May 2, 2013, Utah Court of Appeals Case Summaries

May 2, 2013

Utah Court of Appeals Cases

State v. Graham, 2013 UT App 109, No. 20110492-CA (May 2, 2013)

ISSUE: Bindover for Communications Fraud

Judge Christiansen,

The State appeals from a magistrate’s order declining to bind over Defendant Rodger Martin Graham (Defendant) on three counts of communications fraud. We affirm.

At ¶ 1.

In dismissing the counts, the magistrate found that “[t]he State [did] not present[] enough facts to establish the second element of communications fraud.” See id. § 76-10-1801(1) (explaining that a person is guilty of communications fraud when that person uses a scheme or artifice “to obtain from another money, property, or anything of value by means of false or fraudulent pretenses, representations, promises, or material omissions”).

At ¶ 6.

To support the bindover of a defendant for trial, the prosecution must put forward enough evidence at the preliminary hearing to establish probable cause. See Utah R. Crim. P. 7(i)(2) (allowing for bindover when the magistrate “finds probable cause to believe that the crime charged has been committed and that the defendant has committed it”); see also Virgin, 2006 UT 29, ¶ 17. “[A] showing of ‘probable cause’ entails only the presentation of ‘evidence sufficient to support a reasonable belief that the defendant committed the charged crime.’” State v. Ramirez, 2012 UT 59, ¶ 9, 289 P.3d 444 (quoting Virgin, 2006 UT 29, ¶ 17). A “reasonable belief” in this context parallels the standard for an arrest warrant, meaning that the level of evidence that the prosecution must show is less than that required to prove guilt beyond a reasonable doubt. Id. “All that is required is reasonably believable evidence—as opposed to speculation—sufficient to sustain each element of the crime(s) in question.” Id. Also, the “magistrate must view all evidence in the light most favorable to the prosecution and must draw all reasonable inferences in favor of the prosecution.” State v. Clark, 2001 UT 9, ¶ 10, 20 P.3d 300 (citation and internal quotation marks omitted). Finally, the magistrate is not to weigh or sift through conflicting evidence presented at the preliminary hearing. See id.

At ¶ 8.

The Court outlines the evidence presented at the preliminary hearing.

At ¶¶ 10-13.

To properly bind Defendant over on each count of second degree felony communications fraud, the evidence must support a reasonable belief that (1) Defendant “devised [a] scheme or artifice to defraud” Green Harvest, or that he sought “to obtain from [Green Harvest] money, property, or anything of value”; (2) Defendant did so “by means of false or fraudulent pretenses, representations, promises, or material omissions”; (3) Defendant “communicate[d] directly or indirectly with any person by any means for the purpose of executing or concealing the scheme or artifice”; (4) “the pretenses, representations, promises, or material omissions made or omitted were made or omitted intentionally, knowingly, or with a reckless disregard for the truth”; and (5) the value of the property, money, or thing obtained or sought to be obtained is or exceeds $5,000. See Utah Code Ann. § 76-10-1801(1)(d), (7).

At ¶ 10.

We determine that the magistrate acted within her discretion in denying bindover on the three communications fraud counts. The determinative issue in this case is whether the evidence supports a finding of probable cause for communications fraud based on allegations that Defendant submitted false or fraudulent invoices. In viewing the evidence and all inferences drawn therefrom in the light most favorable to the prosecution, as we must, we determine that the State did not meet its burden at the preliminary hearing stage.

At ¶ 14.

[T]he prosecution is the party that has the burden to establish probable cause at the preliminary hearing. See Utah R. Crim. P. 7(i)(1) (“The state has the burden of proof [at a preliminary hearing] and shall proceed first with its case.”). Thus, it is the prosecution’s obligation to produce evidence demonstrating a reasonable belief that Defendant’s reimbursement explanation was false or fraudulent. The State has not identified any evidence of this nature in the record.

At ¶ 15.

