court that flipping a person off was
protected speech unless combined with other “fighting words,”
the specific constitutional argument contained in his appellate
brief was not presented to the district court and is not preserved
for appeal. We do not consider it further.
¶14 Buhler also argues that the court improperly considered
irrelevant evidence and that the evidence was otherwise
insufficient to establish a course of conduct under the civil
stalking injunction statute. In this case, the district court was
required to consider the individual circumstances of the
petitioner—Higley—and determined that Buhler’s actions
constituted a course of conduct. See Utah Code Ann. § 76-5-
106.5(1)(e) (defining a “reasonable person” as “a reasonable
person in the victim’s circumstances”). As such, the court
properly considered whether repeatedly driving past Higley’s
residence within days of Buhler’s release from jail after his arrest
for allegedly assaulting Higley would place a reasonable person
in Higley’s circumstances in fear for his and his family’s safety.
See Carson, 2016 UT App 214, ¶ 21 (stating that the district court
did not err in determining that a threshold incident involving a
threat with a gun “impacted all future actions” taken by the
respondent directed toward the petitioner (quotation
simplified)). In addition, the court properly considered the acts
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directed toward Higley’s mother as corroborating evidence of
the course of conduct, as well as Buhler’s contacts with other
members of Higley’s family.
¶15 The district court did not err in determining that Higley
demonstrated by a preponderance of the evidence that the civil
stalking injunction should remain in place. Considered in
context, Buhler’s “pattern of behavior ha[d] a cumulative effect
that would cause a reasonable person in [the petitioner’s]
position to fear for his safety or the safety of his family.” Id. ¶ 25
(quotation simplified). Buhler’s conduct—flipping off Higley
and his family members—was conduct that “communicates to or
about a person,” see Utah Code Ann. § 76-5-106.5(1)(b)(i), and it
was properly considered by the district court in the context of
the earlier fight between the two men and other evidence
presented to the district court. The court did not err in
concluding that the evidence taken as a whole supported
continuation of the civil stalking injunction.
¶16 Accordingly, we affirm the decision to enter a permanent
civil stalking injunction.
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