STATE OF NEW JERSEY VS. N.L. (FO-13-0268-17, MONMOUTH COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2018 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0111-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
N.L.,
Defendant-Appellant.
______________________________
Submitted September 24, 2018 – Decided October 1, 2018
Before Judges Fasciale and Rose.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FO-13-0268-17.
Christopher T. Campbell, attorney for appellant.
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Monica do
Outeiro, Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
After a bench trial, defendant appeals from her conviction of disorderly
persons contempt, N.J.S.A. 2C:29-9(b)(2), for violating a restraining order (RO)
previously obtained by her mother (the mother) under the Prevention of
Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35.1 The judge believed
the mother's testimony, concluded that defendant purposely violated the RO, and
imposed a one-year probationary sentence.
On appeal, defendant raises the following points:
POINT I
THE [JUDGE] ERRED [BY] FINDING THE
[MOTHER] CREDIBLE FOR ONE ISSUE OF FACT
BUT NOT [FOR] ANOTHER.
POINT II
THE [JUDGE] ERRED [BY] DENYING . . .
DEFENDANT'S MOTION FOR ACQUITTAL.
POINT III
THE STATE FAILED TO PROVE BEYOND A
REASONABLE DOUBT THAT DEFENDANT'S
MERE PRESENCE IN THE PARKING LOT NEXT
TO THE [MOTHER'S] CAR WAS A VIOLATION OF
THE [RO].
We affirm.
1
The judge acquitted defendant of petty-disorderly-persons harassment,
N.J.S.A. 2C:33-4(c).
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2
Our review of a finding of guilt in a contempt proceeding is limited to
determining "whether the record contains sufficient [credible] evidence to
support the judge's conclusion." State v. J.T., 294 N.J. Super. 540, 544 (App.
Div.1996) (citing State v. Johnson, 42 N.J. 146, 161 (1964)). Factual findings
of the trial judge are generally accorded deference given the judge's "opportunity
to make first-hand credibility judgments about the witnesses who appear on the
stand; [the judge] has a 'feel of the case' that can never be realized by a review
of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88,
104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261,
293 (2007)). Nevertheless, in evaluating a trial judge's findings in a criminal
case, we must ensure that the State has carried its burden of proving a
defendant's guilt beyond a reasonable doubt.
Here, about six weeks after the mother obtained the RO – which barred
defendant from the mother's residence and having any contact with the mother
– defendant drove to the mother's residence, arriving early in the morning. The
mother heard a noise, looked out the window, and saw defendant standing in the
parking lot near the mother's car, which was parked directly in front of her
apartment. The mother also noticed defendant's Audi convertible parked in the
lot. The mother saw defendant "punch [the mother's] tire, [get] back in
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[defendant's] car with a cigarette in her hand," and look the mother "in [the]
face." She yelled to defendant and told her she was calling the police. When
the police arrived, they informed the mother that her tire was leaking air, and it
would need to be replaced.
Defendant elected not to testify at the trial. The evidence at the trial
consisted of various stipulations, a photograph showing the outside of the
mother's apartment, and the mother's testimony. The judge candidly
acknowledged that the mother gave some inconsistent testimony. But as to the
contempt charge – and the primary issue of whether defendant knowingly
violated the RO – the judge assessed the mother's credibility and found that her
testimony was "clear," "unwavering," and "very credible." Relying on her
testimony, the judge found that
[the mother] saw [defendant], she knows [defendant].
She knows [defendant's] car. She[,] with detail[,]
described [defendant's] car as an Audi convertible. She
testified that she had been in that convertible when she
and [defendant] shared a better relationship, and that
she had driven around with [defendant] in that car.
Although it was dark, she explained that there
were enough lights on the [apartment] complex
building to allow her to see [defendant]. There were no
obstructions to her view. She described looking out her
front door windows on the second floor, down to where
[defendant's] car was parked in front of [the mother's]
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space, and described exactly where she saw [defendant]
next to [the mother's] car in front of her building.
She described her complex as one single
driveway in and out. [Defendant] would have no other
reason to be there [except] to be directly in front of [the
mother's] home. The [RO] . . . barred [defendant] from
returning to the residence of the [mother].
