December 8, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN T. PARSONS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-06-01372.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 15, 2011
Before Judges Carchman and Baxter.
Following an unsuccessful motion to dismiss the indictment against
him, defendant John T. Parsons entered a plea of guilty to one count
of invasion of privacy, N.J.S.A. 2C:14-9c. The judge sentenced
defendant to a suspended sentence of eighteen
months' imprisonment, together with mandated fines and penalties.
Defendant appeals from the denial of his motion to dismiss.*fn1
The underlying facts are not in significant dispute. Defendant and the victim, J.B., a school teacher, "met"*fn2 through an online dating service. In September 2009, the parties' relationship consisted of phone conversations, text messages, as well as internet conversations. In addition, the parties exchanged photos of one another, including photos of themselves both clothed and unclothed. As to the photos, the parties understood that they were not to be sent or displayed to others.
The relationship was short-lived as, in November 2009, defendant ended the relationship with J.B. because defendant renewed a relationship with his former girlfriend. Apparently, J.B. reacted angrily and "told defendant off."
Defendant reacted poorly and threatened to send the nude pictures of J.B. to her employer at the public school where she taught. Defendant followed up on his threat and forwarded the pictures to the school, notifying them that "you have an educator there that is . . . not proper."
Thereafter, J.B. informed the Atlantic County Prosecutor, who investigated the case. Defendant was identified as the sender of the photographs. The investigation included a phone call to defendant, who admitted sending the photographs to both the Superintendent of Schools and J.B.'s school. In the call, defendant also admitted that he and J.B. had exchanged the photographs with the understanding that they were not to be sent to anyone else. "The pictures were for his eyes only." In response to the investigating officer's inquiry as to whether J.B. gave permission to defendant to display the pictures to anyone else, J.B. responded in the negative.
Ultimately, defendant was charged, and following his unsuccessful motion to dismiss, he entered a plea. This appeal followed.
On appeal, defendant raises the following issues:
AS A MATTER OF LAW, THE STATE HAS FILED [sic] TO PRESENT THE FACTS SATISFYING THE ELEMENTS NECESSARY FOR A VIOLATION OF INVASION OF PRIVACY UNDER N.J.S.A. 2C:14-9C, ACCORDINGLY, THE INDICTMENT AGAINST DEFENDANT SHOULD BE DISMISSED
THE TRIAL COURT ERRED IN ADDING AN ELEMENT OF MALCE [sic] TO THE CRIMINAL STATUTE OF INVASION OF PRIVACY THAT IS NOT PRESENT FORM [sic] THE PLAIN READING OF THE STATUTE
The decision whether to dismiss an indictment lies within the discretion of the trial court. State v. Hogan, 144 N.J. 216, 229 (1996). In the absence of an abuse of discretion, we do not disturb the determination of the trial court. State v. Mason, 355 N.J. Super. 296, 299 (App. Div. 2002) (citing Hogan, supra, 144 N.J. at 229). Where the indictment is factually unsupported either on its face or in the grand jury proceedings, dismissal is appropriate. Mason, supra, 355 N.J. Super. at 299. Once a grand jury has acted, an indictment will be dismissed only when the indictment is manifestly deficient or palpably defective. Hogan, supra, 144 N.J. at 228.
Two counts of invasion of privacy were presented to the Atlantic County Grand Jury on June 9, 2010. N.J.S.A. 2C:14-9c provides that a person is guilty of third-degree invasion of privacy if:
[K]nowing that he is not licensed or privileged to do so, he discloses any photograph, film, videotape, recording or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, unless that person has consented to such disclosure. For purposes of this subsection, "disclose" means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present exhibit, advertise or offer.
The elements that the State must prove include: 1) the defendant must know that he is not licensed or privileged to disclose a photograph; 2) a person actually disclosed the photograph; 3) the photograph must be of another whose intimate parts are exposed; and 4) the individual depicted in the photograph has not consented to the disclosure of the photograph. Ibid.
We are satisfied that the State established before the grand jury each of the elements required by the statute. Defendant does not seriously challenge the proofs as to disclosure of the nature of the photographs or the lack of consent. Defendant concedes that he sent the photographs to the school; the photographs depicted J.B.'s intimate parts; and J.B. did not consent to the dissemination of the photographs.
Defendant focuses on the first element of the offense and the issue of whether he was licensed or privileged to disclose the photographs. The grand jury testimony supports the State's contention that defendant did not have permission to send the photographs to third parties. In his grand jury testimony, Sergeant Thomas Finan, supervisor of the Atlantic County Prosecutor's Office Computer Crimes Investigation Unit, stated that defendant acknowledged that the photographs were for the parties' use only and were not to be distributed to third parties. That is sufficient to satisfy the first element of the statute, that defendant knew he was neither "licensed [n]or privileged" to distribute the photographs. We conclude that the judge properly denied defendant's motion.
Defendant also asserts that the judge improperly considered malice or vindictiveness in addressing the motion to dismiss. We conclude that malice is not an element of the offense, and if the judge did consider that factor, that was erroneous. However, it does not impact the ultimate issue here - whether the State established the first element of the crime. On the proofs before us, the State met its burden, and the motion was properly denied.
Appeals are from orders not reasons. Marchitto v. Central R. Co., 9 N.J. 456, 463 (1951), overruled on other grounds, Donnelly v. United Fruit Co., 40 N.J. 61 (1963). The indictment here was based on competent evidence that established the elements of the offense.