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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 entrance of the house].
A Right. I'm halfway up. She came a step or two down.
Q And Mr. Romilus says what?
A He says, you need to leave.
Q What else did he say?
A Pretty much that, you're not coming in.
Q What else [did] he say?
A That's about it.
Q Do you consider that defiant?
A Very much so.
. . . .
Q And you were placing him under arrest because he said, you're not wanted here, you've got to leave?
A I wanted to proceed to the front door, and Mr. Romilus stood behind Mrs. [Theodore], saying, you're not going in there, you got to -- you're going to leave. In fact I believe I used quotation marks in my report, stating the exact words: "You better go." I took that to mean as if I don't leave, things are going to go bad.
Q Well, he never said that.
A No. He said, you better go. "Better" means, you better think about it, you better do the right thing, you better do what's good for you, you better understand what's happening. That's how I took those words, "better." In other words, I was making a bad judgment call in his mind, that I better rethink this whole thing.
Q In other words, you were thinking the worst of what he was saying to you --
A Well.
Q -- as opposed to simply, you're not wanted here, please go.
A Well, he never used the word, please, and by the agitated state of the crowd, I didn't think he was meaning anything other than there's going to be a problem here if you persist.
Q But he didn't incite [a] riot, did he?
A No. He didn't.
Q He didn't exhort the crowd to do anything to harm you, did he?
A No.
Q He didn't say anything threatening to you other than these words that you've already told us about, --
A I --
Q -- Which you interpreted to be threatening, correct?
A Right.
. . . .
Q You ordered [Romilus] arrested for saying, you better leave?
A I ordered him arrested for interfering with a job I was trying to do.
Q And what job was that?
A The safety of everyone there. The situation, as it was, was unsafe and intolerable because of the sizes, because of the drinking, because of the crowded situation, and the underage of the people.
Q Did you tell Mr. Romilus, I'm going to arrest you for preventing me from going into [the] house to clear the house of the crowd, of the use of the alcohol, of the potential fire hazard? Did you tell him that?
A No. I didn't.
Q Did you tell him, I'm going to arrest you if you block my entrance into the home?
A He understood that.
Q Did you tell him, I'm going to arrest you if you block my entrance into the home?
A Did I tell him that?
Q Yes.
A No. When he interfered with what I was doing, I placed him under arrest.
Q For what charge?
A For interfering with my function there.
Q And your function at that point when you placed him under arrest was what?
A To resolve the situation, which was now taking place inside the house.
Q Which was to clear the house?
A Clear the house.
Q Under what authority?
A The authority of the -- my authority that the situation inside was unsafe.
Q Did you have a warrant to enter?
A I didn't have a warrant.
Q Did you have a warrant for the arrest of anyone inside?
A No, I didn't.
Q Did you have any lawful authority to go into that door?
A Just public safety issue.
. . . .
Q Help me understand. I thought you never got to the doorway because [Mrs. Theodore] blocked the stairs and David Romilus blocked the door.
A That's right, Counselor.
Q So how did you get to the doorway --
A Once --
Q -- to order everyone out?
A Once the arrests were made and those folks were moved, I went to the door to complete what I had intended to do when I became aware of the situation. I yelled into the doorway, everybody come out, leave, you have to go.

As he yelled into the house for everyone to leave, Captain Tourner testified that Janvier, who was in front of the house, began "inciting" the crowd to resist the police officers' efforts in having those present disperse. Captain Tourner testified that he ordered the arrest of "anyone who was inciting more resistance." He specifically ordered one of the police officers to arrest Janvier "so we could [take] him out of the scene and we could calm things down." When asked on direct examination whether he remembered any of the words Janvier allegedly uttered that formed the basis for his arrest, Captain Tourner answered: "I can't remember any words in particular."

On cross-examination, Captain Tourner specifically conceded that, despite his characterization of Janvier's conduct as inciting the crowd, he did not charge him with this offense. He also indicated that Janvier did not use offensive or profane language toward the police or the crowd. According to Captain Tourner, he ordered Janvier arrested because he was "yelling out to the crowd things" like "this is unfair, the police are abusive, the police are -- are racist, they don't care about us, they don't understand, and this sort of . . . comment that just kept everyone in a heightened state of emotion." Janvier was ultimately charged with disorderly conduct.

Elizabeth Police Officer James Chrysler, Jr., was the only other witness called by the State. He testified concerning the complaint filed against Janvier for criminal mischief for allegedly kicking and breaking the windows of the police car he was placed in after his arrest. However, Chrysler testified that he did not place Janvier in the police car and did not see Janvier kick or damage the police car at any time. His only source of information concerning this issue came from an unidentified fellow officer. The municipal court judge promptly sustained defense counsel's objection to this part of Chrysler's testimony based on hearsay grounds.[5] On cross-examination, Chrysler testified that, prior to responding to Mrs. Theodore's home for the third time, Captain Tourner met with all of the police officers assigned and told them they were going to "shut down the party."

Despite Captain Tourner's testimony that he personally observed the consumption of alcohol by minors inside Mrs. Theodore's home and by people on the sidewalk in front of her house and in other public areas by other individuals presumed to be associated with the gathering, no summonses were issued for these infractions; no summonses were issued to those allegedly blocking the sidewalk or to those allegedly trespassing on the restaurant's private property.

Defense counsel called Mrs. Theodore, her daughter Jessica, Romilus, and Diane Alphae, who identified herself as a friend of the family, as witnesses. Their testimony varied from Captain Tourner's testimony in some key respects.

