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State v. Theodore

Superior Court of New Jersey, Appellate Division

June 20, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,


Argued December 7, 2011

On appeal from Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 5977.

Steven L. Menaker argued the cause for appellants (Chasan Leyner & Lamparello, P.C., attorneys; Mr. Menaker and Kirstin Bohn, of counsel and on the brief).

Michelle J. Ghali, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Tracy E. Boyd, Assistant Prosecutor, of counsel and on the brief).

Before Judges Fuentes, Harris, and Koblitz.


Defendants Chantal Theodore, Jessica Theodore, [1] David Romilus, and Walter Janvier were tried and convicted before the Municipal Court in the City of Elizabeth of various disorderly persons offenses. Specifically, Mrs. Theodore was found guilty of obstructing the administration of justice, N.J.S.A. 2C:29-1(a); Jessica of simple assault, N.J.S.A. 2C:12-1(a)(1); and Romilus and Janvier of disorderly conduct, N.J.S.A. 2C:33-2(a). The municipal court imposed, upon each defendant, a fine of $200 and a number of statutory penalties that amounted to an additional $158, for a total monetary sanction of $358.

Defendants appealed their convictions to the Law Division pursuant to Rule 3:23-2, which requires the court to conduct a de novo review of the evidence presented before the municipal court and determine anew whether the State met its burden of proving defendants' guilt beyond a reasonable doubt. In such cases, if a defendant is again convicted before the Law Division, the court is empowered to impose any sentence authorized by law. R. 3:23-8(e). Here, after reviewing the record developed before the municipal court, the Law Division found defendants guilty and imposed the same penalties ordered by the municipal court.

Defendants now appeal to this court, arguing that the Law Division erred by not dismissing the charges against defendants as a matter of law. According to defendants, the evidence presented by the State did not establish, beyond a reasonable doubt, that they committed any offense. They also argue that the arresting officers violated Mrs. Theodore's constitutional right against unreasonable searches and seizures by attempting to enter her home by force, without a warrant or other legal grounds justifying such an extraordinary invasion of her right to privacy in her home.

This court is keenly aware and appreciates the tragic circumstances and emotional trauma surrounding the events that led to defendants' encounter with the police. Our role as an appellate court, however, is to apply the settled principles of review objectively and, thereafter, determine whether the trial court committed legal error warranting a reversal or modification of its judgment. As appellants, defendants bear the burden of establishing the legal grounds for the relief sought. Absent such a showing by defendants, we are bound to affirm the judgment of the Law Division.

With these principles in mind, we affirm the trial court's decision finding Mrs. Theodore guilty of obstructing the administration of law under N.J.S.A. 2C:29-1(a). The trial court's factual findings as to this defendant are supported by competent evidence on the record. The encounter between Mrs. Theodore and the arresting officer did not violate her constitutional rights under the Fourth Amendment of the federal constitution or, Article I, Paragraph 7 of the New Jersey Constitution.

We reverse Romilus's and Janvier's convictions for disorderly conduct under N.J.S.A. 2C:33-2(a). The record does not support the court's findings that these defendants purposely engaged in conduct that caused public inconvenience, annoyance, or alarm or created a hazardous or physically dangerous condition by their actions. We also reverse Jessica's conviction for simple assault under N.J.S.A. 2C:12-1(a)(1) against Captain Tourner. The record clearly shows that Jessica's actions did not cause Captain Tourner "bodily injury, " as defined in N.J.S.A. 2C:11-1(a).


On June 13, 2008, Mrs. Theodore's twenty-year-old son Curtis was shot and killed in Elizabeth while seated in a car.[2]As news of her son's violent death became known, family and friends spontaneously began to gather at Mrs. Theodore's home to pay their respects for this tragic loss. According to witnesses who testified at trial, as a result of this impromptu vigil, an estimated fifteen to twenty-five people were present at Mrs. Theodore's home at any given time. Included in this estimate were approximately six to eight children under the age of ten. The number of mourners fluctuated, because people continuously arrived and left during the relevant time period.

At this early stage of events, the details of the incident that led to Curtis's death were not known. The situation for the decedent's family and friends was thus emotionally raw and susceptible to great volatility, especially for those most affected by the tragedy, the decedent's mother Mrs. Theodore, his sister Jessica, and his uncle Romilus.

Elizabeth Police Captain Tyrone Tourner was the State's principal witness. He testified that at 7:39 pm on June 13, 2008, the police dispatcher received three complaints that "disorderly people" were at Mrs. Theodore's residence. The call was apparently made by people associated with a restaurant[3] that had a parking lot adjacent to Mrs. Theodore's property.

According to Captain Tourner, there were approximately twenty people "scattered around the lot" of the restaurant and "more people in front of the house." He described what he saw as follows:

I concentrated my efforts originally in the [parking] lot because that's where the complaint was coming from . . . .
There were people sitting on cars, people standing around. Some of them had beer bottles . . . .
. . . .
I told them, this is the third time we've asked you to please leave, you're on private property belonging to the restaurant, [4]you're sitting on cars that don't belong to you, you're leaving trash around the parking lot, you have beer bottles, you shouldn't be drinking out in public, you need to leave, this is not a gathering place.

