State v. Collard

2026 UT App 87

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
KEVIN MICHAEL COLLARD,
Appellant.

Opinion
No. 20240532-CA
Filed June 4, 2026

Third District Court, Salt Lake Department
The Honorable Teresa Welch
No. 201906503

Emily Adams and Mikayla Irvin,
Attorneys for Appellant
Simarjit S. Gill and Kenneth Grigg,
Attorneys for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS
concurred.

LUTHY, Judge:

¶1 Kevin Michael Collard was convicted on three counts of
violating a protective order. He appeals, asserting that the district
court erred by denying his motion to arrest judgment on two of
the charges. Collard also asserts that his trial counsel (Counsel)
rendered ineffective assistance by failing to object to the
admission of an unredacted copy of the temporary protective
order Collard was charged with violating.

¶2 We affirm the court’s denial of Collard’s motion to arrest
judgment. We conclude, however, that Collard has established his
State v. Collard

claim of ineffective assistance of counsel. We therefore reverse his
convictions and remand the case for a new trial.

BACKGROUND 1

The Temporary Protective Order

¶3 Collard and Olivia 2 married in 2018. In March 2020, the
district court issued a temporary protective order against Collard
and in favor of Olivia. The temporary protective order stated that
the court had found “there [was] reason to believe” that Collard
had “abused or committed domestic violence against [Olivia], or
that there [was] a substantial likelihood that [Collard]
immediately threaten[ed] [Olivia’s] physical safety.” The
temporary protective order instructed Collard to “not have
contact with [Olivia],” specifically directing him as follows: “Do
not contact, phone, mail, e-mail, or communicate in any way with
[Olivia] . . . either directly or indirectly except as allowed by the
parent-time provisions of this order.” The temporary protective
order also instructed Collard to stay away from Olivia’s residence
and place of work. It further directed him “to return [Olivia’s]
passport to [her],” and it said that a law enforcement officer
would assist in enforcing an order that Collard “[h]elp [Olivia]
remove essential personal belongings from the home.” The
temporary protective order was set to expire on April 9, 2020,
when a hearing before a court commissioner was scheduled to

1. “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly.” State v. Liti,
2015 UT App 186, ¶ 3 n.2, 355 P.3d 1078 (cleaned up). We do so
“recognizing, however, that our reversal [Collard’s] convictions
causes the presumption of innocence to reattach.” State v. Yusuf,
2025 UT App 189, n.1, 582 P.3d 1270 (cleaned up).

2. A pseudonym.

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State v. Collard

occur. The temporary protective order was served on Collard the
day it was issued.

Collard’s Call to Home Depot on April 7, 2020

¶4 On April 7, 2020, Collard called Olivia’s place of work, the
local Home Depot. Olivia was not at work at the time, and another
Home Depot employee (Employee) answered the phone. Collard
identified himself as Olivia’s husband and, speaking of Olivia,
told Employee, “I need to talk to her really bad. I miss her.”
Employee said he could “certainly give her the message” and that
he would “have her call [Collard] back.”

The Permanent Protective Order

¶5 Two days later, on April 9, 2020, Collard attended the
scheduled hearing. At the conclusion of the hearing, the
commissioner recommended “that the Protective Order [be]
GRANTED and [that] it be made permanent.” The district court
adopted the commissioner’s recommendation and issued a
permanent protective order the same day.

Collard’s Calls to Home Depot on April 13, 2020

¶6 On April 13, 2020, Collard called Home Depot again.
Employee answered. Collard said, “I wish to speak to [Olivia]. I
miss her very much. I have some things that I want to give to her.”
By this time, Employee had learned that Olivia had a protective
order against Collard. Employee told Collard that Home Depot
employees were “not allowed to speak with” him and that there
was “to be no communication whatsoever with” Home Depot
employees. Employee then ended the call.

¶7 A few minutes later, Collard called again, this time “to
another assistant manager” at Home Depot. Employee was in the
same room at the time, recognized Collard as the caller, “grabbed
the phone,” and said, “We have just had this conversation.”

