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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
06-OCT-2026
08:20 AM
Dkt. 23 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---STATE OF HAWAIʻI,
Petitioner/Plaintiff-Appellant,
vs.
VIHN DU CHAU,
also known as VIHN CHAU, also known as ERIC CHAU,
Respondent/Defendant-Appellee.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 2FFC-XX-XXXXXXX)
OCTOBER 6, 2026
DEVENS, C.J., McKENNA, EDDINS, AND GINOZA, JJ.,
AND CIRCUIT JUDGE WONG, ASSIGNED BY REASON OF VACANCY
OPINION OF THE COURT BY EDDINS, J.
I.
The Family Court of the Second Circuit acquitted a man of
violating an order for protection, Hawaiʻi Revised Statutes (HRS)
§ 586-11 (2016). It believed the State had to prove personal *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
service of the order under HRS § 586-6 (2016). That view sets
up the two questions we decide.
Is service an element of the crime? It is not. Service is
one way to prove the defendant intentionally or knowingly
violated the protective order.
Does an acquittal bar retrial when the court got the law
wrong? It does. Here, the family court acquitted on an element
the statute does not contain. Under Article I, Section 10 of
the Hawaiʻi Constitution, that acquittal stands.
We affirm the Intermediate Court of Appeals’ (ICA)
dismissal of the State’s appeal.
II.
On May 2, 2022, the family court issued a one-year
protective order against Vihn Du Chau.
On July 25, 2022, the State charged Chau with two counts of
violation of an order for protection under HRS § 586-11. It
alleged he approached the petitioner’s workplace and contacted
her in ways the May 2, 2022, order prohibited.
Trial began on April 10, 2023, before Family Court Judge
James Rouse. The petitioner and Chau had dated for two years.
She testified that Chau attended the hearing when the court
issued the protective order. The order, admitted as an exhibit,
showed him present at the hearing.
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After the State rested, Chau moved for judgment of
acquittal. Defense counsel argued that personal service was
required, even though Chau was present when the order issued.
The State countered that Chau’s presence at the hearing
satisfied HRS § 586-6 and proved his knowledge under HRS § 586-11.
The family court sided with Chau. Relying on this court’s
1992 decision in State v. Medina, it recited this passage:
[T]he personal service requirement eliminates any chance of
misunderstanding or confusion by providing assurance that a
defendant prosecuted under the provisions of 586-11 has
received a written copy of the order, and therefore, knows
the exact content of the order.
See Medina, 72 Haw. 493, 494, 824 P.2d 106, 107 (1992).
The court then concluded, “the public policy would dictate
that service is an element of the offense.” Because “[t]hat
element has not been established to this court’s satisfaction,”
it acquitted Chau. “Case is dismissed,” the court said. A
written judgment of acquittal followed.
The State appealed. It argued the family court’s judgment
of acquittal was in substance an order sustaining a motion to
dismiss, appealable under HRS § 641-13(1) (2016).
The ICA dismissed for lack of appellate jurisdiction.
Although the family court “may not have been fully correct” in
interpreting HRS § 586-11, its ruling was “nevertheless grounded
in its factual determination that the State failed to prove an
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element of the charge.” That made the ruling an acquittal, the
ICA reasoned, and the appeal unreviewable.
We accepted cert and ordered supplemental briefing on
whether service is an element of violation of an order for
protection.
III.
A. Service Is Not an Element of HRS § 586-11
We begin with the elements question. We do not reweigh the
acquittal.
Whether the family court’s ruling was an acquittal depends
on whether it resolved the “factual elements of the offense
charged.” State v. Dow, 72 Haw. 56, 65, 806 P.2d 402, 407
(1991). We cannot apply that test without first knowing what
the offense requires.
The question is fully presented, recurs in the family
courts, and has been briefed at our request.
The offense statute is pithy. A person commits violation
of an order for protection by “knowingly or intentionally”
violating a protective order. HRS § 586-11(a). The statute
says nothing about service.
