August 17, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RICHARD HARTOBEY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FO-07-321-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 23, 2010
Before Judges Grall, Messano and LeWinn.
Defendant Richard Hartobey appeals from the July 17, 2009 judgment*fn1 of the Family Part finding him guilty of contempt of a domestic violence final restraining order, N.J.S.A. 2C:29-9(b), and sentencing him to a six-month term of probation. We reverse.
Defendant and L.W. had a dating relationship more than two years ago, which lasted for about ten months. On January 7, 2008, L.W. obtained a final restraining order (FRO) against defendant pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. Under the terms of that FRO, defendant was prohibited from having any form of contact or communication with L.W.
Defendant appealed that FRO, and we reversed. On June 26, 2009, the Family Part entered an order dismissing the FRO pursuant to our decision.
The incident that gave rise to the contempt charge occurred while defendant's appeal from the FRO was pending.
Specifically, L.W. described an incident that occurred on April 18, 2009:
I was at work, . . . and I came out of work like, around, 'cause I get out of work around 10:00, and it was a little bit afterwards, so, I saw a missed call, it looked familiar but I didn't recognize it. So I gave it a call just to see who it was. And . . . I called, a familiar voice answered, I asked who it was, the person asked me . . . who . . . this was. I said you called me. I would like to know who this is. And . . . after a while I kind of picked up on the voice, I was like I know who this is. And he said [L.W.], I hung up.
Over defendant's objection, L.W. was permitted to testify that defendant had contacted her prior to this date; the judge permitted the testimony to eliminate any claim of "mistake in dialing."
L.W. testified that defendant previously contacted her by telephone twice; she considered the first call "an accident[,]" because defendant told her it was. "The second time . . . [she] was given the same reason." At that time, she told defendant, "[p]lease let this be the last time that you call." She filed no contempt charges against defendant on those two prior occasions.
On cross-examination, L.W. stated that defendant left a voicemail on her cell phone on April 18, 2009, but she did not "realize it [un]til afterwards . . . ." She was unable to produce the voicemail at trial because it was "only saved for a certain amount of days . . . ."
L.W. acknowledged that she had no knowledge of who else may have been living in defendant's "household" on April 18, 2009, and, therefore, did not know whether anyone else had access to his telephone.
At the conclusion of L.W.'s testimony, defendant moved to dismiss the complaint, arguing that the State had not "met [its] burden of proof that he . . . purposely or knowingly violated the [FRO] by contacting [L.W.]." The judge denied the motion, stating that at "the procedural posture of this case [she] ha[d] to give the State the benefit of all inferences." The judge acknowledged "that there are means of corroboration that were not invoked here, but I do have the testimony of the State's witness . . . ."
Defendant testified. He denied calling L.W. on April 18, 2009. He did remember
her calling [him] and answering the phone and [he] didn't know who it was. [He] . . . was in a sleep, [he] answered the phone, . . . who is this? She was like, you called me. [He said], who is this? And that was it. And she was like I know who this is and she clicked the phone on [him]. That's all [he] remember[ed].
Defendant testified that he was "dating a couple of women at the time, [and] . . . [he] didn't recognize the voice. [He] wanted to clarify who it was before . . . [he] realized it was her and she realized it was [him], [and] she hung up the phone and that was it."
At the conclusion of the testimony, the judge rendered her decision from the bench. At the outset, the judge stated that she L.W. prior to April 18, 2009. She then found as follows:
I'm satisfied that the State has proven its case beyond a reasonable doubt. I would normally be quite hesitant to make that conclusion in the absence of actual phone records or in this case, the claim was there was a voice mail message left. I don't [know] if the State could even play it if it was provided because it didn't provide that to the defense. But generally, I found the complaining witness' testimony credible . . . . I found the defendant's testimony to be bizarrely incredible. . . . [I]t seemed the only thing he wanted to do was give us reasons why . . . the [c]court should think he's a nice guy or something. That's not my concern. My concern, my issue was, was a call made. I'm satisfied that [L.W.] did in fact hit or redial or return the call, but there has been not a[n] iota of testimony here that there was any accident in calling her. There's just been a denial to call. And as between the two parties, I find the complaining party far more credible and I find the testimony worthy of reliance upon.
