State v. Pence

2018 UT App 198

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
RORY DUSTIN PENCE,
Appellant.

Opinion
No. 20170026-CA
Filed October 18, 2018

Sixth District Court, Richfield Department
The Honorable Paul D. Lyman
No. 141600309

Caleb Proulx, Attorney for Appellant
Dale P. Eyre and Casey W. Jewkes, Attorneys
for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES JILL M. POHLMAN and RYAN M. HARRIS concurred.

MORTENSEN, Judge:

¶1 After separating from Defendant Rory Dustin Pence,
Victim obtained a protective order against Pence. The protective
order instructed Pence to “Stay Away” from the marital home
but allowed him visitation with the couple’s children. Visitation
was to take place at Pence’s parents’ home, where Pence was
living, which was across the street from the marital home.

¶2 In August 2014, Victim took the children to a city park.
While they were there, Pence drove by and yelled at Victim.
Afterward, Victim drove home with the children and noticed
that Pence had driven to his parents’ home, parked his car in
front of the marital home, and made his way onto the sidewalk
of the marital home. Victim then called law enforcement while
State v. Pence

she and the children waited in the vehicle. Upon law
enforcement’s arrival, Victim exited the vehicle and Pence began
arguing with Victim and law enforcement. He “walked right up
to Victim” and, as she testified, was “right in [her] face.” Pence
was later charged with two counts of violating the protective
order—one count related to the August 2014 encounter and the
second count related to similar events that occurred in
September 2014.

¶3 Prior to trial, Pence filed a motion to dismiss, arguing that
the protective order language was void for vagueness and did
not give fair notice to Pence of the prohibited conduct. The trial
court denied the motion. At trial, Pence requested an expanded
version of an elements jury instruction, but the court denied his
request. The jury convicted Pence of the count arising from the
August events, but acquitted him of the second count arising
from the September events. He appeals his conviction. We
affirm.

BACKGROUND 1

¶4 In February 2013, Victim filed for divorce. At the same
time, she also sought a protective order against Pence, which
was granted in July 2013. The protective order awarded Victim
temporary possession of the marital home and ordered Pence to
“Stay Away” from Victim, her vehicle, job, school, and the
marital home. The protective order also ordered Pence not to
commit, try to commit, or threaten to commit any form of
violence against Victim, including “stalking, harassing,
threatening, physically hurting, or causing any other form of
abuse.” In addition to those provisions, the protective order
specifically precluded Pence from “contact[ing]” or

1. “On appeal from a criminal conviction, we recite the facts
from the record in the light most favorable to the jury’s verdict.”
State v. Pham, 2015 UT App 233, ¶ 2, 359 P.3d 1284.

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State v. Pence

“communicat[ing] in any way with [Victim],” except regarding
matters relating to their minor children. The court awarded
Victim temporary custody of the children and gave Pence
permission to have supervised parent-time. Parent-time was to
take place at Pence’s parents’ home, where Pence was living,
located across the street from the marital home.

¶5 In August 2014, Pence was scheduled to have parent-time
with the minor children. Before the commencement of parent-
time, Victim picked up dinner with the children. While she and
the children were eating their dinner at a nearby park, Victim
noticed Pence’s blue Mustang drive by. The car slowed down,
and Victim saw Pence driving the vehicle. Pence yelled
something at Victim, “revved his engine and then took off.”

¶6 After Victim and the children finished their meal, Victim
drove back to the marital home with the children. When she
arrived, she noticed Pence standing outside of his parents’ home
across the street. Victim parked her car and saw that Pence’s car
was parked in front of the marital home. After parking, Victim
observed Pence walk across the street toward the marital home
and begin pacing by his car. Victim and the children remained in
her car, and Victim called law enforcement.

