District Court, Logan Department The Honorable Brian G.
Cannell No. 180100393
R. Thomas, Attorney for Appellant
Jedediah Wells Higley, Appellee Pro Se
Judges Gregory K. Orme, Kate Appleby, and Diana Hagen.
Bryan Dean Buhler appeals a permanent civil stalking
injunction entered against him in favor of Jedediah Wells
Higley. We affirm.
"On appeal, when a trial court has made findings of fact
to support a civil stalking injunction, we will recite the
facts in a light most favorable to the trial court's
findings." Carson v. Barnes, 2016 UT App 214,
¶ 2 n.1, 385 P.3d 744 (quotation simplified).
On September 28, 2018, Higley requested an ex parte civil
stalking injunction against Buhler. Higley listed three
stalking events in which Buhler allegedly drove by
Higley's house a number of times on August 16, 2018,
September 6, 2018, and September 22, 2018. The request
contained allegations regarding Buhler's earlier alleged
assault of Higley, listing a pending assault case involving
Higley and Buhler with a court case number. Higley also
attached two police reports. One described a call to police
about alleged harassment on August 16, 2018. The other police
report described the investigation of the alleged assault and
demonstrated that the investigation culminated in
Buhler's arrest for assaulting Higley.
Buhler requested a hearing after the entry of the temporary
civil stalking injunction. See Utah Code Ann. §
77-3a-101(6) (LexisNexis 2017). At the hearing, Buhler
conceded that there was a fight on July 7, 2018, between
Higley and Buhler and that Higley's injuries required
medical attention. But Buhler challenged the credibility of
Higley's account of the events that led to the fight.
Buhler also did not directly dispute that he drove by
Higley's residence on one or more of the dates alleged in
the request for a civil stalking injunction and flipped him
Higley testified and also presented the testimony of his
mother, who lived next door to him and had seen Buhler drive
by her as she was walking and flip her off. Higley's
adult sister testified that she also encountered Buhler, that
she heard him refer to her as a "bitch," and that
he flipped her off as he drove away. Higley stated that his
family felt threatened, unsafe, and uneasy. They were
concerned that they did not know what Buhler was
"capable of anymore."
Buhler argued that his conduct could not meet the definition
of stalking, claiming that flipping someone off is
"protected speech" that cannot constitute an act of
stalking unless it is accompanied "with fighting words
or some sort of threat." The court inquired about
considering the gesture in the context of the fight between
the two men. Buhler argued that the events were "so
remote in time and place . . . and not even related to the
same people. The flipping off would have to put them under
some sort of emotional distress, which they didn't offer
any testimony to that effect." Buhler also argued that
there was no proof of significant mental or psychological
suffering and that there were credibility issues with
The court refocused the parties on the statutory requirements
for a civil stalking injunction. In response to the court,
Buhler conceded that the fight occurred, that Higley was
harmed, and that he had to go to the hospital for treatment.
The court then asked Higley about the allegations in the
request for a civil stalking injunction "that there were
multiple events in which Mr. Buhler drove by your place of
residence. . . . How many times did he go by your place where
you see him going by and he gave you the finger?" Higley
responded that he saw Buhler do this "three or four
times" after the July 7 fight, "like a day or two
after he got out of jail from being released from the initial
arrest for this, . . . a day or two after that." These
three or four additional events after the fight caused him to
be in fear of harm. The court inquired whether Buhler wished
to reexamine Higley, and his counsel declined.
The district court found that there was a fight between
Higley and Buhler that resulted in some level of harm to
Higley. The court found that there was an additional
witness-Mr. Higley's mother-who testified that she
witnessed "an event of her own being flipped off."
The district court found that Buhler had options other than
driving past Higley's residence to reach the landfill
when he needed to go there for purposes of his work. Buhler
also could have driven past the Higley residence without
taking the additional action of flipping off Higley (or his
mother). The district court found that, regardless of any
claim of "free speech," when considered in the
context of the July 7, 2018, fight-"where there
apparently was significant harm"-the court was required
under the stalking statute to address the later instances as
acts "where . . . the respondent directly observed or
communicated to this petitioner," and determine whether
those actions "would cause a reasonable person to suffer
emotional distress or be afraid for that person's own
safety." The court considered the ensuring actions in
"the context of the fight and the resulting harm to Mr.
Higley." Accordingly, the district court concluded that
it was "required . . . at this point to confirm the
status associated with that civil stalking injunction and
have it remain in place."
After the court ruled, Buhler's counsel inquired about
potential issues regarding the school where both men had
children attending. The court directed the parties to stay
away from each other if they were both at the school. Buhler
did not object at that ...