Noel v. James

2022 UT App 33

THE UTAH COURT OF APPEALS

MICHAEL EARL NOEL,
Appellee,
v.
WILLIAM THOMAS JAMES,
Appellant.

Opinion
No. 20200565-CA
Filed March 10, 2022

Sixth District Court, Kanab Department
The Honorable Marvin D. Bagley
No. 190600053

William Thomas James, Appellant Pro Se
Frank D. Mylar, Attorney for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES JILL M. POHLMAN and RYAN D. TENNEY concurred.

HAGEN, Judge:

¶1 To obtain a civil stalking injunction, a petitioner must
establish by a preponderance of the evidence that the alleged
stalker’s “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 Ann. § 76-5-106.5(2) (LexisNexis Supp. 2021); see id. §§ 78B-
7-102(21), -701(1), -701(5). In this case, the district court granted a
stalking injunction against Appellant William James, but it made
no finding as to whether James’s course of conduct would have
caused a reasonable person in Appellee Michael Noel’s position
to fear for his safety or suffer emotional distress. Because the
basis for the injunction is not apparent in the record, we vacate
 Noel v. James

the injunction and remand for additional proceedings consistent
with this opinion.

BACKGROUND1

¶2 Noel sought a stalking injunction after he and James were
kicked out of a Kanab City Council meeting. Noel is an
experienced public official who previously served as a state
legislator for sixteen years and now serves as the executive
director of the Kane County Water Conservancy District. James
is a member of a local conservancy group. Both had attended the
meeting to give public comment on a controversial permitting
issue.

¶3 Noel “got up and got in line” once the comment period
opened. James then “got up from the corner” and joined Noel in
line. As Noel later testified, “[James] came right at me in kind of
a burly manner . . . requiring me to move over for him to get by
in an intimidating way. . . . I’m not saying I was fearful, but he
came at me and forced me” to move aside. “If I wouldn’t have
moved, he would have banged into me.”

¶4 While waiting in line, Noel decided he wanted to be the
last person to address the council. Accordingly, he left his place
in line and moved to the back. James, however, “wanted to
prevent [Noel] from having the last word on [him]”—so he, too,
gave up his spot and moved to the back of the line. Noel
eventually gave up waiting in line altogether. But when he
turned to leave, James stood in his way “to stop [Noel] from

1. “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.” Sheeran v.
Thomas, 2014 UT App 285, ¶ 2 n.1, 340 P.3d 797.

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 Noel v. James

getting behind” him once again. And so Noel and James
“jockeyed” for a few moments, with Noel unable to get past
James and James unwilling to let Noel through. Noel testified,

I wanted him to get out of the way, and he was
blocking me, and it did anger me to do that. But I
was also wondering if there was going to be a
confrontation here. I was actually fearful that he
might, you know, . . . take a shot at me.

¶5 Noel called James “a worthless piece of garbage.” James,
in turn, shouted to the audience, relaying what Noel had just
called him. At this point, law enforcement intervened and asked
both men to leave the meeting. Noel went home, and James was
arrested after he refused to comply. At the encouragement of the
chief of police, Noel later petitioned for a civil stalking injunction
against James.

¶6 The district court held a full-day evidentiary hearing on
the petition. At the hearing, James sought to admit videos of
both the city council meeting and a chamber of commerce
meeting earlier that day through a witness who had attended
both meetings. The videos had not been previously disclosed.

¶7 When the issue first arose, the court and counsel for both
parties were under the impression that there were only two
videos—one of the chamber of commerce meeting recorded by
the witness herself and one of the city council meeting recorded
by a videographer hired by the conservancy group. Noel
stipulated to the admission of the first video, but he objected to
the second video because the videographer was not present to
lay foundation. Specifically, Noel’s counsel explained, “If there’s
a woman here [who] says she videoed this on her camera, and it
accurately depicts what she videoed on her camera, and she was
there at the meeting, and she’s subject to cross-examination, and

20200565-CA 3 2022 UT App 33
 Noel v. James

she made the video, I think that that’s proper. But the other one I
don’t.”

