June 27, 2012
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 31, 2012 --
Before Judges Waugh and St. John.
Defendant G.A., to whom we refer by the pseudonym George, appeals from the final domestic violence restraining order entered by the Family Part on June 2, 2011. We affirm.
We discern the following factual and procedural history from the record on appeal.
Plaintiff M.R., to whom we refer by the pseudonym Mary, and George began a dating relationship in December 2005, when she was seventeen and he was twenty-one. In October 2010, Mary told George she wished to terminate that relationship. Although she was initially willing to remain in contact with George, Mary told him in December, following repeated efforts by George to renew the dating relationship, that she did not want to have any further contact. While some of his communications could be characterized as endearing, on one occasion he referred to her as a "drunk slut" who was "only trying to get raped."
After she told George not to contact her, Mary changed her telephone number. George then contacted her by sending flowers and a note expressing his love. On February 11, 2010, Mary encountered George at a local bar. As she was walking out of the rest room and trying to avoid him, George grabbed her and said: "I can't believe you changed your f-ing number." She ignored him and left. The following day, she found that two of her car's tires had been slashed.
Mary sought and received a temporary restraining order under the Prevention of Domestic Violence Act of 1991 (DV Act), N.J.S.A. 2C:25-17 to -35. Both parties, who were represented by counsel, appeared in the Family Part on February 17, 2011. After discussion between counsel, Mary agreed to dismiss her DV complaint. At the same time, George agreed that he would have no further contact with Mary or her family. Counsel for George stated on the record that his client was "on notice that communication is unwanted and is not permitted" and that he understood that it "would not bode very well for him if he were to violate this agreement that's been made in open court and on the record." The order dismissing the complaint stated, in part, that Mary was "aware that such withdrawals are not prejudicial."
On May 8, shortly after midnight, Mary received a call on her cell phone from a number she did not recognize. For that reason, she did not answer the call. At approximately 3 a.m., she received two text messages from the same number. The first stated: "I'd appreciate if you didn't try to get with one of my boys." The second stated: "Tom's my nigger and I don't know why you would ever do that." Because Tom was a mutual friend whom she had seen at an event earlier that day, Mary concluded that the text messages had come from George. George does not deny that he made the call and sent the text messages.
Mary immediately contacted her father and eventually sought and received a second temporary restraining order under the DV Act. The matter was tried on June 9, at which time both parties appeared with counsel. Mary and her mother testified at the trial. George did not testify or call any witnesses. The trial judge delivered an oral decision explaining his reasons for granting a final restraining order (FRO). This appeal followed.
On appeal, George argues that the trial judge erred in (1) admitting testimony about the underlying facts from the earlier DV action, (2) finding that there had been an act of harassment under N.J.S.A. 2C:33-4, and (3) entering an FRO even assuming there had been an act of harassment.
We ordinarily accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). Similar deference is accorded to the factual findings of those judges following an evidentiary hearing. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citations omitted). A judge's purely legal decisions, however, are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)); LoBiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).
The DV Act provides protection for "victims of domestic violence," including "any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship." N.J.S.A. 2C:25-19(d). The parties had such a relationship, so the DV Act is applicable.
In adjudicating a domestic violence case, the trial judge has a two-fold task. Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). "First, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred." Ibid. (citing N.J.S.A. 2C:25-29(a)). "The second inquiry, upon a finding of the commission of a predicate act of domestic violence, is whether the court should enter a restraining order that provides protection for the victim." Id. at 126 (footnote omitted).
In her complaint, Mary alleged that George engaged in harassment, as defined in N.J.S.A. 2C:33-4. That statute defines harassment, in relevant part, as follows:
[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:
a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm; [or]
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
Harassment is one of the predicate offenses listed in the DV Act. N.J.S.A. 2C:25-19(a)(13).
Under the facts of this case, Mary was required to show that George (1) acted with a purpose to harass; and (2) committed an act prohibited by subsection (a) or (c) of N.J.S.A. 2C:33-4. Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:33-4 (2012). George maintains that the trial judge erred in finding that he had a purpose to harass and that he committed an act prohibited by subsection (a) or (c). We disagree.
