September 21, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FERNANDO A. BATISTA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 84-2010.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 1, 2012
Before Judges Fuentes, Graves and Harris.
Following a municipal court trial and a de novo trial in the Law
Division, defendant Fernando Batista was found guilty of the petty
disorderly persons offense of harassment, N.J.S.A. 2C:33-4(a), in
connection with several telephone calls he made
to the Division of Youth and Family Services (Division).*fn1
The municipal court judge imposed a $506 fine, $33 in court
costs, a Victims of Crime Compensation Board assessment of $50, and a
$75 Safe Neighborhood Services Fund assessment. The Law Division judge
imposed the same sentence, except the $506 fine was reduced to $500.
Among other things, defendant argues on appeal that he never intended
to harass anyone. For the reasons that follow, we reverse.
On December 7, 2009, defendant contacted the Division to report that his ex-wife's boyfriend was abusing his son. In a letter dated January 19, 2010, defendant was notified that the Division had "conducted its required investigation and determined that the allegation was unfounded." Following receipt of the letter, defendant made several telephone calls to the Division on January 27 and 29, 2010. On January 29, 2010, defendant was charged with harassment in violation of N.J.S.A. 2C:33-4(a). The complaint alleged defendant made "at least 15 phone calls on 1/27/2010 and 1/29/2010" to the Division's office in Mercer County and further alleged:
The defendant wants to know about our staff: their credentials, names, experience, and what is their training. The defendant also wants to know how many people are in our office and in the entire building[.] Defendant has been advised that his case with DYFS is closed, but that has not stopped the defendant from his continuous calls. There is a history of defendant recording our conversations and concerning behavior.
The municipal court judge heard testimony from four witnesses. The State presented testimony from three Division employees, and defendant testified on his own behalf.
During his opening statement, the municipal prosecutor stated the Division was not "on trial," and the case was not "about the general welfare of [defendant's] son or anything like that." On the other hand, defendant said he called the Division because he was "trying to understand how things work," and he was trying to find out how his case "was handled."
The State's first witness, a Division supervisor, testified she filed the complaint because defendant's phone calls "were essentially incessant" and staff were getting "frustrated and burnt out from responding to [defendant's] phone calls." She also testified, however, she never spoke with defendant "in January, when the calls were coming." In addition, she said she was not aware of "the actual number" of calls defendant made on January 27, 2010, but "it was more than five." The State's other witnesses confirmed that defendant was "unhappy" with the results of the Division's investigation, and he "wanted more details as to the investigation specifics."
Defendant testified he called the Division after he was notified that his referral regarding his son was unfounded. According to defendant, there was "a lot of evidence" to support his allegations, and he was "100 percent sure" his child was being abused. Therefore, he wanted to know what he could do and "what other steps to take."
The municipal court judge found defendant made the calls because he wanted to "analyze the case," and he wanted "to be able to prove child abuse." Nevertheless, the judge found defendant guilty of harassment because the calls were made in such a manner that the Division's employees were "bothered and alarmed and annoyed." After a de novo review of the record, the Law Division judge reached the same conclusion.
Our scope of review is limited to determining whether the findings by the Law Division judge "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). We will not disturb the trial court's findings unless they are clearly mistaken "and so plainly unwarranted that the interests of justice demand intervention and correction." Ibid.
The relevant portion of the harassment statute reads 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;
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. [N.J.S.A. 2C:33-4 (emphasis added).]
For defendant's conviction to stand, the State had to prove beyond a reasonable doubt that defendant acted with a purpose to harass someone when he telephoned the Division on January 27 and 29, 2010. State v. Hoffman, 149 N.J. 564, 577 (1997); Peterson v. Peterson, 374 N.J. Super. 116, 123 (App. Div. 2005). "'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.'" Hoffman, supra, 149 N.J. at 577 (quoting N.J.S.A. 2C:2-2(b)(1)). Merely knowing that someone would be annoyed, as opposed to having a conscious objective to annoy, is insufficient to prove a purpose to harass. State v. Fuchs, 230 N.J. Super. 420, 428 (App. Div. 1989).
In this case, defendant did not dispute he made several calls to the Division. Therefore, the critical question is whether the record supports a finding that defendant acted with a purpose to harass. The Law Division judge found the Division's employees "felt harassed" based on defendant's repeated calls. But the judge also found defendant made the calls because he "wanted [the Division employees] to change their mind[s]" regarding his referral. Under these circumstances, we are satisfied there was insufficient evidence to support a finding of guilt beyond a reasonable doubt. See State v. Duncan, 376 N.J. Super. 253, 263-64 (App. Div. 2005) (cautioning against overextending the harassment statute to behavior that was "not directed towards anyone specifically but only towards an institution in general").