State v. Baize

2019 UT App 202
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
NATHAN DAVID B AIZE,
Appellant.
Opinion
No. 20180326-CA
Filed December 12, 2019
Fourth District Court, American Fork Department
The Honorable Roger W. Griffin
No. 161100835
Douglas J. Thompson, Attorney for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys
for Appellee
JUDGE M ICHELE M. C HRISTIANSEN F ORSTER authored this Opinion,
in which J UDGES K ATE A PPLEBY and JILL M. P OHLMAN concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 	Nathan David Baize appeals his convictions for violating
a protective order. We affirm.
BACKGROUND1
¶2 	Baize and his former wife (Victim) were married in 2010
and divorced in 2014. Victim had sole physical custody of their
1. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict and present conflicting
evidence 	only 	as 	necessary 	to 	understand 	issues 	raised 	on
appeal.” State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.

State v. Baize
20180326-CA 	2 	2019 UT App 202
child and shared joint legal custody with Baize. After enduring
several instances of verbal and physical abuse, Victim sought a
protective order against Baize. The court issued a protective
order after a hearing, at which Baize was present, directing Baize
not to “commit, try to commit or threaten to commit any form of
violence” 	against 	Victim, 	including 	“stalking, 	harassing,
threatening, physically hurting, or causing any other form of
abuse.” Baize was also ordered, “Do not contact, phone, mail,
e-mail, or communicate in any way with [Victim], either directly
or indirectly,” with the exception that Baize could email Victim
about their child, provided his communications were “civil in
nature.”
¶3 	After 	the 	entry 	of 	the 	protective 	order, 	Baize 	sent
numerous emails to Victim that were not about their child, not
civil in nature, and arguably abusive. Much of the content of the
emails was directed toward Victim’s qualities and character.
Baize 	sent 	emails 	to 	Victim 	telling 	her 	that 	she 	was 	a
“spoiled brat,” “lazy,” “irresponsible,” “vindictive,” “selfish,”
“uncooperative,” “incapable,” “fake,” and lacking “integrity.”
Baize also sent emails to Victim telling her to “[u]se your brain
blondie,” to “[k]eep it simple stupid, [Victim’s name],” and that
he was “sick and tired . . . of [Victim’s] blonde, lazy, messed up
approach to cooperation.” Additionally, on several occasions,
Baize threatened to call the police for “custodial interference
charges.”
¶4 	On 	another 	occasion, 	Baize 	emailed 	Victim—with 	a
copy also sent to Victim’s new husband—complaining about
Victim 	and 	alleging 	that 	Victim 	engaged 	in 	certain
improprieties during their marriage. Victim’s husband spoke
to Baize 	at 	length 	and 	told 	him 	that 	he 	“need[ed] 	to 	stop
the belligerent, 	degrading 	emails 	to 	[Victim].” 	Baize
responded that 	his 	emails 	“will 	never 	stop.” 	Furthermore,
Baize told 	Victim 	that 	she 	was 	“a 	weak, 	weak 	person”
because she would “construe [his email comments] as personal
attacks.”

