Opinion
DOCKET NO. A-3281-14T1
07-12-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. H.O., Defendant-Appellant.
James R. Lisa, attorney for appellant. Esther Suarez, Hudson County Prosecutor, attorney for respondent (Gregory S. Mullens, Assistant Prosecutor, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Whipple. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket Nos. FO-09-127-15, FO-09-135-15 and FO-09-148-15. James R. Lisa, attorney for appellant. Esther Suarez, Hudson County Prosecutor, attorney for respondent (Gregory S. Mullens, Assistant Prosecutor, on the brief). PER CURIAM
Following a bench trial, defendant H.O. was found guilty of three counts of contempt, N.J.S.A. 2C:29-9(b), for violating a final restraining order (FRO) entered against him pursuant to the Prevention of Domestic Violence Act (PDVA). On appeal, defendant argues that the State failed to prove the charges against him beyond a reasonable doubt. We affirm.
We use initials to protect the parties' privacy interests in this domestic violence case. R. 1:38-3(c)(12) and -3(d)(10).
N.J.S.A. 2C:25-17 to -35.
The following pertinent facts were elicited at trial. On July 21, 2014, defendant's former girlfriend, D.R., signed a complaint against him under the PDVA. On July 30, 2014, the Family Part entered an FRO against defendant which prohibited him "from having any oral, written, personal, electronic, or other form of contact or communication with [D.R.]" The FRO also prohibited defendant from "stalking, following, or threatening to harm, to stalk or to follow [D.R.]" At trial, defendant stipulated that the FRO was "in place and [defendant] knew of the [FRO] and its provisions before these three offenses."
D.R. testified that approximately three-to-four hours after the FRO went into effect, defendant drove past her in his truck and extended his middle finger at her. D.R. stated that she was walking to a liquor store in Jersey City when this occurred. D.R. further testified that defendant parked across the street from where the liquor store was located as she was shopping.
D.R. next testified that, on August 27, 2014, she was leaving her residence at approximately 8 p.m. when she saw defendant parked outside talking to a neighbor. D.R. testified that she exchanged eye contact with defendant before she ran inside her building. D.R. further testified that when she was leaving her building to go to the police department to file a complaint, defendant sped by in his truck.
D.R. next testified that, on September 3, 2014, between 9 and 10 a.m., she was walking near an AutoZone in Jersey City when defendant exited the store, and stated to her, "I'm going to get you, bitch." At this point, D.R. ran to get away from defendant.
Defendant's fiancé, M.R., testified on defendant's behalf. She stated that she and defendant are colleagues, and that she was working with defendant on the evenings of both July 30 and August 27. On both occasions, she claimed to have not seen D.R. She could not recall her specific location on those days without viewing her business records.
Defendant also testified that he was working with his fiancé on July 30 and August 27 awaiting roadside assistance calls. He produced manifests for calls to Jersey City, Union City, and Bayonne. He claimed he did not see D.R. on July 30 and denied being outside her residence on August 27. Defendant stated that on September 3, his fiancé alerted him to D.R.'s presence at AutoZone, but he denied actually seeing D.R. on that date.
In rendering his decision, the trial judge discredited the testimony of M.R. and defendant. The judge described the key points of defendant's testimony as "evasive" and "not believable." Conversely, the judge found D.R.'s testimony to be "straightforward" and "believable."
On appeal, defendant avers that the State failed to prove defendant's guilt beyond a reasonable doubt on each contempt charge. We disagree.
In reviewing a trial court's order entered following a criminal bench trial, our role is limited to "determin[ing] whether the findings made could reasonably have been reached on sufficient credible evidence present in the record[.]" State v. Castagna 387 N.J. Super. 598, 604 (App. Div.) (quoting State v. Johnson, 42 N.J. 146, 161-62, (1964)), certif. denied, 188 N.J. 577 (2006). We intervene only when the trial judge's factual findings are unsupported or "went so wide of the mark" that they are clearly mistaken "and so plainly unwarranted that the interests of justice demand intervention and correction." Johnson, supra, 42 N.J. at 162. We defer to credibility determinations when the evidence is largely testimonial and the case involves questions of credibility. State v. Locurto, 157 N.J. 463, 470-71 (1999).
In this context, contempt is defined as follows:
Except as provided in paragraph (2) of this subsection, a person is guilty of a crime of the fourth degree if that person purposely or knowingly violates any provision in an order entered under the provisions of the [PDVA] or an order entered under the provisions of a substantially similar statute under the laws of another state or the United States when the conduct which constitutes the violation could also constitute a crime or a disorderly persons offense.
[N.J.S.A. 2C:29-9(b)(1) (internal citation omitted).]
