Utah Court of Appeals
Can protective order language be too vague to enforce? State v. Pence Explained
Summary
Pence was convicted of violating a protective order after yelling at his ex-wife at a park and later approaching her vehicle and getting “right in her face” during a custody exchange. He challenged the conviction on grounds that the “Stay Away” language in the protective order was unconstitutionally vague, the jury instructions were inadequate, and there was insufficient evidence of proper service.
Analysis
In State v. Pence, the Utah Court of Appeals addressed whether a protective order’s “Stay Away” language could be unconstitutionally vague when the defendant was required to exercise parent-time directly across the street from the protected residence.
Background and Facts
Following their separation, Pence’s ex-wife obtained a protective order requiring him to “Stay Away” from the marital home while allowing supervised parent-time at his parents’ house across the street. During a custody exchange, Pence yelled at his ex-wife while driving past a park, then parked in front of the marital home, approached her vehicle, and got “right in her face” while she waited with their children. He was convicted of violating the protective order under Utah Code section 76-5-108.
Key Legal Issues
Pence raised three challenges: (1) the protective order’s “Stay Away” language was unconstitutionally vague as applied, (2) the trial court erred in refusing his proposed jury instruction that included additional elements beyond those in the statute, and (3) there was insufficient evidence that he was properly served with the protective order.
Court’s Analysis and Holding
The court rejected the vagueness challenge, explaining that while the doctrine typically applies only to statutes, not court orders, Pence’s conduct was so clearly prohibited that any ordinary person would understand “Stay Away” means to avoid all contact. The court emphasized that in as-applied challenges, courts focus on the defendant’s actual conduct rather than hypothetical scenarios. Pence’s behavior—yelling, approaching aggressively, and harassing—clearly violated the order.
Regarding jury instructions, the court found that the given instructions properly tracked Utah Code section 76-5-108’s elements and that Pence’s proposed additional language was unnecessary. The court also determined that sufficient evidence supported proper service through both documentary evidence and testimony showing Pence’s awareness of the protective order.
Practice Implications
This decision reinforces that vagueness challenges to protective orders face significant hurdles when the defendant’s conduct clearly violates the order’s terms. Practitioners should focus on the specific conduct charged rather than theoretical ambiguities. The ruling also confirms that jury instructions need only track statutory elements and that courts have broad discretion in crafting protective order language tailored to individual cases.
Case Details
Case Name
State v. Pence
Citation
2018 UT App 198
Court
Utah Court of Appeals
Case Number
No. 20170026-CA
Date Decided
October 18, 2018
Outcome
Affirmed
Holding
A protective order’s “Stay Away” language is not unconstitutionally vague when applied to conduct that clearly violates the order, such as approaching and harassing the protected person.
Standard of Review
Constitutional challenges to statutes are reviewed for correctness with no deference. Jury instruction rulings are reviewed for correctness. Sufficiency of evidence challenges are reviewed to determine whether the evidence is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt.
Practice Tip
When challenging protective order language as vague, focus on whether the specific conduct at issue was clearly prohibited rather than hypothetical scenarios, as courts apply vagueness challenges to the defendant’s actual behavior.
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