Koehler v. Allen

2020 UT App 73

THE UTAH COURT OF APPEALS

ALICIA W. KOEHLER,
Appellee,
v.
MARK STEWART ALLEN,
Appellant.

Opinion
No. 20190395-CA
Filed May 7, 2020

Fourth District Court, Provo Department
The Honorable M. James Brady
No. 160400655

Scott N. Weight, Attorney for Appellant
Albert N. Pranno and Justin T. Ashworth, Attorneys
for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

HAGEN, Judge:

¶1 The district court found Mark Stewart Allen in contempt
for violating a civil stalking injunction when he contacted Alicia
W. Koehler via email. On appeal, Allen argues that insufficient
evidence supported the district court’s findings that (1) he knew
that he was subject to a civil stalking injunction, and (2) he
intentionally violated the civil stalking injunction. Although we
reject his first argument, we reverse on the second and remand
for the district court to enter an explicit finding as to whether
Allen acted intentionally.
Koehler v. Allen

BACKGROUND 1

¶2 Allen and Koehler met in 2011 on Facebook. Whatever
relationship developed between the two apparently deteriorated
because Koehler requested that Allen “discontinue contact” with
her in July 2013. But Allen continued to contact Koehler by
emailing her, reaching out through third parties, sending
Koehler and her family gifts, and entering Koehler’s home while
she was not there. After contacting the police in 2014 and 2015,
Koehler sought a civil stalking injunction in April 2016.

¶3 The district court granted Koehler a temporary civil
stalking injunction (the injunction) on May 2, 2016. The
injunction prohibited Allen from contacting Koehler and
specifically advised him not to “contact, phone, mail, e-mail, or
communicate in any way with [Koehler] . . . either directly or
indirectly.” In bolded italics, the order stated that “[t]his order
ends 3 years after it is served.” In a section titled “Warnings to
the Respondent,” the injunction stated “[t]his is an official court
order” and “[n]o one except the court can change it.” The
injunction further warned that if Allen “disobey[ed] this order,
the court [could] find [him] in contempt.” The injunction notified
Allen of his right to a hearing but warned that if he did not ask
for a hearing within 10 days, the order would last for three years
after the date of service.

¶4 Allen was served with the injunction on May 13, 2016.
Because a hearing was not requested within ten days, “the ex

1. “On appeal from a bench trial, we view the evidence in a light
most favorable to the district court’s findings, and therefore
recite the facts consistent with that standard and present
conflicting evidence to the extent necessary to clarify the issues
raised on appeal.” Burggraaf v. Burggraaf, 2019 UT App 195, n.2,
455 P.3d 1071 (cleaned up).

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parte civil stalking injunction automatically [became] a civil
stalking injunction without further notice to [Allen] and
expire[d] three years from the date of service.” See Utah Code
Ann. § 77-3a-101(9) (LexisNexis 2017).

¶5 Allen requested a hearing on May 26, 2016. Because the
request was made more than ten days after service of the
injunction, the burden shifted to Allen “to show good cause why
the civil stalking injunction should be dissolved or modified.”
See id. § 77-3a-101(10). The matter was set for a one-day bench
trial, but Allen’s attorney moved to continue the hearing for
additional discovery. For reasons not clear from the record, no
hearing was ever held. No court orders were entered revoking or
modifying the injunction.

¶6 On December 21, 2018, less than three years after service
of the injunction, Allen contacted Koehler via email at 7:01 p.m.
The email stated, in part, “Why you have despised me and
ruined my hope for happiness, unknown, but I do desire peace
between our hearts . . . if you are willing.”

¶7 Koehler moved for an order to show cause why Allen
should not be held in contempt for contacting her in
contravention of the injunction. At the hearing on the motion,
Allen testified that he had been served with the injunction in
2016 but had asked his attorney to request a hearing, believing
that the injunction would last only until a hearing was held.
According to Allen, his attorney later informed him that the
hearing was canceled because the case had been dismissed.
Allen testified that, after speaking with his attorney, he believed
the injunction was no longer in effect, but he admitted that he
had never received any official court documents suggesting that
the injunction had been dismissed or modified in any way.