Service comes from elsewhere. HRS § 586-6, titled “Notice
of order,” provides that a protective order “shall either be
personally served upon the respondent, or served by certified
mail, unless the respondent was present at the hearing in which
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case the respondent shall be deemed to have notice of the
order.” HRS § 586-6(a).
The two statutes do different jobs. HRS § 586-11 tells the
State what it must prove at trial – a knowing or intentional
violation. HRS § 586-6 is procedural. It ensures the
respondent knows the order exists before the State enforces it.
The family court fused the two. It concluded that “public
policy” required service as an element of the violation. It
read § 586-6 into § 586-11.
Medina does not go as far as the family court took it. It
held only that prosecution under HRS § 586-11 required
satisfying the notice provisions of HRS § 586-6. 72 Haw. at
494, 824 P.2d at 107. Service, Medina explained, “eliminates
any chance of misunderstanding or confusion” by ensuring the
defendant “knows the exact content of the order.” Id.
Notice supports proof of state of mind. The element is the
knowing or intentional violation of the order.
The 1998 amendment to HRS § 586-6 reinforces the point.
Before 1998, that statute allowed service by certified mail or
personal service on the respondent not present at the hearing.
For a respondent at the hearing, it permitted service by handing
them a filed copy of the order. Act 172 amended how notice
could be accomplished for a present respondent. 1998 Haw. Sess.
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Laws Act 172, § 5 at 644. A respondent present when the order
issues is now “deemed to have notice of the order.”
Read service into HRS § 586-11 as an element, and the 1998
amendment defeats its own purpose. Presence became the
substitute for service, a way to give notice without it.
Require service anyway, and the Legislature’s choice changes
nothing.
The pattern jury instruction confirms the point. Hawaiʻi
Standard Jury Instructions Criminal (HAWJIC) 11.09 does not make
personal service the only way to give notice. It lists three
ways:
4. That the Defendant was given notice of the Order for
Protection prior to engaging in such conduct by having
[received a copy of the Order by personal delivery]
[received a copy of the Order by certified mail] [been
present at the hearing at which the Order was issued].
HAWJIC 11.09.
The ICA has made the same observation about the temporary
restraining order (TRO) statute. “[P]ersonal service is not an
element of the violation of TRO offense under HRS § 586–4”; it
is only “evidence that the person to be restrained knows of the
TRO.” State v. Dilliner, 114 Hawaiʻi 518, 529 n.8, 164 P.3d 776,
787 n.8 (App. 2007). A family court may issue a TRO orally to a
respondent present in the court. HRS § 586–4(c) (2018 & Supp.
2021). The court can bind a respondent who was never served.
The same logic extends to HRS § 586–11.
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The two offense statutes are framed alike. Each defines
the crime as a knowing or intentional violation by a person
aware of the order.
The ICA came out the same way in State v. Cichy, No. CAAPXX-XXXXXXX, 2025 WL 1025233 (Haw. Ct. App. Apr. 7, 2025) (SDO).
Medina, the ICA explained, “recognized a service requirement for
enforcing a restraining order; it did not create an element of a
violation under HRS § 586-11.” Id. at *2. We rejected cert in
Cichy.
State v. Sugihara does not undercut our take. The family
court there listed notice as an element, and on appeal the
defendant called that error. 101 Hawaiʻi 361, 369, 68 P.3d 635,
643 (App. 2003). The ICA never decided the point. It affirmed
on a narrower ground. Adding notice raised the State’s burden
and could only have helped the defendant. Id. The logic
assumes notice is surplus, an extra the State didn’t need to
prove. Sugihara left the element question open.
Chau relies on HAWJIC 11.09. For twenty years, he notes,
the pattern instruction has treated notice as an element.
Pattern instructions are drafting aids. They do not bind this
court. State v. Gomes, 117 Hawaiʻi 218, 226 n.14, 177 P.3d 928,
936 n.14 (2008).
