Can calling a third party violate a protective order's no-contact provision? State v. Fowers Explained

In State v. Fowers, the Utah Court of Appeals clarified when indirect communication through third parties can establish probable cause for violating a protective order’s no-contact provision, reversing a district court’s dismissal at the preliminary hearing stage.

Background and Facts

Thomas Fowers was subject to a protective order prohibiting him from contacting or communicating with his ex-wife “either directly or indirectly” and from threatening violence against her. His ex-wife had married his adoptive brother. Early one morning, Fowers called his brother’s phone three times within two minutes from an unrecognized number. When the ex-wife answered the third call, Fowers said, “You and that f***ing whore have it coming.”

Key Legal Issues

The central issue was whether the State presented sufficient evidence at the preliminary hearing to establish probable cause that Fowers violated the protective order by intentionally or knowingly communicating with his ex-wife indirectly. The district court dismissed the charge, reasoning that Fowers directed his statement at his brother, not his ex-wife, and there was no evidence Fowers told his brother to relay the message.

Court’s Analysis and Holding

The Court of Appeals reversed, holding that the district court applied the wrong legal standard. The court explained that at the bindover stage, evidence must be viewed in the light most favorable to the prosecution. Citing State v. Fouse, the court reasoned that a factfinder could readily infer that communication directed to a spouse would “routinely and predictably be conveyed” to the protected person. The timing of the 5 a.m. calls suggested Fowers intended to reach both his brother and ex-wife when they would likely be together. Additionally, the threatening statement could reasonably be interpreted as conveying violence, satisfying the Personal Conduct Order violation.

Practice Implications

This decision reinforces that indirect communication can violate protective orders when circumstances suggest the defendant reasonably expected the message would reach the protected person. Practitioners should understand that explicit instructions to relay messages are not required—the totality of circumstances and reasonable inferences matter. The case also emphasizes the low evidentiary threshold at preliminary hearings and the importance of applying the correct legal standard that favors the prosecution at the bindover stage.