[Defendant's] testimony seemed to the [c]court, as the fact finder[,] to be all over the map, answering what he wanted to answer, not responsive to questions, punctuating every answer with some reasons to either forgive or feel sorry for, completely inappropriate, unfocused, responses to the questions that were posed. And so, for those reasons, the [c]court will enter a finding of guilty after trial. The State has proven there was a restraining order . . . served on the defendant. There was contact. Her number was dialed. And I'm satisfied that the State has shown that that was a knowing violation. He was clearly aware there was a restraining order in place, clearly aware he wasn't allowed to dial the number. . . . [C]ould it have been by accident? The defendant testified, I didn't have one word of testimony from him that there was an accident here, he just denied doing it. And there was no alternate explanation. . . . I'm satisfied from all of that that there was in fact a call made, there was an attempt to contact [L.W.]. Failed as it may have been because she didn't pick up the phone even the calling of the number and then hanging up is a violation.
On appeal, defendant raises the following contentions for our consideration.
THE JUDGE DID NOT APPLY THE PROPER STANDARD OF PROOF WITH REGARD TO DEFENDANT'S MOTION TO DISMISS AS THE STATE FAILED TO CARRY ITS BURDEN OF PROOF BEYOND A REASONABLE DOUBT
THE COMPLAINT AGAINST THE DEFENDANT SHOULD HAVE BEEN DISMISSED AS THE VIOLATION, IF ANY, WAS SO DE MINIMIS IN NATURE AS NOT TO RISE TO THE LEVEL OF A CRIMINAL VIOLATION
We concur with defendant that the trial judge erred in denying his motion to dismiss at the end of the State's case. N.J.S.A. 2C:29-9(b) states that, to be guilty of either the fourth-degree crime or the disorderly persons offense of contempt of an FRO, a person must "purposely or knowingly violate any provision in [the FRO] . . . ." (Emphasis added).
The State has the burden of proof on every element of the offense. Therefore, we do not consider defendant's testimony here.
The terms "purposely" and "knowingly", are defined by statute as follows:
(1) Purposely. A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances or he believes or hopes that they exist. . . .
(2) Knowingly. A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence. A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result. . . .
[N.J.S.A. 2C:2-2(b)(1), (2).]
Proof "beyond a reasonable doubt" is proof "that leaves [the factfinder] firmly convinced of the defendant's guilt." Model Jury Charge (Criminal), "Reasonable Doubt" (1997). "The reasonable-doubt standard provides 'concrete substance for the presumption of innocence,' and reduces the risk of wrongful convictions." State v. Medina, 147 N.J. 43 (1996) (quoting In re Winship, 397 U.S. 358, 363, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368, 375 (1970)).
Defendant moved for dismissal at the end of the State's case, contending that the State had failed to meet its burden of proving beyond a reasonable doubt that defendant purposely or knowingly placed a telephone call to L.W. Rule 3:18-1 states that "[a]t the close of the State's case . . . the court shall, on defendant's motion . . . order the entry of a judgment of acquittal . . . if the evidence is insufficient to warrant a conviction." The standard governing such motions is well-established.
[T]he broad test for determination of such an application is whether the evidence at that point is sufficient to warrant a conviction of the charge involved. More specifically, the question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable [factfinder] could find guilt of the charge beyond a reasonable doubt.
[State v. Reyes, 50 N.J. 454, 458-59 (1967) (citation omitted).]
We are satisfied that the State's evidence failed to meet this test here. Nothing in the evidence adduced by the State even addressed, let alone proved beyond a reasonable doubt, (1) whether defendant in fact dialed L.W.'s number and, (2) if he did, whether he did so purposely and knowingly. The contempt charge, based on the evidence presented by the State, should have been dismissed pursuant to defendant's motion.