Carson v. Barnes, 20150211–CA

385 P.3d 744

2016 UT App 214

Tim CARSON, Appellee,

v.Tom BARNES, Appellant.

No. 20150211–CA

Court of Appeals of Utah.

Filed October 27, 2016

Bart J. Johnsen and Alan S. Mouritsen, Salt Lake City, Attorneys for Appellant.

Jeremy M. Shorts, Attorney for Appellee.

Judge Kate A. Toomey authored this Opinion, in which Judges Stephen L. Roth and David N. Mortensen concurred.

Opinion

TOOMEY, Judge:

¶1 Tom Barnes appeals from a stalking injunction issued against him, arguing that the underlying events did not meet the statutory requirements for stalking. We affirm.

BACKGROUND¹

¶2 In September 2013, a property owner leased approximately forty acres in Tooele County, Utah, to Tim Carson, an owner and principal of TCM Bertha LLC (Bertha). Leading to the property is a gravel road with two gates, one at the turnoff from the highway and one where a railroad track intersects the road. The terms of the lease included "[u]se of the existing gravel road that would allow access to the ... property." In May 2014, Barnes, a Texas resident, bought the property and became Bertha's landlord. Barnes thereafter purchased and installed locks for the gates and gave Carson a key.

¶3 Bertha is a mining business that focuses on "concentrat[ing] ... ore in an environmentally clean manner." Part of its activities include sampling buckets of tailings or ore, which it did on the property. To run the business, Carson and mining consultants, Stewart Burgess and Crystal Burgess, a married couple, moved a generator, "crushers," and other equipment onto the property.

¶4 Barnes owned properties in Texas, Florida, and Utah. Because Barnes lived in Texas, Carson and Barnes had little interaction with each other and did not meet until October 2014 when Barnes made a business trip to Utah. Sometime in early October 2014, Barnes took the keys to the generator by cutting a cable that connected them to the generator. Barnes testified that he thought he was "doing [Carson] a favor" by taking the keys because he was concerned leaving the keys connected to the generator "would allow somebody to come out there, start the generator, [and] do whatever they wanted to out there." The Burgesses and Carson were at the property working when Barnes returned the generator keys. Carson "showed him ... around the property and what [they] were doing and what was going on." Stewart² testified that Barnes was angry with Carson for not shutting and locking the gates to the property. The record indicates that Carson and Barnes had an ongoing dispute over locking the gates on the road.

¶5 On October 27, 2014, the Burgesses traveled to the property to work. While they were on their way, Carson called them and told them to take the locks with them as they passed through the gates to prevent Barnes from locking them in. The Burgesses removed the locks and put them in their car. In the late afternoon, while the couple was still working, Barnes arrived looking for Carson. After discovering that Carson had left for the day, Barnes told the Burgesses to "[g]et off the property." He refused to let them clean up or turn off the generator and asked for the locks to the gates. Crystal went to the car and retrieved the locks. Barnes testified that he saw Crystal "go[ ] to the far side of the vehicle," open the door, and reach in to get something. He was "concern[ed] ... that she had reached in there to get a gun, or I don't know what." Crystal asked Barnes if he was going to lock them in and testified that Barnes got "very frustrated," went to his vehicle, pulled out a handgun, and loaded it. Barnes also testified that he reached in his vehicle, got his gun, and "put a clip in." At "pointblank range," Barnes pointed the gun at Stewart's head and demanded the locks. He then pointed the gun at Crystal and made the same demand. Crystal gave Barnes the locks and the couple left. The Burgesses called Carson and told him about the incident. Carson called the police.

¶6 After Barnes threatened the Burgesses with a gun, Carson "fear[ed] for [his] safety" and decided to move his operation off the property. On November 3, Carson, with the help of the Burgesses and a few other people, began to move his equipment. While they were doing so, Barnes arrived, "[g]ot in [Carson's] face," and "took some pictures of what they were doing." Carson called the sheriff. The sheriff was delayed in arriving because Barnes had locked the gates as he came in, and Carson had to travel out to unlock them for the sheriff.

