State v. Schroeder

2023 UT App 57

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
MICHAEL SCHROEDER,
Appellant.

Opinion
No. 20190339-CA 1
Filed May 25, 2023

Fifth District Court, Cedar City Department
The Honorable Troy A. Little
No. 191500104

Trevor J. Lee, Attorney for Appellant
Shane Klenk, Attorney for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGE MICHELE M. CHRISTIANSEN FORSTER and
SENIOR JUDGE KATE APPLEBY concurred. 2

ORME, Judge:

¶1 Following a consolidated bench trial, the court found
Michael Schroeder guilty on three charges of protective order
violations and one charge of criminal stalking, all class A
misdemeanors. Schroeder now appeals, primarily contending
that there was insufficient evidence to establish his guilt

1. This case is the consolidated appeal of cases 20190339-CA,
20190507-CA, and 20190508-CA.

2. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
State v. Schroeder

beyond a reasonable doubt on the convictions still at issue in this
appeal. 3

¶2 We conclude that Schroeder’s convictions for violations of
a protective order are supported by sufficient evidence and affirm
those convictions. But we conclude that Schroeder’s conviction for
stalking is against the clear weight of the evidence developed at
trial in support of that charge and therefore reverse that
conviction.

BACKGROUND 4

¶3 After Michael Schroeder and Samantha 5 ended their
romantic relationship in 2018, Samantha sought a protective order
against Schroeder. On August 13, 2018, Utah’s Fifth District Court

3. During the pendency of this appeal, Schroeder filed a motion
for remand under rule 23B of the Utah Rules of Appellate
Procedure on a claim of ineffective assistance of counsel he
asserted in connection with his conviction for a protective order
violation that was alleged to have occurred on January 26, 2019.
We granted that motion. In March 2022, following a hearing on
Schroeder’s rule 23B motion, the trial court granted the parties’
Stipulated Motion to Dismiss Charge with Prejudice. By so doing,
the court dismissed the case concerning Schroeder’s January 26
protective order violation. For that reason, we do not discuss the
events surrounding that charge, which is no longer at issue in this
appeal.

4. Following a bench trial, “we recite the facts from the record in
the light most favorable to the findings of the trial court and
present conflicting evidence only as necessary to understand
issues raised on appeal.” State v. Cowlishaw, 2017 UT App 181, ¶ 2,
405 P.3d 885 (quotation simplified).

5. A pseudonym.

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held a protective order hearing. Because Schroeder was present
and because he did not object to the protective order becoming
permanent, the court signed and served the Protective Order,
which required Schroeder to refrain from contacting Samantha, to
stay at least 1,000 feet from her, and to stay away from her home.

September 23 Protective Order Charge

¶4 During the bench trial, Samantha, her friend, a police
officer, and Schroeder each testified about an event that took place
on September 23, 2018. Schroeder testified that on that day, he
drove his truck through the city where he and Samantha lived and
inadvertently turned onto Samantha’s street. After turning onto
the street, he suddenly recognized where he was and further
realized that if he maintained his course, he would ultimately pass
Samantha’s home. He also recognized that driving past her home
may violate the Protective Order, but he was not certain.
Although he contemplated turning around to avoid passing
Samantha’s home, he testified that he chose to continue driving
down her street.

¶5 When Schroeder approached Samantha’s home, Samantha
was sitting outside with a friend. She and her friend testified
that they saw the truck approaching and recognized the truck
as belonging to Schroeder. Samantha testified that she saw the
truck slow down to almost a stop in front of her home. She was
able to identify Schroeder as the driver of the truck through the
truck’s open window. Samantha further testified that Schroeder
stared at her and made “complete eye contact” with her before
driving off. Samantha estimated that she was “maybe 20 feet”
from where Schroeder drove past. Her friend testified that he too
had been able to identify Schroeder through the truck’s open
window. The friend further corroborated Samantha’s testimony
that when Schroeder passed Samantha’s home, he was “maybe
20” or “25 feet” from their position and that Schroeder had slowed
down to a stop and stared at them for “a few seconds” before
driving off.

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¶6 Samantha called the police and reported what had
happened. An officer arrived and spoke with Samantha and her
friend, then contacted Schroeder and met with him at his
residence. Schroeder explained that he had made a wrong turn
onto Samantha’s street, thought about turning around, made the
decision not to, and then proceeded to drive past Samantha’s
home. Schroeder also told the officer that he did not know the
conditions of the Protective Order.

¶7 Soon after this event, the State filed an Information and
Affidavit of Probable Cause against Schroeder, charging him with
a protective order violation for coming within 1,000 feet of
Samantha.

