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H.D v. H.S

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 16, 2010

H.D., PLAINTIFF-RESPONDENT,
v.
H.S., DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-000931-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 30, 2010 - Decided Before Judges Skillman and Espinosa.

Defendant appeals from a final domestic violence restraining order entered on December 15, 2009. We reverse.

Defendant and plaintiff had a dating relationship that ended around the middle of November 2009. The incident in which the trial court found defendant committed an act of domestic violence occurred approximately three weeks later, on December 6, 2009.

On that date, defendant's new girlfriend, Shannon Green, went shopping with her mother at the Foodtown grocery store in Springfield. Plaintiff worked at that same store. While Green was shopping, plaintiff accosted her in an aisle of the store and said that she wanted to know "what was going on" between defendant and Green. Plaintiff told Green that she had heard "you were together with [defendant]" and that Green "had a lot of nerve or gall coming in here to rub it in [plaintiff's] face." Green described plaintiff's tone of voice during this encounter as "vociferous," "angry," and "accusatory."

While plaintiff was directing these comments at Green, Green text-messaged defendant and called him on his cell phone to inform him about what was occurring. Green told defendant she was worried that her encounter with plaintiff was "going to get violent, and she's going to hit me." Green said that because of plaintiff's demeanor, she "felt very threatened."

When defendant received this message from Green, he was in his car only three minutes away from the Foodtown grocery store. Defendant drove quickly to the store and ran inside. Before defendant's arrival, the encounter between plaintiff and Green had ended, the two women had hugged, and Green had left the store.

Defendant went to the deli department where plaintiff worked and started screaming at her. According to plaintiff, defendant said:

[Y]ou're not going to keep doing this shit. You're going to stop this shit. You're going to stop harassing us[.]

Plaintiff then walked back to the manager's office to tell him what was occurring, and defendant followed her. According to plaintiff, defendant had a conversation with her manager, during which defendant "was cursing, and saying I want something done about this girl. She's not going to keep doing this."

Based on this evidence, the trial court found that defendant had committed an act of domestic violence upon plaintiff, specifically harassment, and entered the final domestic violence restraining order from which this appeal has been taken.*fn1

The predicate act of domestic violence that the trial court found defendant had committed was harassment, in violation of N.J.S.A. 2C:33-4. See N.J.S.A. 2C:25-19(a)(13). N.J.S.A. 2C:33-4 provides in pertinent part:

[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

The form of harassment proscribed by N.J.S.A. 2C:33-4(a) consists of three elements:

(1) defendant made or caused to be made a communication; (2) defendant's purpose in making or causing the communication to be made was to harass another person; and

(3) the communication was in one of the specified manners or any other manner similarly likely to cause annoyance or alarm to its intended recipient. [State v. Hoffman, 149 N.J. 564, 576 (1997).]

Even assuming that defendant's use of the word "shit" in his comments to plaintiff in the Foodtown constituted "offensively coarse" language that satisfied the third element of the offense of harassment under N.J.S.A. 2C:33-4(a), there was no factual basis for a finding that defendant's purpose in making this communication was "to harass" plaintiff. Therefore, the final domestic violence restraining order must be reversed.

Defendant's purpose in entering the Foodtown was not to harass plaintiff but rather to assist his new girlfriend, Green, who, as reported to defendant by Green, was being threatened with physical violence by plaintiff. Moreover, even though the encounter between plaintiff and Green had ended by the time defendant entered the store, defendant's evident purpose in accosting plaintiff in the store was to vent his anger at her and persuade her not to engage in similar conduct toward Green or him in the future. Therefore, the evidence presented at trial was insufficient to support a finding that defendant's purpose in communicating with plaintiff was to harass her. See State v. Duncan, 376 N.J. Super. 253, 262-69 (App. Div. 2005).

Because the evidence was insufficient to support a finding that defendant committed the alleged predicate act of harassment on December 6, 2009, there is no need to address the evidence of an alleged history of prior acts of domestic violence.

Accordingly, the final domestic violence retraining order entered against defendant is reversed.


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