author: MORTENSEN, Judge:

text:
    STATE of Utah, Appellant, v. Sergio Briseno MEDINA, Appellee.
    No. 20170328-CA
    Court of Appeals of Utah.
    Filed March 28, 2019
    Sean D. Reyes and Jeffrey S. Gray, Salt Lake City, Attorneys for Appellant
    Sarah J. Carlquist, Scott A. Wilson, and Jesse M. Nix, Attorneys for Appellee
    Judge David N. Mortensen authored this Opinion, in which Judges Gregory K. Orme and Michele M. Christiansen Forster concurred.
    Amended Opinion

      This Amended Opinion replaces the Opinion in Case No. 20170328-CA issued January 17, 2019. After our original opinion issued, Defendant filed a petition for rehearing. We grant the petition. Paragraph 1 is new; paragraphs 3 through 8 and paragraph 12 of the original opinion have been deleted.

   MORTENSEN, Judge:

¶1 Because this case comes to us on interlocutory appeal, the following facts and allegations remain undetermined. "On interlocutory review, we recount the facts as alleged and in a light most favorable to the ruling below." State v. Stewart , 2018 UT 24, ¶ 2 n.1, 438 P.3d 515 (cleaned up). A woman (Victim) was found fatally stabbed on the side of a road. The ensuing investigation led police to Sergio Briseno Medina. During an interview, detectives (Detectives) read Medina his Miranda rights. Medina invoked his right to counsel, but immediately after invoking, Medina initiated a substantive conversation with the Detectives regarding the investigation, the circumstances surrounding the murder, and the pending charges against him. After the Detectives told Medina that they had "questions for [him] about [the murder]," Medina stated, "I'm gonna answer questions," and he demanded to know "what's going on" and "[w]hy is it me ... being targeted for something that I wasn't even nearby." During the resulting conversation, Medina made several incriminating statements. Three days later, the Detectives, after confirming that Medina understood he could have an attorney present, interviewed him a second time. The State charged Medina with murder and obstructing justice. Medina moved to suppress his statements made during the interviews, arguing that his Miranda rights were violated by the Detectives' questioning without counsel present. The district court granted Medina's motion, and the State appeals.

¶2 We reverse.

BACKGROUND

The Interviews

¶3 Medina was in Denver, Colorado when law enforcement located him. A search of Medina's and Victim's cell phone records had established that Medina was in the vicinity of Victim's body and her jeep around the time of the murder; a search of the jeep uncovered Medina's fingerprints on the outside of the jeep and Victim's blood on the interior. Medina was arrested and brought into a Denver police station for questioning.

¶4 Prior to any questioning, the Detectives read Medina his Miranda rights, whereupon Medina invoked his right to counsel. The conversation ensued as follows:

The Detectives: Okay well just so you're aware we just wanna make sure that you are aware of your rights okay you still have those (inaudible) and you wanna find out and you wanna have a discussion with us and we wanna make sure you know your rights okay?
Medina: Ya.
D: So you do know you have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney present with you while you're being questioned. If you can't afford to hire one, one will be appointed to represent you before any questioning if you wish. Okay?
M: Can I have an attorney present then?
D: So ... and if you ... so you're saying you don't wanna talk to us without your attorney present?
M: Well ya the thing is I don't know what's going on. I wanna know what's going on.
D: Okay.
M: Why is it that my sister[']s door gets kicked in ... I've got an officer asking if I got my hands ... if I have an injury on my hands and they're checking my hands and I was like no what's goin on ... Does he have ... What injury are you talking about ... What's going on. You know what I mean? I'm only here tryin (inaudible) cause I wanna lay off the meth cause I was consumin (inaudible) all this goin on and I was like what's goin on. My sister's mad at me right and doesn't want to talk to me because the same situation.
D: Is it what happened with her ...
M: Ya I mean come on wouldn't you be mad?
D: Sure. I'd be frustrated absolutely and that's ... We can have a discussion about that absolutely.
M: And that's why I'm like okay what's goin on. I got people callin me hey there's a homicide or something ... What are you guys talkin about, you know what I mean?
D: Sure.
M: And that's what I wanna know what's going on it's like ... I'm trippin out because that stuff you don't play around with.
D: Right.
M: You don't joke around with. That's not a joke so all I wanna ask you is what's going on here please. I'm gonna answer questions, but at the same time I don't want to get bullshit all mixed up you know what I mean?
D: And we're here to talk about that. We're here to ... we wanna discuss that with you.
M: Okay.
D: But you know we do have questions for you about it. You know we're trying to see ... Your name was brought up that's how we're here you know? People brought your name up and so here we are and we wanna be able to talk to you about it, but it's up to you I mean ...
M: Okay (inaudible) what's going on man please? What's goin on I actually want to know ... That's what ... That's what I'm asking what's goin on. Why is it me that I'm being targeted for something that I wasn't even nearby. It's like what the fuck.
D: Okay.

¶5 Medina went on to explain that he was confused by the circumstances of his arrest. Medina then agreed to answer the Detectives' questions and admitted that Victim was a "friend," that they sold drugs together, and that they had gotten into an argument on the day of the murder. He continued to deny involvement in Victim's murder. The Detectives also questioned Medina about his text messages to his fiancée and to another individual.

¶6 Three days later, the Detectives interviewed Medina for a second time. The second conversation went as follows:

The Detectives: So you asked me to do a couple things when we last talked. I did that okay so I got some ... some good news as far as that goes okay, but just as we get talkin I just want to make sure you still are aware of your rights okay? Do you understand your rights too?
Medina: Yes.
D: That you do have the right to an attorney and you don't have to talk. You can have on[e] present with you and all that right? So you still understand those?
M: Yes.
D: You're still okay to talk to me then?
M: Ya.

¶7 Thus, the Detectives confirmed Medina's understanding that he could have an attorney present or continue to speak with the Detectives without an attorney present. Medina then claimed that he spoke with Victim on the phone while he was at or near a specific Maverick gas station and that during the call, "[Victim] was talking and laughing with somebody in the background." But surveillance footage obtained by police from the Maverick store refuted Medina's story-he was nowhere to be seen at or near the store during the time Medina claimed to be there. The State subsequently charged Medina with murder and obstructing justice.

The Motion to Suppress

¶8 After the State filed charges against him, Medina moved to suppress the statements made to the Detectives during his interrogation, arguing that they persisted in questioning him after he had invoked his Miranda right to an attorney. The district court granted the motion, finding that Medina had invoked his right to counsel, and that even though he had "initiated ... further conversation, as he continued to talk after his request for counsel," he did not knowingly and intelligently waive his right to counsel.

The court further ruled that because Medina did not waive his Miranda rights in the first interrogation, his statements in the second interview were also inadmissible. But the court qualified the ruling, stating that had Miranda procedure been properly followed in the first interview, "the second recitation of Miranda preceding the [second] interview would have been adequate." The State then successfully petitioned for leave to take an interlocutory appeal from the district court's order granting Medina's motion to suppress his statements to police.

ISSUE AND STANDARD OF REVIEW

¶9 We address only one issue in this case: whether the district court correctly granted Medina's motion to suppress. Rulings regarding the validity of a Miranda waiver are reviewed for correctness, while granting "some degree of discretion to the trial court because of the wide variety of factual settings possible." State v. Bybee , 2000 UT 43, ¶ 16, 1 P.3d 1087 (cleaned up). "When a district court bases its ultimate conclusions concerning the waiver of a defendant's Miranda rights, upon essentially undisputed facts, in particular the transcript of an officer's colloquy with the defendant, its conclusions present questions of law which we review under a correction of error standard." State v. Gardner , 2018 UT App 126, ¶ 11, 428 P.3d 58 (cleaned up).

ANALYSIS

I. The First Interview

¶10 The State argues on appeal that Medina "validly waived his Miranda rights by his conduct and words after initiating further discussion with police." We agree.

¶11 The Fifth Amendment of the United States Constitution states that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. In Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court held that law enforcement officers must "protect this privilege by informing an accused person of his or her constitutional rights before engaging in custodial interrogation." State v. Dahlquist , 931 P.2d 862, 866 (Utah Ct. App. 1997) (citing Miranda , 384 U.S. at 444, 86 S.Ct. 1602 ). Those rights include the right to remain silent and the right to have an attorney present. Miranda , 384 U.S. at 444, 86 S.Ct. 1602.

¶12 After an accused's Miranda rights are read, they "must unambiguously request counsel" in such a way that the "desire to have counsel present" is sufficiently clear. Davis v. United States , 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). "Interrogation must cease if the accused invokes his or her right to consult with an attorney, and, with limited exceptions, the prosecution may not use any statements made by the accused taken in violation of Miranda 's protections." Dahlquist , 931 P.2d at 866. Both Medina and the State agree, and the district court ruled, that Medina unambiguously invoked his right to counsel initially.

¶13 But if, after invoking the right to counsel, the accused himself " 'initiates further communication, exchanges, or conversations with the police,' then he has effectively waived his right to counsel and the interrogation may continue." State v. Gardner , 2018 UT App 126, ¶ 15, 428 P.3d 58 (quoting Edwards v. Arizona , 451 U.S. 477, 485, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) ). An accused's statements made "after he has invoked his right to counsel and before counsel is made available to him are admissible if three conditions are satisfied." State v. Moore , 697 P.2d 233, 236 (Utah 1985) ; see also Edwards , 451 U.S. at 481-82, 101 S.Ct. 1880 ; State v. Newton , 682 P.2d 295, 296 (Utah 1984).

¶14 "First, it must be the accused, not the law enforcement officers, who initiates the conversations in which the incriminating statements are made. Second, the prosecution must show ... a knowing and intelligent waiver of the right to counsel. Third, the accused's statements must be shown by a preponderance of the evidence to have been voluntarily made." Moore , 697 P.2d at 236. We address each condition in turn.

A. Initiated Conversation

¶15 The State argues that "immediately after invoking his right to counsel, [Medina] initiated further conversation with [the Detectives] about the investigation." Medina counters with the argument that "it is not enough for the defendant to initiate a routine conversation about 'something unrelated to the crime charged,' to relinquish his previously invoked right to counsel." To bolster his argument, Medina cites State v. Dahlquist , 931 P.2d 862 (Utah Ct. App. 1997), arguing that "Medina did not initiate a conversation with police that related either directly or indirectly to the investigation." While we agree that initiating a routine conversation about something unrelated to the crime charged is not enough to relinquish an accused's right to counsel, State v. Moore , 697 P.2d 233, 236 (Utah 1985), we are persuaded by the State's argument that Medina's conversation was more than just routine or unrelated to the crimes charged.

¶16 In Dahlquist , this court reversed a district court's denial of a motion to suppress where the police continued to question a defendant after the defendant had invoked counsel, but had subsequently asked, "What am I being questioned about?" 931 P.2d at 864. The court explained, "In order for a defendant to initiate a conversation with authorities that will be held to constitute a willingness to talk about the charges without counsel, he or she must indicate a desire to open up a more generalized discussion relating directly or indirectly to the investigation." Id. at 866 (cleaned up). And the court went on to state that,

[D]efendant initiated no such open-ended conversation. After invoking his right to counsel, he merely asked what he was being questioned about. That question was succinctly answered and his invocation of the right to counsel was simultaneously acknowledged. There the matter should have been left until Dahlquist had counsel present or definitively waived his right to counsel, either expressly or by initiating a discussion relative to the substance of the investigation. ... Instead of heeding his own recognition that he could not ask Dahlquist any questions, [the detective] continued the conversation by "advising" Dahlquist, without request, of specific "facts" related to the investigation.

Id.

¶17 On those facts, the court held that the detective's "tactic" was "reasonably likely to elicit an incriminating response from Dahlquist" and that "[b]y continuing the custodial dialogue after acknowledging that Dahlquist had invoked his right to consult an attorney, albeit in the form of a statement rather than a question, [the detective] violated Dahlquist's Miranda rights." Id. at 867.

¶18 Here, Medina's statements to the Detectives go beyond the scope of those made in Dahlquist . They are more akin to the statements made in State v. Gardner , 2018 UT App 126, 428 P.3d 58. In that case, two officers informed a defendant of his Miranda rights and the defendant invoked those rights. Id. ¶ 16. But before the officers could leave the interrogation room, the defendant went on to "explain that [the victim] and her mother had been threatening him for years about reporting inappropriate conduct between himself and [the victim]," and "told a long story about some problems with [the victim's] mother." Id. One of the officers eventually interrupted the defendant and "asked again if he should try to reach [the defendant's] attorney, to which [the defendant] again responded in the affirmative." Id. But after the first officer left the room to call the defendant's attorney, the defendant continued to speak to a second officer-unsolicited-about domestic issues with [the victim's] mother. Id.

¶19 There, this court held that "[o]nce [the defendant] told the officers that [the victim] and her mother had been threatening to report him for engaging in inappropriate conduct with [the victim], without being asked a question by the officers," he had effectively waived his right to counsel because he "initiated further communication, exchanges, or conversations with the officers specifically related to the crime for which he was being interrogated." See id. ¶ 17 (cleaned up).

¶20 Here, Medina invoked his right to counsel, but then, without prodding from the Detectives, immediately went on to state,

Well ya the thing is I don't know what's going on. I wanna know what's going on. ... Why is it that my sister[']s door gets kicked in ... I've got an officer asking if I got my hands ... if I have an injury on my hands and they're checking my hands and I was like no what's goin on ... Does he have ... What injury are you talking about ... What's going on. You know what I mean? I'm only here tryin (inaudible) cause I wanna lay off the meth cause I was consumin (inaudible) all this goin on and I was like what's goin on. My sister's mad at me right and doesn't want to talk to me because the same situation.

These types of statements are not simply "routine," nor "unrelated to the crime charged," as Medina suggests. Rather, upon invoking his right to counsel, Medina immediately asked what was going on, and the context of his continuing questions makes clear that he was not asking what process he would be subject to, but was instead asking about the investigation of the case and his actions as he spontaneously launched into an extensive and elaborate explanation for the circumstances and his whereabouts on the night of the murder.

¶21 Thus, Medina's statements are far different from those in Dahlquist , in which the defendant simply asked, "What am I being questioned about?" Dahlquist , 931 P.2d at 866. They are much more similar to the statements made in Gardner , in which the defendant not only asked what was going on, but went on to-without invitation or provocation-explain himself and divulge further details regarding the crime charged. See Gardner , 2018 UT App 126, ¶ 16, 428 P.3d 58. Medina gave the Detectives no chance to leave the room, let alone contact his attorney, before initiating further conversation and insisting that he receive answers from the Detectives. Unsolicited, Medina asked what was going on; why the police had kicked in his sister's door; questioned why the police wanted to check his hands; and offered an explanation for his trip to Denver. Accordingly, we conclude that Medina initiated further communication with the Detectives and that the district court incorrectly ruled that the statements did not involve the underlying crime.

B. Knowing and Intelligent Waiver

¶22 Because we have determined that Medina initiated further contact with the Detectives, and thereby waived his right to have counsel present during the interrogation, we must next turn to the question of whether he waived this right knowingly and intelligently. See State v. Moore , 697 P.2d 233, 236 (Utah 1985) (holding that after showing that the accused initiated contact with law enforcement, "the prosecution must show, on the motion to suppress, a knowing and intelligent waiver of the right to counsel"); see also Martinez v. Cate , 903 F.3d 982, 992-93 (9th Cir. 2018) (holding that "[i]f the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked" (cleaned up) ); Bush v. Warden , 573 F.App'x 503, 510-11 (6th Cir. 2014) (stating that "even if the accused reinitiates conversation with police after invoking his or her right to counsel, the burden remains on the prosecution to demonstrate that the reinitiation events constituted a knowing and intelligent waiver under a totality of circumstances").

¶23 "The determination of whether a waiver of the right to counsel was made knowingly and intelligently depends upon the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused." Moore , 697 P.2d at 236 (cleaned up); see also Oregon v. Bradshaw , 462 U.S. 1039, 1046, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983) (stating that whether a waiver is knowing and intelligent is based upon "the totality of the circumstances"); Bone v. Polk , 441 F.App'x 193, 196 (4th Cir. 2011) (explaining that when "evaluating the totality of the circumstances for the purposes of determining the validity of a Miranda waiver, we consider factors such as a defendant's intelligence and education, his age and familiarity with the criminal justice system, the proximity of the waiver to the giving of the Miranda warnings, and whether he reopened the dialogue with the authorities" (cleaned up) );

State v. Barrett , 2006 UT App 417, ¶ 11, 147 P.3d 491 (explaining that "determin[ing] whether [a d]efendant knowingly and intelligently waived his Miranda rights" is done by "examining the particular facts and circumstances surrounding the case").

¶24 A knowing and intelligent waiver of the right to counsel exists when a defendant expresses a desire to "tell ... what really happened," and then proceeds to make incriminating statements about what happened without further prodding by the investigating officers, see State v. Hilfiker , 868 P.2d 826, 831 (Utah Ct. App. 1994) (cleaned up); see also Smith v. Duckworth , 824 F.3d 1233, 1247 (10th Cir. 2016) (explaining that to be considered knowing and intelligent, "the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it").

¶25 The State argues that the district court incorrectly concluded that Medina's waiver was not knowingly made. We agree. The district court based its decision, in part, on the fact that the Detectives "had asked questions intended to elicit additional information" and, in part, on the fact that the Detectives did not "seek a clarification of [his] invocation of [the] right to counsel" after Medina initiated further discussion about the investigation.

¶26 To the district court's first point, we conclude that the court incorrectly determined that the Detectives improperly asked questions intended to elicit additional information from Medina. The exchange between Medina and the Detectives proceeded as follows:

Medina: Can I have an attorney present then?
The Detectives: So ... and if you ... so you're saying you don't wanna talk to us without your attorney present?
M: Well ya the thing is I don't know what's going on. I wanna know what's going on.
D: Okay.
M: Why is it that my sister[']s door gets kicked in ... I've got an officer asking if I got my hands ... if I have an injury on my hands and they're checking my hands and I was like no what's goin on ... Does he have ... What injury are you talking about ... What's going on. You know what I mean? I'm only here tryin (inaudible) cause I wanna lay off the meth cause I was consumin (inaudible) all this goin on and I was like what's goin on. My sister's mad at me right and doesn't want to talk to me because the same situation.

¶27 Here, Medina implored the Detectives to discuss the murder investigation with him, continually asking them questions pertaining to the investigation and giving explanations for the circumstances. The district court even conceded that "the Detectives did not do much prodding." While the Detectives did go on to ask questions such as, "Is that what happened with her," and make statements such as, "We can have a discussion," those statements were made after Medina's completely unsolicited statements regarding his sister, his hands, the police, his drug usage, and his demand to know more about the investigation against him. Medina's desire to "tell ... what really happened," followed by making incriminating statements about what happened without further prodding by the investigating officers, constitutes a knowing and intelligent waiver. See Hilfiker , 868 P.2d at 831 (cleaned up). There is no indication from the record that Medina's waiver was made without "a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." See Duckworth , 824 F.3d at 1247.