January 7 Protective Order Violation Charge and Stalking Charge

¶8 During the bench trial, Samantha and Schroeder also
testified regarding an event that took place on the morning of
January 7, 2019. Samantha testified that she was with her dog in
front of her home when she heard a diesel truck approaching the
cross street at the end of the block, three houses away. The
distinctive sound of a diesel engine caused her to look up, and she
saw Schroeder’s truck slowly driving by on the cross street.
Samantha recounted that she made eye contact with Schroeder
and shook her head at him before he drove off. When she went
back inside her home, she again called the police and reported
what happened. Samantha stated that she is “really . . . not good”
with estimating distances, but she estimated she was “maybe 35
feet” from where she saw Schroeder. Schroeder denied having
any knowledge of this incident and suggested that Samantha
might have seen “some other gray truck” and confused it with his
truck.

¶9 Following this incident, the State filed an Information and
Probable Cause Statement against Schroeder, charging him with
a violation of the Protective Order’s prohibition on coming within
1,000 feet of Samantha and also charging him with criminal
stalking. The State predicated the stalking charge on events

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specified in the charging documents, discussed in more detail
below.

Consolidated Trial

¶10 All cases and charges addressed in this appeal came before
the trial court in a consolidated bench trial on April 4, 2019. In its
case addressing the September 23 protective order violation, the
State called Samantha, her friend, and the officer as witnesses.
They testified as outlined above, and Schroeder testified in his
defense but did not call other witnesses or present any other
evidence. Following the trial, the court expressly found all the
State’s witnesses to be credible. The court found that Schroeder
had been properly served the Protective Order because he was
present when the Protective Order was issued and did not object
to its issuance. The court further found that because Schroeder
recognized that he was driving down Samantha’s street and chose
not to alter his course, he intentionally violated the Protective
Order. Based on those findings, the trial court found Schroeder
guilty of the protective order violation that occurred on
September 23, 2018.

¶11 With respect to the January 7 protective order violation, the
court found that the State presented sufficient evidence that
Schroeder drove by on the adjacent street—which it found to be
less than 1,000 feet away from Samantha—and that, while
passing, Schroeder slowed down enough to stare at Samantha and
for Samantha to identify him and shake her head at him. The court
acknowledged that if Schroeder had just driven down the
adjacent street and neither slowed down nor stared at Samantha,
this likely would have been insufficient to support a protective
order violation. But because he was driving down a street close to
where he knew Samantha’s home to be and had slowed and
stared at her while he passed, his actions were sufficient to
amount to a violation of the Protective Order.

¶12 Regarding the stalking charge, the State specified the
following three events in the Probable Cause Statement as the

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basis for the charge: (1) an alleged incident on January 6, 2019, at
a local smoke shop; (2) the January 7 protective order violation;
and (3) an alleged drive-by incident that occurred a few hours
after the January 7 protective order violation. At trial, while the
State presented evidence of the January 7 protective order
violation, the State did not present any evidence of the other two
events specified in the charging documents.

¶13 After both parties rested and presented closing arguments,
the court determined that the September 23 and January 7 acts
“were clearly course of conduct acts” that could and did cause
Samantha “emotional distress and fear.” Thus, contrary to the
State’s theory set out in the charging documents and not
developed at trial, the court combined the September 23 and
January 7 episodes to establish the proscribed course of conduct
under the stalking statute.

¶14 Schroeder was convicted on all counts. This appeal
followed.

ISSUE AND STANDARD OF REVIEW

¶15 Schroeder argues that there was insufficient evidence to
prove his guilt beyond a reasonable doubt. “Unlike challenges to
a jury verdict, a defendant need not file a separate motion or make
a separate objection to challenge the sufficiency of the evidence
supporting the court’s factual findings in a bench trial.” State v.
Holland, 2018 UT App 203, ¶ 9, 437 P.3d 501, cert. denied, 437 P.3d
1252 (Utah 2019). “[W]e review a claim of insufficient evidence at
a bench trial for clear error,” State v. Ayala, 2022 UT App 1, ¶ 15,
504 P.3d 755, meaning we “must sustain the district 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,” Holland, 2018 UT App 203, ¶ 9 (quotation
simplified). In other words, “before we can uphold a conviction it
must be supported by a quantum of evidence concerning each
element of the crime as charged from which the factfinder may base

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State v. Schroeder

its conclusion of guilt beyond a reasonable doubt.” Spanish Fork
City v. Bryan, 1999 UT App 61, ¶ 5, 975 P.2d 501 (emphasis added)
(quotation otherwise simplified).

ANALYSIS

I. Protective Order Violations

¶16 Schroeder asks us to conclude that the trial court erred in
finding him guilty of the September 23, 2018 and the January 7,
2019 protective order violations. He contends that there was
insufficient evidence from which the court could find him guilty
beyond a reasonable doubt. See generally State v. Austin, 2007 UT
55, ¶ 6, 165 P.3d 1191. We address each of the court’s rulings in
turn.