[T]he “fact that [he] did not personally remove the asbestos does not provide a basis for the magistrate to reasonably infer that [his] request [for] reimbursement for the removal was fraudulent. Such a conclusion would be mere speculation.” Under Utah law, a magistrate is “free to decline bindover where the facts presented by the prosecution provide no more than a basis for speculation—as opposed to providing a basis for a reasonable belief.” State v. Virgin, 2006 UT 29, ¶ 21, 137 P.3d 787.

At ¶ 17.

The Court distinguishes this case from State v. Ramirez, 2012 UT 59.

At ¶¶ 18-22.

State v. Graham, 2013 UT App 110, No. 20110509-CA (May 2, 2013)

ISSUE: Bindover for Theft

Judge Christiansen,

The State charged Defendant Benjamin Jay Graham (Defendant) with multiple counts of communications fraud, theft, and unlawful pattern of activity. Following the preliminary hearing, the magistrate granted Defendant’s motion to dismiss all of the charges based on insufficient evidence. The State appeals the magistrate’s refusal to bind Defendant over on one count of second degree felony theft. We reverse and remand.

At ¶ 1.

The Court outlines the facts of the case

At ¶¶ 2-6.

Following his preliminary hearing, Defendant filed a motion to dismiss all of the charges for insufficient evidence. The magistrate granted the motion, and as to the theft charge at issue on appeal, the magistrate ruled that before Defendant had used the company debit card while on vacation, “there were no policies in place at Green Harvest forbidding personal use of the [debit] card” and that Investor’s Son “ratified the transaction by agreeing to let [Defendant] repay the money.” Therefore, the magistrate determined that “the State failed to show the first element of theft because there is no evidence that [Defendant] exercised unauthorized control over any property.” See id. § 76‐6‐404 (“A person commits theft if he obtains or exercises unauthorized control over the property of another with a purpose to deprive him thereof.”). The State appeals.

At ¶ 6.

In viewing the evidence in the light most favorable to the prosecution, Office Manager’s testimony demonstrates that Defendant should have known prior to leaving for his Mexican vacation that he was not authorized to use his company debit card for personal expenditures. This evidence was sufficient to support a reasonable belief that Defendant exercised unauthorized control over the Green Harvest debit card. In addition, reasonably believable evidence suggests that Defendant intentionally misrepresented to Investor’s Son the existence of a hurricane. Defendant would have no need to lie about a hurricane if he truly believed he was authorized to use his card for personal reasons. It appears that if Defendant’s story about the hurricane were true, he would have immediately disclosed his use of the debit card to Investor’s son upon his return and made arrangements to pay back the company. These facts demonstrate that the State introduced sufficient evidence that Defendant exercised unauthorized control over the company debit card and intended to deprive the company of those funds when he failed to repay them.

At ¶ 12.

In making her bindover decision, it appears that the magistrate disregarded Office Manager’s testimony when she found that “there were no policies in place at Green Harvest forbidding personal use of the credit card.” Although a magistrate is entitled to make “some limited credibility determinations at the preliminary hearing,” the magistrate may only disregard testimonial evidence when it is “wholly lacking and incapable of creating a reasonable inference regarding a portion of the prosecution’s case,” State v. Virgin, 2006 UT 29, ¶¶ 23–24, 137 P.3d 787 (citation and internal quotation marks omitted), or if the evidence falls “to a level of inconsistency or incredibility that noreasonable jury could accept it,” State v. Ramirez, 2012 UT 59, ¶ 14, 289 P.3d 444 (citation and internal quotations marks omitted). On the record before us, Office Manager’s testimony does not appear to be patently inconsistent or incredible. Accordingly, “[i]t is inappropriate for [the] magistrate to weigh credible but conflicting evidence at a preliminary hearing as a preliminary hearing is not a trial on the merits but a gateway to the finder of fact.” Virgin, 2006 UT 29, ¶ 24 (citation and internal quotation marks omitted).

At ¶ 13.

The Court compares this case to State v. Ramirez, 2012 UT 59.

At ¶¶ 15-18.