State v. Baize
20180326-CA 	3 	2019 UT App 202
¶5 	The content of Baize’s emails to Victim prompted the
State to charge him with four counts of violating a protective
order. See Utah Code Ann. § 76-5-108 (LexisNexis Supp. 2018).
These 	charges 	were 	enhanced 	from 	misdemeanors 	to 	third
degree felonies because Baize already had a prior conviction for
violating the same protective order. See id. § 77-36-1.1(2)(c)
(Supp. 	2019) 	(describing 	enhanced 	penalties 	for 	violating 	a
protective order). Baize moved to dismiss the charges, arguing
that the protective order was an unconstitutional prior restraint
of speech and that requiring his emails to be “civil in nature”
was unconstitutionally vague. Baize also asked the court to give
the 	jury 	an 	instruction 	defining 	the 	terms 	“harassing,”
“threatening,” and “abuse” in the protective order as “forms of
violence or threats of violence.” The court denied both motions.
¶6 	At trial, Baize stated that while the tone in his emails
might indicate that he was “[f]rustrated,” “feeling dejected,”
“[h]elpless, hopeless, [and] concerned,” the emails were never
uncivil. Rather, Baize asserted that he was just being “honest”
and “clear.” However, Baize also testified that he suspected
Victim would be offended by the emails and that Victim was
“weak” for reading his emails as insults. Baize also admitted that
his emails were similar in tone and content to emails he had sent
previously 	to 	Victim, 	which 	formed 	the 	basis 	of 	his 	prior
conviction for violating the same protective order. The jury
found Baize guilty of three counts of violating a protective order.
Baize appeals.
ISSUES AND STANDARDS OF REVIEW
¶7 	The first issue on appeal is whether the restriction in the
protective 	order 	requiring 	that 	Baize’s 	communication 	with
Victim be “civil in nature” rendered the order unconstitutionally
vague or acted as a prior restraint on speech. “Whether [an
order] is constitutional is a question of law that we review for
correctness, giving no deference to the trial court.” State v.
MacGuire, 2004 UT 4, ¶ 8, 84 P.3d 1171 (quotation simplified).

State v. Baize
20180326-CA 	4 	2019 UT App 202
¶8 	Baize’s second challenge on appeal is that the trial court
erred in denying his request to instruct the jury on the “legal
definitions” of terms in the protective order. This issue presents
a question of law, and both parties agree that we review the trial
court’s decision on this point for correctness. See State v. Dozah,
2016 UT App 13, ¶ 12, 368 P.3d 863 (“We review a district court’s
refusal to give a requested jury instruction for correctness.”).
ANALYSIS
I. Constitutional Challenges to the Protective Order
¶9 	At 	the 	outset, 	we 	must 	determine 	whether 	Baize 	is
permitted, “in this criminal proceeding, [to] collaterally attack
the protective order entered in the prior civil proceeding.” See
State v. Hegbloom, 2014 UT App 213, ¶ 10, 362 P.3d 921. The State
contends that as “a threshold matter, this Court should not
address either constitutional claim because the collateral bar rule
precludes Baize from challenging the validity of the protective
order in a prosecution for violating that order.”
¶10 	A collateral attack is “where a judgment is attacked in
other ways than by proceedings in the original action to have it
vacated or revised or modified or by a proceeding in equity to
prevent its enforcement.” Olsen v. Board of Educ. of Granite School
Dist., 571 P.2d 1336, 1338 (Utah 1977) (quotation simplified).
“Under the collateral bar doctrine, a party may not challenge a
district court’s order by violating it. Instead, [the party] must
move to vacate or modify the order, or seek relief in an appellate
court.” Iota LLC v. Davco Mgmt. Co., 2016 UT App 231, ¶ 13, 391
P.3d 239 (quotation simplified). “With rare exception, when a
court with proper jurisdiction enters a final judgment, . . . that
judgment 	can 	only 	be 	attacked 	on 	direct 	appeal.” 	State 	v.
Hamilton, 2003 UT 22, ¶ 25, 70 P.3d 111.
¶11 	The 	proper 	forum 	for 	a 	defendant 	to 	challenge 	a
protective 	order’s 	terms 	is 	in 	the 	original 	action, 	not 	in 	a

