State v. Fouse, 2014 UT App 29

Background

Brian Fouse and his estranged wife (Victim) separated after domestic‑violence; Victim obtained temporary then permanent protective orders prohibiting Defendant from contacting Victim and from coming to a listed address where she and children stayed.
After the permanent order, Defendant mailed multiple envelopes and court documents to addresses associated with Victim and her sisters (some addressed ambiguously to apartment numbers), left voicemail messages, and a box containing personal items including a wedding dress and letters addressed to Victim and the children.
Victim reported the communications; Defendant had prior arrest and had pled guilty once for violating a protective order after an earlier voicemail threatening remark.
Defendant was charged with one count of stalking (third‑degree felony) and six counts of violating a protective order (three later reduced to misdemeanors; felony counts charged as third degree due to prior domestic‑violence offense). Jury convicted on all counts.
On appeal Defendant raised: (1) improper judicial comments during jury selection; (2) prosecutorial misconduct in closing; (3) trial court’s answer to jury question about whether a protective order protects a person, an address, or both; (4) insufficiency of evidence for three protective‑order violations; and (5) cumulative error.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Fouse)	Held
Whether judge’s jury‑selection anecdote improperly commented on the evidence or bolstered the State	Judge’s anecdote was explanatory of jury selection and not a comment on the evidence; curative jury instructions sufficed	Anecdote signaled the judge’s prosecutorial bias and improperly bolstered the State and disparaged defense	Court: No reversible error — anecdote, read in context, was not a comment on the evidence; any potential impropriety cured by instructions (majority). Concurring judge would find the remark improper but harmless.
Whether prosecutor’s rebuttal remarks ("red herring," "asinine," "knew dang well") amounted to prosecutorial misconduct	Rebuttal challenged an argument that distracted jury; statements were permissible characterizations of defense theory, not attacks on counsel’s character	Remarks were sarcastic, inflammatory, and prejudicial	Court: No prosecutorial misconduct; comments fell within permissible latitude of rebuttal and were responses to an untenable defense theory.
Whether trial court erred in answering jury question that a protective order protects the named person and the listed address	The order’s stay‑away/residence provisions aim to protect person and may encompass listed address	The instruction was legally imprecise and removed jury’s ability to consider defendant’s intent to contact Victim indirectly via non‑protected third parties	Court: The answer was an oversimplification but any error was harmless given abundant evidence of intent to contact Victim directly/indirectly.
Whether evidence was insufficient to support convictions for mailings to Victim’s sisters	Evidence (letters, box, voicemails, return‑address tricks, content addressed to Victim/children) supported an inference Defendant intended to contact Victim	Mailings could be innocuous, misaddressed, or intended only for sisters; insufficient to prove intent to contact Victim	Court: Evidence was sufficient; reasonable jurors could infer intent to contact Victim and that communications were directed at her.

Key Cases Cited

State v. Dunn, 850 P.2d 1201 (Utah 1993) (plain‑error and cumulative‑error framework)
State v. Alonzo, 973 P.2d 975 (Utah 1998) (trial judge may not comment on weight of evidence or favor a party)
State v. Campos, 309 P.3d 1160 (Utah Ct. App. 2013) (distinguishing permissible argument from improper attacks on defense counsel when calling a theory a "red herring")
State v. Shumway, 63 P.3d 94 (Utah 2002) (standard for reviewing sufficiency of the evidence)
State v. Tillman, 750 P.2d 546 (Utah 1987) (remarks in argument may be "unwise and hyperbolic" yet permissible within latitude afforded counsel)
State v. Bryant, 965 P.2d 589 (Utah Ct. App. 1998) (colorful rebuttal language often falls within permissible closing‑argument latitude)
State v. Jeffs, 248 P.3d 1250 (Utah 2010) (review standard for jury instruction correctness)
State v. Irwin, 924 P.2d 5 (Utah Ct. App. 1996) (preservation and exceptional‑circumstances discussion)