Williams v. Williams, 2013 UT App 111, No. 20120208-CA (May 2, 2013)

ISSUE: Civil Stalking Injunction

Judge Orme,

Clark Williams appeals from a civil stalking injunction issued against him in favor of his ex-wife, Jeri Williams. We affirm.

At ¶ 1.

The Court outlines the facts of the case

At ¶¶ 2-6.

“In order to enter a civil stalking injunction, the district court must conclude that an offense of stalking has occurred that meets the criteria for the crime of stalking.” Coombs v. Dietrich, 2011 UT App 136, ¶ 2, 253 P.3d 1121 (citation and internal quotation marks omitted). See Allen v. Anger, 2011 UT App 19, ¶¶ 1, 14, 248 P.3d 1001. A person commits the offense of stalking when he or she “intentionally or knowingly engages in a course of conduct directed at a specific person” and “knows or should know” that the conduct would cause a reasonable person to fear for his or her safety or “suffer other emotional distress.” Utah Code Ann. § 76-5-106.5(2) (LexisNexis 2012). A “course of conduct” is defined as “two or more acts directed at or toward a specific person,” including “acts in which the actor . . . surveils, threatens, or communicates to or about a person . . . directly, indirectly, or through any third party.” Id. § 76-5-106.5(1)(b).

At ¶ 7.

Clark argues that even if he is found to have engaged in two or more acts directed toward Jeri, he did not do so intentionally or knowingly and his contact with her would not cause a reasonable person to suffer emotional distress. He argues that the requisite emotional distress must be more than “mere anxiety or annoyance” and that stalking only occurs when there is repeated conduct that is “outrageous and intolerable” and “evoke[s] outrage or revulsion,” going beyond conduct that is merely “unreasonable, unkind, or unfair.” See Allen v. Anger, 2011 UT App 19, ¶ 16, 248 P.3d 1001 (citation and internal quotation marks omitted). Clark attempts to characterize his contacts with Jeri as those typical of failed familial relationships, contending that they “were not threats” but “pleas that she return to him” offered by a man “desperately trying to preserve a 34-year-old marriage.” We are not convinced.

At ¶ 9.

Jeri correctly points out that the “outrageousness” requirement Clark cites from Allen was included in the 2003 version of the stalking statute and not the version of the statute in effect today or at the time of Clark’s course of conduct. Utah courts have not yet determined whether the revisions made to the stalking statute since 2003 were “intended to overrule the outrageousness requirement.” Id. ¶ 16 n.4. But we need not determine whether the outrageousness requirement set forth in Salt Lake City v. Lopez, 935 P.2d 1259, 1264 (Utah Ct. App. 1997), has been overruled because Clark’s behavior in this case clearly rises to a level that would cause a reasonable person to suffer emotional distress under almost any standard, including that of outrageousness.

At ¶ 10.

Emotional distress is defined as “significant mental or psychological suffering, whether or not medical or other professional treatment or counseling is required.” Utah Code Ann. § 76-5-106.5(1)(d) (LexisNexis 2012). Each individual act does not have to be sufficient to cause emotional distress by itself. Ellison v. Stam, 2006 UT App 150, ¶¶ 28–29, 136 P.3d 1242. Instead, the cumulative effect of the acts can be taken into account in determining whether mental or psychological suffering would result. Id. Here, Clark ignored orders from Jeri, the police, and a California divorce court to cease contacting her. He threatened to send nude photographs of Jeri to her religious leader. He sent emails to their children via an email account to which Jeri had ready access, in which he called Jeri names and accused her of infidelity and sexual promiscuity. Despite her efforts to conceal her new address, Clark discovered where she lived, sent her a text message with a photograph of her new residence, and showed up there in person. Clark used her social security number when contacting the phone company to undo her efforts to block him from texting or calling her. The fact that he did all of these things with the intent, as he himself put it, “to leave no doubt in her mind how I felt” and was fully aware that he was not respecting her wishes is a clear indication that his behavior was both intentional and knowing. We easily determine that when considering the cumulative effects of Clark’s actions, a reasonable person subjected to such conduct would suffer “significant mental or psychological suffering.” See Utah Code Ann. § 76-5-106.5(1)(d) (LexisNexis 2012).