State v. Baize
20180326-CA 	5 	2019 UT App 202
subsequent criminal case resulting from its violation. This court
has already addressed this issue in Hegbloom, where we stated
that a civil protective order is not subject to collateral attack and
that there is “nothing fundamentally unfair in not allowing a
litigant 	to 	challenge 	collaterally 	a 	judgment 	he 	could 	have
challenged directly had he chosen to do so.” 2014 UT App 213,
¶¶ 15, 22; see also Olsen, 571 P.2d at 1338 (explaining that when
an issue is erroneously decided, the proper remedy is to directly,
rather than collaterally, attack it); Iota, 2016 UT App 231, ¶ 18
(“The proper method for contesting an adverse ruling is to
appeal it, not to violate it.” (quotation simplified)). Courts in
other jurisdictions are in accord.2
¶12 	Thus, 	our 	precedent 	and 	that 	of 	other 	jurisdictions
make clear 	that 	the 	collateral 	bar 	rule 	applies 	to 	situations
in which 	a 	defendant 	seeks 	to 	attack 	the 	validity 	of 	a
protective order 	in 	a 	criminal 	proceeding 	for 	addressing 	a
2. Other jurisdictions also explicitly bar collateral attack in this
context. See, e.g., State v. Grindling, 31 P.3d 915, 918–19 (Haw.
2001) (stating that a domestic restraining order is not subject to
collateral attack in the criminal proceeding for its violation and
collecting cases stating the same); Wood v. Commonwealth, 178
S.W.3d 500, 513 (Ky. 2005) (stating that a party “may not launch
a collateral attack on the validity of an emergency protective
order in a subsequent prosecution for violation of that order”);
Truesdell v. State, 304 P.3d 396, 399 (Nev. 2013) (“[A] party may
not collaterally attack the validity of a [protective order] in a
subsequent 	criminal 	proceeding 	based 	on 	violation 	of 	the
[protective order].”); Best v. Marino, 2017-NMCA-073, ¶ 18, 404
P.3d 450 (“The collateral bar rule precludes a restrained party
from challenging the merits of [a protective order] after a finding
of contempt.”); City of Seattle v. May, 256 P.3d 1161, 1165 (Wash.
2011) (en banc) (“The collateral bar rule precludes challenges to
the validity . . . of a court order in a proceeding for violation of
such 	an 	order 	except 	for 	challenges 	to 	the 	issuing 	court’s
jurisdiction to issue the type of order in question.”).

State v. Baize
20180326-CA 	6 	2019 UT App 202
violation of that same protective order. See State v. Winter,
979 A.2d 608, 615 (Conn. App. Ct. 2009) (“The collateral bar rule
has been extended to apply to situations in which . . . the
defendant 	seeks 	to 	attack 	the 	validity 	of 	a 	court 	order 	in
a criminal proceeding, and the rule is justified on the ground
that it advances important societal interests in an orderly system
of government, respect for the judicial process and the rule
of law, 	and 	the 	preservation 	of 	civil 	order.” 	(quotation
simplified)).
¶13 	Here, Baize was ordered not to “commit, try to commit
or threaten to commit any form of violence” against Victim,
including “stalking, harassing, threatening, physically hurting,
or causing any other form of abuse.” The relevant portion of
the protective order also provided the following prohibition:
“Do not contact, phone, mail, e-mail or communicate in any
way with 	[Victim], 	either 	directly 	or 	indirectly,” 	the 	only
exception being that Baize could contact Victim “via email
about Child,” provided the emails were “civil in nature.” Not
only 	did 	Baize 	sign 	the 	protective 	order 	as 	a 	whole, 	but
he initialed each provision of the order, including those he
now challenges on constitutional grounds. Thus, at the outset
and even before he signed it, Baize had the opportunity to
seek clarification 	of 	any 	provision 	in 	the 	order 	that 	he
believed was too restrictive or vague. And after the protective
order 	was 	entered 	by 	the 	court, 	Baize 	still 	could 	have
challenged the order on direct appeal. But he never did so.
Instead, 	Baize 	raised 	his 	prior 	restraint 	and 	vagueness
challenges to the protective order only after he was criminally
charged a second time with violating the order.
¶14 	Precedent—both that of Utah and other jurisdictions—
states that a defendant cannot attack the validity of a protective
order in a prosecution for violating the order. And that is exactly
what Baize attempts to do here. Thus, we conclude that Baize
cannot collaterally attack a protective order arising from a civil
proceeding in this criminal proceeding. Put simply, this is not