¶28 To the district court's second point-that the Detectives did not "seek a clarification of [his] invocation of [the] right to counsel" after Medina initiated further discussion about the investigation-we conclude that such a clarification was not required. The Utah Supreme Court has held that if "a defendant makes an ambiguous or equivocal request for an attorney, questioning with respect to the subject matter of the investigation must immediately stop, and any further questioning must be limited to clarifying the request." State v. Wood , 868 P.2d 70, 85 (Utah 1993), overruled on other grounds by State v. Mirquet , 914 P.2d 1144, 1147 n.2 (Utah 1996). Here, all parties agree Medina's request for an attorney was not "ambiguous or equivocal." Therefore, a clarification was not required. The request was unambiguous but Medina, immediately and unprompted, proceeded to carry on a discussion with the Detectives. "Police are not required to rewarn suspects from time to time." Berghuis v. Thompkins , 560 U.S. 370, 386, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010) ; see also Edwards v. Arizona , 451 U.S. 477, 485, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) ("[N]othing in the Fifth and Fourteenth Amendments would prohibit the police from merely listening to [a defendant's] voluntary, volunteered statements and using them against [the defendant] at the trial."). Accordingly, the district court incorrectly ruled that Medina's statement was not made knowingly and intelligently.

C. Voluntary Statement

¶29 Finally, the State argues that Medina's statements were made voluntarily. We agree. The test of whether a statement is made voluntarily "is never mechanical, but must duly consider both the characteristics of the accused and the details of the interrogation. The ultimate inquiry is whether physical or psychological force or other improper threats or promises prompted the accused to talk when he otherwise would not have done so." State v. Hilfiker , 868 P.2d 826, 831 (Utah Ct. App. 1994) (cleaned up); see also Moran v. Burbine , 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) (noting that a voluntary statement is "the product of a free and deliberate choice rather than intimidation, coercion, or deception"). While an accused "will likely experience at least some anxiety as a natural incident of being arrested and incarcerated that may affect the accused's psychological condition," a statement is not involuntary because "an accused experiences some anxiety because of his arrest and incarceration." State v. Moore , 697 P.2d 233, 236 (Utah 1985).

¶30 Here, the district court ruled that even though there was "no evidence of coercion," the State had failed to present sufficient evidence that the statements were made voluntarily. The district court erred by requiring the State to present additional evidence, as evidence beyond the circumstances of the interview is not required. See id. at 237 (holding that "there must be some physical or psychological force or manipulation that is designed to induce the accused to talk when he would not otherwise have done so," and because "[n]one ha[d] been shown," the statement was considered voluntary); see also Colorado v. Connelly , 479 U.S. 157, 164, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) ("Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law." (emphasis added) ); State v. Mabe , 864 P.2d 890, 893 (Utah 1993) ("To be involuntary, there must be a causal relationship between the coercion and the subsequent confession.").

¶31 The interrogation transcript, along with videos of the interrogation, constitute a sufficient basis on which to conclude that the statements were made voluntarily. We can presume that "an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford." Berghuis v. Thompkins , 560 U.S. 370, 385, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010). Accordingly, because all three conditions to the admission of Medina's statements were satisfied, the district court should have denied Medina's motion to suppress, and his statements in the first interview should have been admitted.

II. The Second Interview

¶32 The State argues that "[b]ecause Medina initiated a conversation with the [D]etectives after invoking his right to counsel and validly waived his Miranda rights" during the first interview, the statements Medina made during the second interview should also be admitted. We agree. Prior to the second interview, the Detectives and Medina engaged in the following conversation:

The Detectives: So you asked me to do a couple things when we last talked. I did that okay so I got some ... some good news as far as that goes okay, but just as we get talkin I just want to make sure you still are aware of your rights okay? Do you understand your rights too?
Medina: Yes.
D: That you do have the right to an attorney and you don't have to talk. You can have on[e] present with you and all that right? So you still understand those?
M: Yes.
D: You're still okay to talk to me then?
M: Ya.

¶33 The district court concluded that the Detectives' second recitation of Medina's Miranda rights prior to the second interview would have been adequate if Medina had voluntarily waived his right to counsel in the first interview. And as discussed, supra Part I, the Miranda warning given in the first interview was sufficient. Consequently, it carried over to the second interview that was given only three days later. See Maryland v. Shatzer , 559 U.S. 98, 110, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010) (holding that officers need not re-recite Miranda warnings unless fourteen days have passed since the break in custody). And here the Detectives reminded Medina of his right to counsel and confirmed that he understood his rights and still wanted to talk to the Detectives. Therefore, the Detectives did not violate Medina's right to counsel in the second interview and the district court incorrectly granted Medina's motion to suppress the statements made in the second interview.

CONCLUSION

¶34 Medina initiated further communication with the Detectives regarding topics that were not "routine" nor "unrelated to the crimes charged," effectively waiving his right to counsel. Further, his waiver was made knowingly and intelligently, as well as voluntarily. We therefore conclude that the Detectives did not violate Medina's right to counsel in the second interview, and we reverse the district court's grant of Medina's motion to suppress the statements made in both the first and second interviews.

      Miranda rights include the right to remain silent and the right to have an attorney present during custodial interrogation. See Miranda v. Arizona , 384 U.S. 436, 440, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ; see also infra ¶ 11.

      The waiver need not be express. It may be inferred from a defendant indicating that he understands his rights and the defendant's subsequent course of conduct. See State v. Barrett , 2006 UT App 417, ¶ 11, 147 P.3d 491.


source: Caselaw Access Project

author: HAGEN, Judge:

license: Public Domain

text:
    Kenyon L. FARLEY and Irene Farley, Appellants, v. UTAH COUNTY, Appellee.
    No. 20161078-CA
    Court of Appeals of Utah.
    Filed March 28, 2019
    Vincent C. Rampton, Salt Lake City, Attorney for Appellants
    Jody K. Burnett and Robert C. Keller, Salt Lake City, Attorneys for Appellee
    Judge Diana Hagen authored this Opinion, in which Judges Michele M. Christiansen Forster and Jill M. Pohlman concurred.
   HAGEN, Judge:

Opinion

¶1 Kenyon L. Farley and Irene Farley (collectively, the Farleys) submitted an application (the Application) to create an agriculture protection area to shield their land from any future zoning decisions and municipal regulations that would interfere with agricultural use. In response to the Application, Utah County's Board of Commissioners (Utah County) received two modification requests (the Modification Requests), seeking to exclude portions of the Farleys' land that might be needed to widen roads or install utility lines in the future. After considering the Application and the Modification Requests, Utah County approved a modified application that excluded the challenged portions from the agriculture protection area. The Farleys appealed the decision to the district court, which granted summary judgment in favor of Utah County. The Farleys now appeal the district court's order, arguing that under state and local law, Utah County lacked discretion to do anything except approve the Application. We affirm.

BACKGROUND

¶2 The Farleys are landowners in Utah County. In 2014, they submitted the Application to Utah County, requesting the creation of an agriculture protection area. An agriculture protection area is a geographic area that is granted "specific legal protections," Utah Code Ann. § 17-41-101(3) (LexisNexis 2017), intended to exempt the land from zoning decisions and municipal regulations that would restrict farming practices, see id. § 17-41-402 (limitations on local regulations); id. § 17-41-403 (nuisances); id. § 17-41-404 (policy of state agencies); id. § 17-41-405 (eminent domain restrictions); id. § 17-41-406 (restrictions on state development projects). Soon thereafter, Utah County received the Modification Requests. First, Payson City Municipal Corporation and Payson City Power and Light (collectively, Payson) requested that Utah County exclude from the protected area an easement where Payson intended to install a utility line at an undetermined time in the future. Second, the Utah County Engineer's Office (the Engineer's Office) requested that Utah County exclude rights-of-way for two roads currently crossing a portion of the proposed agriculture protection area because, according to Utah County's General Plan, these roads had been identified as collector and arterial roads that may be widened at an unspecified time.

¶3 Pursuant to Utah law, the Application and the Modification Requests were referred to the Utah County Agriculture Protection Area Advisory Board (the Advisory Board) and the Utah County Planning Commission (the Planning Commission) for their separate review, comments, and recommendations.

Ultimately, the Advisory Board and the Planning Commission returned conflicting recommendations. The Advisory Board recommended that the Application be approved as originally submitted, while the Planning Commission recommended that it be approved with the Modification Requests.

¶4 Utah County considered the conflicting recommendations at four public hearings. While the Application was under consideration, Utah County and the Farleys discussed potential agreements designed to address the concerns raised by Payson and the Engineer's Office about the potential need to acquire property to widen roads or install utility lines, but no agreement was reached. Consequently, Utah County considered the Application along with the Modification Requests.

¶5 In a two-to-one decision, Utah County approved the Application with the Modification Requests, concluding that its decision was warranted under Utah Code section 17-41-305, which, among other things, required it to consider "anticipated trends in agricultural and technological conditions." Id. § 17-41-305(5)(a). Utah County acknowledged that although it wanted to afford the Farleys the protections guaranteed to real property within agriculture protection areas, it also had a duty to protect previously planned corridors. In balancing these conflicting interests, Utah County determined that approving the Application without the Modification Requests would not be in the best interests of the general welfare, health, and safety of its citizens.