A. September 23 Protective Order Violation

¶17 Schroeder contends that the State did not produce
sufficient evidence regarding Schroeder’s mental state when he
drove past Samantha and her friend in front of Samantha’s home.
As outlined by our Supreme Court, “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.” State v. Gordon, 2004 UT 2, ¶ 5, 84 P.3d 1167
(quotation simplified). “An example of an obvious and
fundamental insufficiency is the case in which the State presents
no evidence to support an essential element of a criminal charge.”
State v. Prater, 2017 UT 13, ¶ 28, 392 P.3d 398 (quotation
simplified).

¶18 It is a violation of a protective order and “a class A
misdemeanor,” Utah Code Ann. § 76-5-108(3) (LexisNexis Supp.
2022), when a defendant “intentionally or knowingly violates [an]
order after having been properly served or having been present,
in person or through court video conferencing, when the order

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State v. Schroeder

was issued,” id. § 76-5-108(2)(b). Schroeder concedes that he was
properly served with the Protective Order on August 13, 2018,
and was aware of its existence. Therefore, what remains for us to
decide is whether the State adduced sufficient evidence that
Schroeder was aware of the Protective Order and that he
“intentionally or knowingly” violated it. See id. In reviewing the
sufficiency of the evidence, we are mindful that “credibility is an
issue for the trier of fact.” Zappe v. Bullock, 2014 UT App 250, ¶ 8,
338 P.3d 242 (quotation simplified).

¶19 At trial, Schroeder conceded that he intentionally drove his
truck past Samantha’s home after deciding not to turn around so
as to avoid doing so. He recounted, “As soon as I turned on the
road and realized what was going on, like I was going to flip
around and then just kept on going through.” He also
acknowledged that he came within 1,000 feet of Samantha’s home.
Accordingly, we conclude that there was sufficient evidence to
support the conviction. We further conclude that the trial court’s
findings were not against the clear weight of the evidence and
affirm Schroeder’s conviction regarding the September 23
protective order violation.

B. January 7 Protective Order Violation

¶20 Schroeder next contends that the State did not provide
sufficient evidence on which the trial court could determine,
beyond a reasonable doubt, that he slowed down and stared at
Samantha as he drove by on the cross street three houses away
from her home.

¶21 At trial, the court appropriately recognized that simply
driving down a cross street near Samantha’s home would “not
necessarily be a violation” of the Protective Order. But the court
found that Schroeder did not simply drive down the cross street,
minding his own business. Instead, based on Samantha’s
testimony, which the court found to be credible, the court found
that Schroeder slowed and stared at Samantha as he drove past.
Samantha’s testimony included her estimation, apparently found

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reasonable by the trial court, that she was less than 1,000 feet from
the cross street when Schroeder slowed and stared at her.

¶22 Therefore, there was sufficient evidence to support the
conviction, and the trial court’s findings were not against the clear
weight of the evidence. Accordingly, we also affirm Schroeder’s
conviction regarding the January 7 protective order violation.

II. Stalking Conviction

¶23 Schroeder contends that the evidence supporting his
stalking conviction was insufficient to establish the necessary
course of conduct as charged by the State and that his conviction
was therefore against the clear weight of the evidence. 6 We agree.

¶24 “Article I, section 12 of the Utah Constitution provides that
every criminal defendant has a right to know ‘the nature and
cause of the accusation.’” State v. Burnett, 712 P.2d 260, 262 (Utah
1985) (quoting Utah Const. art. I, § 12). “This entitles the accused
to be charged with a specific crime, so that he can know the
particulars of the alleged wrongful conduct and can adequately
prepare his defense.” Id. Additionally, rule 4 of the Utah Rules of
Criminal Procedure provides that “[a] prosecution may be

6. As previously noted, “a defendant need not file a separate
motion or make a separate objection to challenge the sufficiency
of the evidence supporting the court’s factual findings in a bench
trial.” State v. Holland, 2018 UT App 203, ¶ 9, 437 P.3d 501, cert.
denied, 437 P.3d 1252 (Utah 2019). When findings of fact are made
in actions tried by the court without a jury, the question of the
sufficiency of the evidence to support the findings may thereafter
be raised on appeal regardless of whether the party raising the
question has made an objection to such findings via a motion or
otherwise. See State v. Jok, 2021 UT 35, ¶ 18, 493 P.3d 665 (noting
that “a sufficiency of the evidence claim is effectively preserved
by the nature of a bench trial and does not require making a
specific motion”).

