September 10, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
A. T., DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Family Division, Union County, Docket No. FO-20-333-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 2, 2009
Before Judges Payne and Waugh.
Defendant, A. T., appeals from convictions, following a two-day bench trial, for harassment, N.J.S.A. 2C:33-4a, a petty disorderly persons offense, and for contempt arising from violation of a final restraining order entered under the provisions of the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:29-9b, a disorderly persons offense. A. T. was sentenced to concurrent terms of one year of probation, conditioned upon incarceration for thirty days in the Union County Jail, and she was required to pay appropriate fines and penalties. The jail term has been served.
On appeal, A. T. raises the following arguments for our consideration:
THE TRIAL COURT INCORRECTLY FOUND DEFENDANT ACTED WITH THE INTENT TO HARASS BECAUSE IT BASED ITS FINDINGS NOT ON DEFENDANT'S PURPOSE OR MOTIVATION BUT RATHER HER ACTIONS AS A MATTER OF LAW.
THE TRIAL COURT IMPROPERLY CONVICTED DEFENDANT OF CONTEMPT OF AN FRO BECAUSE DEFENDANT DID NOT HAVE THE REQUISITE INTENT REQUIRED BY STATUTE AND THE STATE DID NOT PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT MADE A COMMUNICATION.
DEFENDANT'S CONVICTION MUST BE OVERTURNED BECAUSE THE TRIAL COURT WAS CLEARLY MISTAKEN AND THE CONVICTION WAS PLAINLY UNWARRANTED AND JUSTICE DEMANDS INTERVENTION AND CORRECTION.
EVEN IF THE COURT FINDS DEFENDANT GUILTY OF THE CRIMES CHARGED THE VIOLATION WAS DE MINIMIS BECAUSE IT DID NOT ACTUALLY CAUSE OR THREATEN THE HARM OR EVIL SOUGHT TO BE PREVENTED BY THE PREVENTION OF DOMESTIC VIOLENCE ACT AND THUS TRIVIAL NON-ACTIONABLE EVENT.
This matter arises from the wreckage of a marriage. At the time of the events at issue, which occurred on May 8, 2008, A. T. and her husband, R. T., were in the process of divorcing after a sixteen-year marriage and the birth of two children, a daughter, age fourteen, and a son, age eleven. A complaint for divorce was filed by A. T. in late 2006. As she described it, relations between her and R. T. were exceedingly acrimonious. She testified:
We do not get along. There's restraining orders on both sides. There's - it's constant between the bickering, the police being called, the - it's just an ongoing horrible, horrible situation.
A. T. observed further: "Every police officer in Summit knows the [T.] family from all the - from all the things that the police have been called, the - I mean, it's just - it's horrible. They - they all know who we are."
Evidence in the record demonstrates that the son, who had lived with his father since December 5, 2006, was alienated from his mother and that the daughter was alienated from her father.
Among other acts, A. T. has interfered with R. T.'s visitation with the daughter; R. T. has caused the utilities to be cut off at the marital home, occupied at the time by A. T. On March 17, 2008, less than two months before the episode at issue, A. T. had pled guilty to charges of harassment of R. T. and had been sentenced to one year of probation, with no contact with the victim. In another episode occurring in or around January 2008,
A. T. spit in R. T.'s face while in court in the matrimonial matter. She was charged with simple assault and, on June 12, 2008, she was found guilty of the amended charge of loitering, for which she received fines and penalties.
As previously noted, at the time of the May 2008 incident, a final restraining order had been entered on A. T.'s behalf against R. T. on December 11, 2006, and an amended order was entered on February 21, 2008. Similarly, a final restraining order had been entered on R. T.'s behalf against A. T., dated January 23, 2008, and an amended order was entered on February 21, 2008. All orders barred the restrained party from "having any (oral, written, personal or other) form of contact or communication with" the victim, and likewise prohibited the restrained party "from making or causing anyone else to make harassing communications to" the victim.
Provisions of the February 21, 2008 restraining orders with respect to custody made reference to an order entered in the matrimonial action on the same date. That order provided that
A. T. was granted sole legal and physical custody of the parties' daughter until further order of the court, and that R.
T. was granted sole legal and physical custody of the parties' son. Additionally, a guardian ad litem was appointed, and she was directed to file her report regarding custody to the court no later than May 1, 2008. The order further provided:
6. The days and times of visitation as outlined in the previous restraining orders shall remain in effect. However, all pick-up and drop offs shall be conducted at the Summit Police station. Should the child refuse to attend visitation, a police incident report shall be made and the guardian ad litem shall be forwarded a copy. Mrs. [T.] shall not interfere with the visitation of Mr. [T.] with his daughter. Failure to comply with this provision may result in a change in custody.
7. Given the circumstances outlined during the trial concerning incidents at the children's school involving the parents, Mr. and Mrs. [T.] shall not be inside the school building at the same time unless previously authorized by the principal and with school security present....