¶6 The Farleys filed a complaint with the district court, appealing the decision to exclude portions of their property from the agriculture protection area. In the complaint, the Farleys alleged that Utah County's decision: (1) was arbitrary, capricious, and contrary to the law; (2) violated their due process rights; (3) violated their equal protection rights; and (4) entitled them to relief under 42 U.S.C. § 1983. In addition, relying on 42 U.S.C. § 1988, the Farleys requested all costs and attorney fees.

¶7 Utah County and the Farleys filed cross-motions for summary judgment. After hearing argument on the motions, the district court granted summary judgment in favor of Utah County. In its order, the district court first determined that the governing statutes provided Utah County with discretion in deciding whether to approve the Application with or without the Modification Requests, and that, at a minimum, Utah County's decision was reasonably debatable. Second, the court concluded that because the Farleys had only a unilateral expectation that Utah County would approve the Application without the Modification Requests, their due process rights had not been violated. Finally, the court determined that the Farleys had failed to demonstrate that they had been treated differently from similarly situated landowners and that Utah County had acted with personal animus to deny them equal protection of the laws. The district court did not address the Farleys' claims under § 1983 and § 1988.

¶8 The Farleys appeal.

ISSUE AND STANDARD OF REVIEW

¶9 The Farleys contend the district court erred in granting summary judgment in favor of Utah County. Summary judgment is appropriate only when "there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Utah R. Civ. P. 56(a). On appeal, we review a district court's grant of summary judgment for correctness, affording no deference to the court's legal conclusions. See Baker v. Park City Mun. Corp. , 2017 UT App 190, ¶ 12, 405 P.3d 962.

ANALYSIS

¶10 The Farleys' challenge to the district court's ruling presents three issues for our consideration. First, they contend that Utah County exceeded its discretion in approving the Application with modifications. Specifically, the Farleys argue that under the Agricultural and Industrial Protection Areas Act (the Act), see generally Utah Code Ann. §§ 14-41-101 to -503 (LexisNexis 2017), Utah County was required to approve the Application without modification and that failure to do so was contrary to law. Second, the Farleys contend that Utah County violated their due process rights. Finally, the Farleys argue that Utah County's decision to modify and approve the Application denied them equal protection of the laws. We address each argument in turn.

I. Statutory Interpretation

¶11 The Farleys contend that Utah County acted contrary to law when it approved the Application subject to the Modification Requests. The parties dispute whether Utah County's action was a legislative or adjudicative decision, which would impact the degree of deference afforded to that decision. Even assuming, without deciding, that the decision was adjudicative, as the Farley's contend, this court must presume that the decision was valid and uphold the decision unless it was (A) illegal or (B) arbitrary and capricious. See Utah Code Ann. § 17-27a-801(3) (LexisNexis Supp. 2018). The Farleys have not established either basis for overturning Utah County's decision.

A. Utah County's Decision Was Not Illegal

¶12 The Farleys' primary argument is that Utah County's decision was illegal. A land use decision is illegal if it is "(A) based on an incorrect interpretation of a land use regulation; or (B) contrary to law." Utah Code Ann. § 17-27a-801(3)(c)(ii) (LexisNexis Supp. 2018). The Farleys argue that it was undisputed that all portions of their property met the criteria listed in Utah Code section 17-41-305 and, as a matter of law, Utah County could do nothing but approve the Application without modification. In other words, they argue that Utah County had no discretion to make the decision it made. We disagree.

¶13 When interpreting a statute, our goal is to give effect to the legislature's intent in light of the statute's intended purpose. See Garfield County v. United States , 2017 UT 41, ¶ 15, 424 P.3d 46. "The best evidence of the legislature's intent is the plain language of the statute itself." Id. (quotation simplified). Where the statute's plain language is unambiguous, we need not look to secondary considerations, such as legislative history. See Harvey v. Cedar Hills City , 2010 UT 12, ¶ 15, 227 P.3d 256.

¶14 The mere fact that both parties can articulate alternative interpretations of the statutory language is not enough to create an ambiguity. "Where both sides offer conceivable constructions of the language in question ... the statutory text may not be 'plain' when read in isolation, but may become so in light of its linguistic, structural, and statutory context." Olsen v. Eagle Mountain City , 2011 UT 10, ¶ 9, 248 P.3d 465 (quotation simplified). Accordingly, "a proposed interpretation that is plausible in isolation may ... lose its persuasive effect when we seek to harmonize it with the rest of the statutory scheme." Oliver v. Utah Labor Comm'n , 2017 UT 39, ¶ 21, 424 P.3d 22 (quotation simplified). With these principles in mind, we turn to the case before us.

¶15 To understand the procedure for evaluating and approving applications for the creation of agriculture protection areas, we begin with an overview of the relevant sections of the Act. Upon receiving an application for an agriculture protection area, the applicable legislative body shall provide notice to the public, advising that persons or entities affected by the creation of the area may file written objections or modification requests. See generally Utah Code Ann. § 17-41-302 (LexisNexis 2017). In addition, the notice must indicate that the legislative body will hold a hearing at which it will discuss or hear public comment on the application as a whole. Id. § 17-41-302(2)(e)-(f).

¶16 After notice has been provided, the application and any proposed modifications are then referred to the Advisory Board and the Planning Commission for their review, comments, and recommendation. Id. § 17-41-303(1). As part of their review, the Advisory Board and the Planning Commission shall submit a written report that:

• "analyzes and evaluates the proposal by applying the criteria contained in Section 17-41-305";
• "recommends any modifications to the land to be included in the proposed agriculture protection area ...";
• "analyzes and evaluates any objections to the proposal; and"
• "includes a recommendation to the applicable legislative body either to accept, accept and modify, or reject the proposal."

Id. § 17-41-303(2)(a)(ii)-(v), (2)(b)(ii)-(iv). The relevant criteria contained in section 17-41-305 that are to be analyzed and evaluated in the agency's report are: (1) "whether or not the land is currently being used for agriculture production"; (2) "whether or not the land is zoned for agriculture use"; (3) "whether or not the land is viable for agriculture production"; (4) "the extent and nature of existing or proposed farm improvements"; and (5) "anticipated trends in agricultural and technological conditions." Id. § 17-41-305. In addition to these common factors evaluated by both agencies, the Planning Commission must also "analyze[ ] and evaluate[ ] the effect of the creation of the proposed area on the planning policies and objectives of the county or municipality." Id. § 17-41-303(2)(a)(i).

¶17 After receiving both reports and holding a public hearing, the applicable legislative body must then decide whether to "approve, modify and approve, or reject" the application. Id. § 17-41-304(3)(a). Here, after receiving conflicting recommendations from the Advisory Board and the Planning Commission, as well as holding four public hearings, Utah County elected to modify and approve the Application-a decision we conclude it had the discretion to make.

¶18 Contrary to the Farleys' interpretation, Utah County was not required to approve the Application without modification so long as each portion of their land met the criteria set out in section 17-41-305. While this proposed interpretation may appear plausible in isolation, it loses its persuasive effect when read in conjunction with sections 17-41-303 and 17-41-304. See Oliver , 2017 UT 39, ¶ 21, 424 P.3d 22.

¶19 Utah Code section 17-41-305 provides that certain criteria shall be considered by the legislative body "in determining whether or not to create or recommend the creation of an agriculture protection area," but it does not mandate approval of an application that meets all five criteria. See Utah Code Ann. § 17-41-305 (LexisNexis 2017). And not all of the criteria enumerated in Utah Code section 17-41-305 can be objectively met. While the considerations presented in subsections (1)-(3) are based on existing conditions and can be answered in either the affirmative or the negative, those presented in subsections (4)-(5) cannot. Instead, the latter criteria are more forward-looking inquiries that require the Advisory Board, the Planning Commission, and the legislative body to analyze "existing and proposed farm improvements" and "anticipated trends in agricultural and technological conditions." Id. § 17-41-305(4) - (5) If the criteria in section 17-41-305 could be mechanically applied and if approval followed automatically whenever those criteria were met, there would be little need for two agencies to separately review the application and make recommendations, and for the legislative body to hold a public hearing and then decide whether to "approve, modify and approve, or reject" an application. See id. § 17-41-304(3)(a).

¶20 Moreover, the statutory scheme does not limit the Advisory Board and the Planning Commission to offering their assessment on whether the criteria under section 17-41-305 are satisfied. Indeed, the Planning Commission is require to also "analyze[ ] and evaluate[ ] the effect of the creation of the proposed area on the planning policies and objectives of the county or municipality." Id. § 17-41-303(2)(a)(i). Such a requirement would be meaningless if the legislative body that reviews the Planning Commission's report could not consider that factor. Because the Act requires an evaluation of factors beyond those criteria listed in section 17-41-305, the statutory scheme as a whole does not support the conclusion that an application must be approved if those five criteria are "satisfied." Therefore, the plain language of the Act unambiguously grants Utah County discretion in deciding whether to approve and modify the creation of an agriculture protection area.

B. Utah County's Decision Was Not Arbitrary and Capricious

¶21 The Farleys also contend that Utah County's decision was arbitrary and capricious. "A decision is arbitrary and capricious if the decision is not supported by substantial evidence in the record." Utah Code Ann. § 17-27a-801(3)(c)(i) (LexisNexis Supp. 2018). Substantial evidence "is that quantum and quality of relevant evidence that is adequate to convince a reasonable mind to support a conclusion." Associated Gen. Contractors v. Board of Oil, Gas & Mining , 2001 UT 112, ¶ 21, 38 P.3d 291 (quotation simplified).