¶8 Allen also admitted that he had been criminally charged
with violating the injunction in June 2017 and had pled “no

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contest” pursuant to a plea-in-abeyance agreement. 2 During
that plea hearing, Allen claimed that he “wasn’t aware there . . .
was an injunction in place” because his “former counsel . . . had
a mental breakdown and failed to provide that documentation
to [him].” But he admitted, as the factual basis for the plea,
that the State could likely prove that “with the stalking
injunction in place [he] sent a package to the protected party
which was in violation of that.” As a condition of the plea in
abeyance, the court ordered Allen not to contact Koehler for one
year. Allen testified that he complied with the terms of his plea
agreement and the criminal case was dismissed prior to
December 2018. Allen acknowledged, however, that the court in
the criminal case did not say anything about the injunction.
Allen was asked multiple times whether the 2017 criminal
proceedings put him on notice that the injunction was still
in place, and the district court noted that Allen was “evasive” in
his answers.

¶9 Allen also claimed that he did not recall emailing Koehler
on December 21, 2018. He testified that, on December 21, he had
taken both Unisom, an over-the-counter sleep aid, and
trazodone, a medication that had been prescribed to Allen to
treat insomnia. Allen testified that he “woke up some 24 hours
later” and recalled “[a]bsolutely nothing” from the time period
during which the email was sent. Allen’s prescribing physician

2. In accordance with rule 410(a)(2) of the Utah Rules of
Evidence, the district court did not consider Allen’s prior “no
contest” plea for the purpose of establishing that Allen had
previously violated the injunction. However, as permitted by
rule 410(b), the parties stipulated to the admission of statements
made during the plea hearing. We consider those statements
only to the extent that they bear on whether Allen knew that the
injunction was in effect on December 21, 2018.

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testified that taking trazodone and Unisom together would
result in impairment and that it was possible that Allen slept for
24 hours.

¶10 After hearing arguments on the motion, the district court
found that Koehler had proved the first two elements necessary
for contempt by clear and convincing evidence. Specifically, the
court found that, first, Allen “knew what was required” by the
injunction and, second, Allen had “the ability to comply” with
the injunction. But the third element—intentional failure to
comply with the court-ordered injunction—was taken under
advisement. In considering whether Allen “acted intentionally in
sending the email,” the court noted that the email was “sent at
7:00 p.m., . . . which is not a time when typically people are
asleep, but it could be that he tried to go to sleep at 1:00 or 2:00
in the afternoon and slept for 24 hours.” The court observed
“that the content of the email and the way that it was drafted is
not a rambling email and it’s not one that by its face is
gibberish.” The court also noted that the email “seems to carry
messages, it carries it clearly, it’s even punctuated, even with the
uses of ellipses in the sentences.”

¶11 After taking the issue of intent under advisement, the
district court issued a written ruling finding Allen in contempt
of the stalking injunction. The court found that the third element
was satisfied because “Allen acted intentionally, or . . . he was
voluntarily intoxicated when he sent the email in question to Ms.
Koehler.” In its written ruling, the court found that “[t]he
content of the email, the proper spelling, sentence structure, use
of punctuation are all indications of a person whose mind is
not confused or stuporous. The time the email was sent is
not when most people would be taking medicines to help
them sleep.”

¶12 Allen appeals.

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ISSUE AND STANDARD OF REVIEW

¶13 Allen argues that there was insufficient evidence to
support the district court’s findings on two elements of
contempt: first, that he was aware of the injunction and, second,
that he intentionally violated the injunction. “When reviewing a
bench trial for sufficiency of the evidence, we must sustain the
trial court’s judgment unless it is against the clear weight of the
evidence, or if we otherwise reach a definite and firm conviction
that a mistake has been made.” In re D.V., 2011 UT App 241,
¶ 10, 265 P.3d 803 (cleaned up).