At ¶ 11.

State v. Reynolds, 2013 UT App 112, No. 20110880-CA (May 2, 2013)

ISSUE: Entitlement to Lesser Included Offense Jury Instruction

Judge Roth,

Defendant Dale Edward Reynolds appeals his conviction for aggravated robbery, see Utah Code Ann. § 76-6-302(1)(a) (Lexis Nexis 2012), challenging the trial court’s decision not to instruct the jury on the lesser included offenses of retail theft, see id. § 76-6-602(1), and aggravated assault, see id. § 76-5-103(1)(a). We affirm.

At ¶ 1.

To be entitled to a jury instruction for a lesser included offense, “a defendant must show (1) that the charged offense and the lesser included offense have overlapping statutory elements and (2) that the evidence ‘provides a rational basis for a verdict acquitting [him] of the offense charged and convicting him of the included offense.’” State v. Powell, 2007 UT 9, ¶ 24, 154 P.3d 788 (quoting State v. Baker, 671 P.2d 152, 159 (Utah 1983)); accord Utah Code Ann. § 76-1-402(4). The State does not dispute that retail theft and aggravated assault are lesser included offenses of aggravated robbery in this case. Therefore, the issue presented for review is whether the evidence provides a rational basis for acquitting Reynolds of aggravated robbery but convicting him of the lesser included offenses of retail theft and aggravated assault. In making this determination, the evidence presented at trial must be viewed “in the light most favorable to” Reynolds, see Powell, 2007 UT 9, ¶ 27, in order to determine if “there is a sufficient quantum of evidence presented to justify charging the jury with [the] . . . requested instruction[s].” See State v. Velarde, 734 P.2d 449, 451 (Utah 1986).

At ¶ 4.

Reynolds asserts that the jury could have found that the gun was not used “in the immediate flight” from a theft because the evidence presented at trial shows that he did not use the gun in the store or on store property but only when he was out of the store, off store property, and across an adjacent street. He therefore contends that there is a rational basis in the evidence for the jury to have acquitted him of aggravated robbery and, instead, to have convicted him of retail theft for taking the merchandise from the store without paying, see id. § 76-6-602(1), and aggravated assault, for threatening the employee with a gun, see id. § 76-5-103(1)(a). We conclude, however, that the trial court acted within its discretion in determining that there is no rational basis in the evidence for the jury to have found that Reynolds did not use the gun in the immediate flight from the commission of the theft.

At ¶ 6.

When Reynolds threatened the employee with the gun, he had barely left the business premises and was only a little over one hundred feet from the store, a distance he had covered in less than ten seconds. The employee had pursued Reynolds from the time he exited the store, and his pursuit was interrupted only when Reynolds drew a gun and uttered his threat to kill. Reynolds has provided no authority for his proposition that the line between “immediate flight” from the crime and some other event after the commission of the crime that is no longer “in the course of” a retail theft is drawn at the point where the thief crosses the retail store’s property line, and we see no logical basis for such a distinction. Because Reynolds’s use of the gun came at the end of an uninterrupted, seconds-long foot pursuit that ended only a stone’s throw from the site of the theft, there is no rational basis for instructing the jury on the lesser included offenses Reynolds requested. These facts are simply not “ambiguous or susceptible to alternative interpretations which would make it possible for the jury to acquit” Reynolds of aggravated robbery and convict him instead of retail theft and aggravated assault. See Velarde, 734 P.2d at 453. We therefore conclude that the trial court did not abuse its discretion in denying Reynolds’s request to instruct the jury on lesser included offenses.

At ¶ 7.