Although not immediately compliant, Captain Tourner testified that these approximately twenty people in the parking lot eventually moved away, and some of them "started moving" to Mrs. Theodore's house, where "a lot [of] people" were already gathered. Some of the people that had been in the parking lot went inside the house. Captain Tourner said that, at this point, he noticed that the house was crowded with people. I mean, there was literally -- you open the door and you see faces and heads standing right inside.

. . . .
In addition to that, there was more drinking involved. There were beer bottles all over the front lawn.
There was at least two large garbage bags full of empty beer cans and liquor bottles.
. . . .
People were drinking in the stoop of the house. People were lingering in the lawn. People were lingering in the sidewalk. I asked them all to disperse. As I went to [Mrs. Theodore's house], some began to shift away from the house, but some were trying to get in the house, but they couldn't get in because it was so crowded they had to like work their way in.
. . . .
Some looked like teens. And, again, more liquor. So I walked up to the house. I said, look, you got some kind of house party going on here, you got overcrowding, you have -- I reached out to [Mrs.] Theodore.
. . . .
[S]he identified herself to me as the owner of the house and it was -- you know, she was grieving over a family member, and this was like a vigil they were having.
However, while I had no problems with friends and family getting together, there was a problem with the drinking and the spillover into private property and the sidewalk and the underage drinking that was taking place inside the house.

[(Emphasis added).]

Photographs of Mrs. Theodore's home included in the appellate record depict the entrance way of the house. There are five brick steps with an iron handrail on the left side. The steps lead to a storm door. The steps appear to be approximately four to five feet wide.

Captain Tourner testified that he asked Mrs. Theodore for her cooperation, as the owner of the house, to "get everyone out of [her] house." (Emphasis added). In his judgment, the house was "overcrowded" and "dangerous." Most importantly, "this [was] the third time" police had "been to the location asking them for cooperation." It is not disputed that, at the time Captain Tourner reached these conclusions concerning the presence of underage drinking, the overcrowded condition, and general dangerousness, he had yet to enter Mrs. Theodore's home. In fact, Captain Tourner testified that as he "tried to get closer to the house to yell into the house for everyone to come out, [he] was blocked by [Mrs.] Theodore."

According to Captain Tourner, Mrs. Theodore explained to him that it was not a house party, it was a "vigil" for her murdered son, these were her friends and friends of friends, and they were all grieving. In fact, Captain Tourner testified that he "understood [the situation] because [he] knew about that fatality. However, the manner in which they were having this vigil was creating problems that the police kept getting calls on."

When Captain Tourner tried "to get closer to the house, to yell into the house, " Mrs. Theodore blocked his path with her body. (Emphasis added). Behind Mrs. Theodore stood her brother Romilus, who, according to Captain Tourner, said, "you cops better go, you better leave." Captain Tourner responded that he and his fellow officers were not going to leave until he could get everyone "out of the house and clear [the] property." Captain Tourner then informed Mrs. Theodore and Romilus that if they did not allow him to do what he needed to do, he was going to arrest them for blocking him.

Undaunted, Mrs. Theodore "grabbed the [handrail] firmly" and blocked Captain Tourner from entering her home. Although her body was not directly in front of him, her arm was clearly across his path, preventing him from entering. Despite Captain Tourner's warnings that her behavior constituted an unlawful interference with his authority as a police officer, Mrs. Theodore remained defiant. When Captain Tourner attempted to restrain her with handcuffs, she refused to let go of the handrail. Captain Tourner eventually used physical force to remove her hand and complete the arrest.

At this point in time, Jessica (Mrs. Theodore's daughter) "grabbed a hold" of Captain Tourner, grabbing his right arm while he was hanging on to her mother's arm. Captain Tourner quickly escaped from Jessica's grip by momentarily letting go of Mrs. Theodore. Captain Tourner ordered an officer standing nearby to complete handcuffing Mrs. Theodore while he restrained Jessica. On cross-examination, Captain Tourner described the details of his encounter with Jessica as follows:

Q You charged her with assault.
A Yes.
Q What did she do?
A She grabbed a hold of me.
Q Where?
A My arm.
Q And what happened?
A She pulled it back.
Q Did you suffer any pain?
A I didn't suffer any pain, but I was --
Q Did you suffer any injury?
A As soon as she puts her hands on me, it's an assault. I don't have to feel any pain. All I have to feel is that I'm threatened in some way and her physical force is upon me.
Q Did you suffer any pain?
A No.

Mother and daughter were thereafter arrested, Mrs. Theodore was charged with obstructing the administration of law and Jessica with simple assault.

Captain Tourner next turned his attention to Romilus. He directed other officers at the scene to arrest Romilus for his original defiance in support of his sister. Although he was occupied with other matters, Captain Tourner testified that he saw Romilus refuse to cooperate with the officers who attempted to handcuff him. Captain Tourner characterized the situation at this point as "very hectic" with "a lot of emotion." He also pointed out that some individuals in the crowd attempted to diffuse the situation, in particular a man identified for the record only as the "gentleman in blue" who was "seated in court."

In response to defense counsel's questions on cross-examination, Captain Tourner clarified the basis for Romilus's arrest:

Q . . . [Y]ou and Mrs. Theodore are standing on the stairway [leading to the ...

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