Opinion
DOCKET NO. A-3427-14T2
07-26-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. V.C., Defendant-Appellant.
Michael J. Silvanio, attorney for appellant. John T. Lenahan, Salem County Prosecutor, attorney for respondent (Lisa M. Rastelli, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Koblitz and Gilson. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Salem County, Docket No. FO-17-42-15. Michael J. Silvanio, attorney for appellant. John T. Lenahan, Salem County Prosecutor, attorney for respondent (Lisa M. Rastelli, Assistant Prosecutor, on the brief). PER CURIAM
Following a bench trial, defendant was convicted of a disorderly persons offense of contempt, N.J.S.A. 2C:29-9(b), for violating a final restraining order (FRO) issued under the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35. We reverse because the findings made by the trial judge were insufficient to establish beyond a reasonable doubt that defendant purposely and knowingly violated the FRO.
I.
The record establishes that defendant and J.H. (John) had been in a relationship, they had two minor children together, and the relationship had ended several years ago. The children were in the custody of the maternal grandmother. John enjoyed parenting time with his children, which included "every Tuesday [and] Thursday from after daycare/school until 7PM."
To protect privacy interests we use fictitious names. See R. 1:38-3(d)(9). --------
On April 3, 2014, an FRO was entered that prohibited defendant from having any direct or indirect communication or contact with John. The incident that gave rise to the contempt charge occurred on August 26, 2014. On that morning, John went to the children's daycare at approximately 7:15 a.m. He testified that he decided to take the children out of daycare because they did not want to attend a scheduled field trip. When John first arrived, the children were not at the daycare yet; he thus decided to go to a nearby Wawa convenience store. As John pulled into the Wawa parking lot, he saw defendant and her father leaving in a truck.
John returned to the daycare center approximately fifteen minutes later. When he pulled into the lot, he saw defendant and her father sitting in the truck. Defendant's father waved John over and told him he was not supposed to pick the children up until later. John testified that defendant got out of the car, started to walk towards him, and said that he could not get the children. John told defendant that she was not allowed to speak with him and he motioned with his hand for her to stop. John then walked to the door of the daycare center, defendant's father followed him, and an oral argument ensued. A daycare worker directed the men to leave and the police were called.
Defendant's father testified that defendant never exited the truck and never spoke to John. Instead, as he saw John pull into the parking lot, defendant informed him that John was not supposed to pick the children up until 3:00 p.m. Defendant's father then got out of the truck and told John that he could not pick the children up at that time.
A daycare worker also testified that she never saw defendant speak with John nor get out of the truck after John returned to the daycare center the second time. The responding police officer testified that when he arrived, defendant and her father were seated in the truck. The officer spoke with John, the daycare worker, defendant, and her father. Following his investigation, the officer decided not to file charges against any party. Instead, he asked defendant and her father to leave, which they did without incident. On September 5, 2014, John went to the police station and requested a criminal complaint of contempt be issued against defendant; based on his report, a complaint was issued.
A bench trial was conducted on February 19, 2015. The State called John; the defense called defendant's father, the responding police officer, and the daycare worker. The trial judge found all of the witnesses credible. The judge did not make a finding concerning whether defendant ever exited the truck. Indeed, the trial judge determined that he did not need to make a finding concerning that disputed issue. Instead, the trial judge reasoned that defendant violated the FRO by remaining in the parking lot when John came to the daycare center and by causing her father to communicate with John about not picking the children up until later.
Defendant now appeals her contempt conviction and argues:
I. THE DECISION OF THE TRIAL COURT WAS AGAINST THE WEIGHT OF THE CREDIBLE EVIDENCE.
II. ASSUMING ARGUENDO THAT THE ACTS ALLEGED BY [JOHN] OCCURRED, THE DEFENDANT'S ACTIONS WOULD NOT CONSTITUTE A VIOLATION OF THE RESTRAINING ORDER.
II.
A person is guilty of contempt "if that person purposely or knowingly violates any provision in an order entered under the provisions of the [PDVA]." N.J.S.A. 2C:29-9(b)(1). Conduct that constitutes a violation of a domestic violence restraining order, which would otherwise not constitute a crime, is treated as a criminal disorderly persons offense, and is prosecuted in the Family Part without indictment. Ibid.; N.J.S.A. 2C:25-30. Since a violation of a restraining order is punishable as a criminal act, a defendant is entitled to the rights of all criminal defendants, including the presumption of innocence and the requirement that the State prove every element of the offense beyond a reasonable doubt. See N.J.S.A. 2C:1-13(a); State v. Krupinski, 321 N.J. Super. 34, 45 (App. Div. 1999).
We have previously held that expressing some level of anger during a parenting time exchange as a result of what a defendant may have perceived as an unjustified delay is insufficient to prove the required mental state to violate the statute. See State v. Finamore, 338 N.J. Super. 130, 138-39 (App. Div. 2001) (finding proofs insufficient to demonstrate a knowing violation of the FRO). We have also noted before that the PDVA "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).
Our review of a trial judge's 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 court are generally accorded deference given its "opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it 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 court'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, the record does not establish an evidential basis for concluding beyond a reasonable doubt that defendant "purposely or knowingly" violated the terms of the FRO. See N.J.S.A. 2C:29-9(b)(1). The trial judge did not make a definitive finding that defendant exited the truck or had any direct communication or contact with John. Indeed, as noted earlier, the trial judge expressly declined to address this key disputed issue. While the trial judge reasoned that defendant caused her father to make "harassing communications" to John, we find no credible evidence in the record to support such a finding. Both John and the father testified that their communications consisted of an exchange as to when John was supposed to pick up the children. Such communication does not raise to the level of harassment. See N.J.S.A. 2C:33-4(a) (requiring a communication "likely to cause annoyance or alarm"). More critically, nothing in the record supports a finding that defendant caused her father to engage in harassing communications with John. The only testimony concerning what defendant told her father came from the father's testimony. He testified that when John drove into the parking lot, defendant told him that John was not supposed to pick up the children until 3:00 p.m. Without more, this testimony does not support a finding that defendant caused her father to engage in harassing communications with John.
The trial judge also found defendant violated the FRO by merely staying in the parking lot when John arrived and by not immediately driving away. Here again, however, no credible evidence in the record exists that such an action constituted a purposeful or knowing violation of the FRO.
In short, the competent evidence presented at trial shows the State did not carry its burden of proving beyond a reasonable doubt that defendant purposely and knowingly violated the FRO.
Reversed. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION