Can throwing laundry on the floor qualify as stalking?

Stephen Bingham piled his wife's belongings on the floor of their shared apartment and sent her a message telling her to "come get [her] crap out of the kitchen." On another occasion, he went to her place of work and, when she asked him to leave, he refused and was escorted away by security. In a third incident, the wife rented an apartment and saw Mr. Bingham driving nearby in his car a few minutes after she signed the lease. For these incidents, Mr. Bingham was convicted of stalking, sentenced to nine months in jail, and fined $1,000.

On appeal, Bingham raised four clams of error: (1) there was insufficient evidence to support his conviction, (2) the trial court should have granted his motion for a directed verdict, (3) the trial court should have made a finding regarding his intent to commit the crime of stalking, and (4) his trial counsel was ineffective for failing to introduce medical evidence.

The Court of Appeals spent most of its time in its opinion addressing the first claim and dealt summarily with the other three.

Sufficiency of the Evidence
Bingham's principal claim of error was that there was insufficient evidence to support his conviction. The evidence cited by the Court of Appeals is slim. Yet the court held that the evidence was sufficient.

To prove stalking, the prosecution must show that the accused engaged in a "course of conduct" that "would cause a reasonable person to fear or experience emotional distress." The Bingham decision answers the following questions related to stalking cases:

1. What qualifies as a "course of conduct?"
2. Does the person being stalked have to experience fear or emotional distress?
3. Can otherwise legal conduct qualify as stalking behavior?

What is a "course of conduct?"

The Bingham decision makes clear that stalking must involve at least two "qualifying acts." In this case, the prosecution only alleged three qualifying acts: he (1) piled his wife's belongings in their kitchen and texted her telling her to come and get them, (2) went to his wife's workplace and refused to leave when she asked him to, and (3) was seen near an apartment soon after his wife rented it.

Any one of these actions alone could not qualify as stalking. As the Court of Appeals held in Butters, "a single isolated act cannot qualify as a course of conduct." If the State had failed to carry its burden of proof on two of the three alleged acts, it could not have proven stalking because "[s]talking, by its very nature, is an offense of repetition and can be accomplished only if [two or more] acts directed at a specific person are linked together." Quoting Butters v. Herbert, 2012 UT App 329.

Does a person being stalked have to experience fear or emotional distress?

No. Utah uses an objective test to determine whether an act would put a reasonable person in fear or cause them to experience emotional distress.

Bingham argued that the State provided insufficient evidence that his wife reacted fearfully to his behavior when he went to her place of work. In response, the Court of Appeals held that "a finding of stalking does not require any particular reaction on the part of the victim."

As the Utah Supreme Court held in Baird, "Under the [s]talking [s]tatute's solely objective standard, the subjective effect of the [actor's] conduct on the [victim] is irrelevant." Quoting Baird v. Baird, 2014 UT 08.

Can otherwise legal conduct qualify as stalking behavior?

Bingham argued that it was not illegal for him to enter their apartment and put her belongings in the kitchen because they lived together at that time. It was also not illegal for him to go to her workplace. Finally, he claims that he arrived at his wife's street near her apartment by accident. None of these incidents was illegal unless they qualified as stalking.

The trial court did not believe that Mr. Bingham arrived at his wife's street by accident. But the trial court found that each of the incidents was enough to provoke fear or emotional distress in a reasonable person. The Court of Appeals agreed and affirmed the conviction.

Bingham shows that the Court of Appeals is very reluctant to overturn a trial court's finding that otherwise legal conduct would provoke fear or cause emotional distress in a reasonable person.

Decision on utcourts.gov website: State v. Bingham, 2015 UT App 103.