Applying our deferential standard of review, we see no reason to disturb the
judge's findings.
We reject defendant's argument that her "mere presence" in front of the
mother's apartment was insufficient to show that she violated the RO. The RO
prohibited defendant from the mother's residence and barred her from having
any communication with the mother. Defendant essentially argues that her
presence at the mother's apartment was of a trivial nature that did not warrant
guilty findings.
To obtain a conviction of the disorderly persons offense of contempt for
violating a RO issued under the Act, the State must prove beyond a reasonable
doubt that defendant knowingly violated such an order. N.J.S.A. 2C:29-9(b)(2);
see also State v. Finamore, 338 N.J. Super. 130, 138 (App. Div. 2001). "[T]he
evidence must allow at least a reasonable inference that a defendant charged
with violating a [RO] knew his conduct would bring about a prohibited result. "
State v. S.K., 423 N.J. Super. 540, 547 (App. Div. 2012). N.J.S.A. 2C:2-2(b)(2)
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states in relevant 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."
This is not a situation where defendant's actions amounted to a "trivial,
non-actionable event." State v. Krupinski, 321 N.J. Super. 34, 45 (App. Div.
1999) (stating that the defendant's dropping off the children to the front door,
returning a car seat, and requesting a lawn mower – conduct not proscribed by
the RO – amounted to a "trivial, non-actionable event"). We have also held – in
a different context – that expressing some level of anger during a parenting
exchange is insufficient to prove the requisite mental state. See Finamore, 338
N.J. Super. at 138-39 (finding the evidence insufficient to demonstrate a
knowing violation of the FRO). As we have said, the Act "was not intended to
attempt to regulate and adjudicate every loss of temper, angry word, or quarrel
between persons connected by a familial relationship." State v. Wilmouth, 302
N.J. Super. 20, 23 (App. Div. 1997) (holding that despite the existence of a
restraining order, the defendant's statement to his estranged wife in the presence
of a police officer was not a violation subject to a prosecution for criminal
contempt).
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But unlike Krupinski, Finamore, and Wilmouth, here, defendant's actions
were not "trivial" because the RO specifically barred her from the mother's
residence. The undisputed evidence demonstrated that defendant knew her
mother lived in the apartment. And yet, defendant went to the residence, exited
her Audi, and stood next to the mother's car. Our Supreme Court has stated that
"[a]n abuser who spontaneously appears or makes surprising communications
without any legitimate purpose enhances the victim's apprehension. The fears
of a domestic violence victim and the turmoil she or he has experienced should
not be trivialized." State v. Hoffman, 149 N.J. 564, 586 (1997). Such is the
case here. We therefore conclude that there exists sufficient evidence in the
record to support the judge's finding that defendant is guilty beyond a reasonable
doubt.
As to defendant's remaining assertion that the judge erred by denying her
motion for acquittal pursuant to State v. Reyes, 50 N.J. 454 (1967), we reject
such an argument and conclude that it is without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief
remarks.
We review a trial court's denial of a motion for acquittal de novo, State v.
Williams, 218 N.J. 576, 593-94 (2014), using "the same standard as the [judge]
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in determining whether a judgment of acquittal was warranted." State v. Ellis,
424 N.J. Super. 267, 273 (App. Div. 2012). Like the judge, we "must consider
only the existence of such evidence, not its 'worth, nature, or extent.'" State v.
Brooks, 366 N.J. Super. 447, 453 (App. Div. 2004) (quoting State v. Kluber,
130 N.J. Super. 336, 342 (1974)). A motion for judgment of acquittal at the
close of the State's case may be granted "if the evidence is insufficient to warrant
a conviction." R. 3:18-1.
[T]he question the trial judge must determine is
whether, viewing the State's evidence in its entirety, be
that evidence direct or circumstantial, and giving the
State the benefit of all its favorable testimony as well
as all of the favorable inferences which reasonably
could be drawn therefrom, a reasonable jury could find
guilt of the charge beyond a reasonable doubt.
[Reyes, 50 N.J. at 458-59.]
Giving the State the benefit of all reasonable inferences, we conclude that the
judge could find defendant guilty beyond a reasonable doubt.
Affirmed.
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