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E.A.S v. D.S

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 2, 2012

E.A.S., PLAINTIFF-RESPONDENT,
v.
D.S., DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FV-10-0239-11.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 1, 2011 -

Before Judges Espinosa and Kennedy.

Plaintiff sought a restraining order against defendant under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, alleging that he had committed the predicate acts of sexual assault, N.J.S.A. 2C: 14-2(c)(1), by penetrating her anally and vaginally; assault, N.J.S.A. 2C:12-1(a)(1), by bruising her arm; and harassment, N.J.S.A. 2C:33-4. The trial judge credited defendant's testimony that the parties engaged in consensual sex. However, after finding that defendant committed the predicate act of assault by "recklessly" penetrating plaintiff anally and by bruising her arm, the judge entered a final restraining order (FRO). Defendant appeals from the entry that order. For the reasons that follow, we reverse.

On November 16, 2010, plaintiff filed a domestic violence complaint against defendant, stating that the two had a dating relationship and alleging that he had committed the predicate acts of sexual assault and harassment. Plaintiff described the sexual assault as follows:

On Saturday November 13, 2010 at around 10:00 PM the defendant while watching TV on a downstairs couch with the defendant Victim was grabbed and forced on her back on the couch. Victim resisted. Defendant held her down by the wrists. He then forcefully penatrated [sic] her vaginal area. Due to victim having a tampin [sic] applicord [sic] the defendant stopped. Victim then tried to run but was caught on her stairs near the front door. He then forced himself on victim again and penatrated [sic] her anus.

He then took victim to bedroom where incident ended.

Plaintiff also stated that there had been a prior act of domestic violence one year earlier, "Forced Sex - Aggressive Sex." A temporary restraining order was issued. The matter was scheduled for a hearing, which was adjourned so defendant could obtain counsel.

On December 20, 2010, plaintiff amended her complaint to include additional allegations. She stated that in the predicate act of domestic violence described in the original complaint, she had suffered an injury, "specifically a bruise to my right arm between the shoulder and the elbow," and therefore the criminal offense of assault, which was not initially alleged, had occurred. In addition, she amended the complaint to include the following in the history of domestic violence:

A. In the summer of 2010 I became pregnant by D.S. When I told D.S. that I was pregnant and wanted to keep the baby, he became angry and insisted that I get an abortion. Sometime either at the very end of July or in early August 2010 there was an incident where D.S. was pressuring me to get the abortion, and I was refusing. When I turned to walk away D.S. grabbed my arm in anger, causing bruises on it.

The hearing was conducted over the course of four days. In a detailed oral opinion, the trial court noted that the parties' versions of the predicate acts and prior history were "diametrically opposed," making its determination as to credibility a threshold issue.

The parties had an on-again, off-again dating relationship that began in October 2009. Plaintiff resided in Flemington with her children. Defendant moved to Connecticut in April 2010 but frequently returned to Flemington for business. The court described their relationship as "highly sexual in all respects."

Plaintiff testified that the last time she was physically intimate with defendant was October 31, 2010. She sent him a text message on October 31 at 4:04 a.m., accompanied by a photograph that defendant testified depicted the two of them having sexual intercourse. On the following day, plaintiff texted defendant a photograph of female genitalia, accompanied by graphic, sexually explicit commentary. Plaintiff sent a second photograph of an anus and female genitalia to defendant on that date.

Plaintiff advised defendant by text message on November 4 that she was ending their relationship. She testified that she wanted a more meaningful relationship.

Nevertheless, during the period between November 4 and 13, plaintiff continued to text defendant and to send him graphic sexual photos. She testified that in one text, she told him that Chris, a woman she "had recently become reacquainted with was proposing sexual relationship with myself and possibly [D.S.]" She stated defendant did not believe her so she told him she had "a picture that will prove what [she's] saying." Then, on November 10, she sent defendant a picture of her friend's face and "rear end." Plaintiff testified that it was not unusual for the parties to send each other things of a sexual nature.

During this same period, plaintiff wished defendant a happy birthday and also told him she was concerned she was pregnant but that he did not need to worry because she did not want him involved.

On November 13, there was a series of text messages between the parties. Bluntly summarizing their content, defendant wanted to have sex with plaintiff and plaintiff declined. She agreed to let him sleep at her house "but that's it." She followed that up with a text message asking him to bring a salad and a bottle of chardonnay.