8. The parties shall continue to... pick up and drop off the children, as has been the recent custom, with [the daughter] using the front entrance and [the son] using the back entrance.*fn1 The parents are not to leave their vehicles during pick up and drop off.
11. Since there are mutual final restraining orders in effect, and for the reasons placed on the record today, the parties shall not, for any reason, be permitted to communicate with each other with regard to any issues, including the children. However, should an emergency arise, they may communicate, through the use of any third party, to address any emergent issues.
At trial, testimony was offered for the State by R. T., by the parties' daughter, and by Police Officer Christopher Medina. A memorandum drafted by the security officer at the school where the incident occurred was admitted into evidence by stipulation of the parties. A. T. testified on her own behalf.
R. T. testified that, on May 8, 2008, he had gone to the Summit Middle School, as was his custom, to pick up his son, parking on the side street nearest the exit door that his son used as a sixth grader on the far left side of the front of the school building. While waiting for his son to appear, R. T. noticed that A. T. had parked her car in front of the school, had exited it, and was standing on the sidewalk. Soon thereafter, she proceeded toward the school exit normally used by the son. R. T. then got out of his vehicle and started to walk toward the school's security guard, Peter Ilaria, who was standing behind A. T. At this point, A. T. turned to R. T. and said: "Fuck you, I'm going to talk to [my son]." She then entered the school, using the far left side door. R. T. then walked over to the security guard, and after a conversation with him, the guard used his cell phone to call the school principal. While standing next to the guard, R. T. observed A. T. leaving the school, followed by her daughter. As A. T. approached R. T. and the guard, she made a "hitchhiker's gesture," pointing with her thumb to the rear of the building, and said "you're supposed to be in the back of the school." At this point, the principal came out, and shortly thereafter, three squad cars pulled up.
A. T., the daughter and the principal then returned to the school. Following a relatively brief police investigation, A. T. was arrested and taken to the Summit police station.
The daughter's testimony to a degree corroborated that of her father. The daughter testified that, when she left school, her mother, who was standing outside the car, said that she had a writing tablet to give to her son. The daughter, who had seen her father's vehicle, responded that the proposal was not a good idea, and that her mother should stay in the car. Nonetheless, A. T. started walking toward the left-hand door utilized by sixth graders. As she did so, R. T. got out of his vehicle. Although the daughter did not hear A. T. say anything to R. T., she observed her make the hitchhiker's gesture to which R. T. had testified. A. T. then went into the school, with the daughter following her. Once inside, A. T. located and spoke to her son and gave him the writing tablet. Mother and daughter then left the school through the main entrance and, upon seeing
R. T. with the security guard, walked in that direction to determine what was happening. Thereafter, the two were directed to wait in the school's conference room, where A. T. was arrested.
Police Officer Medina testified that, when asked, A. T. admitted walking to the left entrance to give a writing tablet to her son. At this point, Medina stated that the daughter interjected, saying: "Mom, I told you that's a bad idea, but you didn't listen." A. T. then continued by stating that, when she saw R. T.'s vehicle, she gestured to him and said "you're supposed to be back there." When Medina spoke to R. T., he confirmed that A. T. had gestured to him, but stated that he "didn't hear exactly what she said."*fn2 After a sergeant had reviewed the terms of the restraining order entered against A. T., she was arrested. Neither Medina nor the daughter corroborated the "fuck you" comment, which was first disclosed in a statement to the police, made by R. T. approximately one hour after A. T.'s arrest.
The statement of Security Officer Ilaria corroborated the fact that a "verbal exchange" had occurred between R. T. and A. T. However, he did not hear its content.
When called to testify, A. T. confirmed that she had gestured and stated that R. T. should have been in the back, but stated that she had made the remark to her daughter, not to R. T. She denied uttering the "fuck you" comment. Additionally, A. T. testified that, although no order precluded her from seeing her son, it was her understanding that she was permitted to do so only in the presence of the guardian ad litem, who had supervised mother and son in two meetings, the most recent of which had occurred around May 5. At the time, the son had stated that he had filled the writing tablet that he used for drawing, and A. T. promised to get him another one. She was fulfilling her promise when the incident at issue took place.
In an oral opinion given approximately one month after the conclusion of the evidence, the trial judge determined that A. T.'s testimony was not credible, but he credited the testimony of the remaining witnesses. In determining that harassment and violation of the restraining orders had occurred, the judge noted that A. T. had admitted to the police officer that she had made a gesture to R. T. and told him that he should be at the back of the school, and that A. T.'s gesture had additionally been corroborated by R. T. and the daughter. Additionally, the judge found that A. T. had uttered the "fuck you" statement, although no corroboration for that fact existed, and that, against her daughter's advice, she had left her car and entered the school with the purpose of speaking to her son - acts that were prohibited by the civil custody order, as modified by A. T.'s understanding of the limitations on her right to contact the boy. The judge observed:
If [A. T.] was aware that her supervised visitation with her son was only to be through [the guardian ad litem]... why push the envelope and go into the school building in front of [R. T.], tell him you're going to have contact with [the son], when she knew she was to have no contact? The answer is simple, it's because the defendant does what she wants to do, when she wants to do it and disregards restraining orders, as well as civil FM orders.
