State v. Nilsson , 2021 UT App 27 ( 2021 )

2021 UT App 27THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
JERRY DUNCAN NILSSON JR.,
Appellant.
Opinion
No. 20181046-CA
Filed March 11, 2021
Fourth District Court, American Fork Department
The Honorable Roger W. Griffin
No. 171100694
Aaron P. Dodd and Kara H. North, Attorneys
for Appellant
Sean D. Reyes and Jonathan S. Bauer, Attorneys
for Appellee
SENIOR JUDGE KATE APPLEBY authored this Opinion, in which
JUDGES GREGORY K. ORME and DIANA HAGEN concurred. 1
APPLEBY, Senior Judge:
¶1 Jerry Duncan Nilsson Jr. appeals from his conviction of
witness retaliation. He argues that because the evidence was
insufficient to support the charged crime, the district court erred
by submitting the case to the jury and his trial counsel was
ineffective in not moving for a directed verdict. We see no error
nor ineffective assistance and affirm.
1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
State v. Nilsson
BACKGROUND
¶2 Nilsson and the victim (Victim) lived together in a
romantic relationship for several years before they broke up in
2015. After the relationship ended, Victim filed multiple police
reports alleging that Nilsson was stalking her, 2 and the State
consequently charged Nilsson with criminal stalking in 2016.
Shortly thereafter, Victim obtained a permanent civil stalking
injunction, which included a no-contact order.
¶3 One day in April 2017, Victim went to court to testify
against Nilsson on the criminal stalking charge. While she was
waiting to testify, she saw that Nilsson had recently made a
social media post, with the ability to view it restricted solely to
her. Nilsson’s lengthy post started by saying that he was
“getting ready to go to court to listen to some delusional
bullshit.” Nilsson berated Victim, saying she was lying, calling
her “a coward” and “ignorant,” and stating that her head is “so
fucked up.” Nilsson continued:
i was helping you but you would not listen well
you can grandstand all you want for all your new
friends and people that give you things feeling
sorry for you the victim. but i will not back down
to you! and you can just go sell your soul but it
wont be at my expence this is just the beginning
see there is no justice unless you wait till you cant
make up any more bull shit then i drag you
through a civil case and sue for defimation of
2. In recent years, Victim has changed gender labels and
personal pronouns. In the interest of clarity, we use the
pronouns Victim used at the time of the underlying criminal
actions, intending no disrespect with this usage.
20181046-CA 2 2021 UT App 27State v. Nilsson
carictor. wrongfull prosicution, pergery and filing
false documents in a court of law . . . .
Following the advice of the prosecutor with whom she had been
waiting, Victim filed a police report regarding Nilsson’s post.
¶4 Based on the post, the State charged Nilsson with witness
retaliation and stalking. Victim testified that the post made her
feel “scared,” both because of the disruption that baseless
litigation would have on her schedule and because she would
have to be around Nilsson again. She stated, “I felt scared. I felt
like—I felt really intimidated. It was—it was kind of like, you
know, with how scary he is, like I already felt like it was hard to
testify, and then this, I was even more scared.” Responding
specifically about the “i will not back down to you!” language,
Victim testified, “[T]hat’s really scary for me considering the
previous history of things that have happened.” Victim further
testified she was unaware of any grounds for Nilsson to sue her.
Instead, she was certain Nilsson was threatening her and “trying
to scare [her] to not testify.” The jury convicted Nilsson on both
charges, and he appeals the witness retaliation conviction.
ISSUES AND STANDARD OF REVIEW
¶5 Nilsson argues, for the first time on appeal, that the
evidence was insufficient to support the witness retaliation
charge. “A failure to preserve an issue in the trial court generally
precludes a party from arguing that issue in an appellate court,
absent a valid exception.” State v. Johnson, 2017 UT 76, ¶ 18, 416
P.3d 443. Nilsson makes his argument under the exceptions of
plain error and ineffective assistance of counsel—asserting that
the district court plainly erred by submitting the witness
retaliation count to the jury and that his trial counsel rendered
ineffective assistance by failing to move for a directed verdict on
that count. See generally id. ¶ 19 (recognizing these exceptions to
the preservation rule). “Plain error is a question of law reviewed
20181046-CA 3 2021 UT App 27State v. Nilsson
for correctness.” State v. Smit, 2004 UT App 222, ¶ 7, 95 P.3d
1203. Similarly, “[w]here, as here, a claim of ineffective
assistance of counsel is raised for the first time on appeal
without a prior evidentiary hearing, it presents a question of
law.” State v. Bryant, 965 P.2d 539, 542 (Utah Ct. App. 1998).