Defendant arrived at plaintiff's home at approximately 7:30 p.m. with the salad and wine. The two were in the family room, watching television and "hanging out." Defendant had been sick for about a week and had a bad cough. Plaintiff got some Vick's from the bathroom and asked him if he would like her to put it on his chest. Plaintiff was wearing a tank top and flannel pajama bottoms. In her testimony, she volunteered that she was not wearing underwear.

At approximately 10:00 p.m., defendant patted the couch next to him and asked plaintiff to come sit beside him. She did so. Plaintiff stated, "then[,] the next thing, [she] was on [her] back" and defendant was on top of her. He grabbed her arms and put them over her head, holding them with one hand while he used his right hand to pull her pajama bottoms down. She said he was trying to kiss her; she told him to stop and started crying. Plaintiff said defendant pulled his pants down and used his right knee to spread her legs apart. She stated "he penetrated [her], vaginally." She went to the bathroom and decided to run up the stairs to get away from defendant. Plaintiff testified that defendant grabbed her by her leg as she went up the stairs and pulled her back down. She stated that defendant penetrated her anally and she screamed.

Plaintiff interrupted her testimony to return to that part of the assault that occurred on the couch. She added that defendant had grabbed her biceps and squeezed her, shook her and told her to stop crying, causing her arm to bruise. On cross-examination she testified that she was seeking a restraining order for everything that occurred but would not have asked for a restraining order based upon the bruising of her arm alone.

Returning to the assault on the stairs, plaintiff testified, "when he penetrated me rectally, and I screamed, and then when he was done with that, which is not long. I don't know how long it was, actually. But then he penetrated me vaginally." She stated defendant then grabbed her in a bear hug and walked her up the stairs. She struggled. He squeezed her and said, "stop it. We're not kids here. We both know what's happening." Plaintiff stated that defendant took her to her bedroom, put her on the bed "and he finished."

Plaintiff stated that defendant then left the bedroom. She cleaned up and then "got on-line" with two of her friends. When the court asked her what she discussed with her friends, she said she could not recall.

Plaintiff stated that defendant did not return to her bedroom until 9:00 a.m., when he gave her "a friendly slap" on her "butt" and said, "I'm leaving. I love you." She said he might have kissed her on the cheek.

On November 14, defendant sent a text message to plaintiff that we repeat verbatim: "Hey thank for let me stay at ur house last night n sorry for what happen but its difficutl to be around u and not want to make love to u im sorry i love you."

Plaintiff and defendant had numerous text and email communications during the three days after the alleged assault. At one point, she was engaged in an on-line "chat" session with a friend. Defendant had access that allowed him to know that plaintiff was on-line and he asked to join in the conversation. She did not allow him to do so. She testified that he became angry as a result and "unfriended" her on Facebook. She called a police officer she knew at the Flemington Police Department for advice and, on Tuesday, November 16, she filed a complaint, seeking a temporary restraining order against defendant.

Defendant denied that plaintiff ended their relationship prior to November 13, 2010. He said that plaintiff was angry with him a few times but then would call him to apologize, crying. He stated the relationship ended when he ended it on November 14. At the time he received her text message and photo of her friend on November 10, it was not his understanding that she did not want to have sex with him again.

Defendant admitted that, when he first texted plaintiff on November 13, his intention was "[t]o have sex." He also admitted that he understood from her text messages that she did not agree. When he arrived at her house, plaintiff hugged and kissed him and he thought she had changed her mind. They sat on the couch. Defendant testified that plaintiff was texting one of her friends and then said that her friend, Chrissy, was coming over. He said that Chrissy was the girl in the photo plaintiff had texted to him. Defendant then described a conversation with plaintiff in which she gave him instructions on how to act and which, he explained, meant that the three of them were going "to do a threesome." He stated that he and plaintiff had previously had a threesome with someone else.

Defendant testified further that plaintiff told him Chrissy was a little sick, at the hospital, and would come over when she was finished there.

Defendant said that he was in work clothes, which were dirty. Plaintiff brought him pajamas and told him to take his clothes off so she could wash them for him.

Defendant also testified about plaintiff's offer to rub Vick's on his back and chest. He stated that he laid down; plaintiff sat on his back and started massaging him. After six or seven minutes, he turned over. Defendant testified that plaintiff continued to sit on top of him, massaging his chest and rubbing her genital area against his penis. He had an erection. He testified that she proceeded to perform fellatio. Defendant stated that he believed that he had permission to continue to have sex with plaintiff and that they had vaginal intercourse. He said it was neither forcible nor against plaintiff's wishes.