The State of New Jersey issued a restraining order which prohibits any and all contact, any form of communication whatsoever. Yet, [A. T.], on this date, does as she pleases. She disregards the enforceability and protections a restraining order provides to a victim however she chooses. And this is demonstrated by her actions in the present matter.
The judge determined that A. T.'s communications with R. T. violated the restraining order entered in connection with the Prevention of Domestic Violence Act, and thus constituted contempt in violation of N.J.S.A. 2C:29-9b. Additionally, the judge found that A. T. had harassed R. T. by leaving her car and contacting her son, in violation of the civil custody order, and by communicating with him in the manner that has been described, thereby causing him annoyance and alarm, in violation of N.J.S.A. 2C:33-4a. In sentencing A. T., the judge found aggravating factors three (the risk of another offense), six (the extent of defendant's criminal record, the crimes having been committed while A. T. was on probation), and nine (the need to deter). N.J.S.A. 2C:44-1a(3), (6) and (9). He found as a mitigating factor two (the defendant did not contemplate that her conduct would cause or threaten "serious harm"). N.J.S.A. 2C:44-1b(2). The judge indicated that he had contemplated a longer jail term than he, in fact, imposed, but his determination was influenced by the prosecutor's request that A. T.'s jail term be limited to thirty days.
On appeal, A. T. first argues that the judge erred when he found an intent to harass, because (1) R. T. had approached A. T., not the reverse, and thus he could not have felt harassed and (2) the judge had found as a mitigating factor that A. T. did not intend to cause serious harm.
We regard A. T.'s arguments as misplaced, since they depend on an underlying assumption that, to be harassing, the conduct must have been intended to instill a fear of serious harm in the victim. Such is not the case. A violation of N.J.S.A. 2C:33-4a requires only a course of conduct "likely to cause annoyance or alarm." To warrant conviction, the defendant's conscious object must be to annoy. State v. Fuchs, 230 N.J. Super. 420, 428 (App. Div. 1989). In this case, A. T., with knowledge that R. T. was present at the school or likely to be present, and after having been warned by her daughter not to do so, intentionally violated the custody order entered in the matter, as she understood it, by leaving her car with the purpose of contacting her son. Given the strained relationships between R. T. and A. T., and between A. T. and her son, sufficient ground existed for the judge to infer from the circumstances that A. T.'s purpose in seeking to enter the school without authorization was to annoy R. T. The comments occurring thereafter only exacerbated the situation. While the judge could have found on the basis of the evidence that A. T.'s intent was merely to give her son a writing tablet, the judge specifically rejected that position when he found A. T.'s testimony to have been incredible. We defer to that determination. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998).
A. T. next argues that the trial court improperly convicted defendant of contempt because the requisite intent was lacking, and the State failed to prove beyond a reasonable doubt that defendant made a communication. Again, we disagree. It is clear from the testimony in this matter that A. T. was aware of the entry of a restraining order against her, and that the order precluded all contact or communication with R. T., of any nature. Moreover, the ill-advised nature of A. T.'s conduct was pointed out to her by her daughter moments before contact between A. T. and R. T. occurred. It was substantially certain that once A. T. approached the school, R. T. would follow. Moreover, when that occurred, A. T. had the option of returning to her car, which she failed to do, instead uttering, as the judge found, the "fuck you" comment, gesturing to R. T., and telling him that he should have parked in back. We find this evidence sufficient to establish an intent to contact R. T. and a subsequent communication with him, in violation of the restraining orders in effect at the time.
Our review of the record satisfies us that, contrary to A. T.'s third argument, the trial judge's findings of fact in this matter were based upon sufficient credible evidence in the record, and that his verdict did not constitute a miscarriage of justice under the law. State v. Johnson, 42 N.J. 146, 159-60 (1964). Although the evidence in the matter was not entirely consistent, as we have previously determined, sufficient evidence existed to warrant the conclusion that A. T.'s purpose in approaching the school with the obvious intent of contacting her son, at a time that she knew her husband would be present, was to harass him through her flagrant violation of orders and understandings existing in the matrimonial matter with respect to custody and visitation. It has been unequivocally established that A. T. then made a gesture that both R. T. and the parties' daughter interpreted as directed at R. T. Moreover, sufficient proof exists of A. T.'s subsequent "fuck you" utterance as the result of R. T.'s testimony, credited by the judge, and her statement as to R. T.'s location, which A. T. admitted making, while contesting at trial to whom the statement was directed in testimony that the judge declined to credit.
As a final matter, we agree with the State that A. T.'s argument that her crime was of a de minimis nature cannot be considered at this stage of the proceeding. State v. Zahl, 259 N.J. Super. 372 (Law Div. 1992).