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State v. Collard

Collard responded by saying that he missed Olivia and wanted to
talk to her. Employee replied, “Unfortunately, I am not allowed
to talk to you. And we have to end the conversation.”

The Charges and the Trial

¶8 Two months later, Collard was charged with three counts
of violating a protective order. The following year, Collard and
Olivia divorced. Collard went to trial on the charges about three
years later, in 2024.

¶9 On the first day of trial, prior to jury selection, Counsel
informed the court that Olivia had alleged at some point that
Collard had assaulted her but that the assault charge had
subsequently been dismissed. Counsel asserted that the allegation
of a prior assault by Collard was inadmissible under rule 404(b)
of the Utah Rules of Evidence, and she indicated that if Olivia
mentioned the assault allegation when she testified, Counsel
would move for a mistrial. The court stated that the assault
allegation had “no relevancy” to the charges in this case, but it
declined to rule on the possibility of a mistrial if the allegation
were mentioned during trial, saying, “I’m not going to make any
decision right now, because we haven’t even started this trial. I’ll
take that issue [up] if it comes up.”

¶10 In its case in chief, the State called Olivia, Employee, and
an officer who investigated Collard’s calls to Home Depot
(Officer) as witnesses. Olivia testified first. The prosecutor asked
her why she had sought a temporary protective order against
Collard. Olivia responded, “Because he threatened to kill me.”
Counsel immediately objected, asserting in a bench conference
that Olivia’s statement “[went] to prior bad acts.” The court stated
that the basis for the temporary protective order was not relevant
to the charges and that it intended to “instruct the jury to strike
the last answer.” Counsel moved for a mistrial. The court declined
to order a mistrial, but it cautioned that, moving forward,
“nothing about the why of the protective order should be talked

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State v. Collard

about.” It then instructed the jury to disregard both the
prosecutor’s last question and Olivia’s response.

¶11 The prosecutor then showed Olivia a copy of the
temporary protective order, and she identified it. Olivia testified
that the temporary protective order “accurately portray[ed] the
recommendations of the [c]ourt that [Collard] not contact [her] in
any way.” She further testified that Collard was “in court when
[the temporary protective order] was issued” and that he was
given a copy of it the same day. The prosecutor then elicited the
following testimony from Olivia:

Q. [D]id you go back at some point to make that
temporary order final?

A. Yes.

....

Q. Okay. And was that done? Was it made final?

A. Yes.

Q. And did that final order of April 9, 2020,
require [Collard] to not contact you by
phone?

A. Yeah.

A copy of the temporary protective order was then admitted into
evidence without objection as part of the State’s Exhibit 1. On the
first page of that order, the court found that “there [was] reason
to believe” that Collard had “abused or committed domestic
violence against” Olivia or that there was “a substantial likelihood
that [Collard] immediately threaten[ed] [Olivia’s] physical
safety.” This finding was not redacted from the State’s Exhibit 1,
and Counsel made no request that it be redacted. The remainder

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State v. Collard

of that exhibit consisted of a certified copy of the docket in the
protective order case. The docket entry for April 9, 2020, stated,
“After hearing argument from both parties, [the] [c]ommissioner
recommends . . . [t]hat [Olivia] has met the burden of proof by a
preponderance of [the] evidence and that the Protective Order is
GRANTED and it be made permanent.” The State did not offer a
copy of the permanent protective order into evidence.

¶12 The State then called Employee to testify. He related the
facts recited above regarding Collard’s calls to Home Depot.

¶13 Following Employee’s testimony—and outside the
presence of the jury—the court explained its reasons for denying
Counsel’s motion for a mistrial following Olivia’s testimony that
Collard had “threatened to kill” her. The court said that it had
“decided that a curative instruction would be sufficient where
[the court had] immediately instructed the jury to disregard the
answer provided by [Olivia], as well as the question that was
asked by the State.” At this point, Counsel renewed her mistrial
motion, arguing that Olivia’s answer was “very prejudicial” and
that “the jury [could not] unhear what was said.” The court again
declined to grant a mistrial but said that if anything regarding
why the temporary protective order was issued was “brought up
again, [the court would] grant the mistrial.”

