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                                                                Electronically Filed
                                                                Supreme Court
                                                                SCWC-XX-XXXXXXX
                                                                03-JUN-2020
                                                                07:46 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                 ---o0o---


                           STATE OF HAWAIʻI,
                    Respondent/Plaintiff-Appellee,

                                     vs.

                          JUSTIN K. BRIGHT,
                   Petitioner/Defendant-Appellant.


                             SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (CAAP-XX-XXXXXXX; FC-CR. NO. 16-1-0079)

                               JUNE 3, 2020

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

             OPINION OF THE COURT BY RECKTENWALD, C.J.

          Justin K. Bright was convicted of violation of a

protective order for coming within 100 feet of the complainant

(“the protected party”) while at his place of work.             The order
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for protection prohibited Bright from, inter alia, coming within

100 feet of the protected party at a “neutral location.”              This

case requires us to determine whether Bright’s place of work was

a “neutral location” under the terms of the order for

protection.    We hold that it was not.

          The rule of lenity requires any ambiguous terms to be

construed in favor of the defendant.           Because “neutral location”

is not defined by the order for protection and reasonable minds

could disagree about its definition, it is ambiguous and

therefore must be interpreted narrowly.          We hold that in the

context of this order for protection, “neutral location” means a

place that is unaffiliated with either party.            As Bright’s place

of employment was not a neutral location, he did not violate the

order for protection and his conviction must be reversed.

                              I.   BACKGROUND

          On November 10, 2015, Bright consented to the entry of

an order for protection that restrained him from having any

contact with the protected party.         The relevant terms of the

protective order provided:

          B.     CONTACT BETWEEN THE PARTIES

          [1]   Respondent is prohibited from contacting the
          Petitioner.

          [2]   Respondent is prohibited from telephoning,
          writing or otherwise electronically communicating
          (by recorded message, pager, etc.), including
          through [a] third party, with the Petitioner and any
          children residing with the Petitioner.



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            [3]   Respondent is prohibited from coming or
            passing within 100 yards of any place of employment
            or where the Petitioner lives and within 100 feet of
            each other at neutral locations. In the event the
            parties happen to come upon each other at a neutral
            location, the subsequent arriving party shall leave
            immediately or stay at least 100 feet from the
            other. When the parties happen to come upon each
            other at the same time at a neutral location, the
            Respondent shall leave immediately or stay at least
            100 feet from the Petitioner.

            Do not violate this order even if the Petitioner
            invites you to be at the place of employment or
            where the other lives.

            . . . .

            [4]   Other: Both parties are permitted to use
            Kuamoo Road to access their respective residences.

The order does not define the term “neutral location.”

            On April 15, 2016, the State of Hawaiʻi (State) charged

Bright with violating an order for protection, pursuant to

Hawaiʻi Revised Statutes (HRS) §§ 586-5.5 1 and 586-11(a) 2 (2018).


      1     HRS § 586-5.5 provides in relevant part:

                  (a)   If, after hearing all relevant evidence,
            the court finds that the respondent has failed to
            show cause why the [temporary restraining order]
            should not be continued and that a protective order
            is necessary to prevent domestic abuse or a
            recurrence of abuse, the court may order that a
            protective order be issued for a further fixed
            reasonable period as the court deems appropriate.

                  The protective order may include all orders
            stated in the temporary restraining order and may
            provide for further relief as the court deems
            necessary to prevent domestic abuse or a recurrence
            of abuse, including orders establishing temporary
            visitation and custody with regard to minor children
            of the parties and orders to either or both parties
            to participate in domestic violence intervention
            services.
      2     HRS § 586-11(a) provides: “Whenever an order for protection is
granted pursuant to this chapter, a respondent or person to be restrained who



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The State alleged that on January 26, 2016, Bright encountered

the protected party on the steps of the Fifth Circuit

courthouse, in violation of the order for protection.              On

September 12, 2016, the family court held a bench trial.                The

following testimony was adduced at trial.

            In mid-January 2016, Bright began working as a

documents clerk at the Fifth Circuit courthouse.             The protected

party, who was a forensic social worker, had to go to the

courthouse three to four times a week as part of her job.                The

Deputy Chief Court Administrator, Alton Amimoto, testified that

Bright’s job required him to start work promptly at 7:45 a.m.,

and that while new employees may have been allowed to park in

the back of the courthouse and enter through the back door to

avoid the public entrance at the front of the building,

“[g]enerally, . . . all new employees park in the front and

enter through the front entrance.”