¶22 Here, the Farleys contend Utah County made no findings to support its decision that the modifications to the Application were appropriate, and "[t]o the extent that factual findings were made," "all findings of fact went in [the Farleys] favor." "To determine whether substantial evidence supports [Utah County's] decision, we consider all of the evidence in the record but do not weigh the evidence anew or substitute our judgment for that of the municipality." See LJ Mascaro Inc. v. Herriman City , 2018 UT App 127, ¶ 20, 428 P.3d 4 (quotation simplified). We will not disturb Utah County's decision "so long as a reasonable mind could reach the same conclusion." Id. (quotation simplified). Given the nature of our review of Utah County's decision, "it is incumbent upon [the Farleys] ... to marshal all of the evidence in support thereof and show that despite the supporting facts, and in light of conflicting or contradictory evidence, the decision is not supported by substantial evidence." See Carlsen v. Board of Adjustment of City of Smithfield , 2012 UT App 260, ¶ 5, 287 P.3d 440 (quotation simplified).

¶23 The Farleys have made no effort to marshal any of the numerous findings made by Utah County in support of its decision. Nor have they marshalled any "conflicting or contradictory evidence" in support of their argument to show that Utah County's decision was not based on substantial evidence. See id. (quotation simplified). "By failing to address the evidence that supports [Utah County's] decision" or "conflicting or contradictory evidence," see id. ¶¶ 5, 7 (quotation simplified), the Farleys have failed to carry their burden of persuasion on appeal, see Utah Physicians for a Healthy Env't v. Executive Dir. of the Utah Dep't of Envtl. Quality , 2016 UT 49, ¶ 20, 391 P.3d 148 (explaining that an appellant's failure to marshal record evidence is no longer a "technical deficiency," but such failure "will almost certainly" result in the appellant's "fail[ure] to carry its burden of persuasion on appeal" (quotation simplified) ).

II. Due Process

¶24 The Farleys next contend that Utah County violated their substantive due process rights. Among other protections, the Fourteenth Amendment prohibits states from "depriv[ing] any person of ... property, without due process of law." U.S. Const. amend. XIV, § 1. "Procedural due process ensures the state will not deprive a party of property without engaging fair procedures to reach a decision, while substantive due process ensures the state will not deprive a party of property for an arbitrary reason regardless of the procedures used to reach that decision." Hyde Park Co. v. Santa Fe City Council , 226 F.3d 1207, 1210 (10th Cir. 2000).

¶25 To prevail on either a procedural or substantive due process claim, "a plaintiff must first establish that a defendant's actions deprived plaintiff of a protectable property interest." Zia Shadows, LLC v. Las Cruces City , 829 F.3d 1232, 1237 (10th Cir. 2016) (quotation simplified). The United States Supreme Court has stated that a "property interest" is "more than a unilateral expectation"; instead, it is a "legitimate claim of entitlement." Board of Regents v. Roth , 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) ; see also Petersen v. Riverton City , 2010 UT 58, ¶ 22, 243 P.3d 1261 ("A property interest exists only where existing rules and understandings that stem from an independent source such as state law secure certain benefits and support claims of entitlement to those benefits." (quotation simplified) ). In municipal land use regulation cases, such as this, the entitlement analysis focuses "on the degree of discretion given the decision maker." Hyde Park , 226 F.3d at 1210 (quotation simplified). Therefore, the Farleys must demonstrate that state and local law establish specific conditions, "the fulfillment of which would give rise to a legitimate expectation" that Utah County would approve the Application as submitted. See id. (quotation simplified).

¶26 The Farleys contend that a landowner has "the right to approval of a development or other land-related application 'if his proposed development meets the zoning requirements in existence at the time of his application and if he proceeds with reasonable diligence, absent a compelling, countervailing public interest.' " (Quoting Western Land Equities, Inc. v. Logan City , 617 P.2d 388, 396 (Utah 1980).) Specifically, they argue that because all portions of their property satisfied the factors set out in Utah Code section 17-41-305 -the law in effect at the time-the Application was entitled to a favorable decision from Utah County, that is, approval without the Modification Requests.

¶27 The Farleys' reliance on section 17-41-305 alone is misplaced. As discussed, supra ¶¶ 15-17, approval of applications for agriculture protection zone status is governed by sections 17-41-303 through 17-41-305. Significantly, under section 17-41-304, Utah County had discretion to "approve, modify and approve, or reject" the Application. See Utah Code Ann. § 17-41-304(3)(a) (LexisNexis 2017). In addition, the Act allows "any person or entity affected by the establishment of the area" to file written objections and proposed modifications, see id. § 17-41-302(2)(c), which the Advisory Board and the Planning Commission "shall" consider when compiling their report to the applicable legislative body, see id. § 17-41-303(2)(a). And although it may be true that section 17-41-305 requires that municipalities consider certain enumerated criteria in reviewing applications, the Act does not provide that fulfillment of those criteria strips municipalities of discretion and mandates approval. See generally id. §§ 17-41-303, -304, -305. Indeed, the criteria under subsection 17-41-303(2) relating to the Planning Commission's and the Advisory Board's analysis of "objections" to an application and their discretion to "recommend ... either to accept, accept and modify, or reject" an application are not conditions that can be objectively satisfied, as the Farleys argue, but are subjective considerations that those entities must take into account when reviewing an application. See id. § 17-41-303(2) ; see also supra ¶ 19.

¶28 Because the Act does not require approval of the Application if definitive conditions are met, the Farleys had no legitimate claim of entitlement to the creation of an agriculture protection area. Instead, the Farleys had only a unilateral expectation that Utah County would approve the Application without the Modification Requests, not a protectable property interest necessary to assert a due process claim.

III. Equal Protection

¶29 Relying on the "class of one" theory established in Village of Willowbrook v. Olech , 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam), the Farleys next contend that Utah County violated their equal protection rights by singling them out for disparate treatment without a rational basis to do so. See id. at 564, 120 S.Ct. 1073 (quotation simplified). Under the "class of one" theory, it is the Farleys' burden to show that: (1) they have "been intentionally treated differently from others similarly situated" and (2) "there is no rational basis for the difference in treatment."See id. (quotation simplified).

¶30 The Farleys have presented no evidence showing that similarly situated landowners applying for agriculture protection area status were treated more favorably by Utah County. Their equal protection claim rests entirely on a statement made by a county deputy attorney who was asked by the County Commissioners "whether similar measures have previously been taken for agriculture protection areas." In response, the deputy attorney stated, "[N]ot to his knowledge."

¶31 The Farleys cannot carry their burden based on the deputy attorney's statement alone. The statement does not speak to whether similarly-situated applicants exist and, if so, whether those applicants were treated more favorably than the Farleys. In arguing that neither Utah County nor the district court identified a single applicant that was treated like them, the Farleys have attempted to shift the burden of proof. But it is the Farleys who must establish that similarly-situated landowners received more favorable treatment, and it is insufficient for them to allege that they were a "trial balloon" or a case of "first impression." Instead, they must identify comparators that are "similarly situated in all material respects," which is a "substantial burden" in this context because "each property has unique characteristics." See Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1217-18 (10th Cir. 2011) ; id. at 1218 (stating that this requirement prevents "a flood of claims in that area of government action where discretion is high and variation is common"). Because the Farleys have failed to identify facts that tend to demonstrate that they were treated differently from other similarly situated landowners, their equal protection claim fails as a matter of law, and we need not address whether there was a rational basis for Utah County's decision.

CONCLUSION

¶32 We conclude that Utah County was entitled to summary judgment as a matter of law. First, under the Act, Utah County had discretion to modify the Application for the creation of an agriculture protection area and the Farleys have not demonstrated that Utah County exercised that discretion in an arbitrary and capricious manner. Second, due to that discretion, the Farleys had only a unilateral expectation of a favorable decision, which is insufficient to establish a due process claim. Finally, we conclude that the Farleys did not make the necessary showing to establish an equal protection claim. Accordingly, we affirm.

      "In reviewing a district court's grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party and recite the facts accordingly." Far West Bank v. Robertson , 2017 UT App 213, ¶ 2 n.4, 406 P.3d 1134 (quotation simplified).

      The Farleys also argue that they "should have been permitted to pursue their claims under 42 U.S.C. § 1983." The Farleys concede that a § 1983 claim "is dependent on the deprivation of rights secured by the Constitution and law of the United States" and assert that the reasons set forth in their arguments relating to due process and equal protection show that they were deprived of their rights secured by the United States Constitution and federal law. See 42 U.S.C. § 1983 (2012). Because we conclude that the Farleys have not established that Utah County deprived them of "any rights, privileges, or immunities secured by the Constitution," their § 1983 claims fail as a matter of law. See id. ; see also see infra ¶¶ 24-29. For that reason, they are not entitled to attorney fees under § 1988.

      Land use regulations enacted by a legislative body are reviewed under a "reasonably debatable" standard, whereas adjudicative land use decisions are reviewed under an "arbitrary and capricious" standard that requires the decision to be "supported by substantial evidence in the record." Utah Code Ann. § 17-27a-801(3)(a)-(c) (LexisNexis Supp. 2018).