¶7 An officer (Officer) responded within minutes and met
Victim and the children at her vehicle. Victim told Officer that
she believed Pence was violating the protective order. Officer
testified that he observed Pence “standing by the corner in front
of the [marital] home.” While Victim was talking to Officer,
Pence approached Victim’s vehicle and was “right in [Victim’s]
face.” Pence then indicated to Officer that he was there to take
the minor children for parent-time. Officer told Pence to move
his vehicle, to which Pence responded, “[T]his is my house, my
trees. And I park my car in the shade. I don’t have to move it.
And I will not.” During this conversation, Pence attempted to
“grab” one of the minor children, but the child refused to go
with him and “pulled back.”

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State v. Pence

¶8 After arguing with Officer and Victim, Pence stated that
he “couldn’t stand looking at [Victim’s] face” and walked back
to his parents’ house across the street. After speaking to Officer
for several more minutes, Victim walked the children across the
street to Pence’s parents’ home for parent-time.

¶9 Pence was subsequently charged with two counts of
violating a protective order—one count related to the August
2014 events and the other count related to events that took place
in September 2014. See Utah Code Ann. § 76-5-108 (LexisNexis
Supp. 2014). Prior to trial, Pence filed a motion to dismiss in
which he argued that the protective order language of “Stay
Away” from the marital home was void for vagueness as
applied. Specifically, Pence argued that the directive to “Stay
Away” did not give him fair notice of what conduct was
prohibited, because he was to exercise parent-time with his
children at his parents’ home directly across the street from the
protected marital home. The trial court denied the motion.

¶10 Also prior to trial, Pence asked the court to use his version
of the elements jury instruction. His requested instruction
included additional language not found in Utah Code section
76-5-108, highlighted in paragraph 4 below, that stated,

[The jury] cannot convict Mr. Pence of [violating
the protective order] unless, based on the evidence,
[the jury] find[s] beyond a reasonable doubt each
of the following elements:

1. That on or about August 15, 2014, within Sevier
County, State of Utah, Mr. Pence was subject to a
Protective Order;

2. That Mr. Pence was properly served with the
protective order;

3. That the protective order prohibited the conduct
Mr. Pence is accused of;

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State v. Pence

4. That the protective order described the prohibited
conduct with sufficient[] clarity to give a person of
ordinary intelligence fair notice that his contemplated
conduct was forbidden by the protective order;

5. That Mr. Pence intentionally or knowingly
violate[d] the protective order.

(Emphasis added.)

¶11 The court denied Pence’s request, concluding that it was
unnecessary for a jury to find elements beyond those required by
Utah Code section 76-5-108. Instead, the court gave the State’s
elements instruction, which stated,

Before [the jury] can convict the Defendant of
VIOLATION OF A PROTECTIVE ORDER . . . [the
jury] must find from the evidence beyond a
reasonable doubt, all of the following elements of
that crime:

1. That on or about August 15, 2014, within Sevier
County, State of Utah, the Defendant was subject to
a Protective Order;

2. That the Defendant was properly served with
the Protective Order; and

3. That the Defendant knowingly or intentionally
violated the Protective Order.

Additionally, the court gave a separate mens rea instruction,
with language taken directly from Utah Code section 76-2-103.
This instruction defined “Intentional and Knowing Conduct”
under Utah law. See id. § 76-2-103 (2012). The remaining
instructions were stipulated to by the parties.

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State v. Pence

¶12 At trial, Officer was asked if he was able to determine
during his investigation whether Pence had been served with the
protective order, to which Officer answered affirmatively.
Officer next testified to the service of the protective order,
without any objection from Pence, stating, “We had the return of
service that was served. And it was also through dispatch,
advised that it had been served through the state system.” 2 Next,
Officer identified State’s Exhibit 6 (Exhibit 6), which was
received as a single document although it was made up of seven
pages. The first page of the exhibit was a ruling of the district
court outlining which provisions of the protective order would
expire after 150 days and which provisions would be permanent.
The order stated that it was intended to be a permanent
protective order. The next six pages consisted of a copy of the
protective order itself. Officer then catalogued the contents of
Exhibit 6, which included the protective order, and Exhibit 6 was
admitted without objection.