            On the morning of January 26, 2016 – about a week

after Bright started work – at approximately 7:40 a.m., the

protected party and her father were “walking towards the court

building to get in, and as [they] approached before the stairs,

[she] noticed Justin [Bright] walking from the parking lot[.]”




knowingly or intentionally violates the order for protection is guilty of a
misdemeanor.”



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When she reached the top of the stairs, Bright was about 20 feet

away from her.    She testified that when Bright was 12–15 feet

away from her, approaching the stairs, “he looked right at me.

He looked at my dad also.       We were the only two people up

there.”   The protected party and her father entered the

courthouse and went through security.          Bright did not speak to

her during the encounter, and he did not follow her into the

courthouse.   Instead, he stopped outside the courthouse and

stood at the top of the stairs about 10-12 feet away from the

courthouse doors.

           The protected party’s father similarly testified that

Bright came “between 12 and 15 feet” of the protected party. He

agreed that Bright stopped at the top of the steps and did not

enter the courthouse, and explained that instead of following

them, Bright walked over to a short wall or bench and sat down.

           Amimoto testified that at around 7:45 a.m., he saw

Bright sitting in the front of the courthouse on a bench about

100 feet from the courthouse doors.         When Amimoto approached,

Bright told him that “he [Bright] had a problem.”             Bright

“looked sad or unsure,” and explained about the order for

protection, telling Amimoto that “he saw [the protected party]

going into the building so he wasn’t sure what he should do.”

Amimoto then took Bright into the courthouse through the back




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entrance.

            Bright testified on his own behalf.          He explained that

he didn’t see the protected party until he was 10–12 feet away

from her because he had been on his phone while walking through

the parking lot.       He told the court, “I didn’t know she was

there until I – until I saw her and then I kind of panicked

because it was already too late.”         When asked why he did not

immediately leave, he testified:

            Well, I panicked at that time and I then I kind of
            like wasn’t sure what to do because I still had to go
            to work and they were there, so I ended up kind of
            panicking for a little while and then walking away
            and I just stayed outside and was kind of unsure what
            to do.

            . . . .

            I mean, like I still had to go to work. I mean,
            being late – because I started working there, you
            know, being late on the first couple days isn’t a
            good – good thing to do.

            Bright did not know that the protected party would be

at the courthouse that day: “I knew that she would eventually

come here, yes.       I assumed that I would be here before her

because I’m a Judiciary – I was a Judiciary employee with

different hours.”

            At the conclusion of trial, the family court found

Bright guilty of violating the order for protection and

sentenced him to two years of probation.          The court discredited

Bright’s testimony that he did not see the protected party until




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he was too close to her because the protected party and her

father were the only other people walking into the courthouse at

the time.    Although Bright had argued that the courthouse was

not a “neutral location” because it was Bright’s place of work,

the family court never made an explicit finding whether the

courthouse constituted a “neutral location” under the terms of

the order for protection.        However, the parties agree on appeal

that the family court implicitly determined Bright’s place of

employment was a “neutral location” because the family court

held that Bright had two options: “One is he could have remained

at a distance, the hundred feet is what the protective order

said, or he could have left because they were there first.”

            Bright appealed to the Intermediate Court of Appeals

(ICA), arguing that the courthouse was not a “neutral place”

because it was Bright’s place of employment. 3           The State conceded

that “there is more than one reasonable way to interpret” the

term “neutral location,” but argued that if the court found that

“neutral location” did not include Bright’s workplace, only his

office – not the entire building – would have been exempted from

the terms of the protective order.

            The ICA affirmed Bright’s conviction in a summary



      3     Bright raised several additional points of error to the ICA, but
he raised only the “neutral location” issue in his application for writ of
certiorari.



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disposition order.     While the ICA agreed with Bright that “[t]he

outside parameters of the prohibitions contained in the Order

for Protection are less than perfectly clear,” the ICA concluded

that “there was substantial evidence that Bright came within

both 100 feet of the complaining witness at a ‘neutral

location,’ and 100 yards at ‘any place of employment.’              In

either case then, Bright’s stated surprise at encountering the

complaining witness notwithstanding, his action was in violation

of the Order for Protection.”

          Bright timely filed an application for writ of

certiorari.

