On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 2678-06-05.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, A. A. Rodríguez and Sabatino.
Following dismissal of an indictment charging defendant Charles Brown ("defendant") with sexual assault, criminal sexual contact and aggravated assault, the State appeals to us, contending that the trial judge improperly dismissed the indictment based on the doctrine of collateral estoppel after a final restraining order ("FRO") in a domestic violence case covering the same incident had been denied. The Family Part dismissed the complaint seeking an FRO under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-1 to -35 ("the Act"), and vacated a previously issued temporary restraining order ("TRO").
The issue, as raised by the State, "is whether a criminal indictment in a domestic violence case may be dismissed pursuant to the doctrine of collateral estoppel due to the [Family Part]'s finding in domestic violence proceedings that the victim had failed to prove an act of domestic violence by a preponderance of the evidence." The State argues that the indictment and prosecution are "not barred by the findings of the family court in a previous domestic violence proceeding."
We agree and reverse the dismissal.
On December 22, 2004, M.L. filed a complaint under the Act in the Family Part in Camden County. A TRO and amended TRO were issued based thereon. On February 3 and March 15, 2005, an evidentiary hearing on the FRO was conducted.*fn1 M.L., a friend of M.L.'s, and defendant testified. The trial judge thereafter rendered an opinion and an order, entered on March 21, 2005, dismissing complaint and vacating the TRO.
The Family Part judge found that defendant and M.L. had a dating relationship that began in April 2003, and "they started a sexual relationship which continued off and on until the day of the date of this incident[.]" The indictment against the defendant arose from a sexual encounter between the defendant and M.L. in the early morning hours of December 22, 2004, the day after M.L. observed defendant in a store with another woman and M.L. discovered she had a sexually transmitted disease which she attributed to defendant. The Family Part's opinion contained the following findings of fact:
3) . . . [M.L. and defendant] spoke to each other a number of times on the night of December 21, 2004. First [M.L.] called [defendant] at home when he was getting ready to go out with his brothers to celebrate his one brother's birthday. During that call, [defendant] received a phone call from someone else and told her he would have to call her back. [M.L.] then called him back when he was still at home getting ready shortly after that. In that conversation they agreed that they would see each other later that night at [M.L.]'s home.
4) While in the bar, called "Off Broadway", [defendant's] phone rang and it was [M.L.] asking him if he was still coming over later that evening and he said yes. He then went from the Off-Broadway Bar to the 20 Horse Tavern and left the 20 Horse Tavern at around 1:00 a.m. on December 22nd with the intention to go to [M.L.]'s home.
5) In their earlier conversation in the evening, [defendant] had asked her if she was going to leave the door unlocked or if he should knock and she said she would be able to hear him so he should knock.
6) When he got to the apartment at 1:00 o'clock she immediately opened the door upon his soft knock (he didn't want to wake up her daughter, if her daughter was home). When he entered the apartment he asked her "Where's Light bulb", Light bulb being [M.L.]'s daughter.
7) They began to kiss and hug in the doorway, after the door was closed and immediately after that [M.L.] walked away, went over and closed her daughter's bedroom door, which was her custom in the past when her daughter was at home, asleep and the parties decided to engage in sexual relations.
8) [M.L.]'s testimony at first was that she told him that she wasn't interested in having sex because she had her period. However, her testimony was also that in the past that hadn't stopped them from having sex and also that they had quite some time ago started to engage in anal sex. This is consistent with his testimony in that he replied when she said she was having her period, that there "were other ways".
9) Much of her upset seemed to be with the existence of what she called "Passion marks" on her neck. These were significant bruise marks that she testified he had also done in the past but that she had been able to cover them with band aids and go to school. She testified that at one point she didn't want him to give her the passion mark on her neck; that "if he was going to do it, I wanted him to do it down lower", indicating with her hand the area below her collarbone. She also said she had no band aids that day to cover the marks before going to school. She was embarrassed by the marks, saying they were unprofessional.
10) She testified that in the past, things had gotten rough in their sex life. This is consistent with the way that this sexual encounter occurred as well. She testified that [he] punched her in the face while she was engaging in oral sex with him, however, this would be inconsistent with the lack of injury to him in that if he had been punching her while this was going on, he, in all likelihood, would have suffered injury to his penis.
11) She was unable to identify what was supposed to be a handprint on her back, admitting that it did not look like a handprint at all and that the picture itself was taken some 12 hours after the alleged incident. The other photographs showed the "passion marks". As to the bite on the hand, the Court finds it would have been physically impossible for Mr. Brown to bite the hand in the manner described by [M.L.] without breaking her arm in the process.
12) [M.L.] said that all of this took place between 1:00 o'clock and 2:00 o'clock in the morning. Her daughter who was right in the next room, slept through the entire thing with the door closed.
13) She testified that after the sexual encounter was over, she got a warm washcloth for the defendant and helped him to clean himself off. She also hugged him. They engaged in a ...