      Our interpretation of the Act is not negated by the Farleys' allegation that Utah County's decision was based solely on its desire to subvert the additional protections afforded by sections 17-41-405 and 17-41-406, because, significantly, those protections are afforded only after the land has been included "within an agriculture protection area." See Utah Code Ann. §§ 17-41-405(1) -(2), -406(1), (3) (LexisNexis 2017). Put differently, an application to create an agriculture protection area must be approved before those protections are implicated.


author: ORME, Judge:

text:
    WINDSOR MOBILE ESTATES, LLC ; Henry Berry ; and Affordable Concepts, LLC, Appellees, v. Donnie SWEAZEY, Appellant.
    No. 20170983-CA
    Court of Appeals of Utah.
    Filed March 28, 2019
    Brian W. Steffensen, Salt Lake City, Attorney for Appellant
    L. Miles Lebaron and Tyler J. Jensen, Layton, Attorneys for Appellee Windsor Mobile Estates, LLC
    Mark A. Woodbury, South Jordan, Attorney for Appellees Henry Berry and Affordable Concepts, LLC
    Judge Gregory K. Orme authored this Opinion, in which Judges David N. Mortensen and Ryan M. Harris concurred.
    Opinion
   ORME, Judge:

¶1 Donnie Sweazey appeals the dismissal of his claims for failure to prosecute. We affirm.

¶2 On January 27, 2014, Windsor Mobile Estates, LLC, filed a complaint for unlawful detainer against Scott Wilson for failure to pay rent on a lot in its mobile home park. At the time, Wilson did not reside in the mobile home on the lot in question. Rather, Michelle Southard and Michael Oyler owned and resided in the mobile home. Wilson never filed an answer to Windsor's complaint, and the district court entered an order of restitution on February 7, 2014, ordering any occupants off the premises.

¶3 On February 21, 2014, Appellant Donnie Sweazey sought to intervene as a defendant, claiming to be the rightful owner of the mobile home, and he was granted leave to do so. The court then ordered a stay of execution until ownership of the mobile home could be determined and directed that the mobile home remain on the lot until further notice.

¶4 On April 30, 2014, Sweazey filed what he titled a third-party complaint, alleging that he had purchased the home from Southard and Oyler for $9,000 on February 10, 2014, by putting down all of $20 as a deposit, with $8,980 of the purchase price still owing. In his third-party complaint, Sweazey named as third-party defendants Appellee Henry Berry and his company, Affordable Concepts, LLC (collectively, Berry). He also asserted claims against Windsor, Oyler, and Southard. Answering the third-party complaint, Berry claimed he purchased the home from Oyler after Oyler represented to him that he had discussed selling the home to Sweazey but that no deal had been finalized.

¶5 Early on in the case, in April 2014, the district court stated that an evidentiary hearing was required to determine ownership of the mobile home. However, none of the parties requested an evidentiary hearing on the matter. Sweazey claims to have asked for a hearing and points to various filings, but there is no record of him filing a request to submit any relevant motion for decision, as required by rule 7(g) of the Utah Rules of Civil Procedure. Without such a request the court will ordinarily not take action on its own initiative. Seven months later, in December 2014, the court reiterated the need for an evidentiary hearing, but again no party properly moved the court to hold one-or so the court concluded, noting also that "[w]hatever claim is made that something was filed is eviscerated by the fact that even if a motion was filed, no Request to Submit was ever filed concerning that motion."

¶6 In his third-party complaint, Sweazey sought damages for an alleged breach of contract by Southard and Oyler, interference with contractual relations and defamation by Berry, and conspiracy and conversion by Berry and Windsor. Sweazey's attempt to bring claims against Berry and Windsor by using a third-party complaint was not proper, even though Sweazey saw the need to bring additional parties into the action. This mistake-the misuse of a third-party action-is a common one, and we take this opportunity to remind practitioners of the quite limited proper usage of third-party complaints.

¶7 Under rule 14(a) of the Utah Rules of Civil Procedure, a third-party complaint is used by a defendant to "bring in [a] third party" "who is or may be liable to him for all or part of the plaintiff's claim against him." Utah R. Civ. P. 14(a). Thus, "[a] third-party claim may be asserted under Rule 14(a) [ ] only when the third party's liability is in some way dependent on the outcome of the main claim or when the third party is secondarily liable to the defending party." 6 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1446, at 413-15 (3d ed. 2018). "The secondary or derivative liability notion is central," and thus a third-party complaint is the proper means for asserting claims against parties not named in the original complaint on such rationales as "indemnity, subrogation, [or] contribution." Id. at 415-21. "The crucial characteristic of a Rule 14 claim is that [the] defendant is attempting to transfer to the third-party defendant the liability asserted against defendant by the original plaintiff." Id. at 431-32.

¶8 Sweazey was attempting no such thing. He was asserting ownership of the mobile home. As against Oyler, Southard, and Berry, he did not claim that any liability imposed on him by Windsor should be passed on to them. Instead, he asserted independent claims against them-claims that were not dependent on any liability he might have to Windsor. And of course Windsor asserted no such claims against Sweazey, having not even named him in its complaint.

¶9 If a defendant wishes to bring a claim against the original plaintiff, as Sweazey did here, then the defendant must file a counterclaim under rule 13, not a third-party complaint. See Utah R. Civ. P. 13. See also 6 Wright & Miller, Federal Practice & Procedure § 1446, at 443 ("[T]he technically proper method for asserting a claim against someone who already is a party is to use the counterclaim or crossclaim provisions of Rule 13."). Because Sweazey intervened as a defendant and did not attempt to bring in a third-party who would be liable to him if and only if he was liable to Windsor, he should have filed a counterclaim under rule 13 instead of filing a third-party complaint. See Utah R. Civ. P. 13. Southard, Oyler, and Berry could then have been named as additional parties to the counterclaim. See Utah R. Civ. P. 13(f). See also 6 Wright & Miller, Federal Practice & Procedure § 1446, at 443 (explaining that "when defendant's claim is against the original plaintiff and a nonparty," the proper procedure is to file the counterclaim and "move under Rule 13 ( [f] ) to bring in the third person as an additional party to the" counterclaim).

¶10 Be all of that as it may, in August 2014, and again in June 2015, instead of seeking an evidentiary hearing, Sweazey filed motions for partial summary judgment. The court denied the first motion and never reached the second, as Sweazey again failed to file a request to submit. Many other motions were filed by all parties to the lawsuit between February 2014 and October 2016. A recitation of the long and convoluted history of this case, including the many filings the parties submitted during this time, is unnecessary. Suffice it to say that while counsel for both Windsor and Sweazey were able to file numerous motions, including those attempting to disqualify each other's counsel, no party ever managed to properly move the court under the rule for an evidentiary hearing and follow the motion up with a request that it be submitted for decision. Ultimately, according to the district court, the case did not move along efficiently as the parties were contentious, uncivil, and failed to follow the rules of civil procedure. The district court later noted that no party "ha[d] behaved properly nor diligently nor professionally" and that "[t]his matter could have and should have been easily resolved years ago, whether by mediation or proper legal procedures."

¶11 Between October 2016 and May 2017, nothing significant was accomplished by any party. In June 2017, both Windsor and Berry moved the court, pursuant to rule 41 of the Utah Rules of Civil Procedure, to dismiss Sweazey's third-party complaint for failure to prosecute. Having determined that the five factors established by case law for analyzing rule 41 motions had been satisfied, the court granted the motion. See PDC Consulting, Inc. v. Porter , 2008 UT App 372, ¶ 6, 196 P.3d 626 (discussing the factors appellate courts consider when analyzing whether a dismissal of a case for failure to prosecute was appropriate: "(1) the conduct of both parties; (2) the opportunity each party has had to move the case forward; (3) what each party has done to move the case forward; (4) the amount of difficulty or prejudice that may have been caused to the other side; and (5) most important, whether injustice may result from the dismissal") (quotation simplified). Sweazey then moved to alter or amend the district court's order under rule 59 of the Utah Rules of Civil Procedure, which motion the court denied.

¶12 Despite dismissing Sweazey's so-called third-party complaint, the court granted Sweazey possession of the mobile home and permitted him to remove it from Windsor's lot. The court allowed this because Berry had "filed no claims and [was] entitled to no relief" and because Windsor and Berry "indicated Sweazey could have the mobile home and take it away."

¶13 Sweazey raises four issues on appeal. First, despite having ultimately obtained possession of the mobile home, he contends that the district court's initial order "freezing" the mobile home until the court could determine its ownership is void because the court lacked jurisdiction. Second, Sweazey argues that the court erred in denying his summary judgment motion because there was no genuine dispute as to any material fact. Third, Sweazey challenges the district court's grant of Appellees' rule 41 motions to dismiss for failure to prosecute. Finally, Sweazey contends that the district court erred in denying his rule 59 motion to alter or amend.

¶14 We decline to address these arguments on the merits, and thus forgo our usual recitation of the applicable standards of review, as Sweazey has failed to adequately brief the issues and thus "has not met [his] burden of persuasion on appeal." See Salt Lake County v. Butler, Crockett & Walsh Dev. Corp. , 2013 UT App 30, ¶ 37 n.5, 297 P.3d 38. The Utah Rules of Appellate Procedure are "easy to understand" and clearly specify how parties are to prepare their briefs. State v. Green , 2004 UT 76, ¶ 11, 99 P.3d 820. Parties who fail to follow these rules run the risk of appellate courts "declin[ing] to reach the merits of an issue" because their briefing "is so lacking as to shift the burden of research and argument to the reviewing court." P.H. v. Sandy City , 2012 UT App 210, ¶ 3, 283 P.3d 1079 (per curiam) (quotation simplified). Accord State v. Thomas , 961 P.2d 299, 304-05 (Utah 1998).