¶13 At the close of the State’s case, Pence filed a motion for
judgment as a matter of law, arguing that there was insufficient
evidence of service of the protective order. The court denied the
motion. Subsequently, the jury found Pence guilty on the August
2014 count and not guilty on the September 2014 count. Pence
appeals.

ISSUES AND STANDARDS OF REVIEW

¶14 Pence raises three issues on appeal. First, he contends that
the trial court erred in denying his motion to dismiss, which was
premised on the argument that the language in Utah Code

2. We acknowledge that Officer’s statement was hearsay, see
Utah R. Evid. 801, but because there was no objection below, it
was admitted and available for the jury’s consideration, see id. R.
103(a). No claim of plain error or ineffective assistance of counsel
has been made in connection with this testimony or Exhibit 6.

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State v. Pence

section 76-5-108 was unconstitutionally vague as applied by the
protective order. “Constitutional challenges to statutes present
questions of law, which we review for correctness,” Provo City
Corp. v. Thompson, 2004 UT 14, ¶ 5, 86 P.3d 735, with no
deference to the trial court’s ruling, South Salt Lake City v.
Terkelson, 2002 UT App 405, ¶ 5, 61 P.3d 282.

¶15 Second, he argues that the trial court erred by refusing to
give his proposed jury instruction. A court’s ruling on a
proposed jury instruction is reviewed for correctness. State v.
Maestas, 2012 UT 46, ¶ 148, 299 P.3d 892. We view jury
instructions “in their entirety and will affirm when the
instructions taken as a whole fairly instruct the jury on the law
applicable to the case.” Id. (cleaned up).

¶16 Finally, Pence contends that the trial court erred in
denying his motion for judgment as a matter of law, which was
premised on the argument that there was insufficient evidence
that the protective order was served upon him. “We will reverse
a guilty verdict only when the evidence . . . is sufficiently
inconclusive or inherently improbable that reasonable minds
must have entertained a reasonable doubt that the defendant
committed the crime of which he or she was convicted.” State v.
MacNeill, 2017 UT App 48, ¶ 51, 397 P.3d 626 (cleaned up).

ANALYSIS

I. Vagueness Challenge

¶17 Pence first claims that Utah Code section 76-5-108 is
unconstitutionally vague as applied because the protective order
issued by the district court fails to define the precise locations he
is prohibited from visiting, stating only that Pence must “Stay
Away” from Victim, her vehicle, job, school, and the marital
home. In short, Pence asserts that the command “Stay Away” is
vague. We are unpersuaded by Pence’s argument.

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State v. Pence

¶18 The State argues that Pence’s vagueness challenge is
unpreserved because he challenges the language of the
protective order, rather than the language of Utah Code section
76-5-108. We acknowledge that courts have long held that the
vagueness doctrine only applies to statutes, not to court orders.
See Kolender v. Lawson, 461 U.S. 352, 357 (1983) (“[T]he void-for-
vagueness doctrine requires that a penal statute define the
criminal offense with sufficient definiteness that ordinary people
can understand what conduct is prohibited and in a manner that
does not encourage arbitrary and discriminatory enforcement.”);
State v. Green, 2004 UT 76, ¶ 43, 99 P.3d 820 (same). But the
record in this case is unclear regarding whether Pence is
challenging the order or the statute. Thus, we first analyze the
issue as if Pence had properly challenged the statute. Then,
assuming without deciding that the vagueness doctrine applies
to court orders in addition to statutes, we analyze Pence’s
argument that the language of the protective order itself was
unconstitutionally vague.

¶19 The United States Supreme Court has stated that when a
party raises both facial and as-applied vagueness challenges, “[a]
court should . . . examine the complainant’s conduct before
analyzing other hypothetical applications of the law.” Village of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494–
95 (1982). “This is because a plaintiff who engages in some
conduct that is clearly proscribed by statute cannot complain of
the vagueness of the law as applied to the conduct of
others.” State v. Tulley, 2018 UT 35, ¶ 55 (cleaned up). While it is
unclear from Pence’s briefing which type of challenge he asserts,
we analyze his argument as an as-applied challenge. 3