Proof of a purpose to harass is an essential element of N.J.S.A. 2C:33-4. See L.D. v. W.D., 327 N.J. Super. 1, 5 (App. Div. 1999). "'A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result.'" State v. Hoffman, 149 N.J. 564, 577 (1997) (quoting N.J.S.A. 2C:2-2(b)(1)). There must be proof that a defendant's conscious object was to "harass," that is, "'annoy,'" "'torment,'" "'wear out,'" or "'exhaust.'" State v. Castagna, 387 N.J. Super. 598, 607 (App. Div.) (quoting Webster's II New College Dictionary 504 (1995)), certif. denied, 188 N.J. 577 (2006). Merely knowing that someone would be annoyed, as opposed to having a conscious objective to annoy, is insufficient to prove a purpose to harass. See State v. Fuchs, 230 N.J. Super. 420, 428 (App. Div. 1989).
"A finding of a purpose to harass may be inferred from the evidence presented," and "[c]ommon sense and experience may inform that determination." Hoffman, supra, 149 N.J. at 577 (citations omitted). Because direct proof of intent is often absent, "purpose may and often must be inferred from what is said and done and the surrounding circumstances," and "[p]rior conduct and statements may be relevant to and support an inference of purpose." Castagna, supra, 387 N.J. Super. at 606 (citations omitted); see also State v. Avena, 281 N.J. Super. 327, 340 (App. Div. 1995) ("While [the appellate court] might or might not have made the same inferences, [its] role is one of determining whether the trial judge's inferences were rationally based on evidence in the record.").
In considering whether a party's conduct rises to the level of harassment, the trial courts must consider any prior history of domestic violence, Pazienza v. Camarata, 381 N.J. Super. 173, 183 (App. Div. 2005) (citing N.J.S.A. 2C:25-29(a)(1)), and must "'weigh the entire relationship between the parties and must specifically set forth their findings of fact in that regard.'" Ibid. (quoting Cesare, supra, 154 N.J. at 405). Further, consideration of prior communications and conduct is not only permitted but required in the domestic violence context. "In determining whether a defendant's conduct is likely to cause the required annoyance or alarm to the victim, that defendant's past conduct toward the victim and the relationship's history must be taken into account. The incidents under scrutiny must be examined in light of the totality of the circumstances." [Hoffman, supra, 149 N.J. at 585]. [Id. at 183-84.]
We reject George's assertion that he was prejudiced, or that his rights were violated, by introduction of the events that gave rise to Mary's first DV complaint. The dismissal of the first complaint was not based upon an adjudication of the underlying facts adverse to Mary, but was a voluntary dismissal made with the understanding that there would be no further contact by George. The judge who dismissed the first complaint specifically stated on the record that he did not understand the dismissal to bar use of the underlying facts in connection with a subsequent complaint, although he did state that the dismissed complaint itself could not be reopened. See T.M. v. J.C., 348 N.J. Super. 101, 106 (App. Div.) (holding that even conduct rejected as a basis for an FRO in a prior action may be considered in connection with a subsequent complaint based on new conduct), certif. denied, 175 N.J. 78 (2002). In addition, the prior history was mentioned in the second DV complaint. George could not have been surprised when those issues were raised.
Judge John T. Kelley carefully analyzed the facts presented during the trial in light of the applicable law, and determined that there was an intent to harass, as required by the statute. As his attorney stated during the first DV hearing, George was "on notice that communication is unwanted and is not permitted" and understood that it "would not bode very well for him if he were to violate this agreement that's been made in open court and on the record." Nevertheless, George sent Mary text messages seeking to control her conduct with respect to a third person. Viewed in the context of the prior history, George had progressed from statements of affection and a desire to renew the relationship, to abusive statements in reaction to continued rejection, to messages seeking to control Mary's relationships with others. Judge Kelley heard the testimony and concluded that George's most recent conduct was an act of harassment. Especially given our standard of review, we will not second guess that decision, nor are we at all inclined to do so.
We are also satisfied that there was sufficient credible evidence to support Judge Kelley's carefully considered finding that the FRO was necessary to protect Mary from further acts of domestic violence. Silver, supra, 387 N.J. Super. at 126-27. There was credible testimony that, although there was no actual physical abuse, boundaries were crossed, as Mary testified. For example, on February 11, as Mary was attempting to avoid contact with him at the bar, George grabbed her and was abusive about her having changed her telephone number to prevent him from contacting her. Mary testified about George's problem with alcohol, possession of weapons, use of abusive language, and boundary-crossing conduct. She also testified to her concern that, without a restraining order, George's conduct would continue. She told the judge that she experienced fear. Mary's mother testified that Mary was "terrified," "crie[d] all the time," was "not herself," and "want[ed] to quit school." The judge properly analyzed the facts and law, noting his awareness of the escalating cycle of domestic violence, and reached a well-founded decision to enter an FRO.
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