¶15 Sweazey failed to comply with the provisions of rule 24 of the Utah Rules of Appellate Procedure. Specifically, Sweazey's briefing fails to present his legal arguments "with reasoned analysis supported by citations to legal authority." Utah R. App. P. 24(a)(8). Instead, Sweazey has presented conclusory statements and demanded relief without providing a single legal citation in support of his arguments as to why we should reverse the district court's rulings. In fact, in the entirety of Sweazey's briefing, he cites only seven cases, five of which appear on a single page and deal only with the applicable standards of review. Sweazey's remaining two citations are in his reply brief-lifted wholesale from Berry's brief-and provide no support for Sweazey's arguments. As our Supreme Court has noted, appellate courts are "not a depository in which the appealing party may dump the burden of argument and research," which is exactly what Sweazey has done here. Green , 2004 UT 76, ¶ 13, 99 P.3d 820 (quotation simplified).

¶16 "It is well established that a reviewing court will not address arguments that are not adequately briefed." Thomas , 961 P.2d at 304. Thus, we decline to address Sweazey's arguments on the merits as he has wholly failed to carry his burden of persuasion on appeal. See Butler , 2013 UT App 30, ¶ 37 n.5, 297 P.3d 38.

¶17 Affirmed.

      It is unclear whether he is referring to subject matter, in rem, or personal jurisdiction.

      Even in this Sweazey states the incorrect standard of review for a district court's ruling on a rule 41 motion for failure to prosecute. Sweazey cites Glew v. Ohio Savings Bank , 2007 UT 56, 181 P.3d 791, for the proposition that appellate review of rule 41 motions involves "mixed question[s] of law and fact," id. ¶ 19, where appellate courts review questions of law for correctness and set aside a district court's factual findings only if they are clearly erroneous, id. ¶ 22. However, Glew does not address failure to prosecute. Rather, it discusses a district court's application of the equitable doctrines of estoppel and apparent authority. See id. ¶¶ 18-19. Our case law is clear that the proper standard of review for a district court's ruling on a claimed failure to prosecute is for "an abuse of discretion and a likelihood that an injustice occurred." PDC Consulting, Inc. v. Porter , 2008 UT App 372, ¶ 5, 196 P.3d 626 (quotation simplified). See also Department of Social Services v. Romero , 609 P.2d 1323, 1324 (Utah 1980) ("The general rule is that whether an action should be dismissed for failure to diligently prosecute it rests largely within the discretion of the trial court; and [appellate courts] will not interfere therewith unless it clearly appears that [it] has abused [its] discretion and that there is a likelihood that an injustice has been wrought."); Hartford Leasing Corp. v. State , 888 P.2d 694, 697 (Utah Ct. App. 1994) (same); Charlie Brown Constr. Co. v. Leisure Sports, Inc. , 740 P.2d 1368, 1370 (Utah Ct. App. 1987) (same).


text:
    STATE of Utah, Appellant, v. Gregory Ryan MILLER, Appellee.
    No. 20170349-CA
    Court of Appeals of Utah.
    Filed March 28, 2019
    Simarjit S. Gill and Breanne M. Miller, Attorneys for Appellant
    Nathalie S. Skibine, Attorney for Appellee
    Judge Diana Hagen authored this Opinion, in which Judges Gregory K. Orme and Michele M. Christiansen Forster concurred.
    Opinion
   HAGEN, Judge:

¶1 A jury convicted Miller of one count of stalking based on evidence that Gregory Ryan Miller sent emails disparaging the victim (K.B.) to her employer (the company). After the jury delivered its verdict, Miller filed a motion to arrest judgment. The district court granted the motion, determining that no reasonable jury could find that Miller (1) intentionally or knowingly engaged in a course of conduct directed at K.B. and (2) knew or should have known that the course of conduct would cause a reasonable person fear or emotional distress because Miller did not know that K.B. would read the emails. See Utah Code Ann. § 76-5-106.5(2) (LexisNexis 2014). The State appeals. We conclude that the State was not required to present evidence that Miller knew or should have known that his emails to the company would reach K.B. to prove beyond a reasonable doubt that Miller's conduct amounted to stalking. We therefore reverse and remand to reinstate the jury's verdict.

BACKGROUND

¶2 Miller and K.B. met in 2003 or 2004 while working at the same accounting firm, and there were "periods of time" that they were "close friends." In 2011, K.B. found herself underemployed and Miller assisted her in obtaining a higher paying job with the company, a security system provider, where Miller was also employed. Miller held the position of financial controller and K.B. was hired as a bookkeeper.

¶3 In August 2012, Miller came across an invoice billed by a law firm for research conducted on the rights of convicted felons to have ownership interests in security system companies in the several states in which the company operated. The invoice identified the felon in question as the chief executive officer and one of the owners of the company. Based on his own research, Miller concluded that the owner was illegally operating in the industry. Around this time, Miller and K.B.'s friendship began to deteriorate, which K.B. attributed to her refusal to be involved in Miller's plan to blackmail the owner.

¶4 Without K.B.'s support, Miller eventually confronted the owner about his criminal past and Miller's employment at the company was terminated the following day. After the company terminated his employment, Miller entered into negotiations with the company regarding his severance package. But according to Miller's testimony, the negotiations came to a sudden halt after Miller learned that K.B. had provided the company's attorney with damaging information regarding Miller.

¶5 Following his termination, K.B. notified Miller that she no longer wished to remain in contact with him. Nevertheless, Miller continued to call her cell phone, call her work phone, email her, and text her about work and her personal life. Such communications included a suggestion that she find new employment as he intended to notify authorities that the company was illegally operating in the industry, accusations that K.B. was a traitor, requests that K.B. provide him a good work reference, racial slurs about K.B.'s boyfriend, and requests to meet her boyfriend. K.B. asked Miller to stop contacting her.

¶6 Despite her requests, Miller continued to contact K.B. by phone and email and would appear in public places that K.B. typically frequented. K.B. notified the police and in August 2013, she obtained a civil stalking injunction against Miller. The injunction stated, in relevant part:

Do not stalk [K.B.]. This means you must not follow, threaten, annoy, harass, or cause distress to [K.B.]. For a legal definition of stalking, see Utah Code, sections 76-5-106.5 and 77-3a-101.
Do not contact, phone, mail, e-mail, or communicate in any way with [K.B.] and any person listed below, either directly or indirectly.
Other people you must not contact: K.B., [and K.B.'s daughters].

After the court issued the injunction, Miller ceased calling, texting, or emailing K.B.

¶7 In the meantime, Miller and the company were engaged in a civil lawsuit, to which K.B. was not a party. After the company and Miller eventually reached a settlement, Miller later contacted the company's attorney via email. This resulted in an exchange of emails between Miller and the company's attorney that took place between August 11, 2014, and August 25, 2014.

¶8 In the initial email, Miller notified the attorney that he intended to file "grievances" against the Utah Division of Occupational and Professional Licensing with the Utah Attorney General and the FBI. Miller stated that he had a job interview with one of the company's competitors and that he intended to work with Utah legislators to "improve Utah's regulation of companies trafficking in sensitive consumer information." The company's attorney replied that Miller was ignoring key provisions of the settlement agreement and the company would consider any of the actions Miller had described to be a material breach of the agreement.

¶9 In the next email, Miller accused K.B. and the owner of fabricating the stalking charges against him and suggested that the owner was using K.B.'s stalking allegations to take revenge on Miller. The company's attorney responded that he would not speak with Miller any further about the settlement. Miller then responded, proposing new settlement terms, which included a provision stating:

Gregory Ryan Miller ... [e]nters into a formal agreement with [the company] to refrain from pressing criminal charges or bringing civil actions against any related party, including [the owner] and [K.B.], for actions and statements alleged to have occurred prior to the date of the signing of said formal agreement.

¶10 The company rejected Miller's offer. Miller next proposed that the company re-employ him in the capacity of "Strategic Consultant." In addition to requesting generous compensation, Miller also proposed that:

[The company] pays to $zero balances the existing delinquent federal and state tax liabilities of [K.B.];
[The company] establishes a fund for $ 25,000.00 to reimburse the tuition and other post-secondary educational expenses of [K.B.'s daughter].

¶11 The company also rejected this offer. In response, Miller again suggested that the owner was using K.B. to harm Miller's career and reputation. The company's attorney responded that the company would not accept additional settlement terms, stating that the company had no reason to believe Miller would abide by a new settlement when he had disregarded the first. In his reply, Miller listed the reasons why he would abide by his proposed terms, including the following:

[B]efore me is a once-in-a-lifetime and priceless opportunity to repay evil with good. In my estimation [K.B.] has been treacherous, ungrateful, thoughtless and vicious. She has caused tremendous harm to me and mine, such that instinct and worldly wisdom tell me to hate and humiliate her. But who would gain from this? Instead, it is my hope that to give up some of my advantage in order to ease her burden would serve to brighten her outlook, soften her disposition and perhaps even help her to escape the cycle of futility, despair and vice that has plagued her for many years.

¶12 Because these email conversations conveyed Miller's settlement offers, the company's attorney forwarded them to the owner and to the company's general counsel. The company's attorney did not forward the emails to K.B., but the owner frequently mentioned Miller at work due to the ongoing civil litigation between the company and Miller. At the company, K.B. saw the emails in which Miller requested that the company pay money to her and her daughter and referred to her actions as "evil," and she testified that the knowledge that Miller had involved her in his litigation with the company caused her to fear for her job and prevented her from concentrating on her work. It made her feel anxious, horrible, and worried.

