June 9, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SANTOS ORTIZ-MARTINEZ, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FO-20-158-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 12, 2011
Before Judges Carchman and St. John.
Following a three-day trial, defendant, Santos Ortiz-Martinez, was convicted of criminal contempt, N.J.S.A. 2C:29-9(b), a disorderly person's offense, for knowingly violating a domestic violence Final Restraining Order (FRO). Defendant was sentenced to one-year probation conditioned upon entry within thirty days, in a batterer's intervention program, an anger management program, or a program combining both goals. Appropriate assessments were also imposed. Defendant appeals, and we affirm.
After a six-year relationship, defendant's former girlfriend and mother of his three children, M.A., signed a complaint, as plaintiff, against defendant under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35.
An FRO was entered against defendant on November 13, 2008, that prohibited defendant from "having any (oral written, personal, electronic or other) form of contact or communication with plaintiff," and plaintiff's daughters, and from "stalking, following, or threatening to harm, stalk or to follow plaintiff" and plaintiff's daughters. Defendant was also barred from plaintiff's residence and place of employment, and the children's school. The FRO was personally served on defendant on November 13, 2008.
Less than one month later, defendant was charged with the disorderly person's offense of criminal contempt, N.J.S.A. 2C:29-9(b), by "having contact with the victim after being advised no contact is allowed." The charges were amended by court order, to add the charge of entering the victim's workplace in violation of the FRO. The matter was tried in the Family Part, Union County.
The State called three witnesses, M.A., her brother, C.A., and her friend, R.D. Defendant did not call any witnesses and exercised his right not to testify. On November 16, 2008, while she was at her place of employment in Plainfield, M.A. observed defendant standing about twenty feet from her staring at her. He did not say anything to her, but pointed at her for about thirty seconds, accompanied by a facial expression that she felt was putting pressure on her or exhibiting that he was following her. She considered defendant's facial expression as one "to be afraid of." M.A. then went to the ladies' room and asked R.D. to lend her a cellphone to call the police. M.A. went outside but decided not to call the police. When she returned inside, defendant was still present and continued to observe her. M.A. then went back outside and called the police.
R.D. saw defendant that night eating at the bar. Defendant told R.D. to "tell [M.A.] not to be afraid, that [he's] not going to do anything to her." R.D. stated that the police arrived promptly after she lent her cellphone to M.A. and that the police escorted defendant from the premises.
On the date of the incident, defendant called C.A. and told him that he discovered where M.A. worked. C.A. had been a friend of defendant's for three years and identified both defendant's voice and his telephone number.
On the evening of December 6, 2008, at approximately 10:30 p.m., M.A. and R.D., while at a bar in Elizabeth, once again encountered defendant. According to M.A., defendant looked at her and laughed for about a minute. R.D. corroborated M.A.'s version, and noted that defendant stood by their table for about a minute, laughing. M.A. and R.D. left the bar around 1:00 a.m. and found that the right, driver's side tire of their vehicle, which was inflated earlier in the evening, was flat. They drove the car to a gas station to re-inflate the tire, which upon closer inspection appeared slashed. While they were standing near the car, defendant drove his car up to the curb, blew his car horn, and whistled at M.A. Defendant stated to M.A. that she was "driving such a nice car," in a manner that led M.A. to conclude that he had slashed her tire.
Prior to the trial judge's finding defendant guilty beyond a reasonable doubt, he placed his findings on the record. Although there were discrepancies in the testimony, he determined that the witnesses were credible and that the testimony was corroborated. The trial judge concluded that defendant knew there was an FRO, and that he made the communications at M.A.'s place of employment, with the intent to intimidate her, and at the gas station, which defendant knew violated the FRO. The trial judge found that both communications by the defendant to M.A. violated the FRO.
On appeal, defendant argues that: (1) there is no credible evidence to support a finding that defendant committed a violation of N.J.S.A. 2C:29-9(b) beyond a reasonable doubt; and
(2) the alleged communications in this matter should not rise to actionable communications because even if they actually occurred, they are trivial non-actionable events. We disagree.
