Opinion
DOCKET NO. A-3729-13T1
04-30-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBERT A. ICE, Defendant-Appellant.
Stewart D. Warren, attorney for appellant (Mr. Warren, of counsel and on the brief; Phyllis G. Warren, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Bethany L. Deal, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 41-13. Stewart D. Warren, attorney for appellant (Mr. Warren, of counsel and on the brief; Phyllis G. Warren, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Bethany L. Deal, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Robert A. Ice appeals from a judgment of conviction of harassment, N.J.S.A. 2C:33-4(a), after trial de novo in the Law Division.
Defendant and L.K. (Lisa) began dating in 2012. At the time, Lisa was living with her mother. Defendant moved in with Lisa and lived with her at her mother's home for a brief time. In February 2013, their relationship began to deteriorate and Lisa asked defendant to move out. On March 9, 2013, Lisa packed up defendant's belongings and he moved out of Lisa's mother's home.
We employ pseudonyms to protect the identity of the victim and her family and for ease of reference.
The breakup was not harmonious and defendant continued to attempt to contact Lisa. Defendant called and texted so often that Lisa blocked his calls from her cell phone. One week after defendant moved out, Lisa asked defendant not to contact her anymore. Her request was ignored, and after he was blocked from Lisa's cell phone, defendant continued to attempt to contact her by calling her mother's home phone and by calling and texting her mother's cell phone. Defendant even tried to contact Lisa through her friends and friends of her mother's.
On March 18, 2013, Lisa's mother spoke with Officer Karen Noel of the North Hanover Police Department, about the problems with defendant. After the conversation, Officer Noel called defendant and told him "he is no longer to contact [Lisa's] family or their residence." Officer Noel mentioned Lisa and her mother by name and explained that "the family wished to have no more contact with him, and that if he kept calling them they were going to sign a complaint against him." Defendant told Officer Noel that he understood, but his attempts to contact Lisa continued.
On March 27, 2013, Lisa sent a two-page handwritten letter to defendant reaffirming her desire that he leave her and her family alone. She also asked him to stop trying to speak with her son at school. She was emphatic, asking him "one LAST time to just leave me and my family be." At the end of the letter, Lisa suggested that defendant take her letter "seriously" adding, "[i]f not you will force me to file for a restraining order." Undeterred, defendant tried a different approach.
Lisa has two children from another relationship who, at the time, were nine and five. Every Friday, she took both to therapy sessions. When Lisa arrived at the therapist on April 5, 2013, defendant was waiting in a car in the parking lot. Defendant brought his niece with him who was friendly with Lisa. When the niece got out of the car, Lisa spoke with her. She relayed the message that defendant came to drop off Easter gifts for the children and gave the gifts to Lisa. In addition to gifts for her children, Lisa noticed a four-page handwritten letter from defendant with a gift certificate for her. Lisa threw the gift certificate out and read the letter when she got home. Realizing that her requests to be left alone had been ignored, Lisa brought defendant's letter to the police later that day. Defendant was charged with one count of harassment.
The parties appeared before a municipal court judge on April 23, 2013. The judge released defendant on his own recognizance but imposed a condition that he have no contact with Lisa or her son. Defendant was also prohibited from utilizing any third party as an intermediary to contact Lisa or her son.
The matter was tried before the municipal court on July 15, 2013. Lisa testified to her efforts to end the relationship and that defendant repeatedly ignored her requests. Officer Noel testified to her conversations with Lisa's mother on March 18, 2013, and her call to defendant warning him to leave Lisa and her family alone. She also testified that on April 5, 2013, she met with Lisa and prepared a complaint charging defendant with harassment based on information Lisa provided. Officer Noel then invited defendant to come to the police station where she served him with the complaint. Officer Noel reminded defendant that she had previously told him to leave the family alone and reinforced that he had to stay away from them.
Defendant testified that when he moved out on March 9, 2013, he did not take all of his personal belongings and asserted that the letters he wrote to Lisa were for the purpose of reclaiming his personalty. He admitted to driving his niece to the children's therapist so she could deliver Easter presents to the children and a letter and gift to Lisa from him. He denied Lisa's allegation that he made numerous calls to her cell phone after the break-up because he claimed that Lisa's mother blocked his calls on her phone.
The municipal judge found defendant guilty of harassment. She noted Lisa's letter to defendant placed him on notice that she would file for a restraining order if he did not leave her alone. The judge also noted that Lisa and her mother immediately blocked defendant's calls to prevent him from contacting them. She found the credibility of Lisa and Officer Noel to be "very high" and found defendant's testimony less credible.
Defendant was sentenced to a fine of $500 plus costs and assessments. The judge also imposed a one-year probation period during which defendant was prohibited from having direct or indirect contact with Lisa.
Defendant appealed, and after trial de novo the Law Division found defendant guilty and imposed the same sentence.
On appeal, defendant raises one point:
THE JUDGMENT OF CONVICTION OF HARASSMENT MUST BE REVERSED AND A FINDING OF NOT GUILTY BE ENTERED BECAUSE THE EVIDENCE IN THE TRIAL RECORD FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT MR. ICE INTENDED TO HARASS [LISA].
Our scope of review of a Law Division judge's de novo findings on a municipal appeal is limited. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005). We defer to the court's findings when those findings are supported by substantial, credible evidence in the record. State v. Stas, 212 N.J. 37, 48-49 (2012). We also defer "to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). In an appeal from a de novo trial on the record, we consider only the action of the Law Division and not that of the municipal court. State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001).
Defendant contends that there was insufficient evidence presented at trial to prove that he intended to harass Lisa. N.J.S.A. 2C:33-4(a) provides that a person commits a petty disorderly persons offense if, with purpose to harass another, he or she:
Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm[.]
When determining whether the harassment statute has been violated, courts must consider the totality of the circumstances. State v. Hoffman, 149 N.J. 564, 584 (1997). "A finding of a purpose to harass may be inferred from the evidence presented" and "[c]ommon sense and experience may inform that determination." Id. at 577.
Our review of the record reveals a substantial evidentiary basis to support the finding that defendant's purpose was to harass Lisa. If Lisa's letter did not place defendant on notice that she would pursue a restraining order if he did not leave her alone, Officer Noel's phone call to him erased any doubt on that matter as well as any hope defendant may have harbored for rekindling their relationship. While "the law must have some tolerance for a disappointed suitor trying to repair a romantic relationship when his conduct is not violent or abusive or threatening but merely importuning[,]" Sweeney v. Honachefsky, 313 N.J. Super. 443, 448 (App. Div. 1998), defendant's dogged persistence in attempting to revive his failed relationship ignored Lisa's numerous and emphatic pleas to be left alone and far exceeded permissible bounds.
We are satisfied that the findings and conclusions of the Law Division judge are well supported by evidence in the record. Defendant's repeated communications and contact with Lisa, after being told unequivocally and repeatedly by her and Officer Noel that they were unwelcome, satisfy the elements of the harassment statute.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION