On appeal from Superior Court of New Jersey, Law Division, Sussex County, Municipal Appeal No. 22-06-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Roe.
Defendant Orlin Howell was found guilty in the municipal court of the disorderly person's offense of lewdness, N.J.S.A. 2C:14-4a, and sentenced to pay fines and assessments, and to undergo a psychological evaluation. On appeal to the Law Division, Rule 3:23-2, he was again found guilty of the same offense after a trial de novo and sentenced identically. Defendant appeals, and we affirm.
According to the State's proofs, on January 7, 2008, around 9:30 a.m., defendant, an Embarq technician, was dispatched to the Vernon Township home of Myra Kneer for a scheduled residential telephone repair. At the time, Kneer was at home with her youngest son and family dog. At defendant's request, Kneer put the dog away, then went back to the door to let defendant inside.
After explaining the problem with the telephone jacks in the upstairs children's bedrooms and showing defendant the location of the telephone box in the basement, Kneer returned to the main level of the house and went about her normal daily activities. During this time, defendant went up and down the stairs multiple times, occasionally passing Kneer and engaging in small talk.
At 11:35 a.m., Kneer put her son on the school bus, returned to the house, and went upstairs to clean her son's bedroom. She saw defendant upstairs and also observed that the attic stairs were down. According to defendant, the problem with the jacks was that the "feeder line that went from the basement to the attic was bad," requiring him to run a new wire from the telephone box located on the outside of the house up to the attic. While working in the attic, defendant snagged his leg on a metal vent cover, cutting his leg and causing a rip in his pants.
Defendant came down the attic stairs and called to Kneer, who was in her son's bedroom, that he was finished with the repair. Defendant put his tools down by the top of the stairs and warned Kneer to be careful in the attic, explaining that he had just cut his leg on an attic vent. According to Kneer, the cut was smaller than an inch and a half and could be seen through the hole in defendant's pants. When she asked if he was okay, defendant requested a band-aid. Kneer went to the boys' bathroom and found a band-aid in the linen closet. As she turned in the direction of the door, Kneer, in her peripheral vision, saw defendant in the mirror standing in front of the toilet. She found it strange that defendant had come into the bathroom and "immediately got a sense of feeling uncomfortable."
Kneer showed the band-aid to defendant, who asked for a bigger one. Kneer nervously turned back to the linen closet and looked through a first aid kit, pulling out a bigger band-aid. Before she could turn around to give it to him, defendant asked for something to clean the wound. Kneer continued looking through the first aid kit until she found an antiseptic swab. She ripped open the package and, without lifting her head, turned to her right with her right arm extended. She then saw that defendant was "unclothed from the waist down, holding his shirt." He did not have underwear on and she could see his genitals.
As Kneer held her hand out with the swab, defendant said "do you think you should clean it?" She replied, "no, I think you can do that." Then, within seconds, defendant reached for the swab and said, "do you think we should shave around the wound?" At that point, defendant had grasped Kneer's fingers and the antiseptic swab.
Kneer "freaked out," pulled her hand away and tried to exit the bathroom, which was not easy because the doors kept banging against each other. In fact, Kneer bruised her back when she was hit by the doorknob while trying to get out of the bathroom.
Kneer ran down the stairs into the dining room to get her dog out of his crate. She then ran halfway back up the stairs, where she saw defendant, still exposed, looking down at her from the handrail. Defendant's pants were still down and he was applying the band-aid. The dog started to bark and urinate everywhere. Hysterical, Kneer told defendant "you need to leave now."
Kneer grabbed the dog by his collar and ran back down the stairs. Thereafter, defendant descended the stairs dressed and approached Kneer at the front door, "maybe four or five feet away." Defendant put his tools down and asked Kneer if the dog, who was barking uncontrollably and urinating, needed to go out. Kneer was dumbfounded by ...