                        II.    STANDARD OF REVIEW

          “The interpretation or construction of a judgment,

decree, or order ‘presents a question of law for the courts.’”

State v. Guyton, 135 Hawaiʻi 372, 377, 351 P.3d 1138, 1143 (2015)

(quoting Cain v. Cain, 59 Haw. 32, 39, 575 P.2d 468, 474

(1978)). “Questions of law are reviewed under the right/wrong

standard of review.”     Id. (citing State v. Higa, 79 Hawaiʻi 1, 3,

897 P.2d 928, 930 (1995)).

                              III.   DISCUSSION

          An order for protection must be “clear and

unambiguous” because “fairness and due process dictate that a

court order must be sufficiently particular and definite so as




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to clearly identify the conduct that it prohibits.”             Id. at 377–

78, 351 P.3d at 1143–44 (quoting LeMay v. Leander, 92 Hawaiʻi

614, 625, 994 P.2d 546, 557 (2000)).         If an order for protection

is ambiguous, under the rule of lenity, it must be “construed in

favor of the defendant.”      Id. at 381, 351 P.3d at 1147.

          The stay-away provision of the order for protection

against Bright states:

                 Respondent is prohibited from coming or passing
                 within 100 yards of any place of employment or
                 where the Petitioner lives and within 100 feet
                 of each other at neutral locations. In the
                 event the parties happen to come upon each
                 other at a neutral location, the subsequent
                 arriving party shall leave immediately or stay
                 at least 100 feet from the other. When the
                 parties happen to come upon each other at the
                 same time at a neutral location, the Respondent
                 shall leave immediately or stay at least 100
                 feet from the Petitioner.

          The order also provides an exception:            “Both parties

are permitted to use Kuamoo Road to access their respective

residences.”    Thus, the order for protection identifies three

categories of locations:      (1) a residence, which includes

Bright’s home as well as the protected party’s, (2) “any place

of employment,” and (3) “neutral locations.”           It restrains

Bright from coming within 100 yards of the protected party’s

residence and her place of employment (the 100-yard

prohibition).    It also requires him to stay 100 feet away from

her at “neutral locations” (the 100-feet prohibition) – but the

order does not define what constitutes a “neutral location.”



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A.   The ICA Erred in Concluding that Regardless of How the
     Court Interprets the Phrase “Neutral Location,” Bright
     Violated the Order for Protection.

           The ICA concluded that even if the 100-feet

prohibition did not apply to Bright’s place of employment, he

still violated the order for protection because he came within

100 yards of the protected party at a place of employment.

According to the ICA, the 100-yard prohibition restrained Bright

from coming within 100 yards of the protected party if the

parties were at any place of employment – including his own.

This misreads the protective order.

           The 100-yard prohibition restrains Bright from coming

within 100 yards of two locations – “[1] any place of employment

or [2] where the Petitioner lives” – not within 100 yards of the

protected party at those locations.          In other words, Bright

could not go to the protected party’s place of employment, even

if she was not there, because he could not go within 100 yards

of the place.     The phrase “any place of employment or where

Petitioner lives,” when read in context, must refer to the

protected party’s place of employment – not Bright’s.              If the

term referred to Bright’s place of employment it would create an

absurd result:     He would be restrained from coming within 100

yards of his own place of work.

           Moreover, Bright could not have been convicted of




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violating the 100-yard prohibition because the State did not

allege he violated that provision of the order for protection

when it filed a Bill of Particulars prior to trial.              In the Bill

of Particulars, the State only alleged that Bright came within

100 feet of the protected party, and so that was the only

conduct for which Bright could have been convicted of violating

the order for protection.        See State v. Erickson, 60 Haw. 8, 9,

586 P.2d 1022, 1023 (1978) (“After a bill of particulars is

ordered furnished and is filed by the State and until it is

properly amended, the State is limited to proving the

particulars specified in the bill.”).

           Thus, the ICA erred in concluding that regardless of

how the language in the order for protection is interpreted,

Bright violated the order.        Bright was convicted of being within

100 feet of the protected party.           Such conduct would only be a

violation of the order for protection if Bright’s place of

employment – the Fifth Circuit courthouse – is deemed a “neutral

location.”

B.   Because the Order for Protection is Ambiguous, It Must be
     Construed in Favor of Bright.

           Bright argues that the plain meaning of “neutral”

should govern, and “the plain common sense reading of the Order

for Protection is that either party’s place of employment or

place of residence is not a neutral location.”             While he



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contends that the order for protection is not ambiguous, he

asserts that even if this court deems the term “neutral

location” to be ambiguous, the rule of lenity requires the term

be strictly construed in favor of Bright.