3. Based on our conclusion that Pence’s as-applied challenge
fails, any alleged facial challenge fails as well. See State v.
MacGuire, 2004 UT 4, ¶ 12, 84 P.3d 1171 (“A statute that is clear
as applied to a particular complainant cannot be considered
(continued…)

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State v. Pence

¶20 To survive a vagueness challenge, a statute must
“(1) define the criminal offense with sufficient definiteness that
ordinary people can understand what conduct is prohibited and
in a manner that does not encourage arbitrary and
discriminatory enforcement, and (2) establish minimal
guidelines that sufficiently instruct law enforcement so as to
avoid arbitrary and discriminatory enforcement.” Id. ¶ 54
(cleaned up). Pence has failed to establish that the statute
violates either prong of this test.

A. Notice of Prohibited Conduct

¶21 We first examine whether the language of Utah’s
protective order statute is so vague that Pence would have had
inadequate notice that his conduct toward Victim—including,
but not limited to, yelling at Victim while driving past her,
approaching Victim’s vehicle aggressively, and getting “right in
[Victim’s] face”—had the potential to violate the protective order
issued against him.

¶22 The statute at issue, Utah Code section 76-5-108, states, in
relevant part,

Any person who is the respondent or defendant
subject to a protective order, child protective order,
ex parte protective order, or ex parte child
protective order . . . who intentionally or
knowingly violates that order after having been
properly served, is guilty of a class A
misdemeanor, except as a greater penalty may be
provided . . . .

(…continued)
impermissibly vague in all of its applications and thus will
necessarily survive a facial vagueness challenge.”).

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State v. Pence

Utah Code Ann. § 76-5-108 (LexisNexis Supp. 2014). This statute
makes clear that anyone who intentionally or knowingly violates
a protective order, after being properly served, is guilty of
violating the statute. Id. It specifically defines the types of
protective orders and describes the act required to violate the
statute. Pence cannot persuasively argue that he would not have
known that yelling at Victim, approaching her, and getting
“right in [her] face” would constitute acts sufficient to violate the
protective order.

¶23 Moreover, assuming without deciding that the vagueness
doctrine applies to court orders in addition to statutes, we
disagree with Pence’s argument that “ordinary people” would
not know “what conduct is prohibited,” Tulley, 2018 UT 35, ¶ 54
(cleaned up), by the “Stay Away” language used in the
protective order. Any ordinary person would know that a
protective order directing a party to “Stay Away” from someone
or something means to avoid all contact with that person or
thing. See State v. Norcross, 1999 UT App 100U, 1999 WL
33244751, para. 4–5 (per curiam) (affirming a conviction for
violation of a protective order where the defendant was required
to “stay away” from the property because he attempted to harass
the victim by riding a bicycle in the street in front of the property
and stopping across the street). Because Pence’s conduct toward
Victim—yelling, approaching, and harassing—clearly violated
the protective order, it is unnecessary to describe what degree of
contact would have been appropriate between them. See Village
of Hoffman Estates, 455 U.S. at 495 (“A [party] who engages in
some conduct that is clearly proscribed cannot complain of the
vagueness of the law as applied to the conduct of others.”). 4

4. Pence also argues that we should apply the rule of lenity, but
he fails to recognize that “the rule of lenity is not implicated
unless a statute is ambiguous.” State v. Rasabout, 2015 UT 72,
¶ 22, 356 P.3d 1258. Here, Pence’s contention fails because the
statute is unambiguous, see supra ¶¶ 20–22, and, moreover, his
(continued…)

20170026-CA 10 2018 UT App 198
State v. Pence

B. Absence of Arbitrary and Discriminatory Enforcement

¶24 Having concluded that the statute is sufficiently definite
to have notified Pence that his conduct was prohibited, we next
examine whether the protective order statute encouraged
arbitrary and discriminatory enforcement. See Kolender v. Lawson,
461 U.S. 352, 357–58 (1983) (holding that the void for vagueness
doctrine requires the legislature to “define the criminal
offense . . . in a manner that does not encourage arbitrary and
discriminatory enforcement,” and that to avoid unconstitutional
vagueness, a statute must “establish minimal guidelines to
govern law enforcement” (cleaned up)); see also State v. Green,
2004 UT 76, ¶ 50, 99 P.3d 820.