State v. Ali, 2013 UT App 113, No. 20111051-CA (May 2, 2013)

ISSUE: Reversing a Jury Verdict for Insufficiency of Evidence

Judge Thorne,

Ali Ali appeals from his convictions on one count of distributing or arranging to distribute a controlled substance, a first degree felony, see generally Utah Code Ann. § 58‐37‐8         (LexisNexis 2012), and one count of providing false information to a peace officer with the intent of leading the officer to believe that the person providing the information is another actual person, a class A misdemeanor, see generally id. § 76‐8‐507(2). We affirm.

At ¶ 1.

We will reverse a jury verdict for insufficiency of the evidence only when the evidence “is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt.” State v. Boss, 2005 UT App 520, ¶ 9, 127 P.3d 1236 (citation and internal quotation marks omitted). When reviewing the sufficiency of the evidence, we “may not reassess credibility or reweigh the evidence,” State v. Workman, 852 P.2d 981, 984 (Utah 1993), and must accept the jury’s determination of witness credibility unless the witness’s testimony is “inherently improbable,” State v. Robbins, 2009 UT 23, ¶ 16, 210 P.3d 288.

At ¶ 3.

The court reviews the challenged testimony and finds: “[W]e see nothing inherently improbable in the detective’s testimony that Ali was the person who sold him drugs.”

At ¶¶ 3-6.

Ali’s remaining arguments pertain to his conviction of providing false information to a peace officer with the intent of leading the officer to believe that he was another actual person. On the day prior to trial, the State informed the district court that the false information charge would have to be dismissed, as they mistakenly believed the officer who heard Ali identify himself as Mudi Hussein was unavailable to testify. The next day the state informed the court that it had been mistaken as to the officer’s unavailability and asked the court to reinstate the charge. The court reinstated the charge, reasoning that it had only been dismissed the day before and that Ali would suffer no prejudice because he was presumably already prepared to defend against it. There is no suggestion in the record that Ali objected to or otherwise challenged the district court’s reinstatement decision.

At ¶ 7.

        Ali objects to reinstatement of the charge, claiming violations to the Utah Rules of Criminal Procedure and Due Process. The court “[does] not consider these arguments because Ali waived them when he failed to object to the district court’s ruling and did not raise his procedural and due process concerns with the district court.” See 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801

At ¶ 8.

        

Ali also argues that the district court erred when it allowed the State to prove the crime’s “actual person” and “another person” elements with hearsay testimony about an identification card that had been found in Ali’s hotel room after his arrest. See Utah Code Ann. § 76-8-507(2) (LexisNexis 2012).

At ¶ 9.

The court need not resolve the hearsay question, however, because under this unique factual pattern it is a reasonable inference that when Ali identified himself to the officer as Mudi Hussein, he was referring to the person pictured on the identification card and intended the officer to believe that he was, in fact, that person. There is no dispute that the photograph on the identification card depicted an actual person who was not Ali and that the identification card associated that photograph—correctly or incorrectly—with the name Mudi Hussein. Thus, there is nonhearsay evidence to support the jury’s conclusion that Ali gave the officers the name of another person, Mudi Hussein, with the intent of leading the officer to believe that Ali was the actual person depicted on the identification card.

¶ 11.

For all of these reasons, we decline to disturb Ali’s convictions and affirm the district court’s judgment.

¶12

Young Living Essential Oils v. Marin, 2013 UT App 114, No. 20120493-CA (May 2, 2013)

ISSUE: District Court Authority to Grant Appelate Attorney’s Fees

Per Curiam,

Young Living Essential Oils, LLC, appeals the district court’s order concluding that the court lacked authority to award Young Living attorney fees that it incurred in a previous appeal because in that appeal the Utah Supreme Court did not specifically award appellate attorney fees to Young Living. We affirm.

At ¶1

“A trial court does not have the authority to award appellate attorney fees and costs absent an explicit directive from the appellate court.” Anderson v. Thompson, 2010 UT App 359, ¶ 4, 248 P.3d 981. More particularly,

[a] trial court cannot consider the issue of entitlement to appellate attorney fees on its own initiative because this decision is the sole prerogative of the appellate court. The only time a trial court has any discretion in the matter of appellate attorney fees is when an appellate court determines that appellate attorney fees are warranted but remands that issue to the trial court for a determination of the amount to be awarded.