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Chau also points to the State’s proposed jury instructions.
The State put notice as element two. A party’s litigation
position does not define the elements of a crime.
Chau is right about one thing. Notice is central to an HRS
§ 586-11 prosecution. Without proof that the defendant knew the
order existed and knew its terms, the State cannot show a
knowing or intentional violation. Medina still stands for that,
and we do not disturb its core.
Service is evidence of the defendant’s state of mind.
We hold that service is not an element of violation of an
order for protection, HRS § 586-11.
B. The Family Court’s Ruling Was an Acquittal Under Article I,
Section 10
Chau invokes the double jeopardy protections of both the
United States and Hawaiʻi Constitutions. When matching state and
federal provisions are both in play, we interpret the Hawaiʻi
Constitution first. State v. Wilson, 154 Hawaiʻi 8, 13, 543 P.3d
440, 445 (2024). Only if our constitution falls short of the
federal floor do we construe the federal analogue. Id.
Article I, Section 10 provides that no person “shall . . .
be subject for the same offense to be twice put in jeopardy.”
Jeopardy attached here. This was a bench trial, so
jeopardy attached when the family court began to hear evidence.
State v. Ellway, 158 Hawaiʻi 190, 196, 590 P.3d 319, 325 (2026).
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The State presented its case and rested. Chau then moved for
judgment of acquittal. Whatever the family court’s ruling was,
it came with jeopardy fully attached.
The question is what the ruling did. A judgment of
acquittal is not defined by what it’s called. It’s defined by
what it does. “[A] defendant is acquitted only when ‘the ruling
of the judge, whatever its label, actually represents a
resolution in the defendant’s favor, correct or not, of some or
all of the factual elements of the offense charged.’” State v.
Poohina, 97 Hawaiʻi 505, 509, 40 P.3d 907, 911 (2002) (quoting
Dow, 72 Haw. at 64, 806 P.2d at 406). What matters is “the
intent of the ruling rather than the label.” Id.
Three words in that formulation decide this case: “correct
or not.”
The family court believed the offense required proof of
service. It tested the State’s evidence against that
understanding and found the proof lacking. “That element has
not been established to this court’s satisfaction.” It granted
Chau’s motion for judgment of acquittal and entered a written
judgment saying so.
A factfinder weighed the prosecution’s evidence and found
it did not prove the charge. The law calls that an acquittal.
The court’s premise was wrong. Service is not an element.
But the constitutional character of a ruling does not turn on
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the quality of the trial court’s statutory interpretation. The
rule comes from Dow itself. A resolution of the factual
elements in the defendant’s favor counts, however mistaken.
Dow, 72 Haw. at 65, 806 P.2d at 407.
The State resists on two fronts, Dow, on its side now, and
State v. Markowski, 88 Hawaiʻi 477, 967 P.2d 674 (App. 1998).
Neither gets there.
Start with Dow. There, the State tried the defendant for
driving under the influence before a jury. The statute gave it
two ways to prove the offense: impairment or alcohol
concentration. 72 Haw. at 58, 806 P.2d at 403. After the State
rested, the trial court acquitted on the impairment count and
sent the alcohol-concentration count to the jury, which
deadlocked. Id. The court declared a mistrial and set a second
trial. Id. This court held it an acquittal in form only. Id.
at 59, 806 P.2d at 404. The impairment ruling resolved just one
theory. The other remained alive. The State could still win.
See also State v. Spearman, 129 Hawaiʻi 146, 150, 296 P.3d 359,
363 (2013).
Chau’s case differs. First, HRS § 586-11 does not create
alternative statutory methods of committing the offense. It
defines one crime. A knowing or intentional violation of a
protective order. Service and presence at the hearing are
evidentiary routes to notice under HRS § 586-6, a procedural
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statute. They are not freestanding theories of criminal
liability.