¶25 Here, Pence argues that “[w]ith no criteria to rely upon in
the [protective order] beyond the injunction to ‘[S]tay [A]way,’
[he] was left to guess how he was to interpret the requirement to
have parent-time across the street in a manner not violative of
the [protective order].” This argument fails for two reasons.
First, Pence’s contention lacks merit because “Stay Away” is not
found in the statute, but is instead found in the protective order.
Unlike statutes, which apply to everyone within the jurisdiction,
orders are tailored to individuals. This concept gives courts wide
discretion to vary their language and degrees of severity to the
needs of the case. Here, because the language Pence challenges is
found in the protective order rather than the statute, the
vagueness doctrine is arguably inapplicable.

¶26 Second, even assuming—again, without deciding—that
the vagueness doctrine applies to court orders in addition to
statutes, the protective order is sufficiently definite so as to
discourage arbitrary and discriminatory enforcement. Pence
asserts that because the protective order did not expressly set out

(…continued)
three-sentence argument is inadequately briefed. See Utah R.
App. P. 24(a)(8).

20170026-CA 11 2018 UT App 198
State v. Pence

the conduct from which he was prohibited, it was open to
interpretation. We disagree. “In an as applied challenge, . . .
we . . . focus on the particular conduct at hand and not on the
possible conduct of hypothetical parties.” Green, 2004 UT 76,
¶ 51. Based on the facts of this case, we conclude that any
“reasonable law enforcement official acquainted with [Pence’s]
behavior” could determine that Pence’s actions violated the
protective order. See State v. Tulley, 2018 UT 35, ¶ 73 (cleaned
up).

¶27 The relevant statute specified that any person subject to a
protective order, who intentionally or knowingly violated that
order, after having been properly served, was guilty of violating
a protective order. See Utah Code Ann. § 76-5-108 (LexisNexis
Supp. 2014). Based on this statute, law enforcement officials
would not be “left to pursue their own personal predilections in
determining the applicability” of the statute to the facts at hand,
because Pence’s conduct was so clearly prohibited by the
protective order. See Green, 2004 UT 76, ¶ 52. He drove by Victim
and yelled at her while she was at the park, he approached
Victim’s vehicle, getting “right in [Victim’s] face,” and he
attempted to “grab” one of the minor children while in Victim’s
presence. This type of behavior violated the protective order
and, therefore, left no room for interpretation by law
enforcement officials. Accordingly, Pence has failed to
demonstrate that both the statute and the protective order were
unconstitutionally vague as applied to him.

II. Jury Instruction

¶28 Next, Pence argues that the court erred by not adopting
his version of the elements jury instruction, which contained two
additional elements required to find him guilty: “[t]hat the
protective order prohibited the conduct Mr. Pence is accused of”
and “[t]hat the protective order described the prohibited conduct
with sufficient[] clarity to give a person of ordinary intelligence
fair notice that his contemplated conduct was forbidden by the
protective order.”

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State v. Pence

¶29 In contrast, the instruction given by the trial court tracked
the exact language of Utah Code section 76-5-108, which states
that “[a]ny person who is the respondent or defendant subject to
a protective order, . . . who intentionally or knowingly violates
that order after having been properly served, is guilty of a class
A misdemeanor.” Utah Code Ann. § 76-5-108 (LexisNexis Supp.
2014). “Intentionally or knowingly” was defined in a separate
jury instruction with language taken directly from Utah Code
section 76-2-103, which explains knowing and intentional
conduct under Utah law. See id. § 76-2-103 (2012). The remaining
instructions were stipulated to by the parties.