            The State also contends that the order for protection

is not ambiguous, but reaches a different conclusion as to the

meaning of “neutral location”: “Because [Bright’s] place of

employment is not specifically addressed in the Protective

Order, the only reasonable interpretation of the Protective

Order it [sic] that it is a neutral location to which the

default rule applied[.]” 4

            If language is “subject to two possible meanings,”

both of which are reasonable, it is ambiguous.             State v.

Fukusaku, 85 Hawaiʻi 462, 491, 946 P.2d 32, 61 (1997); see also

State v. Toyomura, 80 Hawaiʻi 8, 19, 904 P.2d 893, 904

(1995)(“When there is doubt, doubleness of meaning, or

indistinctiveness or uncertainty of an expression used in a

statute, an ambiguity exists.” (quoting Mehau v. Reed, 76 Hawaiʻi

101, 109, 869 P.2d 1320, 1328 (1994)) (alteration omitted)).

            Here, the 100-feet provision of the order for

protection is ambiguous.       Specifically, it is unclear whether a


      4     However, as noted above, in its Answering Brief to the ICA, the
State conceded that “there is more than one reasonable way to interpret
‘neutral location[.]’”



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“neutral location” refers to: (1) all locations that are not the

protected party’s residence or place of employment, as the State

now argues, or (2) locations that are unaffiliated with either

party, as Bright argues. 5      Contrary to both parties’ assertions,

either interpretation could be reasonable.            In the face of an

ambiguity, we turn to traditional canons of construction to

guide our interpretation.

            In State v. Guyton, we explained that if an order for

protection is ambiguous, in accordance with the rule of lenity

“its language should be construed in favor of the defendant.”

135 Hawaiʻi at 381, 351 P.3d at 1147.          In Guyton, the defendant

was convicted of violating a protective order that restrained

him from entering the protected party’s “residence, including

yard” which the State had interpreted as including the protected

party’s 1,000-acre macadamia nut farm and conservation land.

This court held that the protective order needed to be “clear

and unambiguous,” and that “residence, including yard” should be



      5     Other form orders for protection have approached general stay-
away provisions differently, suggesting that the language used here may be
the exception, not the rule. See, e.g., State v. Valenzona, 92 Hawaiʻi 449,
450, 992 P.2d 718, 719 (App. 1999) (prohibiting “visiting and/or
remaining . . . within 100 feet of the Plaintiff at all other (neutral)
locations”). For example, the Hawaiʻi Family Court of the First Circuit
Temporary Restraining Order form specifies, “Do not approach or come within
100 feet of the Subject(s).” Temporary Restraining Order, Family Court Form
1F-P-756, https://www.courts.state.hi.us/docs/1FP/1FP756.pdf (last visited
March 2, 2020) (bold in original); see also Temporary Restraining Order,
Family Court Form 3F-P-303, https://www.courts.state.hi.us/docs/form/hawaii/
3FP303.pdf (last visited March 2, 2020).



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given its ordinary meaning, which did not encompass the

protected party’s entire 1,000-acre property.            Guyton, 135

Hawaiʻi at 377-78, 351 P.3d at 1143-44.          We noted that even if

the terms were ambiguous, under the rule of lenity, the “plain

and popularly understood meaning” had to control.             Id. at 381,

351 P.3d at 1147.     Here, we apply the rule in Guyton to hold

that “neutral location” should be given its ordinary meaning.

          The State argues that Guyton is inapplicable because

the defendant in that case did “not violate the spirit of a

protective order, which typically prohibits in-person contact

within 100 yards or 100 feet.”        Since Bright came within 100

feet of the protected party, the State contends that his actions

“violate[d] both the terms and the spirit of the Protective

Order.”

          We disagree with the State’s interpretation of Guyton.

At no point did we consider whether the defendant in Guyton

violated the “spirit” of the protective order – the only

question was whether he violated the terms of the order, as

interpreted by their plain meaning and in accordance with the

rule of lenity.    Id. at 381, 351 P.3d at 1147.          Even if we were

to assume that the facts of this case demonstrate Bright

violated the spirit of the order for protection, the spirit of

the order cannot override its terms.         And, for the reasons




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explained below, Bright did not violate the terms of the order

for protection.

