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State of New Jersey v. Theresa Durham

March 9, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
THERESA DURHAM, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FO-18-176-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 11, 2011 - Decided Before Judges Payne and Koblitz.

Defendant Theresa Durham appeals her second contempt conviction for violating a final restraining order, N.J.S.A. 2C:29-9(b).*fn1 She was sentenced to the mandatory minimum penalties of thirty days in jail, a $50 Violent Crimes Compensation Board assessment and a $75 Safe Neighborhoods Services Fund assessment. She argues that she did not have the requisite intent, and her behavior was trivial. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The parties had a six-year dating relationship, which ended prior to the December 14, 2006 final restraining order. The restraining order prohibited defendant from having any contact or communication with the victim. This disorderly persons conviction stems from the events of August 29, 2009. The victim is a Manville police officer who was on duty throughout the time period defendant had contact with him. He testified to the following facts. At 9:04 a.m., he was in his patrol car monitoring traffic on South Main Street when defendant drove past him, glaring at him as she made eye contact. She was traveling seventeen miles-per-hour in a forty-five mile-per-hour zone. At 9:13 a.m., defendant drove past him in the other direction at the same slow rate of speed, again making eye contact and displaying an unpleasant facial expression. The victim then left his patrol position and drove up Main Street.

At 9:40 a.m., defendant made eye contact as she walked on the sidewalk. At 10:00 a.m., the victim drove past Main Street and South Fifth Street and saw defendant standing on the street corner staring in his direction. As he drove down Whalen Street at 11:47 a.m., defendant's car passed by his, and she made another unpleasant facial expression toward him. Then he returned to his original patrol location on South Main Street when, at 12:22 p.m., defendant again drove by him at a slow rate of speed, grimacing. At 12:40 p.m., she again drove by him at a slow rate of speed, looking in his direction. He testified to a total of seven encounters between 9:00 a.m. and 12:40 p.m.

Defendant lives in Flemington, about twenty miles from Manville. Defendant called a car mechanic who testified that she brought her car in that morning to fix a window that was stuck in the open position. The mechanic managed to raise the window, but did not repair the underlying problem.

Defendant testified to the following facts. She was in Manville to have her car window repaired. She had lived in Manville in the past and frequented the particular car repair shop in Manville because it accepted partial payments over time. She saw a police car but did not recognize the officer. Defendant remembered seeing the victim two times during her travels around Manville when she was walking and he was in a stationary patrol car. She denied making eye contact or directing any facial expressions at him. She passed many police cars that day as she went out for coffee and a bagel, to a nail salon and to pick up lunch, but could not see which officer was driving the marked police car at any time.

The trial court found defendant incredible and the police officer victim credible.

On appeal defendant argues, POINT I THE TRIAL COURT ERRED IN FINDING A VIOLATION OF N.J.S.A. 2C:29-9(b), WHERE NO EVIDENCE WAS PRESENTED AS TO APPELLANT'S STATE OF MIND, AND WHERE APPELLANT'S PRESENCE IN MANVILLE WAS NOT SPECIFICALLY PROHIBITED BY THE RESTRAINING ORDER.

1. The Prosecution Failed to Prove Appellant Knowingly Violated the Terms of the Final Restraining Order.

2. The Restraining Order Failed to Specifically Prohibit Appellant's Conduct.

POINT II APPELLANT'S ACTIONS WERE TRIVIAL IN NATURE AND DO NOT RISE TO THE LEVEL OF A CRIMINAL VIOLATION.

A person is guilty of contempt if that individual, "purposely or knowingly violates any provision in an order," entered under the prevention of Domestic Violence Act. N.J.S.A. 2C:29-9. The final restraining order prohibited defendant fromhaving "any form" of contact or communication with the victim. The trial court found that defendant's seven interactions with the victim, which included eye contact and ...


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