¶30 “[E]rrors in jury instructions—even instructions going to
the elements of a charged crime—require harmless-error
analysis.” State v. Garcia, 2017 UT 53, ¶ 40, 424 P.3d 171. Jury
instructions require no particular form so long as they accurately
convey the law. State v. Marchet, 2009 UT App 262, ¶ 23, 219 P.3d
75. “To determine if jury instructions correctly state the law, we
look at the jury instructions in their entirety and will affirm
when the instructions taken as a whole fairly instruct the jury on
the law applicable to the case.” State v. Painter, 2014 UT App 272,
¶ 6, 339 P.3d 107 (cleaned up).

¶31 Here, when considered as a whole, the jury instructions
fairly and accurately instructed the jury as to the applicable law.
All of the elements required in Utah Code section 76-5-108 were
included in the elements jury instruction given by the trial court.
The language requested by Pence is not found in the statute.
Therefore, Pence has failed to show that the instructions, as
given, were an incorrect or incomplete statement of the law. 5

5. Pence also contends that the denial of his requested jury
instruction that contained additional elements prevented the
jury from making the mens rea finding required by the
constitution. But Pence conceded at trial that “intentionally and
knowingly” were from the statute and that they were acceptable.
Thus, his argument is unpreserved. Further, even if we assume
(continued…)

20170026-CA 13 2018 UT App 198
State v. Pence

Accordingly, the trial court did not err in rejecting the additional
proposed language in the elements instruction.

III. Proof of Service

¶32 Finally, Pence contends that the trial court erred in
denying his motion for judgment as a matter of law, which was
premised on insufficient evidence of service. When considering a
sufficiency of the evidence claim, “we review the evidence and
all inferences which may reasonably be drawn from it in the
light most favorable to the verdict of the jury.” State v. Nielsen,
2014 UT 10, ¶ 46, 326 P.3d 645 (cleaned up). “We reverse only
when the evidence, so viewed, is sufficiently inconclusive or
inherently improbable that reasonable minds must have
entertained a reasonable doubt that the defendant committed the
crime of which he or she was convicted.” Id. ¶ 30 (cleaned up).

¶33 The premise of Pence’s insufficient evidence argument is
that the State’s exhibit was inadequate as proof of proper service
of the protective order, one of the required elements of Utah
Code section 76-5-108. See Utah Code Ann. § 76-5-108
(LexisNexis Supp. 2014). We simply disagree, both because the
exhibit itself is sufficient and because other evidence—which
Pence ignores—supports the verdict. Exhibit 6 was admitted into
evidence as a single document that Officer represented was
served upon Pence. A reasonable jury could have relied on
Exhibit 6 alone to find that the protective order had been served.
But there was more. Pence’s own witness (Witness) testified that
on August 14, Pence asked her to “drop him off [at an old church
building instead of going with Witness to park his car outside
the marital home] because of the protective order.” This
testimony shows Pence’s full awareness of the protective order.

(…continued)
that his concession was made by mistake, it constituted invited
error, which precludes our review. See State v. Moore, 2012 UT
App 227, ¶ 5, 285 P.3d 809.

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State v. Pence

¶34 Also, without objection, Officer testified to the service of
the protective order, stating, “We had the return of service that
was served. And it was also through dispatch, advised that it
had been served through the state system.” While this evidence
is conclusory and hearsay, it nevertheless is evidence that the
jury could consider in determining that the protective order had
been served because no objection was made. With an evidentiary
basis upon which the jury could rely, especially when drawing
all inferences in favor of the verdict, the trial court correctly
denied the motion for judgment as a matter of law. See State v.
Gonzalez, 2015 UT 10, ¶¶ 33–34, 345 P.3d 1168 (holding that the
trial court “correctly denied” a motion for directed verdict where
there was sufficient evidence for a jury to find that the
defendant’s actions met the requisite elements of the crime).

CONCLUSION

¶35 For the aforementioned reasons, we conclude that Utah
Code section 76-5-108 is not unconstitutionally vague as applied.
We further hold that the jury instructions fairly instructed the
jury on the law applicable to the case. And finally, we affirm the
trial court’s holding that there was sufficient evidence of service
of the protective order. Accordingly, we affirm Pence’s
conviction.

20170026-CA 15 2018 UT App 198