Defendant stated further that, during their sexual relationship, they had anal intercourse eighty percent of the time. He described a history of past sexual experiences between them. He admitted sticking her with his penis as she walked up the stairs with no pants on, conduct he described as consistent with past practice. He also described their sexual activity in the bedroom regarding the anal penetration:

We were on the bed, right, I was slamming her and by accident when I was going so fast that she was screaming at me like go faster, faster, harder, I pulled out and I went in her butt. And I know I hurt her because she was like ow, ow.

He described this as an accident. He said he apologized and got off her. He washed up and returned to the couch where he fell asleep.

Defendant denied that plaintiff had asked him to stop at any time during the evening. He testified that he "[a]bsolutely" believed he had her consent to have sex with her on November 13.

Defendant also testified that his texted apology was for hurting her when he penetrated her anally. He stated their relationship was not over at that point. They texted each other afterward. Plaintiff complained to him about there being pictures of other women on his Facebook page, a subject that had been a recurring theme of arguments between them. Defendant told plaintiff that he was going to fix the problem by removing her from his Facebook page so she could not see who was on his page. He denied threatening her at any time after November 13.

Defendant viewed the photograph of plaintiff's bruised arm. He testified that he did not cause the bruise. She had told him that her ex-husband had caused the bruise when they were going through their divorce. Defendant also testified that plaintiff texted him and placed a call to him after the temporary restraining order was entered.

The trial court commented on the highly conflicting nature of the evidence presented, stating, "no one will know what happened inside that house." Reviewing the exchange of text messages prior to November 13, the court concluded that the parties' sexual relationship did not end October 31 and "the relationship clearly was not over November 4." The judge noted numerous messages from plaintiff to defendant: seventeen on November 5, five on November 6, one on November 7, two on November 8, two on November 10, four on November 11, fifteen on November 13, thirteen on November 14 (the day after the alleged assault), and four on November 16. Among the text messages sent after the alleged assault was one plaintiff sent on November 14 in which she told defendant that if they were boyfriend and girlfriend, Chris would have liked to be with them.

The court repeatedly alluded to the "tawdry" nature of their communications, which the court also referred to as "sexting." The court rejected the notion that the series of communications constituted harassment under N.J.S.A. 2C:33-4. The court viewed the real issues as "whether or not sexual assaults occurred or whether or not some other form of assault occurred[.]"

The court painstakingly reviewed plaintiff's testimony, noting aspects of it that raised questions regarding its credibility. The judge then observed, "it's not for the Court to second guess her behavior. That's the testimony. That is what it is. But, I'm finding it difficult to believe." The judge also stated that he did not accept plaintiff's explanation for why she called the police on November 16, i.e., "she was freaked out" after defendant said he was removing her from Facebook "because she felt that because he was mad at her he might want to hurt her again." The judge noted that the messages and chat requests did not warrant such alarm because they were not violent in nature.

As for the photograph of plaintiff's bruised arm taken in August 2010, the judge stated he did not accept either the explanation by defendant that it was due to an old riding accident or "plaintiff's assertion that . . . the August picture, was in fact an example of a violent relationship." He saw the evidence regarding the parties' relationship quite differently:

This relationship was not violent. It was a rough sexual relationship. That's the sum and the substance of the testimony that I received. But it was not a violent relationship where sex is accompanied by a desire by him to harm her.

The court specifically found there had been no prior acts of domestic violence. As noted, the court did not find that defendant committed any act of harassment.

Turning to whether the sex was consensual or not, the court noted that, to establish a sexual assault, the evidence would have to show that defendant knew that plaintiff did not consent to having sex with him. It was undisputed that, during the course of their sexual activity, "something happened that caused her to say ow and have a painful interlude in the sexual event that evening." However, the court reasoned, that did not render a consensual sexual encounter into one that was not consensual. The court concluded that the predicate act of sexual assault had not been established by a preponderance of the evidence.

Although plaintiff's allegation of simple assault was limited to her bruised arm, the court found assault had been proven by the evidence of defendant's acts during the course of their sexual activity:

I find that when the defendant walked in the door that day, he was not there to rape the plaintiff. But I do find that sex, for lack of a better word, got out of control. The defendant admitted to penetrating her anally and the sex on both parties' accounts historically in this relationship seem to have been rough.

And the defendant apologized. That was key, the defendant's apology was absolutely key to me in demonstrating the fact that the sex started out consensual, at least based upon the evidence before me, but the penetration and the nature of the penetration and the fact that she was hurt by it, is such that . . . he acted recklessly by penetrating her in that fashion.