¶14 Officer then testified. When asked how he “got involved”
in this case, Officer testified that he had been assigned to the case
after Olivia reported Collard’s call to Home Depot on April 7,
2020. Officer said that he spoke with Collard on April 8 and that
“some parts of [their] conversation” that day related to this case.
Officer clarified, however, that on April 8 he “actually wasn’t
aware” that a report of Collard’s alleged violation of the
temporary protective order had been made. He explained that
during their conversation on April 8, he and Collard “were talking
primarily about another case.” Counsel objected to this statement.
She noted that the court had “made clear that [the parties were]

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State v. Collard

not to bring[] up past incidents,” and she again moved for a
mistrial. The court did not grant a mistrial but said that if the
mention of “anything related to . . . another case” “happen[ed]
one more time,” it would grant a mistrial. The court then
instructed the jury to disregard the prosecutor’s last question and
Officer’s response.

¶15 Ultimately, the jury convicted Collard on all three counts
of violating a protective order—one for his phone call to Home
Depot on April 7, 2020, and two for his respective phone calls to
Home Depot on April 13, 2020. Collard moved to arrest judgment
as to the convictions for the April 13 calls on the grounds that the
State had presented insufficient evidence that he violated the
permanent protective order, which was in effect on that day.
Specifically, he argued that because the State did not offer a copy
of the permanent protective order into evidence, the jury lacked
evidence of its terms and, thus, lacked sufficient evidence to find
that Collard violated those terms. The court denied Collard’s
motion to arrest judgment. Collard now appeals.

ISSUES AND STANDARDS OF REVIEW

¶16 Collard contends that the district court erred by denying
his motion to arrest judgment because the State did not “present
sufficient evidence to convict [Collard] of violating the permanent
protective order.” “We review a district court’s grant or denial of
a motion . . . to arrest judgment for correctness.” State v. Dew, 2025
UT App 22, ¶ 27, 566 P.3d 53 (cleaned up), cert. denied, 568 P.3d
264 (Utah 2025). “A defendant appealing the denial of a motion
. . . to arrest judgment has a substantial burden on appeal.” Id.
(cleaned up). “He or she must show that, when viewed in the light
most favorable to the State, no evidence existed from which a
reasonable jury could find beyond a reasonable doubt that the
defendant committed the crime.” Id. (cleaned up).

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State v. Collard

¶17 Collard also asserts that he received ineffective assistance
of counsel because Counsel failed to object to admission of “the
court’s finding in the temporary protective order that [Collard]
had committed domestic violence or abuse against [Olivia] or that
there was a substantial likelihood that he posed a threat to her
safety.” “When a claim of ineffective assistance of counsel is
raised for the first time on appeal, there is no lower court ruling
to review and we must decide whether the defendant was
deprived of the effective assistance of counsel as a matter of law.”
State v. Alvarado, 2023 UT App 123, ¶ 12, 538 P.3d 633 (cleaned
up). 3

ANALYSIS

I. Motion to Arrest Judgment

¶18 Collard appeals the denial of his motion to arrest judgment
on his convictions for violating the permanent protective order on
April 13, 2020. He contends that the State presented insufficient
evidence to establish that he violated the terms of the permanent
protective order. A person is guilty of violating a protective order
if the person “intentionally or knowingly violates [the] order after
having been properly served or having been present, in person or
through court video conferencing, when the order was issued.”
Utah Code § 76-5-108(2)(b). Naturally, the State cannot prove that
a person violated a protective order unless the State presents
evidence of the relevant terms of the order the person is charged
with violating. Here, Collard asserts that the State produced no
evidence that could “prove[] beyond a reasonable doubt that the

3. Collard also contends that the district court “abuse[d] its
discretion when it denied [his] motion for a mistrial after [Olivia]
testified to the grounds for the protective order”—namely, that
Collard had “threatened to kill” her. Because we reverse Collard’s
convictions based on his ineffective assistance of counsel claim,
we need not address the denial of his motion for a mistrial.