Slattery v. Covey & Co., 909 P.2d 925, 929 (Utah Ct. App. 1995).

At ¶3

Because the supreme court did not expressly direct the district court to award appellate attorney fees, the district court correctly determined that it lacked authority to do so on its own initiative. Accordingly, we affirm.

At ¶ 4 .

LD III v. BBRD, 2013 UT App 115, No. 20120073-CA (May 2, 2013)

ISSUE: Reversal of a Contempt Citation

Judge Thorne,

LD III, LLC appeals from the district court’s final judgment awarding Richard W. Davis $1,051,607 in damages, attorney fees, and costs as a result of LD III’s contempt of court. We reverse the district court’s judgment and remand for further proceedings.

At ¶ 1.

Layout of the facts and history of the case

At ¶¶ 2-11.

LD III appeals from the district court’s judgment awarding Davis damages resulting from LD III’s contemptuous violation of the September 23 Ruling. LD III argues that the district court never did enter a contempt order supported by the three required findings that LD III “knew what was required, had the ability to comply, and intentionally failed or refused to do so.” Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988), superseded on other grounds as stated in State v. Hurst, 821 P.2d 467, 470 (Utah Ct. App. 1991). We agree, and we reverse the district court’s judgment below and remand this matter for further proceedings consistent with the terms of this opinion.

At ¶12.

“A court’s authority to sanction contemptuous conduct is both statutory and inherent.” Chen v. Stewart, 2005 UT 68, ¶ 36, 123 P.3d 416; see also Burke v. Lewis, 2005 UT 44, ¶ 23, 122 P.3d 533 (“‘[I]t has always been held, regardless of express statutory authority, that courts of general jurisdiction have the inherent power to make and enforce all necessary rules and orders calculated to enforce the orderly conduct of their business and secure justice between parties litigant.’” (quoting Peterson v. Evans, 188 P. 152, 153 (Utah 1920))). As to contempt based on express statutory authority, Utah Code section 78B-6-301 identifies certain types of “acts or omissions in respect to a court or its proceedings [that] are contempts of the authority of the court.” Utah Code Ann. § 78B-6-301 (LexisNexis2012). One such category of contempt is “disobedience of any lawful judgment, order or process of the court.” Id. § 78B-6-301(5).Utah Code section 78B-6-311 elaborates upon a court’s authority to award damages as a sanction for contempt, stating,

If an actual loss or injury to a party in an action or special proceeding is caused by the contempt, the court, in lieu of or in addition to the fine or imprisonment imposed for the contempt, may order the person proceeded against to pay the party aggrieved a sum of money sufficient to indemnify him and to satisfy his costs and expenses. Id. § 78B-6-311.

At ¶13.

Utah case law has imposed certain requirements on the use of the contempt power.

The due process provision of the federal constitution requires that in a prosecution for a contempt not committed in the presence of the court, “the person charged be advised of the nature of the action against him [or her], have assistance of counsel, if requested, have the right to confront witnesses, and have the right to offer testimony on his [or her] behalf.”

Von Hake, 759 P.2d at 1170 (alterations in original) (quoting Burgers v. Maiben, 652 P.2d 1320, 1322 (Utah 1982)). Further, “[a]s a general rule, in order to prove contempt for failure to comply with a court order it must be shown that the person cited for contempt knew what was required, had the ability to comply, and intentionally failed or refused to do so.” Id. at 1172. “These three elements must be proven . . . by clear and convincing evidence in a civil contempt proceeding,” id.,4 and “[t]he trial court must enter written findings of fact and conclusions of law with respect to each of the three substantive elements,” id.

¶ 14.