C.   In Accordance with the Rule of Lenity, a “Neutral Location”
     is a Place that is Unaffiliated with Either Party.

           The rule of lenity requires us to construe an

ambiguous court order in favor of the defendant and “adopt a

less expansive meaning.”       State v. Woodfall, 120 Hawaiʻi 387,

396, 206 P.3d 841, 850 (2009).         Here, the narrowest

interpretation of “neutral location” is also the term’s plain

and popularly understood meaning.          See Guyton, 135 Hawaiʻi at

381, 351 P.3d at 1147.

           To ascertain a word’s plain meaning, we “may resort to

legal or other well accepted dictionaries[.]”             State v. Pali,

129 Hawaiʻi 363, 370, 300 P.3d 1022, 1029 (2013) (quoting State

v. Kikuta, 125 Hawaiʻi 78, 96, 253 P.3d 639, 658 (2011))

(internal quotation marks omitted); see also Guyton, 135 Hawaiʻi

at 378, 351 P.3d at 1144 (using Oxford Dictionaries and the

Merriam-Webster Dictionary to ascertain the plain meaning of

“residence”).     Merriam-Webster’s Dictionary defines neutral as

“not engaged on either side.”         Neutral (adj.), Merriam-Webster’s

Collegiate Dictionary (11th ed. 2009) (emphasis added).

Similarly, the Oxford English Dictionary defines “neutral” as

“[n]ot belonging to, associated with, or favoring any party or

side,” and “[b]elonging to, or falling under, neither of two


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specified, implied, or usual categories; occupying a middle

position with regard to two extremes.” 6          Neutral (adj.), Oxford

English Dictionary Third Ed. (Sept. 2003) (emphasis added).                   The

common thread between these definitions is that something is

neutral if it is unaffiliated with either side of a dispute.

Thus, the “plain and popularly understood meaning” of “neutral

location” in this context means a place that is unaffiliated

with either of the parties.        Therefore, locations affiliated

with Bright – such as his place of employment – are not neutral

locations.

            Our interpretation is consistent with the other

provisions of the order for protection.           Locations affiliated

with the protected party – her residence and place of employment

– are clearly not considered neutral locations, as the order

applies a separate prohibition to both those locations:               Bright

may not go within 100 yards of those places.            Similarly, the

order implicitly refers to Bright’s residence - “[b]oth parties

are permitted to use Kuamoo Road to access their respective

residences” - suggesting that it, too, is not a “neutral

location.”    If the protected party’s residence and place of

employment are not neutral locations, and Bright’s residence is


      6     Black’s Law Dictionary similarly defines “neutral” as “[n]ot
supporting any of the people or groups involved in an argument or
disagreement[.]” NEUTRAL (adj.), Black’s Law Dictionary (11th ed. 2019)
(emphasis added).



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not a neutral location, it follows that Bright’s place of

employment is not a neutral location either.            Accordingly,

Bright did not violate the order for protection by being within

100 feet of the protected party at his place of employment, and

his conviction must be reversed. 7

                              IV.   CONCLUSION

            Because we conclude that the term “neutral location”

in the order for protection at issue was ambiguous, under the

rule of lenity it must be construed in Bright’s favor and in

accordance with its ordinary meaning.           Thus, “neutral location,”

as used in the order for protection at issue, means a location

that is unaffiliated with either party.           Because Bright’s

workplace was not a neutral location, Bright did not violate the

order for protection.       Accordingly, we vacate the ICA’s judgment




      7     Even if the 100-feet prohibition did not apply at Bright’s
workplace, the rest of the order remained enforceable and provided protection
to the protected party at the Fifth Circuit courthouse. Thus, regardless of
the parties’ location, Bright could not have “any contact” with the protected
party, could not “threaten[] or physically abus[e],” the protected party, or
“maliciously damage any property of the [protected party] or property of the
[protected party’s] household.” But here, there was no allegation that Bright
contacted the protected party, only that he came within 100 feet of her.



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on appeal filed August 1, 2019, and remand to the family court

for entry of a judgment of acquittal.

Emmanuel G. Guerrero                      /s/ Mark E. Recktenwald
for petitioner
                                          /s/ Paula A. Nakayama
Tracy Murakami
for respondent                            /s/ Sabrina S. McKenna

                                          /s/ Richard W. Pollack

                                          /s/ Michael D. Wilson




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