¶8 But when the witness was called to testify, she explained
that there were actually three videos: one video from each of the
two meetings that she recorded with her personal cell phone,
and a third video from the city council meeting recorded by the
videographer. At that point, Noel’s counsel objected to the
admission of all three videos because they had not been
disclosed and he was “surprised” that they were being offered as
evidence. James’s counsel did not dispute that the videos had
not been disclosed in advance but claimed that, when the matter
was discussed earlier, Noel “had stipulated to anything that [the
witness] had personally recorded.” In response, Noel’s counsel
argued that he had merely stipulated to the chamber of
commerce video: “That’s all we were discussing at the time.”
The court agreed with Noel’s counsel that the stipulation was
limited to the chamber of commerce video. And because Noel
“didn’t make the objection before about not having [the chamber
of commerce video] in advance,” the court held him to that
stipulation. The court received the chamber of commerce video
into evidence per the stipulation, but excluded the other two
based on the objection.

¶9 At the conclusion of the hearing, the district court
determined that James had engaged in a course of conduct
directed at Noel, as required under the civil stalking statute. The
court found that the course of conduct consisted of two
component acts, each committed at the city council meeting: (1)
when James approached Noel “in a kind of burly manner,” and
(2) when James “blocked [Noel] from going back to his seat.”
The court did not make an express finding that James’s conduct
would cause a reasonable person in Noel’s circumstances to fear
for his safety or suffer emotional distress. Nonetheless, the court
granted the requested stalking injunction.

20200565-CA 4 2022 UT App 33
 Noel v. James

ISSUES AND STANDARDS OF REVIEW

¶10 James now appeals, contending that the district court
erred in imposing a civil stalking injunction against him.2 James
primarily argues that his course of conduct would not have
caused a reasonable person in Noel’s circumstances to fear for
his safety or suffer emotional distress. Although the question of
whether “a reasonable person would suffer fear or emotional
distress” under the circumstances “is a question of fact that we
review for clear error, we review the district court’s
interpretation [and application] of the underlying legal standard
for correctness.” Ragsdale v. Fishler, 2021 UT 29, ¶ 16, 491 P.3d
835; see also Baird v. Baird, 2014 UT 08, ¶ 16, 322 P.3d 728 (“The
proper interpretation and application of a statute is a question of
law which we review for correctness, affording no deference to
the district court’s legal conclusion.” (cleaned up)).

¶11 James also challenges the district court’s decision to
exclude video evidence of the city council meeting. Specifically,
he contends that the “videos met the [parties’] stipulation for
new video evidence” and that, therefore, the district court erred
by excluding them. “The scope of a stipulation presents a
question of fact, which we review for clear error.” Fuller v. Bohne,
2017 UT App 28, ¶ 9, 392 P.3d 898 (cleaned up).

2. James, a non-attorney, represents himself in this appeal. We
hold him “to the same standard of knowledge and practice as
any qualified member of the bar,” but accord him “every
consideration that may reasonably be indulged.” See State v.
Winfield, 2006 UT 4, ¶ 19, 128 P.3d 1171 (cleaned up).

20200565-CA 5 2022 UT App 33
 Noel v. James

ANALYSIS

I. Civil Stalking Injunction

¶12 To obtain a civil stalking injunction, the petitioner “must
prove by a preponderance of the evidence that ‘an offense of
stalking has occurred.’” Ragsdale v. Fishler, 2021 UT 29, ¶ 25, 491
P.3d 835 (quoting Utah Code Ann. § 77-3a-101(7) (LexisNexis
2017)).3 “The crime of stalking consists of two elements. First, a
person must ‘intentionally or knowingly engage in a course of
conduct directed at a specific person.’” Id. (cleaned up) (quoting
Utah Code Ann. § 76-5-106.5(2) (LexisNexis 2017)). By statute, a
“‘[c]ourse of conduct’ means two or more acts directed at or
toward a specific person.” Utah Code Ann. § 76-5-106.5(1)(a)
(LexisNexis Supp. 2021) (listing several examples of qualifying
acts). Second, the respondent “must ‘know or should know that
the course of conduct would cause a reasonable person’ to ‘fear
for the person’s own safety’ or ‘suffer other emotional distress.’”
Ragsdale, 2021 UT 29, ¶ 25 (quoting Utah Code Ann. § 76-5-
106.5(2)). A “reasonable person” is statutorily defined as “a
reasonable person in the victim’s circumstances.” § 76-5-
106.5(1)(d).

¶13 Although the district court recited both elements, it made
findings on the first element only. It identified an intentional
course of conduct consisting of two acts: approaching Noel in a
“burly manner” and later blocking Noel from returning to his
seat. But the court did not make a factual finding on the second

3. Although the 2018 amendment of the civil stalking statute
governs this case, we cite the most recent version of the civil
stalking statute for convenience—unless a prior version is
quoted by a different source. Regardless of the version quoted
throughout this opinion, the statutory language at issue is the
same.

