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State v. Pence

Court of Appeals of Utah

October 18, 2018

State of Utah, Appellee,
v.
Rory Dustin Pence, Appellant.

          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 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 "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."

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

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