State v. Baize
20180326-CA 	7 	2019 UT App 202
the proper forum to address constitutional challenges to the
protective order’s terms.3
II. Legal Definitions in the Protective Order
¶15 	The protective order prohibited Baize from “stalking,
harassing, threatening, physically hurting, or causing any other
form of abuse” to Victim. Baize argues that the trial court erred
when it denied his request to define for the jury certain “legal
terms” contained in the protective order.
¶16 	Jury instructions require no specific form as long as they
accurately convey the law. “To determine if jury instructions
correctly state the law, we look at the jury instructions in their
entirety and will affirm when the instructions taken as a whole
fairly instruct the jury on the law applicable to the case.” State v.
3. Even if we were to conclude that Baize could attack the
validity of the civil protective order here and agree with him that
the 	“civil 	in 	nature” 	language 	in 	the 	protective 	order 	is
unconstitutionally 	vague, 	Baize 	ignores 	the 	alternative
restriction imposed on him by the protective order, namely that
his communication with Victim must pertain to their child.
Baize’s emails to Victim appear to have violated this provision.
Baize’s communications variously described Victim in
unflattering terms and accused her of indiscretions. Indeed, our
review of the record reveals that Baize’s emails to Victim are
replete 	with 	examples 	of 	Baize 	directing 	his 	comments 	to
Victim’s 	alleged 	attributes 	rather 	than 	a 	discussion 	of 	co-
parenting needs or the needs of the child.
We find the argument that Baize’s comments took place
in the context of communication about their child unpersuasive.
Baize’s concerns regarding their child’s well-being or Victim’s
parenting could have been effectively communicated without
personal commentary about Victim. In fact, Baize admitted at
trial 	that 	he 	was 	“[g]ambling 	on” 	Victim 	construing 	the
comments he made in his emails as “personal attacks.”

State v. Baize
20180326-CA 	8 	2019 UT App 202
Painter, 	2014 	UT 	App 	272, 	¶ 	6, 	339 	P.3d 	107 	(quotation
simplified); see also State v. Hobbs, 2003 UT App 27, ¶ 31, 64 P.3d
1218 (stating that jury instructions will be upheld when they
“fairly tender the case to the jury even where one or more of the
instructions, standing alone, are not as full or accurate as they
might have been” (quotation simplified)).
¶17 	Baize was charged with violating a protective order. See
Utah Code Ann. § 76-5-108 (LexisNexis Supp. 2018) (stating that
any person who is “subject to a protective order” and “who
intentionally or knowingly violates that order after having been
properly 	served” 	is 	guilty 	of 	a 	misdemeanor 	or 	felony,
depending on the circumstances). The court instructed the jury
that to find Baize guilty of violating the protective order, it
would need to find beyond a reasonable doubt the following
elements:
1. 	Nathan David Baize;
2. 	While subject to a protective order issued by a
Utah Court;
3. 	After having been properly served with the
protective order;
4. 	Intentionally 	or 	knowingly 	violated 	the
protective order; and
5. 	Is or was a cohabitant of the alleged victim.
¶18 	Baize contends that the court erred when it denied his
motion requesting a jury instruction that defined the terms
“stalking, harassing, threatening, physically hurting, or causing
any other form of abuse” as forms of violence or the threat of
violence. Baize argues that “because the protective order only
prohibits stalking, harassing, threats, and abuse insofar as these
terms 	could 	mean 	violence 	or 	a 	threat 	of 	violence,” 	the
definitions of those terms should be “limited . . . to that realm.”
(Quotation simplified.) Specifically, Baize requested that the
court instruct the jury on the definitions of harassment and
physical harm as those terms are defined in Utah’s criminal code
or in the Cohabitant Abuse Procedures Act. See Utah Code Ann.