ANALYSIS

¶14 “As a general rule, in order to prove contempt for failure
to comply with a court order it must be shown that the person
cited for contempt knew what was required, had the ability to
comply, and intentionally failed or refused to do so.” Von Hake v.
Thomas, 759 P.2d 1162, 1172 (Utah 1988), superseded on other
grounds by statute as stated in State v. Hurst, 821 P.2d 467 (Utah Ct.
App. 1991). The district court must make “explicit findings,
whether written or transcribed, on the three elements of
contempt.” State v. Hurst, 821 P.2d 467, 470 (Utah Ct. App. 1991).
In a civil contempt proceeding such as this one, those elements
must be proved by clear and convincing evidence. Von Hake, 759
P.2d at 1172. 3

3. In a criminal contempt proceeding, the “elements must be
proven beyond a reasonable doubt.” Von Hake v. Thomas, 759
P.2d 1162, 1172 (Utah 1988). “The primary determinant of
whether a particular contempt order is to be labeled civil or
criminal is the trial court’s purpose in entering the order.” Id. at
1168. A criminal contempt order is punitive in nature, whereas a
(continued…)

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¶15 Allen challenges the sufficiency of the evidence
supporting the district court’s findings on the first and
third elements. First, he argues that there was insufficient
evidence that he “knew he was subject to a stalking
injunction on December 21, 2018.” Next, he argues that there
was insufficient evidence that he “knowingly and
intentionally violated the stalking injunction that was issued
against him” because he could not form the requisite intent
due to voluntary intoxication. We address each challenged
element in turn.

(…continued)
civil contempt order has a remedial purpose. Id. “A remedial
purpose is indicated when the contemner is allowed to purge
him- or herself of the contempt by complying with the
court’s orders.” Id. Thus, “a contempt order is criminal if the
fine or sentence imposed is fixed and unconditional, but is
civil if the fine or imprisonment is conditional such that
the contemner can obtain relief from the contempt order
merely by doing some act as ordered by the court.” Id. at 1168
n.5. Here, the district court’s order “impose[d] sanctions on Mr.
Allen including a jail term of 10 days and a fine of $300.”
However, these sanctions were “stayed to allow Mr. Allen an
opportunity to purge his contempt.” The order allowed Allen to
obtain relief from the contempt order merely by “having no
further contact directly or indirectly, in person, in writing, by
email[,] text, electronic posting to social media or in other
manner with Ms. Koehler for a period of two years.” Because
this order was conditional such that Allen could obtain relief
by staying away from Koehler, the contempt order is not
criminal but civil. See id. As such, the court was required to find
the three substantive elements of contempt by clear and
convincing evidence.

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I. Knowledge of the Injunction

¶16 Allen argues that there was insufficient evidence that he
“knew he was subject to a stalking injunction on December 21,
2018” because of “misleading information he received in 2016
from his attorney and the lack of explanation at the 2017
hearing.” We disagree.

¶17 The district court found by clear and convincing evidence
that Allen knew he was subject to the injunction when he sent
the email to Koehler in December 2018. In so doing, the court
implicitly found that Allen’s claim of ignorance lacked
credibility. “Because the weight to be given to the testimony is
within the province of the finder of fact, we will not second
guess a court’s decisions about evidentiary weight and
credibility if there is a reasonable basis in the record to support
them.” SA Group Props. Inc. v. Highland Marketplace LC, 2017 UT
App 160, ¶ 24, 424 P.3d 187 (cleaned up). Here, the evidence
supports the court’s finding that Allen knew he was subject to
the injunction when he emailed Koehler in December 2018,
despite his professed ignorance.

¶18 Allen admitted that he was served with the injunction,
which stated that the court order would end after three years.
The injunction was served on May 13, 2016, placing Allen on
notice that he was required to obey the court order until May 13,
2019. Even assuming that Allen’s attorney later misinformed him
that the case had been dismissed, the injunction specified that
“[n]o one except the court can change” the order and Allen
admitted that he never received any official communication
from the court relieving him of the responsibility to comply.

¶19 Most importantly, Allen admitted that he had been
charged with violating the injunction in 2017, long after he
allegedly received the misinformation from his attorney. The
stated factual basis for his plea in abeyance was that “with the

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stalking injunction in place the defendant sent a package to the
protected party which was in violation of that.” And when asked
whether the 2017 criminal proceedings had resolved any
uncertainty about whether the injunction was still in place, Allen
was “evasive,” casting further doubt on his credibility.