20200565-CA 6 2022 UT App 33
 Noel v. James

element, that is, whether James knew or should have known that
his course of conduct would have caused a reasonable person in
Noel’s circumstances to fear for his safety or suffer emotional
distress. “When confronted with questions of fact, this court will
only rule as a matter of law if the evidence is so clear and
persuasive that all reasonable minds would find one way.” See
Baird v. Baird, 2014 UT 08, ¶ 29, 322 P.3d 728 (cleaned up).
Otherwise, “remand is appropriate” to allow the district court to
make that determination. See id.

¶14 Noel acknowledges that the district court never addressed
the second element on the record, but he argues that James failed
to preserve the issue for appeal. We disagree. To issue a stalking
injunction, “the district court necessarily had to consider
whether [Noel] had established each element of a stalking
offense.” See id. ¶ 20. Thus, the court had an opportunity to rule
on whether the statutory elements were met, and that issue is
“adequately preserved” for appeal. See id. In any event, James
specifically argued to the court that “[t]his [was] not a situation
where a reasonable person . . . in [Noel’s] position” would have
been “afraid of physical harm or . . . in emotional distress.” And
he moved “essentially for a directed verdict” on that basis.
Therefore, we are confident that James presented this issue “to
the district court in such a way that the court ha[d] an
opportunity to rule on it.” See State v. Johnson, 2017 UT 76, ¶ 15,
416 P.3d 443 (cleaned up).

¶15 Alternatively, Noel contends that we can affirm on appeal
because the district court “had evidence to determine that James
acted in a threatening manner that would have made a
reasonable person fearful or suffer some emotional distress over
the two encounters.” When the district court does “not explicitly
make a necessary finding,” we may still affirm “if the evidence
and statements contained in the record make the evidentiary
basis for this finding sufficiently clear.” See Sheeran v. Thomas,
2014 UT App 285, ¶ 8, 340 P.3d 79 (cleaned up); see also State v.

20200565-CA 7 2022 UT App 33
 Noel v. James

Bingham, 2015 UT App 103, ¶¶ 28–29, 348 P.3d 730 (explaining
that a reviewing court may “assume that the [district] court
found the facts in accord with its decision,” unless “the
ambiguity of the facts makes this assumption unreasonable”
(cleaned up)). But here, the evidentiary basis for finding that
Noel satisfied the second element is not sufficiently clear from
this record.

¶16 To determine whether the petitioner has met the second
element required for a civil stalking injunction, we apply “an
individualized objective standard.” Baird, 2014 UT 08, ¶ 26.
Under this standard, the “subjective effect of the respondent’s
conduct on the petitioner is irrelevant.” Ragsdale, 2021 UT 29,
¶ 45. Instead, the relevant question is whether the conduct
would have caused fear or emotional distress to “a reasonable
person in the petitioner’s circumstances.” Id. (quoting Baird, 2014
UT 08, ¶ 25). “In applying this standard, courts must consider
the entire context surrounding a respondent’s conduct” and
“must consider the conduct cumulatively, accounting for the
facts and circumstances of the individual case.” Id. (cleaned up).

¶17 Our supreme court has suggested a non-exhaustive list of
factors that may be relevant to this assessment. Those factors
include “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.” Baird, 2014 UT 08, ¶ 27 (cleaned
up). “Furthermore, under an individualized objective standard,
a court may consider whether the defendant had knowledge of a
particular vulnerability of the victim and then acted with full
knowledge of the victim’s vulnerability.” Id. (cleaned up).

¶18 Under this standard, it is far from obvious that a
reasonable person in Noel’s circumstances would have feared
for his safety or suffered emotional distress, given the context in

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 Noel v. James

which James’s conduct took place. See Utah Code Ann. § 76-5-
106.5(2)(a)–(b) (LexisNexis Supp. 2021). The encounter occurred
in a public place—a city council meeting—and in full view of a
room packed with witnesses. Law enforcement officers were
stationed at the meeting and ready to intervene. And Noel is an
experienced public official accustomed to dealing with members
of the public. See Baird, 2014 UT 08, ¶ 27 (indicating that the
individualized objective standard considers “the victim’s
background”). Although Noel testified that James was “a loose
cannon” and “a different guy than [Noel had] dealt with in [his]
years of public service,” the district court made no finding that a
reasonable person in Noel’s circumstances would have found
James particularly threatening. And even though James was
ultimately arrested, his arrest was based not on his conduct
toward Noel, but on his refusal to comply when law
enforcement ordered both men to leave the meeting.