Our scope of review of a trial court's determination is limited. We are obligated to "review the record in the light of the contention, but not initially from the point of view of how [we] would decide the matter if [we] were the court of first instance." State v. Johnson, 42 N.J. 146, 161 (1964). Factual findings of the trial judge are generally given deference, especially when they "are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid.; accord State v. Locurto, 157 N.J. 463, 470-71 (1999). When we are satisfied that the findings of the trial court could reasonably have been reached on sufficient, credible evidence present in the record, our task is complete and we should not disturb the result, even though we have the feeling we might have reached a different conclusion were we the trial tribunal. Johnson, supra, 42 N.J. at 162. "That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect." Ibid.
To the extent that the trial court's decision implicates legal principles, we independently evaluate those legal assessments de novo. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); Finderne Mgmt. Co., Inc. v. Barrett, 402 N.J. Super. 546, 573 (App. Div. 2008), certif. denied, 199 N.J. 542 (2009).
The applicable statute governing defendant's conviction, N.J.S.A. 2C:29-9(b), provides in pertinent part:
Except as provided below, a person is guilty of a crime of the fourth degree if that person purposely or knowingly violates any provision in an order entered under the provisions of the [PDVA] . . . when the conduct which constitutes the violation could also constitute a crime or a disorderly persons offense. In all other cases a person is guilty of a disorderly persons offense if that person knowingly violates an order entered under the provisions of this act or an order entered under the provisions of a substantially similar statute under the laws of another state or the United States.
To be guilty of the disorderly persons offense of contempt of an FRO, the State must prove defendant was served with the restraining order and knowingly committed the behavior that violated the order. See State v. L.C., 283 N.J. Super. 441, 447-48 (App. Div. 1995), certif. denied, 143 N.J. 325 (1996). It is not necessary for the State to prove that defendant was aware that his particular behavior would constitute a violation of the restraining order. Even if he mistakenly thought his approaches to M.A. would skirt the prohibitions of the restraining order, if those approaches constitute communication, he is factually guilty of contempt. See State v. J.T., 294 N.J. Super. 540, 544 (App. Div. 1996) (where the defendant was convicted of harassment and contempt for violating a final restraining order prohibiting him from entering plaintiff's property because he persistently remained in a position near her property where she could see him). In State v. Hoffman, 149 N.J. 564, 589 (1997), the Court found that a contempt conviction may be sustained without a finding of guilt as to a complaint of harassment because the mailing of letters by defendant to the victim constituted contact that was prohibited by the restraining order.
We disagree with defendant's suggestion that the facts as found by the judge are insufficient to support entry of the guilty verdict. Defendant's argument arises from the concept that some violations are too minor to support the verdict. Even were we to agree that these precedents offer guidance for this appeal, we would conclude that they are not relevant here. Unlike each of the decisions on which defendant relies, the totality of the circumstances in the record, including defendant's communications at M.A.'s place of employment, with the intent to intimidate her, and at the gas station, which defendant knew violated the FRO, are not "de minimus," see id. at 586-87, or "trivial," see State v. Wilmouth, 302 N.J. Super. 20, 23 (App. Div. 1997).
The burden of proof is guilt beyond a reasonable doubt. State v. Finamore, 338 N.J. Super. 130, 138-39 (App. Div. 2002); State v. Krupinski, 321 N.J. Super. 34, 45 (App. Div. 1999). In "deciding if the State has proven beyond a reasonable doubt that the defendant has knowingly violated a restraining order," the trial judge is not precluded "from considering all relevant evidence" concerning the issue. Finamore, supra, 338 N.J.
Super. at 138. In deciding guilt or innocence, the trier of fact may consider either direct or circumstantial evidence. "Circumstantial evidence means evidence that proves a fact from which an inference of the existence of another fact may be drawn." Model Jury Charge (Criminal), "Circumstantial Evidence" (revised January 11, 1993). "Circumstantial evidence may be 'more forceful and more persuasive than direct evidence.'" State v. Mayberry, 52 N.J. 413, 437 (1968) (quoting State v. Corby, 28 N.J. 106, 119 (1958)), cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969).
After having had the opportunity to not only listen to the testimony of M.A., C.A., and R.D., but also to view their demeanor, the trial judge found their testimony to be credible. We have carefully reviewed the record in light of the arguments raised, and are satisfied that the trial judge's determination that defendant made communications to M.A., one such communication at her place of employment, in direct contravention of the FRO is based upon sufficient, credible evidence contained in the record, and could reasonably have been reached upon that evidence. Locurto, supra, 157 N.J. at 472; Johnson, supra, 42 N.J. at 161-62.
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