State v. Baize
20180326-CA 	9 	2019 UT App 202
§ 	76-5-106(1) 	(LexisNexis 	2017) 	(defining 	harassment 	as
intentionally frightening or harassing another by communicating
“a written or recorded threat to commit any violent felony”); id.
§ 77-36-1(4) (Supp. 2019) (defining domestic violence as “any
criminal offense involving violence or physical harm or threat of
violence or physical harm”).4
¶19 	The violence-based definitional language Baize requested
is not found in the protective order or in the statute he was
accused of violating. But Baize asserts that because Utah Code
section 76-5-108 does not define the terms in the protective order
(namely, harassing and threatening), the court should have
given the jury the statutory meanings of those terms pulled from
other provisions of the criminal code instead of allowing the jury
to 	rely 	on 	the 	general 	understanding 	of 	the 	terms. 	Baize’s
argument misses the mark. He was not charged with harassing
or any other violent behavior pursuant to a separate statute.
Rather, he was charged pursuant to Utah Code section 76-5-108
with four counts of violating the protective order, and the jury
instructions on those four counts closely tracked the language of
that section. Moreover, Baize presents no evidence that the
4. Baize also argues on appeal that the jury should have been
instructed on the definition of stalking. But at trial, the State
stipulated that the court would consider instructing the jury on
the 	definition 	of 	stalking 	only 	“[i]f 	the 	State 	[brought] 	in
evidence of stalking.” The State did not attempt to introduce
evidence of stalking, and Baize did not again request that the
trial 	court 	instruct 	the 	jury 	on 	the 	issue 	of 	stalking.
Consequently, Baize waived this aspect of his argument below
and cannot raise it on appeal. See State v. Johnson, 2017 UT 76,
¶ 16 n.4, 416 P.3d 443 (“Waiver, in the context of raising an issue
before a court, is generally the relinquishment or abandonment
of an issue before a trial or appellate court. . . . If an issue has
been waived in the trial court, that issue is not preserved for
appeal.”).

State v. Baize
20180326-CA 	10 	2019 UT App 202
protective order adopted the specific violence-based statutory
definitions he proposed.
¶20 	We conclude that the trial court did not err when it
denied Baize’s request that the jury be instructed using Baize’s
restrictive definitions of certain terms and allowed the jury to
determine whether Baize violated the protective order based on
common definitions of the terms contained in the protective
order.5
5. We resolve this aspect of Baize’s appeal by declining to apply
strict statutory definitions, but we note that the language of the
relevant provisions of the protective order was written broadly
and did not suggest that Baize was prohibited from engaging in
only physically violent behavior or in making threats of violence.
Baize’s violence-based reading of the protective order’s terms
conflicts with the public policy underlying the entire domestic
violence statutory scheme:
Because 	of 	the 	serious, 	unique, 	and 	highly
traumatic nature of domestic violence crimes, the
high recidivism rate of violent offenders, and the
demonstrated increased risk of continued acts of
violence subsequent to the release of a perpetrator
who is convicted of domestic violence, it is the
finding of the Legislature that domestic violence
crimes 	warrant 	the 	issuance 	of 	continuous
protective 	orders 	. 	. 	. 	because 	of 	the 	need 	to
provide ongoing protection for the victim . . . .
[T]he 	court 	shall 	issue 	a 	continuous 	protective
order at the time of the conviction or sentencing
limiting the contact between the perpetrator and
the victim unless the court determines by clear and
convincing evidence that the victim does not . . .
have a reasonable fear of future harm or abuse.
(continued…)

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20180326-CA 	11 	2019 UT App 202
CONCLUSION
¶21 	We hold that the proper forum for Baize to challenge the
protective order was the original civil proceeding pursuant to
which the order was entered. Because Baize had notice and the
opportunity to appeal the protective order, he is barred from
collaterally challenging it in the subsequent criminal proceeding
resulting from its violation. We also conclude that the trial court
did not err in denying Baize’s request to define for the jury
certain terms contained in the protective order. Accordingly, the
judgment of the trial court is affirmed.
(…continued)
Utah Code Ann. § 77-36-5.1(6)(a)–(b) (LexisNexis Supp. 2019); see
also State v. Hardy, 2002 UT App 244, ¶ 17, 54 P.3d 645 (“The state
has an inarguably significant interest in protecting the health
and well-being of its citizens. In furtherance of this goal, the state
has created 	a 	mechanism 	whereby 	the 	victims of 	domestic
violence may obtain civil orders of protection against their
abusers. As part of this protection, the court may prohibit the
abuser from having any contact, direct or indirect, with the
victim or the victim’s family.”). Thus, the statute’s purpose is to
protect domestic abuse victims from further abusive behavior in
the broad sense, including psychological abuse and other forms
of controlling behavior. Baize’s violence-based interpretation of
the protective order’s terms appears to run contrary to the
significant interest the State has in protecting the overall health
and emotional well-being of its citizens.