¶19 Noel argues that a reasonable person would fear for his
safety under these circumstances. He suggests that the district
court’s finding that James approached in a burly manner “could
mean that James was acting tough or flexing his muscles or
puffing his chest in a manner that would suggest physical
aggression.” Perhaps it could, but we have no findings to that
effect. Nor do we have a finding that such a display would cause
a reasonable person to fear for his safety in the context in which
it occurred—a well-attended, public meeting, with law
enforcement officers standing by.

¶20 Noel also argues that the evidence supported a finding
that James’s conduct would have caused “some emotional
distress,” but that is not the standard. The stalking statute
defines “emotional distress” as “significant mental or
psychological suffering, whether or not medical or other
professional treatment or counseling is required.” See Utah Code
Ann. § 76-5-106.5(1)(b) (emphasis added). Noel has pointed to no
evidence in the record that would have clearly supported a

20200565-CA 9 2022 UT App 33
 Noel v. James

finding that James knew or should have known that his course
of conduct would cause a reasonable person in Noel’s
circumstances to suffer “emotional distress,” as defined by
statute.

¶21 If the district court applied the correct legal standard and
implicitly found the second element satisfied, the evidentiary
basis for that ruling is not clear on this record. Although the
interaction that occurred at the city council meeting was
certainly uncivil, it is not the type of conduct that would
ordinarily cause a reasonable person to fear for his physical
safety or experience “significant mental or psychological
suffering”—at least not without other contextual facts not
apparent from the record. See id.

¶22 Having heard the evidence firsthand, the district court is
in an advantaged position to make factual findings as to whether
Noel has proved the second element by a preponderance of the
evidence. We ordinarily rely on the district court to make those
kinds of assessments, because it has “personally observed the
quality of the evidence, the tenor of the proceedings, and the
demeanor of the parties.” Baird, 2014 UT 08, ¶ 30. “This is
particularly true in a case like this one where the record consists
almost entirely of evidence presented at an evidentiary hearing.”
See id. Therefore, we vacate the injunction and remand for the
district court to determine whether Noel has proved the second
element under the legal standard explained in this opinion.

II. Scope of the Stipulation

¶23 Because we are remanding for further findings, we must
also reach the question of whether the district court properly
excluded video of the interaction between James and Noel at the
city council meeting. James argues on appeal that the district
court abused its discretion by excluding both videos of the city
council meeting, because Noel had stipulated to the admission of

20200565-CA 10 2022 UT App 33
 Noel v. James

late-disclosed videos so long as James laid sufficient foundation
by calling the person who recorded each one.

¶24 But in excluding the videos of the city council meeting,
the district court found that the parties’ stipulation was
limited to the chamber of commerce video. James’s counsel
asserted that Noel “had stipulated to anything that [the witness]
had personally recorded,” but Noel’s counsel pointed out that, at
the time of the stipulation, he was unaware of the existence of
the third video and that the only thing counsel had discussed
was the chamber of commerce video. The court agreed with
Noel’s counsel, saying, “That’s the way I understood the
stipulation.”

¶25 The district court’s finding that the stipulation
was limited to the chamber of commerce video was not clearly
erroneous. At the time of the stipulation, the parties
were discussing only two videos. Noel stipulated to the
admission of the chamber of commerce video taken by the
witness and objected to the admission of the city council video
taken by the videographer based on lack of foundation. His
stipulation to the chamber of commerce video cannot fairly be
read as a stipulation to a third video that he did not
know existed.

¶26 James has not argued that the videos were timely
disclosed, that the disclosure violation could be excused for
good cause, or that the failure to disclose was harmless. See Utah
R. Civ. P. 26(d)(4) (“If a party fails to disclose or to supplement
timely a disclosure or response to discovery, that party may not
use the undisclosed witness, document, or material at any
hearing or trial unless the failure is harmless or the party shows
good cause for the failure.”). Therefore, he has not established
any basis on which to reverse the district court’s exclusion of the
city council videos.

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 Noel v. James

CONCLUSION

¶27 James has not established that the district court erred in
excluding the late-disclosed videos of the city council meeting,
but he has established that the injunction was entered without
the necessary findings. Specifically, the district court made no
express finding as to whether James knew or should have
known that his course of conduct would have caused a
reasonable person in Noel’s circumstances to fear for his safety
or suffer emotional distress. Because the record does not provide
a clear evidentiary basis for the court’s decision, we vacate the
stalking injunction against James and remand for additional
proceedings consistent with this opinion.

20200565-CA 12 2022 UT App 33