In this case, the State was required to prove that defendant "knowingly" violated the restraining order. State v. S.K., 423 N.J. Super. 540, 546 (App. Div. 2012). N.J.S.A. 2C:2-2(b)(2) states in part: "A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence."
In contempt proceedings, "the primary consideration is vindication of the authority of the court . . . [as] court orders must be obeyed." In re Adler, 153 N.J. Super. 496, 501 (App. Div. 1977) (internal quotation marks omitted); see also State v. Gandhi, 201 N.J. 161, 189 (2010) ("Restraining orders are entered for purposes of shielding a victim who needs protection and who is compelled to seek judicial assistance to obtain that security; thus, we have insisted on full compliance with restraining orders no matter the flaws a defendant may discern in their form or entry.").
In determining whether a defendant possesses the requisite mental state, we have previously explained:
We do not suggest that a defendant must personally acknowledge the legal implications of his conduct. See N.J.S.A. 2C:2-2(d); State v. Rowland, 396 N.J. Super. 126, 128-29 (App. Div. 2007)[, certif. denied, 193 N.J. 587 (2008)]. But the evidence must allow at least a reasonable inference that a defendant charged with violating a restraining order knew his conduct would bring about a prohibited result. See N.J.S.A. 2C:2-2(b)(2); cf. State v. Breakiron, 108 N.J. 591, 605-06 (1987) (inferences drawn from evidence to prove knowledge element in homicide prosecution); State v. Moore, 330 N.J. Super. 535, 544 (App. Div.) (inference permissible that the defendant knew [the] car in which he was riding was being driven without [the] consent of the owner), certif. denied, 165 N.J. 531 (2000).
[S .K., supra, 423 N.J. Super. at 547 (footnote omitted).]
Here, defendant's action of closely driving past D.R. on July 30, 2014, and making an obscene gesture constituted a clear violation of the FRO. Defendant stipulated to the fact he was aware of the FRO. As we previously noted, "A defendant prohibited from having any form of 'communication' with a domestic violence victim might reasonably be found to have violated an FRO . . . by gesturing at or toward the victim from across a room, from a passing automobile, or from the opposite side of a soccer field or baseball diamond." State v. D.G.M., 439 N.J. Super. 630, 639 (App. Div. 2015). In this instance, defendant made eye contact with D.R. and directed an obscene gesture at her. Such conduct clearly constituted a knowing violation of the FRO.
Moreover, defendant's actions of closely driving by and extending his middle finger at her would also constitute harassment as "a communication . . . likely to cause annoyance or harm." N.J.S.A. 2C-33-4(a). --------
Defendant's reliance upon State v. Hoffman, 149 N.J. 564 (1997) is inapposite. In Hoffman, the Supreme Court addressed whether mailing two torn-up support orders to a former spouse constituted harassment under N.J.S.A. 2C:33-4(a). While the Court concluded that the mailings did not constitute a violation of the harassment statute, it rejected "the conclusion that a finding that [the harassment statute] was not violated is dispositive of whether the contempt convictions can stand." Id. at 589. Instead, the Court held that "sending the two mailings were written contacts . . . in violation of the restraining order." Ibid. Thus, the Court reversed the defendant's convictions for harassment but affirmed his convictions for contempt. Ibid. Clearly, Hoffman provides no support for defendant's position.
The record also supports the judge's finding that defendant's presence outside the home of D.R. on August 27, 2014, constituted a knowing violation of the FRO, which barred him from D.R.'s residence. Defendant knew he was not permitted at D.R.'s home, yet he chose to ignore the FRO. In this instance, the trial judge discredited the testimony of defendant, who stated that he was not at D.R.'s home on August 27. Instead, the judge credited the testimony of D.R., whose testimony he found to be credible. As the trier of fact, the judge was within his right to do so and did not abuse his discretion. See State v. Hubbard, 222 N.J. 249, 262-63 (2015).
Lastly, defendant's action of screaming, "I'm going get you, bitch," on September 3, 2014, was a clear violation of the FRO. By threatening D.R., defendant engaged in oral communication with her, violating the FRO. Defendant was aware of the FRO's terms, and again chose to ignore them. Moreover, defendant's statement would also constitute harassment, as it threatened D.R. with assaultive behavior. See N.J.S.A. 2C-33-4(b).
In his brief, defendant argues that if he did utter the word "bitch," he did not mean to use the term in a derogatory manner, and that "bitch" has become a commonly used term. This argument lacks merit. In the same statement, defendant threatened D.R. Moreover, there were two prior instances in which defendant violated the FRO and attempted to harass or intimidate D.R. Lastly, we note that this argument contradicts defendant's assertion at trial that he did not even see D.R. at AutoZone that day.
In sum, defendant's claim that his three convictions for contempt were not proven beyond a reasonable doubt is belied by the record.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION