437 P.3d 475
Utah Ct. App.2018Background
- Victim obtained a permanent protective order in July 2013 after separating from Rory Pence; the order granted Victim temporary possession of the marital home, prohibited Pence from contacting Victim (except for child-related matters), and directed Pence to “Stay Away” from the marital home. Pence was granted supervised parent-time at his parents’ home across the street.
- In August 2014, while Victim was at a park with the children, Pence drove by, yelled at her, then later parked in front of the marital home, approached Victim’s vehicle, stood “right in [her] face,” and tried to grab one of the children.
- Police responded; Pence argued with Victim and the officer, then returned to his parents’ home. Victim later took the children to Pence’s parents’ home for parent-time.
- Pence was charged with two counts of violating the protective order (August and September incidents). He moved to dismiss arguing the “Stay Away” language was unconstitutionally vague as applied; the motion was denied. He also requested an expanded elements jury instruction that the court refused to give; the court instead gave statutory-language instructions and a separate mens rea instruction from statute.
- At trial, Exhibit 6 (district court order + protective order) was admitted without objection; an officer testified the order had been served. A witness testified Pence had acknowledged the protective order. The jury convicted Pence on the August count and acquitted on the September count. Pence appealed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Pence) | Held |
|---|---|---|---|
| Whether Utah Code § 76-5-108 or the protective order was unconstitutionally vague as applied | Statute/order clearly proscribe violating a protective order; Pence’s yelling, approaching, and attempted grabbing plainly violated the order | “Stay Away” is vague given court-ordered parent-time across the street; Pence lacked fair notice which conduct was prohibited | Court: No vagueness as applied; statute and order gave fair notice and did not permit arbitrary enforcement |
| Whether court erred by refusing Pence’s proposed elements jury instruction (adding that order prohibited the conduct and was sufficiently clear) | The court’s instructions tracked the statute and separately defined intentional/knowing conduct; added language was not statutory | Instruction should have required jury to find the order explicitly prohibited the charged conduct and was sufficiently clear to give fair notice | Court: No error; instructions taken as a whole correctly stated the law and matched statutory elements |
| Whether evidence of service of the protective order was insufficient (motion for judgment of acquittal) | Exhibit containing order was admitted and officer testified it had been served; Pence’s own witness showed his awareness of the order | The State’s proof of service was inadequate | Court: Sufficient evidence of service (Exhibit 6 and witness/officer testimony); denial of JMOL proper |
Key Cases Cited
- Kolender v. Lawson, 461 U.S. 352 (void-for-vagueness doctrine requires penal statutes to give fair notice and avoid arbitrary enforcement)
- Village of Hoffman Estates v. Flipside, 455 U.S. 489 (as-applied vagueness analysis focuses first on complainant’s conduct)
- State v. MacGuire, 84 P.3d 1171 (Utah) (a statute clear as applied to a complainant cannot be invalidated facially in all applications)
- State v. Rasabout, 356 P.3d 1258 (Utah) (rule of lenity applies only when a statute is ambiguous)
- State v. Green, 99 P.3d 820 (Utah) (vagueness doctrine requires minimal guidelines to govern law enforcement to avoid arbitrary enforcement)