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State v. Collard

permanent protective order prohibited [Collard] from calling
Home Depot.” We disagree.

¶19 Olivia testified that the temporary protective order
“accurately portray[ed] the recommendations of the [c]ourt that
[Collard] not contact [her] in any way.” From this testimony, the
jury could reasonably infer that Olivia had seen the temporary
protective order and was familiar with its terms. Olivia then
testified that she “[went] back at some point to make that
temporary order final” and that on April 9, 2020, “it was made
final.” And the docket from the protective order case, which was
admitted into evidence, indicated that the permanent protective
order was issued on April 9, 2020. From that docket and Olivia’s
testimony that the temporary protective order was made final on
April 9, 2020, the jury could reasonably infer that the permanent
protective order was simply the temporary protective order made
permanent. See generally State v. Law, 2020 UT App 74, ¶ 14, 464
P.3d 1192 (“A reasonable inference is one that is drawn from the
evidence and is based on logic and reasonable human
experience.” (cleaned up)). Based on that inference and the fact
that the State offered the temporary protective order into
evidence, the jury could reasonably infer that, like the temporary
protective order, the permanent protective order directed Collard
to “not contact, phone, mail, e-mail, or communicate in any way
with [Olivia] . . . either directly or indirectly except as allowed by
the parent-time provisions of [the] order.” Accordingly, we are
not persuaded that no evidence existed from which a reasonable
jury could make a finding beyond a reasonable doubt as to the
relevant terms of the permanent protective order. 4

¶20 Collard resists this conclusion by citing rule 1002 of the
Utah Rules of Evidence—commonly known as the “best evidence

4. Of course, the better practice in a case such as this would have
been to offer a copy of the permanent protective order itself into
evidence.

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State v. Collard

rule”—and asserting that “[i]n the ordinary course, a party can
prove the contents of a document only by presenting the
document itself into evidence.” See generally Utah R. Evid. 1002
(“An original writing, recording, or photograph is required in
order to prove its content, except as otherwise provided in these
rules or by other rules adopted by the Supreme Court of this State
or by statute.”); Krajeski v. Krajeski, 2025 UT App 19, ¶ 47 n.9, 565
P.3d 544 (“The best evidence rule requires the party seeking to
prove the contents of a document to introduce the document
itself.”), cert. denied, 574 P.3d 519 (Utah 2025). However, Collard
did not raise the best evidence rule as part of his motion to arrest
judgment. Collard’s argument based on the best evidence rule is,
therefore, unpreserved. “Because this is an unpreserved issue, we
decline to consider it.” Hillam v. Hillam, 2024 UT App 102, ¶ 40,
554 P.3d 1137 (cleaned up).

¶21 Collard also argues that after Olivia testified that the
temporary protective order was made final, she was “asked about
the specific terms of th[e] final order” and “only noted that it
prohibited [Collard] from contacting her by phone.” Because the
evidence did not demonstrate that he contacted Olivia directly by
phone, he argues that on this basis there was insufficient evidence
to support the jury’s verdict. However, Olivia was not asked to
identify all of the terms of the permanent protective order. Rather,
she was asked whether one specific term—i.e., one “requir[ing]
[Collard] to not contact [her] by phone”—was included in the
permanent protective order. Her affirmative answer to that
question did not negate the reasonable inference that could be
drawn from her earlier testimony, namely, that the permanent
protective order contained the same no-contact terms as the
temporary protective order, including the one requiring Collard
to “not contact, phone, mail, e-mail, or communicate in any way
with [Olivia] . . . either directly or indirectly.” (Emphasis added).
Thus, the jury could have reasonably found that Collard violated
the permanent protective order by contacting Olivia indirectly
when he called her place of work and told her coworker that he

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State v. Collard

missed her and wanted to talk to her. Cf. State v. Fowers, 2023 UT
App 128, ¶¶ 13, 15, 538 P.3d 1274 (holding that there was
sufficient evidence to bind the defendant over on a charge of
violating a protective order directing him not to indirectly contact
his ex-wife because a “factfinder could readily infer that calls [the
defendant] placed to [his ex-wife’s new husband] . . . would
routinely and predictably be conveyed to” her).

