On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-002264-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Reisner.
Defendant, Ryan Mason, appeals from a final restraining order entered under the Prevention of Domestic Violence Act of 1991 (Act), N.J.S.A. 2C:25-17 to -35, in favor of plaintiff, Meredith Scheibner. The predicate offense was harassment (N.J.S.A. 2C:33-4). See N.J.S.A. 2C:25-19a(13). Defendant argues that the trial court failed to follow the correct legal test to establish harassment and that purposeful conduct on his part was not established by the evidence. We reject these arguments and affirm.
The parties had a dating relationship from May 2007 to late January 2008. One night in late January (identified by plaintiff as between January 20 and January 26, and identified by defendant as January 19), the parties were at defendant's apartment. They got into an argument. Plaintiff decided to leave. Defendant interfered with her ability to gather up her belongings. Defendant engaged in physical contact with plaintiff, attempting to prevent her from leaving. Plaintiff then became fearful and attempted to call her father, but defendant took her cell phone from her. Plaintiff eventually was able to gather up her possessions and regain possession of her cell phone, after which she left. Later that night or early the next morning, defendant called plaintiff. She told him "it wasn't working out anymore and [she] did not want to see him anymore."
Over the next week or so, the parties continued to communicate by telephone. Each placed calls to the other. According to plaintiff, her calls were made only for the purpose of making arrangements to regain possession of her personal belongings that were at defendant's apartment, and because of her concern for what she perceived as defendant's drinking problem. Plaintiff said that she steadfastly told defendant in all of these conversations that their relationship was over and she did not want to see him anymore. Nevertheless, defendant persisted in contacting plaintiff. On January 26, 2008, at 3:07 a.m., for example, defendant sent the following text message to plaintiff: "I love you so. I'd never want you to -- I'd never want you to be with another man. Could turn ugly."
By a date no later than February 4, 2008, plaintiff ceased calling defendant and was emphatic that she did not want him to contact her further, either by telephone, text message, or by coming to her house. However, defendant persisted, frequently calling plaintiff, often multiple times per day, text messaging her frequently, and coming to her home. These contacts were often made in the middle of the night. The purpose of defendant's contacts was to attempt to rekindle the relationship.
On February 14, 2008, plaintiff's father interceded. He called defendant and asked him to please stop contacting plaintiff and "to realize that the relationship was over." Defendant responded that "he knew he was out of control, he knew . . . what he had to do."
Plaintiff described one incident where she was awakened in the middle of the night by her cell phone ringing. She did not answer the phone, but realized it was defendant who was calling. She looked out her window and saw defendant's car outside. She went downstairs and opened the door, finding defendant standing on the porch. He said he wanted to talk to her. Plaintiff's grandmother, with whom she lived, was awakened, as was plaintiff's cousin. Her grandmother came down and "told him that he needed to leave or the cops would be called."
Plaintiff also described an incident in which she found rose petals spread upon her car when she awoke one morning. She had no direct evidence that defendant placed them there, but she believed he did.
This course of conduct continued, culminating in a text message defendant sent to plaintiff on March 5, 2008 at 12:35 a.m., stating, "What's going on with you, Meredith?" Upon receipt of that communication, plaintiff signed a domestic violence complaint against defendant and obtained a temporary restraining order on that date. According to plaintiff, on the day defendant was served with the restraining order her neighbor "saw somebody outside of our home between 2 and 3 in the morning that matched his description." The police were called.
The matter came before Judge Vena on March 13, 2008 for a hearing to consider whether the retraining order should be made permanent. Plaintiff was unrepresented. Defendant was represented by counsel. Judge Vena heard the testimony of both parties and plaintiff's father. He found all three witnesses credible. Defendant did not deny his ongoing communications with plaintiff and did not deny ...