Second, and this matters more, the family court left
nothing hanging. It did not decide one theory and reserve
another. It identified what it believed to be the dispositive
element, found the State’s proof thin, and ended the case. No
theory survived.
Dow covers rulings that leave part of the charge undecided.
A complete resolution is an acquittal even when the court
misread the charge.
Markowski fares no better. There, the ICA read a judgment
of acquittal as an order granting a motion to dismiss,
appealable under HRS § 641-13(1). 88 Hawaiʻi at 486, 967 P.2d at
683. But the ruling went to the legal question about how the
State charged the offense. The court never weighed the State’s
proof of guilt.
That is the Markowski divide. On one side, whether the
charge is legally valid. On the other, whether the State proved
it. The first is a question of law. The second is a finding of
fact. The family court made the second.
The court sat as factfinder, heard the State’s case, and
measured the evidence. It used the wrong yardstick. Yet it
measured. “To this court’s satisfaction” is factfinder-speak.
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The State also points to the family court’s words: “Case
is dismissed.” Poohina’s substance-over-label rule cuts against
the State here. The ruling came on a motion for judgment of
acquittal, after the State rested, after the court had taken the
evidence. The written judgment was captioned as an acquittal.
The oral phrase described the effect of the ruling. The case
was over.
Our reading aligns with federal law, which we may consult
as persuasive authority. Wilson, 154 Hawaiʻi at 15, 543 P.3d at
447.
Evans v. Michigan mirrors this case. 568 U.S. 313 (2013).
There, a Michigan trial court entered a directed verdict of
acquittal because the State had not proved the burned building
was not a dwelling — a “[f]ourth element” taken from the pattern
jury instructions. Id. at 316-17. But the charge, burning
other real property, required no proof of a dwelling. The
instruction had invented it.
The Supreme Court held the erroneous ruling an acquittal
for double jeopardy purposes and barred retrial. Id. at 318.
An acquittal premised on a “misconstruction” of the statute
prevents retrial. Arizona v. Rumsey, 467 U.S. 203, 211 (1984).
Evans drew no constitutional distinction between
misconstruing a statute and adding an element it does not
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contain. 568 U.S. at 318. Even the most mistaken acquittal
endures. Fong Foo v. United States, 369 U.S. 141, 143 (1962).
We find Evans’ reasoning sound. It aligns with Dow. A
trial court that misreads the statute and finds the State’s
proof insufficient has resolved the question of guilt.
Nor could Article I, Section 10 tolerate a narrower
reading. When we have parted from the Fifth Amendment, we have
gone broader. See State v. Lessary, 75 Haw. 446, 453-54, 865
P.2d 150, 154 (1994); State v. Rogan, 91 Hawaiʻi 405, 423, 984
P.2d 1231, 1249 (1999). To hold that this judgment of acquittal
was no acquittal at all, we would have to read Article I,
Section 10 below the federal floor.
The animating principle confirms the result. The double
jeopardy clause denies the State “repeated attempts to convict.”
Green v. United States, 355 U.S. 184, 187 (1957).
The State tried its case once. It chose its theory,
presented its witnesses, and finished. The family court
acquitted on an incorrect view of the required elements.
Article I, Section 10 forbids a second trial.
The family court misread the law. The safeguard against
that error is careful trial rulings and appellate correction.
This opinion settles it.
The State cannot appeal an acquittal. HRS § 641-13. The
ICA correctly dismissed for lack of appellate jurisdiction.
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IV.
We hold that service is not an element of violation of an
order for protection.
The family court’s judgment, though grounded in legal
error, is an acquittal under Article I, Section 10 of the Hawaiʻi
Constitution. Retrial is barred. We affirm the ICA.
Richard B. Rost /s/ Vladimir P. Devens for petitioner
/s/ Sabrina S. McKenna
Henry P. Ting
for respondent /s/ Todd W. Eddins
/s/ Lisa M. Ginoza
/s/ Paul B.K. Wong
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