ANALYSIS
¶6 Nilsson first argues that the district court plainly erred by
submitting the witness retaliation charge to the jury because the
evidence was insufficient to support each element of the charge.
“[T]o establish plain error, a defendant must demonstrate first
that the evidence was insufficient to support a conviction of the
crime charged and second that the insufficiency was so obvious
and fundamental that the trial court erred in submitting the case
to the jury.” State v. Holgate, 2000 UT 74, ¶ 17, 10 P.3d 346.
¶7 Relatedly, Nilsson next argues that because the evidence
was insufficient to support each element of the charge, his trial
counsel provided ineffective assistance in not moving for a
directed verdict on that basis. “In order to bring a successful
ineffective assistance of counsel claim, appellant must show that
his trial counsel’s performance was deficient, in that it fell below
an objective standard of reasonableness, and that the deficient
performance prejudiced the outcome of the trial.” State v. Bryant,
965 P.2d 539, 542 (Utah Ct. App. 1998) (quotation simplified).
¶8 Each of Nilsson’s arguments is based on his assertion that
his social media post did not meet the elements of the charged
crime. 3 Under the witness retaliation statute,
3. Nilsson also argues that the more appropriate charge for the
facts of the case would have been electronic communication
harassment, see Utah Code Ann. § 76-9-201 (LexisNexis Supp.
(continued…)
20181046-CA 4 2021 UT App 27State v. Nilsson
A person is guilty of the third degree felony of
retaliation against a witness, victim, or informant
if, believing that an official proceeding or
investigation is pending, is about to be instituted,
or has been concluded, he:
(a)(i) makes a threat of harm; or
(ii) causes harm; and
(b) directs the threat or action:
(i) against a witness or an informant
regarding an official proceeding, a victim of
any crime, or any person closely associated
with a witness, victim, or informant; and
(ii) as retaliation or retribution against the
witness, victim, or informant.
Utah Code Ann. § 76-8-508.3(2) (LexisNexis 2017). Nilsson
specifically takes issue with the element listed in subsection (a),
making a threat of harm or causing harm.
¶9 Nilsson argues the social media post cannot be considered
a threat of harm because it merely stated “his intent to seek legal
redress,” which redress is permitted under the witness
retaliation statute. Nilsson is correct that the witness retaliation
statute “does not prohibit any person from seeking any legal
redress to which the person is otherwise entitled.” Id. § 76-8-
508.3(3). Thus, pursuing appropriate legal action would not
qualify as harm under the statute. Yet the activity at issue here is
(…continued)
2020). But “the decision whether or not to prosecute, and what
charge to file, generally rests entirely in the prosecutor’s
discretion, so long as it is not based upon an unjustifiable
standard such as race, religion, or other arbitrary classification.”
State v. Lopez, 2020 UT App 101, ¶ 22, 468 P.3d 604 (quotation
simplified).
20181046-CA 5 2021 UT App 27State v. Nilsson
not Nilsson actually seeking appropriate legal redress, but his
threat to bring a litany of claims against Victim. And the statute
makes no exception for such a communication. Therefore, the
post should be treated as any other communication under the
statute: prohibited if it constitutes a harm or threat of harm to
the witness.
¶10 The witness retaliation statute defines harm as “physical,
emotional, or economic injury or damage to a person or to his
property, reputation, or business interests.” Id. § 76-8-508.3(1)(b).
Therefore, a communication toward a witness that results in
emotional injury would meet the harm element of the witness
retaliation statute. Granted, it may be that simply notifying a
witness of one’s intent to seek appropriate legal recourse would
not meet the harm element of the statute. But when that
notification takes the form of an angry, ranting, expletive-laden
threat to “drag [the witness] through” a barrage of dubious legal
claims, that action may rise to a harm in and of itself; this is
especially so when the communication is made just before the
witness is scheduled to testify and there is a protective order in
place prohibiting any contact with the witness. Simply put,
context matters. See State v. Spainhower, 1999 UT App 280, ¶ 6,
988 P.2d 452 (addressing a previous version of the witness
retaliation statute and stating that “it is appropriate for the jury
to consider both the content of the statement and the context in
which it was spoken”). Thus, we are satisfied that the menacing
communication at issue here was sufficient to support a jury’s
finding of harm under the statute.