¶7 The next day, November 4, as Carson continued to remove his equipment from the property, he noticed Barnes following him. Carson testified that it was dark, he "pulled over off the side of the road" due to some construction on the highway, and he saw Barnes "pull up and come in front of [him]." Carson redirected his route and headed into town behind Barnes. He watched Barnes turn into a parking lot, then pull out of it to follow Carson. Barnes continued to follow Carson to Carson's shop, then "turned off his lights and [sat] there" while Carson unloaded his trailer. Carson called the police, but Barnes pulled away as they arrived. Barnes testified he followed Carson because he "was curious [about] where [he was] going." According to Barnes, "[I]t was [his] understanding that [Carson] should have left that equipment and those improvements out there. And yet he was hauling them off. So [Barnes] thought it would be helpful to know where [Carson] was hauling them."

¶8 On November 6, Carson and his brother were moving equipment and drove down the street where Carson lived. Approaching from the opposite direction, they saw Barnes "going really slow past [Carson's] house." Carson called the police, turned around, and followed Barnes. The police dispatcher instructed Carson to stop following Barnes and to go to the police department, which he did.

¶9 After these events Carson filed a request for a civil stalking injunction. The district court issued an ex parte order instructing Barnes to stay away from Carson's house and shop and prohibiting him from possessing any firearms while the injunction was in effect.

¶10 The court held an evidentiary hearing on February 11, 2015, and expressed concern that Barnes had cut a cable and taken generator keys that did not belong to him. The court found that, although the lease gave Barnes "some reasonable right to inspect the premises," Barnes's "numerous visits to the lease property" "went beyond that reasonable right." The court further found that the Burgesses' testimony was "more credible than the testimony of ... Barnes," that they "would fall into the category of coworkers," and that Barnes's actions toward them, "at a very minimum, ... constituted brandishing a weapon." The court determined that stalking had been established under section 76–5–106.5 of the Utah Code based on Barnes's confrontation with the Burgesses, "[t]he cutting of the cable to get the [generator] keys," and the instances of Barnes following Carson and driving past his house. The court found that Carson reasonably feared for the safety of his family due to these incidents, especially because they involved a firearm. The court therefore ordered "[t]he stalking injunction [to] remain in place ... with the same terms and conditions as the temporary civil stalking injunction" for three years.

¶11 After the court stated its findings, Barnes asked whether the injunction "would only prohibit [him] from owning/possessing a firearm in the State of Utah" or if it would apply in other states. The court indicated the restriction would apply in Utah and the court was "not going to opine as to what other states may do." The court stated, "How the other states will interpret it will be up to those other states and [the] federal government." Barnes appeals.

ISSUES AND STANDARDS OF REVIEW

¶12 Barnes raises two issues on appeal. First, he contends the events leading up to the stalking injunction request do not meet the statutory requirements for imposing the injunction. "The proper interpretation and application of a statute is a question of law which we review for correctness, affording no deference to the district court's legal conclusion." Baird v. Baird , 2014 UT 08, ¶ 16, 322 P.3d 728 (citation and internal quotation marks omitted).

¶13 Second, Barnes contends the "injunction unlawfully restricts" his constitutional right to own and carry a firearm. "Constitutional issues are questions of law that we review for correctness." State v. Palmer , 2008 UT App 206, ¶ 6, 189 P.3d 69 (citation and internal quotation marks omitted).

ANALYSIS

I. The Stalking Injunction

¶14 A district court may issue "a permanent injunction after a hearing if [a] petitioner establishes ‘by a preponderance of the evidence that stalking of the petitioner by the respondent has occurred.’ " Baird , 2014 UT 08, ¶ 22, 322 P.3d 728, (quoting Utah Code Ann. § 77–3a–101(7) ). The "essential statutory element is proof of ‘stalking,’ " as defined by Utah Code section 76–5–106.5. Id. ¶¶ 22 –23. That statute provides,

A person is guilty of stalking who intentionally or knowingly engages in a course of conduct directed at a specific person and knows or should know that the course of conduct would cause a reasonable person: (a) to fear for the person's own safety or the safety of a third person; or (b) to suffer other emotional distress.

Utah Code Ann. § 76–5–106.5(2) (LexisNexis 2012). Barnes argues the district court erred in imposing the stalking injunction for two reasons: "First, the primary incident concerning the district court was not ‘directed at’ Mr. Carson. Second, two of the acts at issue do not form part of a ‘course of conduct’ that would cause a reasonable commercial tenant to be afraid."

¶15 When interpreting a statute, we begin with "the plain language of the statute." Dahl v. Dahl , 2015 UT 79, ¶ 159. "Our primary goal ... is to effectuate the intent of the Legislature" and "we read the plain language of the statute as a whole, and interpret its...