Background
Kevin Michael Collard and Olivia married in 2018. In March 2020, a Utah district court issued a temporary protective order (TPO) against Collard at Olivia’s request. The TPO contained a standard judicial finding — tracking the statutory prerequisite in Utah Code § 78B-7-603 — 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 threatened [Olivia’s] physical safety.” The TPO directed Collard to “not contact, phone, mail, e-mail, or communicate in any way” with Olivia, either directly or indirectly, and set a hearing for April 9, 2020. Collard was served the day the order was issued.
On April 7, two days before the scheduled hearing, Collard called Olivia’s workplace — a local Home Depot — and told a store employee that he missed Olivia and needed to speak with her. On April 9, the temporary protective order was made permanent at the scheduled hearing; Collard was present. Four days later, Collard called Home Depot twice more, telling the same employee on each call that he missed Olivia and wanted to give her some things. The employee ended both calls, reminding Collard he was not permitted to communicate with Home Depot employees. Collard was charged with three counts of violating a protective order — one for the April 7 call under the temporary order, and two for the April 13 calls under the permanent order. After a jury trial in 2024, he was convicted on all three counts.
At trial, the State admitted the TPO as Exhibit 1. The copy entered into evidence was never redacted: it still contained the court’s finding that there was reason to believe Collard had committed domestic violence against Olivia or posed an immediate physical threat. Defense counsel (Counsel) made no request to redact that language, even though the district court had ruled before trial that the basis for the protective order had “no relevancy” to the charges and had cautioned that “nothing about the why of the protective order should be talked about.” The jury convicted Collard on all three counts. He moved to arrest judgment on the two April 13 convictions, arguing that the State had never introduced the permanent protective order itself and so could not prove its terms. The court denied that motion, and Collard appealed.
The Court’s Holding
The Utah Court of Appeals affirmed the denial of the motion to arrest judgment but reversed all three convictions on ineffective-assistance-of-counsel (IAC) grounds and remanded for a new trial.
Motion to arrest judgment (affirmed). Collard argued the State never proved the terms of the permanent protective order because it admitted only the temporary order. The court rejected that argument. Olivia had testified that the temporary order “accurately portray[ed] the recommendations of the [c]ourt that [Collard] not contact [her] in any way,” that the order was later “made final,” and that the permanent order was issued on April 9. The admitted docket sheet confirmed that date. From this evidence, the jury could reasonably infer that the permanent order carried forward the same no-contact terms as the temporary order — including the prohibition on indirect contact through third parties like Home Depot employees. Collard’s attempt to invoke the best-evidence rule (Utah R. Evid. 1002) also failed: he had not raised it in his motion to arrest judgment and it was therefore unpreserved. The court acknowledged, however, that the better practice would have been to admit the permanent order directly.
Ineffective assistance of counsel (reversed). The court applied the two-part Strickland v. Washington test. First, deficient performance: the district court had already ruled before trial that the basis for the protective order was irrelevant to the charges. Reasonable counsel would have recognized that this ruling also signaled the court’s willingness to grant a motion to redact the domestic-violence finding from the exhibit before it went to the jury. The finding that a court had determined “there [was] reason to believe” Collard had “abused or committed domestic violence” against Olivia or “immediately threaten[ed]” her safety was highly prejudicial and irrelevant to the violation charges. The State’s argument that Counsel may have made a strategic decision not to redact — to prevent jury speculation about why the order issued — was rejected: the unredacted finding affirmatively confirmed prior abuse or threat of imminent harm, which was worse for Collard than leaving the jury to speculate. Second, prejudice: the central factual question for the jury was whether Collard’s calls to Olivia’s workplace constituted “indirect” contact in violation of the order — a question on which the evidence was not overwhelming, particularly given that Collard never directly asked to leave a message for Olivia and that the order’s return of Olivia’s passport created some ambiguity about his second call. With the domestic-violence finding before the jury, confidence in the verdicts was undermined. All three convictions were reversed.
Key Takeaways
- When a Utah protective order is admitted as an exhibit in a criminal violation trial, the court’s underlying domestic-violence or threat finding — standard boilerplate that mirrors the statutory prerequisites of Utah Code § 78B-7-603 — is both irrelevant to the violation charge and highly prejudicial; defense counsel must move to redact it before the exhibit goes to the jury.
- The State need not introduce the permanent protective order itself to prove its terms: testimony from the protected party that the temporary order was “made final” plus an admitted docket entry confirming the permanent order’s issuance is sufficient to allow the jury to infer the permanent order carried forward the same no-contact terms.
- Best-evidence-rule objections under Utah R. Evid. 1002 must be raised in the motion to arrest judgment to be preserved on appeal.
Why It Matters
Utah temporary protective orders routinely contain boilerplate language tracking the statutory findings required by Utah Code § 78B-7-603. When those orders are later offered as exhibits in criminal protective-order-violation trials, that same language follows them into evidence. State v. Collard confirms that failure to redact the domestic-violence finding before the exhibit reaches the jury can satisfy both prongs of Strickland — and that the district court’s pre-trial ruling on the irrelevance of the basis for the protective order is a strong signal that a redaction motion would succeed. Utah defense counsel in protective-order-violation cases should treat redaction of the TPO’s finding language as a standard pre-trial task, handled outside the presence of the jury to avoid drawing attention to the issue.
The opinion also carries a procedural lesson for practitioners on both sides: the State did not need to produce the permanent protective order to prove its terms, because circumstantial inference from testimony and the docket was enough. But that same inference-based approach creates vulnerability — defendants who raise a best-evidence-rule challenge at trial (not only in a post-verdict motion) and who contest the inferential chain can put the State to a higher burden. Defense counsel should anticipate this gap and litigate it early.