¶22 For the foregoing reasons, we affirm the district court’s
denial of Collard’s motion to arrest judgment.

II. Ineffective Assistance of Counsel

¶23 Collard also asserts that Counsel provided ineffective
assistance by failing “to object to prejudicial language in the
temporary protective order.” To prevail on a claim of ineffective
assistance of counsel, Collard must show that (1) “[C]ounsel’s
performance was deficient” and (2) “the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687
(1984). We address each of these prongs in turn.

A. Deficient Performance

¶24 Collard contends that Counsel performed deficiently
“when she did not seek to redact” from the copy of the temporary
protective order admitted into evidence at trial the finding that
“there [was] reason to believe” that Collard had “abused or
committed domestic violence against [Olivia], or that there [was]
a substantial likelihood that [Collard] immediately threaten[ed]
[Olivia’s] physical safety.” “To constitute deficient performance,
Counsel’s representation must fall below an objective standard of
reasonableness.” State v. Baugh, 2024 UT 33, ¶ 19, 556 P.3d 35
(cleaned up). We agree that Counsel’s performance in this regard
fell below an objective standard of reasonableness.

¶25 The finding in the temporary protective order that “there
[was] reason to believe” that Collard had “abused or committed

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State v. Collard

domestic violence against” Olivia or that he otherwise posed an
immediate threat to her safety clearly painted Collard in a bad
light that had the potential to turn the jury against him. Moreover,
by the time the State offered the temporary protective order into
evidence, the district court had ruled that any allegation of a prior
assault by Collard had “no relevancy” and, likewise, that the basis
for the temporary restraining order was not relevant to the
charges in this case. Thus, Counsel should have anticipated that
the district court would have granted a motion to redact the
damaging and irrelevant finding from the temporary restraining
order. For these reasons, we conclude that reasonable counsel
would have sought redaction of the objectionable finding from the
version of the temporary protective order that was admitted into
evidence.

¶26 The State counters by asserting that the “mere issuance of
a protective order against a spouse [would have left] the jury to
imagine all sorts of reasons why [a protective order] was issued,”
thus suggesting that Counsel may have made a tactical decision
not to seek redaction of the reason for the temporary protective
order so as to prevent the jury from speculating as to why it was
issued. We are not persuaded. The finding that “there [was]
reason to believe” that Collard “abused or committed domestic
violence” against Olivia or that there was otherwise “a substantial
likelihood that [he] immediately threaten[ed] [Olivia’s] physical
safety” confirmed that Collard posed a significant threat based on
his past behavior, but it was sufficiently non-specific as to still
allow the jury to assume the worst about Collard. In other words,
rather than reduce the chances that the jury would speculate
about Collard, it merely confirmed that the temporary protective
order did not issue for relatively innocuous reasons. 5

5. We do not mean to suggest that protective orders—when
contested—may be obtained for innocuous reasons. After all, the
(continued…)

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State v. Collard

¶27 The State also argues that Counsel could have reasonably
decided not to seek redaction so as “not to highlight the order
itself by objecting to its contents.” This argument is unavailing
because Counsel could have sought redaction outside the
presence of the jury.

¶28 For the foregoing reasons, we conclude that Counsel’s
failure to seek redaction of the finding that “there [was] reason to
believe” that Collard “abused or committed domestic violence”
against Olivia or that there was otherwise “a substantial
likelihood that [he] immediately threaten[ed] [Olivia’s] physical
safety” constituted deficient performance.