We determine that the district court’s contempt ruling against LD III violates these principles and cannot stand. We first disagree with the district court’s conclusion that LD III was given an appropriate opportunity to defend against Davis’s allegation of contempt. In its January 4, 2012 Findings of Fact and Conclusions of Law, the district court found that

[Leslie] Mower, Barry and Robert Steed, counsel of record for [LD III], Rex Macey (Ms. Mower’s case manager for her home confinement) and Bart Bailey (counsel for Ms. Mower), among others, were present at the [October 22, 2008] hearing. However, [LD III] presented no evidence at the hearing. Instead, at the hearing, [LD III’s] sole argument for why it should not be held in contempt was that the Court lost jurisdiction to enforce its September 23 Order, when [LD III] filed its notice of appeal on September 29, 2009.(Citations omitted.) We have reviewed the transcript of that hearing, and we cannot agree with the district court’s assessment of the opportunity provided to LD III.

¶ 15.

The deferred hearing on the elements of the contempt charge against LD III never did occur. Instead, the district court issued its December 4, 2008 Ruling Re: Enforceability of Judgment, in which the court rejected LD III’s jurisdictional argument and reserved the issue of “damages allegedly caused by [LD III’s] acts of contempt” pending the outcome of LD III’s appeal.5 The district court’s failure to conduct the deferred hearing, however, deprived LD III of its constitutionally guaranteed opportunity to confront Davis’s witnesses or present its own evidence and testimony on the three elements of contempt. See Von Hake v. Thomas, 759 P.2d 1162, 1170 (Utah 1988), superseded on other grounds as stated in State v. Hurst, 821 P.2d 467, 470 (Utah Ct. App. 1991). And while the district court subsequently allowed LD III to litigate various affirmative defenses to contempt,6 it did not clearly allow LD III to challenge whether it “knew what was required, had the ability to comply, and intentionally failed or refused to do so.” Id. at 1172.

¶ 17.

LD III also complains that the district court failed to enter a contempt citation containing “written findings of fact and conclusions of law with respect to each of the three substantive elements.” See id. In its January 4, 2012 Findings of Fact and Conclusions of Law, the district court explained its failure to enter findings by quoting from Coleman v. Coleman, 664 P.2d 1155 (Utah 1983) (per curiam). In Coleman, the supreme court observed, “While it is true that an order to show cause will not issue except upon an affidavit that a party has violated or disobeyed the court’s orders, once issued, the burden is on the defendant to present evidence with respect to the three elements” of knowledge, ability, and intentional failure to comply. Id. at 1156–57. The supreme court then went on to hold that because the contempt defendant had failed to present rebuttal evidence showing inability to comply with a court order, no explicit factual finding of ability to comply was required. See id. at 1157.

¶18.

The district court reasoned that, under Coleman, because LD III failed to present evidence contradicting the allegations made in the order to show cause, the court was excused from making factual findings on the elements of contempt. However, as we have determined above, the district court’s failure to conduct a hearing on the elements of contempt—issues which the district court had expressly deferred at the October 22, 2008 hearing—deprived LD III of an adequate opportunity to present evidence on those issues. Further, it seems reasonable to infer from the presence of LD III’s witnesses at the October 22, 2008 hearing that LD III had intended to present testimony on the merits of the contempt citation. Under these circumstances, we cannot accept the district court’s logic that the matter was essentially uncontested and that Coleman excused it from entering the required factual findings.

¶19

For these reasons, we reverse the district court’s contempt ruling against LD III and remand this matter for additional proceedings. If the district court opts to pursue Davis’s contempt allegations on remand, it is directed to hold a hearing at which LD III can present evidence of its knowledge and understanding of the district court’s September 23 Order, its ability to comply, and whether it intentionally failed to comply. The district court is additionally directed to support any contempt ruling with factual findings on each of the three elements of contempt.

¶20

The district court’s contempt ruling against LD III deprived LD III of its due process rights to confront witnesses and present evidence and testimony, and the district court failed to enter adequate factual findings on LD III’s knowledge, ability to comply with the district court’s order, and intentional failure to do so. For these reasons, we reverse the district court’s contempt ruling and remand this matter for further proceedings as described herein.

¶21