¶11 Nilsson argues that a claim of emotional harm “must have
at least some manifestation of mental or physical symptoms”
that accompanies a witness’s fear. As support, Nilsson cites
precedent regarding what is required to demonstrate “severe
emotional harm” under the torts addressing the infliction of
emotional distress. See Mower v. Baird, 2018 UT 29, ¶¶ 83, 86, 422
P.3d 837. His logic is that if severe emotional harm requires a
20181046-CA 6 2021 UT App 27State v. Nilsson
showing of severe mental or physical symptoms, then emotional
harm should require at least some showing of mental or physical
symptoms. But Nilsson cites no case law supporting such an
extrapolation of the law on torts, and more importantly, the
statute at issue here includes its own unambiguous definition of
harm, rendering it unnecessary for us to look to other sources for
guidance on this definition. See State v. Candelario, 909 P.2d 277,
278 (Utah Ct. App. 1995) (“When interpreting statutory
language, we look first to the plain meaning of the statute. We
only resort to other methods if the language is ambiguous.”
(quotation simplified)); cf. Baird v. Baird, 2014 UT 8, ¶ 38, 322
P.3d 728 (refusing to extend the tort definition of emotional
distress to the criminal stalking statute, stating that to do
otherwise would “effectively be amending the statutory
standard” and that “clear and unambiguous statutory language
preempts supplementation by the common law”). Instead, we
simply apply the definition contained in the statute itself, which
does not suggest that a physical manifestation is required for an
action to qualify as emotional injury. See Utah Code Ann. § 76-8-
508.3(1)(b) (defining harm as “physical, emotional, or economic
injury or damage to a person or to his property, reputation, or
business interests”).
¶12 In addition to deciding there was sufficient evidence from
which a jury could have determined that the social media post
constituted a harm itself, we also note there was sufficient
evidence from which the jury could have found that the
communication constituted a threat of harm. The anger-infused
social media post included language that “this is just the
beginning,” that Nilsson “will not back down,” and that he
planned to “drag [Victim] through” a civil case, and the post was
timed to reach Victim just before she was scheduled to testify
against him, see Spainhower, 1999 UT App 280, ¶ 7 (“[T]he jury’s
determination whether appellant’s statement was threatening
depends as much on the inferences to be drawn from the context
in which the words were spoken as on the words themselves.”).
20181046-CA 7 2021 UT App 27State v. Nilsson
The jury could have concluded from this that Nilsson wanted to
retaliate against Victim and was threatening to do it in a way
that would cause her future emotional or economic harm or
would damage her reputation. And any such conclusion also
would have supported a finding of harm under the witness
retaliation statute. 4 See Utah Code Ann. § 76-8-508.3(1)(b).
¶13 Because we have determined that there was sufficient
evidence to support the harm element of witness retaliation, it
was not error for the district court to submit the case to the jury.
See State v. Salgado, 2018 UT App 139, ¶ 37, 427 P.3d 1228 (“If
there is any evidence, however slight or circumstantial, which
tends to show guilt of the crime charged, the court must submit
the case to the jury.” (quotation simplified)). Furthermore, under
these circumstances, a motion for a directed verdict would have
been futile, and trial counsel’s failure to make a futile motion is
clearly not deficient performance. State v. Johnson, 2015 UT App
312, ¶ 16, 365 P.3d 730. Therefore, Nilsson’s claim of ineffective
assistance also fails.
4. Nilsson also argues that any economic injury was
unsupported by the evidence because Victim’s testimony did not
include a statement that the threatened litigation would cost her
money in attorney fees, nor was there testimony that lawsuits
inevitably cost money. But such testimony would not be
required here where the issue is not whether Victim would have
incurred economic injury but, rather, whether Nilsson was
threatening economic injury. And we think it would be a
permissible inference here for the jury to conclude that Nilsson
was threatening to file a long list of claims for the purpose of
causing Victim economic and emotional injury, regardless of
whether he would have been successful in causing such injury.
20181046-CA 8 2021 UT App 27State v. Nilsson
CONCLUSION
¶14 Because there was sufficient evidence to support the harm
element of the charged offense, it was not plain error for the
district court to submit the case to the jury and trial counsel was
not ineffective in failing to move for a directed verdict. We
affirm.
20181046-CA 9 2021 UT App 27