July 12, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID SEGAL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 0018-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 24, 2012
Before Judges Baxter and Nugent.
Defendant David Segal appeals from the August 24, 2011 judgment convicting him of harassment, N.J.S.A. 2C:33-4(b), following a trial de novo in the Law Division. He argues that the State did not prove beyond a reasonable doubt that he purposely harassed a casino cocktail waitress when he grabbed and forcibly kissed her during his winning streak at a gaming table. We conclude that the trial court's factual and legal determinations were adequately supported by credible evidence. Accordingly, we affirm.
The State presented the following evidence during defendant's municipal court trial. On Saturday, November 20, 2010, the complainant, a casino cocktail waitress, walked into a high roller gaming pit to take drink orders from the patrons. She testified that as she entered the pit, defendant "stood up and he kept trying to grab me and I kept pushing him off me." She also testified that defendant grabbed her twice. The first time he attempted to put his hand down her shirt, "grab[bed her] butt, and tried to kiss [her] all over." At some point, either while defendant was grabbing her or after she was able to get away from him, she told him that "[h]e cannot touch [her]." Defendant forcibly kissed her. She repeatedly testified that "[h]is tongue went straight down into my throat."
The complainant reported the incident to her pit boss and to her supervisor. After reporting the incident, she returned to the pit and served the defendant a drink, at which time he put his hand on her back and gave her a $100 tip. Later, while at the service bar, the complainant's supervisor told her that defendant wanted to apologize. The complainant returned to the gaming pit, waited fifteen minutes while defendant finished the game he was playing, and then watched as defendant looked at her, stood up, smiled, and said, "God bless America." Defendant then walked away. Although the complainant wanted to give defendant the benefit of the doubt, she decided to press charges.
Asked to describe the kiss in detail, the complainant testified that defendant's hand "went right on my throat and he jerked my head up and that's when he shoved his tongue down my throat."
Three other casino employees confirmed that defendant forcibly kissed the complainant. A casino floorperson testified that defendant "grabbed her by the arm and kissed her on the cheek and then as she turned her cheek away she told him that he could not kiss the waitress, and then he grabbed -- put his hand on her chin and he kissed her on the mouth." A supervisor saw defendant grab the complainant's arm and kiss her, and a part-time dealer saw defendant grab and kiss her as well.
The testimony also established that defendant had won $100,000, then lost $60,000, but was up somewhere between $40,000 and $100,000 at the time of the incident. Defendant was obviously happy about winning.
The incident was captured on a surveillance video camera. The videotape showed defendant dancing around, jumping up and down, and "high-fiving" other players at the gaming table. According to one witness's description of the videotape, defendant appeared to be "having a good time," was "happy," and "exuberant." The videotape also showed that after defendant grabbed and forcibly kissed her, the complainant left and returned with his drink. The videotape did not depict defendant attempting to put his hand on or inside of her shirt, nor did it depict him touching her buttocks.
The municipal court judge convicted defendant of petty disorderly harassment, N.J.S.A. 2C:33-4(b), fined him $150, assessed court costs of $158, and barred defendant from returning to the same casino for two years. Defendant filed an appeal pursuant to Rule 3:23-3.
During the trial de novo, the trial court thoroughly recounted the municipal court testimony and the details of the videotape; evaluated the definitions of "purposely" and "reasonable doubt"; accorded the municipal court judge proper deference concerning credibility determinations; and then concluded that defendant's conscious objective was to make uninvited physical contact with the complainant with the purpose to harass her. The trial court convicted defendant of harassment, fined him $150, assessed court costs of $158, and banned him from the casino for two years.
In this appeal, defendant argues that his conviction must be reversed because the only logical inference to be drawn from the video and trial testimony is that [he] kissed the complainant as an expression of the good time he was having, not out of any ill motive towards the casino or the complainant, which is required to prove a purpose to harass.
The procedure for appealing municipal court judgments of conviction is contained in Rule 3:23. The trial of such an appeal is heard in the Law Division de novo on the record. R. 3:23-8(a) and (e). "[I]n conducting the review required under Rule 3:23-8(a), the Law Division's judgment must be supported by sufficient credible evidence in the record." State v. Ugrovics, 410 N.J. Super. 482, 487 (App. Div. 2009) (citing State v. Segars, 172 N.J. 481, 488 (2002)), certif. denied, 202 N.J. 346 (2010).
Our scope of review of the judgment entered by the trial court in the Law Division is limited. Our function as a reviewing court is to determine whether the findings of the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). When we conclude the findings and conclusions of the Law Division meet that criterion, our "task is complete," and we "should not disturb the result" even if we "might have reached a different conclusion" or if the result was a close one. Ibid. We "defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). "Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Ibid.
Here, defendant contends that the only logical inference to be drawn from the video and trial testimony is that he kissed the complainant as an expression of the good time he was having. Stated differently, defendant argues that the trial court's finding that he acted purposefully to harass the complainant is not supported by sufficient credible evidence in the record. We disagree.
Harassment is defined in N.J.S.A. 2C:33-4, which provides in pertinent part:
Except as provided in subsection e., 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;
b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; 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.
"[S]ubsection (a) proscribes a single act of communicative conduct when its purpose is to harass. . . . Subsection (b) . . . deals with touchings or threats to touch, and it does not require the intended victim to be annoyed or alarmed. . . .
[S]ubsection (c) targets a course of conduct." State v. Hoffman, 149 N.J. 564, 580 (1997).
"A finding of a purpose to harass may be inferred from the evidence presented." Id. at 577. When deciding whether an inference can reasonably be deduced from proven facts, "[w]e are guided by common sense and our common experiences." State v. Avena, 281 N.J. Super. 327, 340 (App. Div. 1995). "While we might or might not have made the same inferences, our role is one of determining whether the trial judge's inferences were rationally based on evidence in the record." Ibid. In the case before us, the trial court's inferences were rationally based on evidence in the record. Although the conclusion suggested by defendant -- that he acted impulsively, out of jubilation, and without the purpose to harass -- may have been a possible inference, it was certainly not the only reasonable deduction that could be made. The evidence amply supported the conclusion that he acted with the purpose of harassing the complainant.
As the trial court noted during the colloquy with defense counsel, defendant did not impulsively attempt to kiss any other women. He singled out a cocktail waitress. When he initially grabbed her, she resisted and tried to pull away, but he persisted, grabbed her by either her throat or chin, and stuck his tongue into her mouth. When she later returned, he put his hand on her back, despite having been told that he could not touch her. And when she returned a third time, expecting an apology, he kept her waiting while he finished a game and then said to her, "God bless America," suggesting neither that he had acted impulsively when he kissed her, nor that he was sorry for unintentionally demeaning her. The totality of those facts and circumstances constituted sufficient credible evidence to support the court's conclusion that defendant subjected the complainant to an offensive touching while purposely intending to harass her.
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