The judge specifically found that defendant did not act purposefully or knowingly, but recklessly, in hurting plaintiff while they were having consensual intercourse. The judge added that he also found that an assault had occurred by virtue of the bruise on plaintiff's arm. Finally, the court found that there was a need for a restraining order to be issued.

Defendant raises the following issues in this appeal:

POINT I

THE PRIMARY ACT OF SIMPLE ASSAULT UPON WHICH THE TRIAL COURT RELIED TO GRANT PLAINTIFF A FINAL RESTRAINING ORDER WAS NOT ALLEGED IN THE PLAINTIFF'S COMPLAINT OR IN HER AMENDMENT TO HER COMPLAINT WHICH RESULTED IN AN UNTIMELY SUA SPONTE AMENDMENT OF THE COMPLAINT BY THE COURT POINT II

SIMPLE ASSAULT IS NOT A LESSER INCLUDED OFFENSE OF SEXUAL ASSAULT AND IT WAS ERROR FOR THE TRIAL COURT TO FIND AN ACT OF DOMESTIC VIOLENCE BASED UPON SIMPLE ASSAULT NOT OTHERWISE ALLEGED IN THE PLAINTIFF'S COMPLAINT

POINT III

ASIDE FROM THE FAILURE OF PLAINTIFF'S COMPLAINT OR AMENDMENT TO PROVIDE NOTICE OF THE SPECIFIC ACT OF SIMPLE ASSAULT RELIED UPON BY THE TRIAL COURT, THE EVIDENCE BEFORE THE COURT FAILED TO ESTABLISH THAT ANY ACT OF SIMPLE ASSAULT HAD OCCURRED BY A PREPONDERANCE OF THE EVIDENCE POINT IV

THE CREDIBLE EVIDENCE BEFORE THE COURT FAILED TO ESTABLISH THAT A RESTRAINING ORDER WAS NECESSARY TO PROTECT THE PLAINTIFF FROM ANY FUTURE ACTS OF DOMESTIC VIOLENCE The commission of one of the offenses listed in N.J.S.A. 2C:25-19 is a prerequisite to the entry of a domestic violence order. Franklin v. Sloskey, 385 N.J. Super. 534, 542 (App. Div. 2006). Moreover, due process requires that the defendant receive "'notice defining the issues and an adequate opportunity to prepare and respond.'" J.D. v. M.D.F., 207 N.J. 458, 478 (2011) (quoting H.E.S. v. J.C.S., 175 N.J. 309, 321 (2003)). A court may consider allegations of domestic violence not included in a complaint to determine whether there has been a history of domestic violence, see J.D., supra, 207 N.J. at 479. However, "due process forbids the trial court 'to convert a hearing on a complaint alleging one act of domestic violence into a hearing on other acts of domestic violence which are not even alleged in the complaint.'" Id. at 478 (internal citations omitted); see also L.D. v. W.D., 327 N.J. Super. 1, 4 (App. Div. 1999); J.F. v. B.K., 308 N.J. Super. 387, 391-92 (App. Div. 1998). Plaintiff alleged two predicate acts in her complaint, harassment and sexual assault. The allegation of sexual assault was described as a vaginal penetration and an anal penetration, both occurring on November 13, 2010. She later amended her complaint to include an assault based upon her arm being bruised on that same date.

As noted, the trial judge concluded that plaintiff had failed to prove harassment or sexual assault by a preponderance of the evidence. However, he concluded there was sufficient evidence to support a finding of assault, based upon defendant's admitted "accidental" anal penetration of plaintiff and the bruising of plaintiff's arm. After reviewing the record in light of the applicable legal principles, we conclude that neither provided a basis for the entry of a final restraining order.

I Although plaintiff alleged that defendant committed an act of domestic violence based upon anal penetration, the allegation in her complaint was that he committed an act of sexual assault in doing so.

N.J.S.A. 2C:14-2(c)(1) defines sexual assault as an act of sexual penetration in which "[t]he actor uses physical force or coercion, but the victim does not sustain severe personal injury." In State in the Interest of M.T.S., 129 N.J. 422, 448 (1992), the Supreme Court described the proof necessary to sustain a conviction for this offense, writing "the State must prove beyond a reasonable doubt that there was sexual penetration and that it was accomplished without the affirmative and freely-given permission of the alleged victim." Thus, although the statute states that it is unnecessary to prove the victim sustained "severe personal injury," in fact, no evidence of injury is required to prove sexual assault.

