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State v. Yi1/20/2004
will be deemed plain error. Further, this [c]ourt will apply the plain error standard of review to correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights.
Id. (citations omitted).
Applying the foregoing standards, we initially review de novo whether the family court's jury instruction in this case accurately set forth the relevant law.
HRS § 586-4(d) (Supp.2002), which sets out the offense of Violation of a TRO, states, in relevant part:
(d) When a temporary restraining order is granted and the respondent or person to be restrained knows of the order, a knowing or intentional violation of the restraining order is a misdemeanor.
For Yi to be convicted of the foregoing offense, the State was required to prove that:
(1) "[A] temporary restraining order [wa]s granted"; [FN6]
FN6. Of course, the temporary restraining order (TRO) must also have been valid and in effect at the time of the alleged violation.
(2) Yi knew of the TRO; and
(3) Yi "knowing[ly] or intentional[ly]" violated the restraining order.
The family court in this case gave the following jury instructions, as modified by agreement of the State and Yi, without objection by Yi:
The defendant, [Yi], is charged with the offense of Violation of [TRO].
A person commits the offense of Violation of [TRO], if he [or she] intentionally or knowingly engages in conduct which he [or she] knows is prohibited by a[TRO] issued by a judge of the family court, and the [TRO] was personally served on the defendant and in effect at the time of the prohibited conduct.
***8 There are four material elements of the offense of Violation of [TRO], each of which the prosecution must prove beyond a reasonable doubt. These four elements are:
1. That on or about June 14th, 2001, in the City and County of Honolulu, State of Hawaii, a[TRO] issued by a judge of the family court prohibiting [Yi] from engaging in certain conduct was in effect; and
2. That [Yi] had been personally served with a copy of the [TRO] on June 14, 2001[ [FN7]]; and
FN7. The jury instruction of the Family Court of the First Circuit (the family court) did not track HRS § 586-4 (2002), which requires that a defendant "knows of the [TRO.]" Instead, the family court instructed the jury that Yi "had been personally served with a copy of the [TRO] on June 14, 2001[.]" We note, however, that HRS § 586-6(a) (Supp.2003) provides as follows:
Notice of order. (a) Any order issued under this chapter shall either be personally served upon the respondent, or served by certified mail, unless the respondent was present at the hearing in which case the respondent shall be deemed to have notice of the order. A filed copy of each order issued under this chapter shall be served by regular mail upon the chief of police of each county.
(Emphasis added.) In State v. Grindling, 96 Hawai'i 402, 31 P.3d 915 (2001), the Hawai'i Supreme Court construed HRS §§ 586-4(d) and 586- 6(a) in tandem as follows:
Although a TRO issued ex parte under HRS § 586-4 becomes effective on the date of signing and filing, HRS § 586-5.6 (1993) (stating that "[t]he [TRO] shall be effective as of the date of signing and filing"), enforcement for violations of the order cannot be made until the respondent is aware of the order. See HRS § 586-4(c) ("When a[TRO] is granted pursuant to this chapter and the respondent or person to be restrained knows of the order, violation of the [TRO] is a misdemeanor."). This occurs when the order is served upon the respondent pursuant to HRS § 586-6 (Supp.1999). See HRS § 134-7(f) (Supp.1999) ("The ex parte order shall be effective upon service pursuant to section 5
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