¶20 The record also undermines Allen’s claim that the 2017
criminal proceedings created further confusion about the status
of the injunction. He testified that, after the plea hearing in his
criminal case, he believed that the only order prohibiting him
from contacting Koehler was the one-year order issued by the
court, which expired before December 2018. But the record
makes clear that the one-year period was not a substitute for or
modification of the injunction, but a term of Allen’s plea-in-
abeyance agreement. And Allen admitted that the court in the
criminal case did not say anything about the injunction.

¶21 Viewed in the light most favorable to the district court’s
ruling, the finding that Allen knew what was required of him by
the injunction was not against the clear weight of the evidence.
Therefore, we affirm the district court’s finding that Allen “knew
he was subject to a stalking injunction on December 21, 2018.”

II. Intentional Failure to Comply

¶22 Allen also argues that insufficient evidence supported the
district court’s finding that he “knowingly and intentionally
violated the stalking injunction that was issued against him”
because he was voluntarily intoxicated when the alleged
violation occurred. Because we conclude that the court did not
make an explicit finding on whether Allen’s conduct was
intentional, we do not reach the issue of whether such a finding
would be supported by sufficient evidence.

¶23 The district court did not make an explicit finding that
Allen acted intentionally, as required to hold him in contempt.

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Rather, the court ruled in the alternative that “Allen acted
intentionally, or that he was voluntarily intoxicated when he sent
the email in question to Ms. Koehler.” (Emphasis added.) That
alternative ruling fails to account for the potential of voluntary
intoxication to negate a person’s ability to form the intent
required for a finding of contempt. See State v. Bell, 2016 UT App
157, ¶ 30, 380 P.3d 11.

¶24 Voluntary intoxication is not a defense “unless the
intoxication ‘negates the existence of the mental state which is an
element of the offense.’” Id. (quoting Utah Code Ann. § 76-2-306
(LexisNexis 2017)). 4 For voluntary intoxication to negate the
existence of intent required for a finding of contempt, a
defendant “must demonstrate that his state of intoxication
deprived him of the capacity to form the mental state necessary”
for such a finding. Id. (cleaned up). “It is not enough to merely
present evidence showing that the defendant was intoxicated.”
Id. (cleaned up). “Rather, to establish a viable voluntary
intoxication defense, the defendant must point to evidence
showing that he was so intoxicated that he was incapable of
forming the requisite mental state for the [acts] committed.” Id.
(cleaned up).

¶25 Here, the district court appears to have mistakenly
assumed that Allen’s alleged voluntary intoxication could not be
considered in determining whether Allen acted with the
required mental state. Indeed, the court’s order stated that
“[e]ven if [Allen] was not capable of intentionally sending the
email as a result of confusion, stupor or intoxication caused by
the medicines, since the medicines were voluntarily combined
by [Allen], his intoxication was voluntary and therefore not a

4. Although section 76-2-306 applies to criminal prosecutions,
neither party has suggested that different principles apply in
civil cases such as this one.

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defense.” That ruling allows for the possibility that Allen did not
act intentionally. Although the court’s subsidiary findings
regarding the timing and content of the email suggest that it did
not believe Allen’s mind was “confused or stuperous” as a result
of the alleged intoxication, the court did not explicitly find that
the third element was proved by clear and convincing evidence.

¶26 We therefore remand to the district court to make a
finding as to whether Allen intentionally violated the injunction.
If the court finds this element satisfied by clear and convincing
evidence, it should enter an amended judgment to that effect. If,
on the other hand, the court finds that Allen did not act
intentionally—as a result of voluntary intoxication or
otherwise—it should vacate the contempt order.

CONCLUSION

¶27 The district court’s finding that Allen knew he was subject
to the injunction was not against the clear weight of the
evidence. However, because the district court did not enter an
explicit finding as to whether Allen acted intentionally in
violating the injunction, we reverse and remand for the district
court to make a finding on that element of contempt.

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