N.J.S.A. 2C:12-1(a)(1) states in pertinent part that a "person is guilty of assault if he . . . purposely, knowingly or recklessly causes bodily injury to another[.]" "Bodily injury" is defined as "physical pain, illness or any impairment of physical condition[.]" N.J.S.A. 2C:11-1(a).

The notice given to defendant regarding the allegation of anal penetration was that plaintiff would be required to prove by a preponderance of the evidence that he knowingly engaged in anal penetration without her consent. In response to that allegation, he testified that he believed he had plaintiff's consent to intercourse, a statement the court found credible.

He testified further that, in the course of what he believed to be consensual intercourse, he accidentally and briefly inserted his penis in plaintiff's anus, causing her some pain. The court essentially accepted this testimony as well, describing his conduct as "reckless."

Evidence of a "reckless" penetration could support a finding of an act of domestic violence based upon a simple assault. Significantly, however, the notice provided defendant was that he faced a charge that did not turn on whether there was injury, even if reckless, but rather, on whether he knowingly engaged in a non-consensual act. Moreover, while proof of bodily injury, however slight, was necessary to prove simple assault, such proof is not necessary to prove sexual assault.

Because of the difference in their elements, simple assault is not a lesser-included offense of sexual assault. See N.J.S.A. 2C:1-8(d). In State v. Queen, 221 N.J. Super. 601, 606 (App. Div.), certif. denied, 110 N.J. 506 (1988), we stated, Simple assault . . . has . . . an element missing from the proof required to establish sexual assault or criminal sexual contact, that is, the element of bodily injury, either caused or attempted to be caused in the commission of the offense. . . . Bodily injury . . . may occur but need not necessarily occur in a sexual assault or criminal sexual contact. Thus, under the plain language of N.J.S.A. 2C:1-8[(d)](1), simple assault is not an included offense of sexual assault or criminal sexual contact, because it is not established "by proof of the same or less than all the facts required to establish" either offense charged against defendant by indictment; rather, it requires proof of the additional element of bodily injury or of an attempt to cause it.

See also State v. Triestman, 416 N.J. Super. 195, 221 (App. Div. 2010).

When the court found that defendant committed domestic violence based upon an anal penetration that was a simple assault rather than the sexual assault alleged, the court essentially converted the hearing into one on an act of domestic violence not alleged in the complaint, depriving defendant of his right to due process. See J.D., supra, 207 N.J. at 478. Therefore, it was improper to base a finding of domestic violence upon a "reckless" penetration not alleged in the complaint.

II

The second ground for the finding of domestic violence was that defendant committed a simple assault in bruising plaintiff's arm. Plaintiff included this allegation when she amended her complaint.

Giving appropriate deference to the trial court's determinations of credibility and findings of fact, the evidence is sufficient to support a finding that defendant committed the predicate act of simple assault based upon the bruised arm. However, proof of a predicate act does not "'automatically mandate[] the issuance of a domestic violence order.'" Silver v. Silver, 387 N.J. Super. 112, 123 (App. Div. 2006) (quoting Kamen v. Egan, 322 N.J. Super. 222, 227 (App. Div. 1999)). After a predicate act has been found, the court must make a second inquiry, "whether the court should enter a restraining order that provides protection for the victim." Id. at 126. "[T]he guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29[(a)](1) to -29[(a)](6), to protect the victim from an immediate danger or to prevent further abuse." Id. at 127.

Here, the trial judge repeatedly rejected any characterization of defendant's behavior as violent or likely to warrant alarm. He specifically found there had been no prior acts of domestic violence. Based upon the nature of the messages sent by both plaintiff and defendant, he found that defendant's communications to plaintiff did not constitute harassment. As to the sexual activity on November 13, the court found defendant "was not there to rape the plaintiff." Instead, he found that the sex "started out consensual" and "got out of control." The court also rejected plaintiff's testimony that she called the police because she was "freaked out" when defendant removed her from Facebook "because she felt that because he was mad at her he might want to hurt her again." The court observed that the messages sent by defendant were not violent and did not warrant such alarm.

In short, the trial court did not find any predicate act based upon an intention to harm plaintiff, did not find any history of domestic violence and did not find that any of defendant's communications to plaintiff warranted a fear that she was in "immediate danger" or likely to suffer "further abuse." Because there was insufficient evidence to support a finding that a restraining order was necessary to provide protection for plaintiff, it was error to enter a final restraining order based upon a finding that defendant committed assault.

Reversed.

20120702

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