October 14, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
IZELLE BROWN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 09-11-2787.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 28, 2011
Before Judges Axelrad and Sapp-Peterson.
Defendant, Izelle Brown, appeals his conviction for harassment, N.J.S.A. 2C:33-4, arising out of a domestic violence incident with his former girlfriend R.J. He argues the evidence failed to support the judge's finding of an intent to harass. We reject this argument and affirm.
On July 13, 2009, R.J. went to the Atlantic City Police Department and obtained a temporary restraining order (TRO) against defendant. Consequently, defendant was indicted on one count of third-degree terroristic threats. Pursuant to defendant's motion, following a suppression hearing, Judge DeLury suppressed evidence of a search conducted in connection with the issuance of the TRO. The court then granted the State's motion to amend the charge to petty disorderly harassment. Following trial, the court found defendant guilty of the charge, and sentenced him to six days in the county jail with credit for six days served, and imposed a $100 fine and mandatory penalties. Defendant appealed.
R.J. was the sole witness who testified at the trial on July 27, 2010. She testified that she and defendant had been involved in an on-again, off-again relationship for more than eight years. She discussed defendant's unwillingness to accept their breakup and his conduct in July 2009 that "scared her" and forced her to obtain the TRO. According to R.J, she removed her belongings from defendant's home several months before and after an attempted reconciliation, she made it clear to him on July l0 or 11 that their relationship was over and there would be no further reconciliation. On July 12, defendant forced her to have sex with him at his house and made a threat to her that he would pistol whip her new boyfriend because he "embarrassed" or "disrespected" defendant.
Defendant showed up the next morning to drive her to work and R.J. went because she "didn't want to have any arguments,  didn't want to have any scenes,  didn't want to go through what [she] went through the night before." Defendant called her several times during the day while she was at work about routine matters. R.J. then called defendant back to tell him she wanted him to stop pushing for reconciliation and recognize that their relationship was over, after which defendant became upset. He said R.J. ruined their relationship and she should not be seeing someone else. Defendant also remarked that many bad things had happened to him, such as losing his mother and not working, and he essentially had nothing to lose. R.J. also related defendant's comment that she was the reason for his misfortune and he would "make her pay." R.J. explained that she knew defendant had a gun and she was afraid he would come over and harm or possibly kill her. Consequently, she filed for a TRO and the criminal charges ensued.
Judge DeLury expressly found R.J. testified "very credibly." He set forth the statutory elements of harassment under N.J.S.A. 2C:33-4(a) and (c), and found the State satisfied its burden beyond a reasonable doubt, stating:
The court infers from the totality of the circumstances and the facts and circumstances very credibly testified to by the victim in the case that this defendant with the purpose to harass [R.J.] did make contact with her, did speak with her on several occasions, and did communicate to her alarming words meant to annoy or alarm [R.J.], specifically, with threats to her, to himself and to [R.J.'s] new love interest.
A person is guilty of harassment who, "with purpose to harass another," in relevant part, "[m]akes, or causes to be made, a communication or communications . . . in . . . any other manner likely to cause annoyance or alarm[,]" or "[e]ngages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person." N.J.S.A. 2C:33-4(a), (c). A finding of purpose to harass may be inferred from the evidence presented. State v. McDougald, 120 N.J. 523, 566-67 (l990). Experience and common sense may guide that determination. State v. Hoffman, 149 N.J. 564, 577 (l997); State v. Richards, 155 N.J. Super. 106, 118 (App. Div.), certif. denied, 77 N.J. 478 (1978).
We will not engage in an independent assessment of the evidence as if we were the court of first instance and will not interfere with a trial judge's findings of fact when supported by adequate, substantial and credible evidence. State v. Locurto, 157 N.J. 463, 471 (1999); State v. Johnson, 42 N.J. 146, 161-62 (l964). Deference is especially appropriate "when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (l997). We reverse only if we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction." Johnson, supra, 42 N.J. at 162.
Applying these principles, we have no occasion to interfere with the findings and conclusions made by the trial judge. Defendant's conduct is a far cry from the generic "domestic contretemps" that we have found to be the unfortunate by-product of bitter litigation. See J.N.S. v. D.B.S., 302 N.J. Super. 525, 527, 532 (App. Div. l997); Peranio v. Peranio, 280 N.J. Super. 47, 56-57 (App. Div. 1995). Nor were his comments and threats mere venting or irritation directed at the world in general, see State v. Duncan, 376 N.J. Super. 253, 262-63 (App. Div. 2005). Rather, defendant's conduct as credibly testified to by R.J. clearly demonstrated an intent to harass her -- he forced her to have sex, showed up to her house the next day without an invitation, called her numerous times during the day, and made disturbing and threatening comments to her during those two days. Moreover, defendant's comments clearly demonstrated he was upset about R.J. seeing someone new, blamed R.J. for their broken relationship, and was despondent about his family loss. Coupled with R.J.'s knowledge that defendant owned a gun, his threat to pistol whip her new boyfriend and "make her pay" was clearly intended to, and did, seriously annoy and alarm her.
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