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commenced by filing an information,” Utah R. Crim. P. 4(a),
which must contain “the name given to the offense by statute or
ordinance, or stating in concise terms the definition of the offense
sufficient to give the defendant notice of the charge,” id. R. 4(b)(2).
And an information charging a felony or a class A misdemeanor
must include “a statement of facts sufficient to support probable
cause for the charged offense or offenses.” Id. R. 4(c)(1). Our
Supreme Court has stated that “in a criminal proceeding . . . [the
accused] is entitled to be charged with a specific crime so that he
may know the nature and cause of the accusation against him”
and that “the State must prove substantially as charged the
offense it relies upon for conviction.” State v. Taylor, 378 P.2d 352,
353 (Utah 1963) (quotation simplified). This did not happen here
with respect to the stalking charge.

¶25 The charging documents concerning the stalking charge
alleged, in contemplation of section 76-5-106.5(2) of the Utah
Code, as follows:

[Schroeder], on or about January 07, 2019, in Iron
County, State of Utah, did (a) intentionally or
knowingly engage in a course of conduct directed at
[Samantha] and knew or should have known that
the course of conduct would cause a reasonable
person: (i) to fear for the person’s own safety or the
safety of a third person; or (ii) to suffer other
emotional distress[.]

¶26 Under section 76-5-106.5(2), an actor commits the offense
of stalking when the actor “intentionally or knowingly . . . engages
in a course of conduct” that “would cause a reasonable person . . .
to fear for the individual’s safety” or “to suffer other emotional
distress.” Utah Code Ann. § 76-5-106.5(2) (LexisNexis Supp. 2022).
The statute also explains that a course of conduct comprises “two
or more acts directed at or toward a specific individual,” id.
§ 76-5-106.5(1)(a)(i), and further defines emotional distress as
“significant mental or psychological suffering, whether or not

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medical or other professional treatment or counseling is
required,” id. § 76-5-106.5(1)(a)(ii)(A).

¶27 The Probable Cause Statement indicated that the stalking
charge in this case was based on a course of conduct consisting of
an event occurring “[o]n or about January 6, 2019,” an event
occurring the “following morning on January 7, 2019, between
8:00 a.m. and 9:00 a.m.,” and an event occurring “[l]ater that
morning” on January 7, 2019. The charging documents
concerning the stalking offense made no mention of the
September 23 incident.

¶28 At trial, the State presented evidence only of the January 7
event. The State did not present any evidence addressing either of
the other two events specified in the charging documents as
establishing the requisite course of conduct for stalking.
Accordingly, Schroeder had no reason to introduce controverting
evidence when presenting his defense.

¶29 Following closing arguments, the trial court made findings
of fact and entered its ruling. The court found Schroeder guilty of
stalking based on its finding that the January 7 protective order
violation and the September 23 protective order violation “were
clearly course of conduct acts.”

¶30 Schroeder does not challenge the court’s finding that the
January 7 protective order violation, included in the charging
documents, could be a qualifying act to partially establish a
stalking course of conduct. And the State presented sufficient
evidence of its occurrence at trial. See supra Part I.B. But the State
did not produce evidence concerning the other two incidents
referred to in the Probable Cause Statement, and it never argued
that the September 23 incident was relevant to the stalking charge,
nor did it seek to amend the charging documents to incorporate
that theory. Thus, by the end of trial, the State had established
only one of the two or more incidents required to prove the
stalking offense it charged. Because evidence is necessarily
insufficient when the State fails to establish “an essential element

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of a criminal charge,” State v. Ayala, 2022 UT App 1, ¶ 15, 504 P.3d
755 (quotation simplified), we reverse Schroeder’s conviction for
stalking. 7

CONCLUSION

¶31 The trial court’s judgments were not against the clear
weight of the evidence regarding Schroeder’s two convictions for
the protective order violations. Therefore, we affirm Schroeder’s
convictions regarding the September 23 protective order violation
and the January 7 protective order violation. But because the State
did not present evidence of any act specified in the relevant
charging documents as constituting stalking, apart from the
January 7 protective order violation, and because stalking is
predicated on a course of conduct comprising two or more acts,
the evidence was necessarily insufficient. Therefore, Schroeder’s
stalking conviction was against the clear weight of the evidence,
and we reverse that conviction.

7. Schroeder additionally argues that the trial court’s sua sponte
reconstruction of the stalking charge, following trial, in which it
embraced a theory of stalking not charged, was at odds with the
variance doctrine. The variance doctrine prevents the State from
introducing evidence at trial that varies from the charging
documents where the variance would prejudice a defendant’s
case. See State v. Fulton, 742 P.2d 1208, 1215 (Utah 1987). While we
premise our affirmance on the more straightforward rationale
that there was insufficient evidence to establish the stalking
offense as charged by the State, we recognize that our reversal of
that conviction also advances the salutary purposes served by the
variance doctrine.

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