¶13 Upon K.B.'s request, the company's attorney forwarded redacted copies of the emails to the police. Subsequently, the State charged Miller with three counts of stalking, all class A misdemeanors. See Utah Code Ann. § 76-5-106.5(6) (LexisNexis 2014). Count I alleged stalking that occurred prior to K.B.'s injunction against him, Count 2 alleged an incident of stalking that occurred after the injunction, and Count 3 alleged stalking as a result of Miller's email correspondence with the company's attorney. Following trial, the jury acquitted Miller on Count 1 and Count 2 but found Miller guilty on Count 3.

¶14 Prior to sentencing, Miller filed a motion to arrest judgment. See Utah R. Crim. P. 23. The district court granted Miller's motion after concluding that "the way [Miller's emails were] structured through the attorney ... there is just no reasonable basis on which to believe [Miller] could think ... or intend that that was going to cause [K.B.] or did cause her emotional distress or any fear." The State appeals.

ISSUE AND STANDARD OF REVIEW

¶15 The State argues that the district court erred in granting Miller's motion to arrest judgment for his stalking conviction. Under rule 23 of the Utah Rules of Criminal Procedure, a district court "upon its own initiative may, or upon motion of a defendant shall, arrest judgment if the facts proved or admitted do not constitute a public offense." We review a district court's application of rule 23 for correctness. State v. Black , 2015 UT App 30, ¶ 11, 344 P.3d 644.

ANALYSIS

¶16 In granting Miller's motion to arrest judgment for his stalking conviction, the district court concluded that Miller's actions could not "reasonably be construed to be designed to cause emotional stress," that the evidence the State presented at trial failed to prove beyond a reasonable doubt that Miller intended "to cause [K.B.] or did cause [K.B.] emotional stress or any fear," and that, as a result, Miller's conduct did not constitute a "public offense."

¶17 Under the standard for determining whether an order arresting judgment is erroneous, which is the same as that for determining whether a jury verdict should be set aside for insufficient evidence, "a trial court may arrest a jury verdict when the evidence, viewed in the light most favorable to the verdict, is so inconclusive or so inherently improbable as to an element of the crime that reasonable minds must have entertained a reasonable doubt as to that element." State v. Workman , 852 P.2d 981, 984 (Utah 1993).Viewing the evidence and all reasonable inferences that may be fairly drawn therefrom in the light most favorable to the jury's verdict, see id. , we conclude that there was sufficient evidence to prove the elements of stalking beyond a reasonable doubt.

¶18 Miller argues that under the stalking statute, the State was required to prove beyond a reasonable doubt that the he knew or should have known that his email correspondence with the company's attorney would reach K.B. and that the evidence presented at trial was insufficient on this point. This argument presumes that the only way to prove that Miller knew or should have known that his emails would cause a reasonable person to suffer emotional distress is by establishing that he knew or should have known that the emails would be relayed to K.B. We disagree that such evidence is required to prove the elements of stalking beyond a reasonable doubt.

¶19 A person is guilty of stalking when that person "(1) intentionally or knowingly engages in a course of conduct directed at a specific person and (2) knows or should know that the course of conduct would cause a reasonable person" to either "fear for the person's own safety or the safety of a third person" or "to suffer other emotional distress." Utah Code Ann. § 76-5-106.5(2) (LexisNexis 2014). Under section 76-5-106.5(1), "course of conduct" means "two or more acts directed at or 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; or
(ii) when the actor engages in any of the following acts or causes someone else to engage in any of these acts:
...
(B) appears at the person's workplace or contacts the person's employer or coworkers ;
...
(D) sends material by any means to the person or for the purpose of obtaining or disseminating information about or communicating with the person to a member of the person's family or household, employer, coworker, friend, or associate of the person ; ....

Id. § 76-5-106.5(1)(b) (emphasis added).

¶20 Contacting a person's employer or co-workers about the person is conduct included in the definition of stalking. Subsection (i) includes acts in which the perpetrator "communicates ... about a person ... indirectly, or through any third party." Id. § 76-5-106.5(1)(b)(i). Similarly, subsection (ii) includes acts of "contacting the person's employer or coworkers" and "disseminating information about ... the person to ... the person's ... employer [or] coworker." Id. § 76-5-106.5(1)(b)(ii). The statute does not require that the perpetrator intend for his message to reach the victim through the victim's employer or co-workers. Cf. State v. Trujillo , 2019 UT 5, ¶¶ 20-23 (holding that the crime of witness retaliation requires that the defendant intend for the victim to hear the threat because the threat must be made "as retaliation or retribution" against a witness)

¶21 Miller's "course of conduct" in this case falls squarely within these statutory definitions. Miller sent emails to an attorney representing K.B.'s employer. A reasonable jury could infer that Miller expected the company's attorney to forward his settlement proposals to the owner. Miller's statements about K.B. included suggesting that he had grounds to pursue criminal or civil charges against her; that she had "existing delinquent federal and state tax liabilities"; and that K.B. was "treacherous, ungrateful, thoughtless and vicious" and had caused harm to Miller. Through these emails, Miller both communicated about K.B. indirectly or through a third party and disseminated information about K.B. to her employer, either of which may constitute a "course of conduct" prohibited by the statute.

¶22 To be sure, the State must still prove that Miller knew or should have known that such a course of conduct would cause a reasonable person to suffer emotional distress. But a jury could reasonably find this element satisfied even if Miller had no reason to know that the emails would be relayed to K.B. Under section 76-5-106.5, " '[e]motional distress' means significant mental or psychological suffering, whether or not medical or other professional treatment or counseling is required," and " '[r]easonable person' means a reasonable person in the victim's circumstances." Utah Code. Ann. § 76-5-106.5(1)(d)-(e). The Model Stalking Code, on which Utah's statute is based, see Baird v. Baird , 2014 UT 08, ¶ 24, 322 P.3d 728, recognizes that "certain types of stalking behavior committed as part of a course of conduct, such as making repeated telephone calls to a victim at a workplace, possibly endangering her job, or engaging in conduct that destroys the victim's credit history, depending on the context, might not meet the 'fear for safety' standard" but still inflict "emotional distress." National Center for Victims of Crime, The Model Stalking Code Revisited: Responding to the New Realities of Stalking 40 (2007), https://victimsofcrime.org/docs/default-source/src/model-stalking-code.pdf?sfvrsn=12 [https://perma.cc/Z5DS-2GAT]; see also State v. Askham , 120 Wash.App. 872, 86 P.3d 1224, 1230 (2004) (concluding that "a course of conduct designed to destroy [the victim's] life, both personally and professionally" would cause substantial emotional distress to a reasonable person). Damage to one's reputation, relationships, or livelihood would cause a reasonable person to suffer emotional distress regardless of whether the communications that caused the damage are ever relayed to the victim.

¶23 Here, the State presented sufficient evidence from which a reasonable jury could find that, at the time that Miller sent the emails, he knew or should have known that a reasonable person in K.B.'s circumstances would suffer significant mental or psychological suffering. K.B. testified that she "wanted nothing to do with" Miller or "anything he was doing" and that Miller's emails to her employer's attorney made her feel afraid that she was going to lose her job. She added that she felt anxious because she knew people at her place of employment were talking about her and that she felt "bullied" and "horrible" throughout the duration of the time that Miller was contacting her and the company's attorney after he was fired. At the time Miller sent the emails, he knew that his prior unwelcome behavior toward K.B. had distressed her to such a degree that she had reported Miller's conduct to the police and obtained a civil stalking injunction against him. Miller received a copy of that injunction, which not only prohibited him from directly or indirectly contacting K.B., but also warned him not to "follow, threaten, annoy, harass, or cause distress" to K.B. and referred him to the statutory definition of "stalking," which includes contacting a person's employer or co-workers about the person. Because Miller was aware that K.B. no longer wanted to be involved with him, the jury could reasonably infer that Miller knew or should have known that disparaging K.B. to her employer and attempting to embroil her in his legal conflict and settlement negotiations would have caused a reasonable person in K.B.'s circumstances to suffer emotional distress.

CONCLUSION

¶24 It is immaterial whether Miller knew or should have known that the emails would be disclosed to K.B. The question for the jury was whether Miller knew or should have known that his course of conduct-spreading damaging information about K.B. to her employer after K.B. requested that he leave her alone-would cause a reasonable person in K.B.'s circumstances to suffer emotional distress. Based on the evidence, the jury could reasonably infer that Miller's emails were designed to damage K.B.'s reputation and endanger her job and that Miller knew or should have known that such interference would cause a reasonable person, who had repeatedly requested that Miller leave her alone and had received a stalking injunction against him, to suffer emotional distress. Therefore, we reverse the court's order arresting judgment, reinstate the jury's verdict, and remand for further proceedings consistent with this opinion.

      "We recite the facts in the light most favorable to the jury's verdict, and we present conflicting evidence as necessary to understand issues raised on appeal." State v. Black , 2015 UT App 30, ¶ 2, 344 P.3d 644.

      At the time of trial, this owner no longer possessed an ownership interest in the company.

      Under this section, a person is also guilty of stalking if he violates a stalking injunction. See Utah Code Ann. § 76-5-106.5(3) (LexisNexis 2014). As an alternative theory of Miller's guilt, the State presented evidence at trial and argues on appeal that Miller's conduct violated the civil stalking injunction protecting K.B. and her daughters from Miller. Because we conclude that Miller's conduct violated section 76-5-106.5(2), we do not separately analyze the sufficiency of the evidence supporting this alternative theory.