finding in the temporary protective order at issue here largely
mirrored the statutory prerequisite to an ex parte cohabitant
abuse protective order, namely, that “it appear from [the] petition
. . . that domestic violence or abuse has occurred” or “that there is
a substantial likelihood domestic violence or abuse will occur.”
Utah Code § 78B-7-603(1). What we do mean to suggest is that lay
jurors may not be aware of that statutory prerequisite. Moreover,
some jurors might be aware that Utah law allows for no-fault
protective orders in certain circumstances, see id. § 78B-7-603(4),
and for stalking injunctions without a finding of prior abuse or
threat of physical harm, see id. §§ 76-5-106.5(2), 78B-7-701(4). Thus,
specifically confirming that the protective order in this case was
issued based on a reason to believe that Collard had already
abused or committed domestic violence against Olivia or that
there was otherwise a substantial likelihood that he immediately
threatened her physical safety cast Collard in a less favorable light
than if the jury was not informed of the basis for the order. And
the district court had already signaled an effective willingness to
make the redaction, given its previous caution that “nothing
about the why of the protective order should be talked about.”

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State v. Collard

B. Prejudice

¶29 Collard contends that he was prejudiced by Counsel’s
deficient performance. “Prejudice is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different, thus undermining
confidence in the outcome.” Martin v. State, 2024 UT App 89, ¶ 18,
552 P.3d 758 (cleaned up), cert. denied, 561 P.3d 692 (Utah 2024).

¶30 Here, Collard argues that the evidence against him “was
not overwhelming.” He notes that although he was prohibited
from contacting Olivia “directly or indirectly,” the jury was not
provided with a definition of “indirectly.” Thus, Collard argues,
because he did not ask during any of his calls to leave a message
for Olivia, the jury could have reasonably found that his calls to
Home Depot “did not constitute indirect contact in violation of
the temporary protective order.”6 Collard then contrasts—as
follows—the asserted weakness in the evidence that he
impermissibly indirectly contacted Olivia with the potential effect
on the jury of the finding in the temporary protective order that
there was reason to believe that he had engaged in domestic
violence or abuse against Olivia or that there was a substantial
likelihood that he immediately threatened her safety:

[T]he conduct the temporary protective order found
that [Collard] had engaged in—domestic violence
or abuse—was far more severe than the conduct the
State alleged he had engaged in: calling a store and
telling a store employee that he missed his ex-wife.
By stating that a court had found that [Collard] had

6. The strength of Collard’s argument in this regard is enhanced
with respect to at least one of the charges by the fact that (1) the
temporary protective order directed him to return Olivia’s
passport to her and (2) he stated in his second call to Home Depot
that he had “some things that [he] want[ed] to give to [Olivia].”

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State v. Collard

abused [Olivia], or was substantially likely to do so,
the temporary protective order portrayed [Collard]
as a dangerous and threatening individual. The jury
could have viewed [Collard] as such and reached a
guilty verdict to punish [Collard] and protect
[Olivia].

¶31 The State offers no response to Collard’s argument on the
prejudice prong of the test for ineffective assistance of counsel.
“When an appellee fails to present us with any argument, an
appellant need only establish a prima facie showing of a plausible
basis for reversal. This is a lower standard than the typical burden
of persuasion on appeal.” AL-IN Partners, LLC v. LifeVantage Corp.,
2021 UT 42, ¶ 19, 496 P.3d 76 (cleaned up); see also State v. Rynhart,
2025 UT App 148, ¶¶ 50–57, 585 P.3d 57 (applying the AL-IN
standard to a discrete argument that stood “uncontested on
appeal because the State did not respond to [the] argument in its
brief”), cert. denied, 585 P.3d 48 (Utah 2026). Here, we conclude
that Collard’s foregoing argument amounts to a prima facie
showing of a plausible basis for a determination that he was
prejudiced by Counsel’s deficient performance.

¶32 In sum, because (1) Counsel rendered deficient
performance, (2) Collard has made a prima facie showing of a
plausible basis for concluding that he was prejudiced by
Counsel’s deficient performance, and (3) the State has not
rebutted Collard’s prejudice argument, we conclude that Collard
has established his ineffective assistance claim.

CONCLUSION

¶33 We affirm the district court’s denial of Collard’s motion to
arrest judgment. We conclude, however, that Collard has
established his claim of ineffective assistance of counsel. On this
basis, we reverse his convictions and remand the case for a new
trial or such other proceedings as may now be appropriate.

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