Mrs. Theodore's first encounter with the police on the day that her son was murdered occurred outside of her home as she came out to greet her reverend. She testified as follows: "[One of the officers] asked us what was going on because they see people, like, going inside the house. And . . . I told them that my son, you know, was murdered this morning, and they say, oh, they sorry [sic] to hear that, and then they left." According to Mrs. Theodore, there were about seven people in her home the first time the police came to her residence, including "two or three boys with the reverend."

Mrs. Theodore testified that the next encounter she had with the police occurred at approximately 6:30 pm. By this time, there were approximately seventeen people in the house, including minors under the age of eighteen. No one was drinking alcoholic beverages, and no liquor of any kind was visibly available. She testified that she does not drink alcohol or permit alcohol to be consumed in her home. According to Mrs. Theodore, when the police responded the second time, there were approximately four people on the lawn of the house, none of whom were drinking alcohol. She was preparing to leave for the morgue to identify her son's body.

According to Mrs. Theodore, Captain Tourner arrived with a force of approximately thirty-five police officers.[6] When he approached her, there were three boys in the restaurant's parking lot. She told the boys to come inside the house for the following reason: "[B]ecause I don't want the cop -- the captain and the cops to give me any problem that you [meaning the boys] are on the other side of the house." Captain Tourner then ordered Mrs. Theodore to tell the people on her property to leave immediately. "[H]is exact words, " according to Mrs. Theodore, were: "I want everybody to leave the property." Mrs. Theodore responded as follows:

[N]o, . . . because they came to pay their respect. My son didn't die[], he was murdered. I cannot . . . because my uncle, my sister drove from New York. My brother -- my uncle come with his wife, you know. They traveled to see me. I can't do that.

Captain Tourner was unmoved by Mrs. Theodore's plea; he remained adamant that everyone in the house and on the property had to leave immediately. It was at this point, according to Mrs. Theodore, that Janvier intervened. Janvier told Captain Tourner "yes, we can do that, because this is our property." In response to Mrs. Theodore's and Janvier's statements, Captain Tourner ordered one of his officers to arrest Janvier. Mrs. Theodore again told Captain Tourner that she would not allow him to come "on my property on the day of mourning to arrest somebody." According to Mrs. Theodore, it was at this point that Captain Tourner grabbed her, pushed her against a fence, and handcuffed her.


Against these facts, the Law Division found all defendants guilty as originally charged. With respect to Mrs. Theodore, the Law Division judge found her guilty of obstructing the administration of law based on the "overwhelming evidence that, in my view, . . . based on the credibility of Captain [Tourner], that he was performing an official function." The court found that he "was trying to quell what appeared to be a -- a gathering of people that was -- that was dangerous, that were [sic] on the streets, on the sidewalk, in the parking lot, crowding into a house."

Although no evidence was presented as to the specific number of people that were in the house at any given time because, as the trial court acknowledged, people were continuously coming and going, the trial court nevertheless found that as many as twenty-five people were in the house when Captain Tourner ordered everyone to leave.

Citing State v. Berlow, 284 N.J.Super. 356 (Law Div 1995), defendants argued that the police violated Mrs. Theodore's constitutional rights under these circumstances because she had a constitutionally protected right to refuse the police entrance into her home without a warrant. In Berlow, the police were investigating a report of a woman who had been shot, was bleeding, and was in need of immediate medical assistance. Id. at 358. One of the officers dispatched to the scene of the alleged shooting knocked on the door of the defendant's apartment, "advised him of the purpose of his being there and asked 'permission to come inside to see if there was a woman shot and bleeding and injured.'" Ibid. The defendant refused to allow the officer entry without a warrant. Ibid.

The officer called for backup and two additional officers responded to the scene. Ibid. The three officers again knocked on the defendant's door and asked for his cooperation to allow them to search the apartment to determine if the bleeding woman was inside. Ibid. The defendant again refused and slammed the door on the officers' faces. Ibid. Believing they had "exigent circumstances" to forcibly enter the apartment, the three officers "broke through the door. Once the police officers were inside, [the] defendant did nothing to prevent them from conducting a search of the premises." Id. at 358-59.

Although the search proved negative, the defendant was arrested and charged with obstructing the administration of law or other governmental function under N.J.S.A. 2C:29-1(a). Id. at 359. Judge Garofolo found under these facts that the State proved the elements of N.J.S.A. 2C:29-1; he nevertheless framed the issue before him as "whether [the] defendant's conviction nonetheless runs afoul of his federal and state constitutional rights." Id. at 362.

After reviewing the long line of cases chronicling our nation's foundational commitment to safeguarding a citizen's right to the sanctity of his or her home, Judge Garofolo rejected the State's argument that the police officers' conduct was justified based on public safety considerations. Id. at 362-64. As Judge Garafolo explained,

to require citizens to yield to police demands for entry into private dwellings in all circumstances would unfairly relegate the exercise of their constitutional right to an after-the-fact judicial process and would place upon them an undue burden to undertake litigation in order to seek redress. To qualify the exercise of a Fourth Amendment right in that fashion would essentially eviscerate the purpose of that amendment, which is to stop governmental intrusion at the door. One cannot be penalized for passively asserting that right.
[Id. at 364 (citation omitted).]

Judge Garafolo cautioned, however, that had the defendant "done something further than to orally deny entry to the police and close and lock his door, a contrary result might be required." Ibid.

Here, the Law Division judge distinguished Berlow by noting that,

there's no testimony that [Captain Tourner] entered the residence . . . rather he indicated he was trying to get closer to the home, to yell into the house for everyone to come out. . . . [Mrs. Theodore] was initially arrested for blocking the path of Captain [Tourner] when he went to arrest David Romilus, not for prohibiting police entrance into her residence.

Addressing next the charge of simple assault against Jessica, the Law Division relied on our decision in State ex rel. S.B., 333 N.J.Super. 236 (App. Div. 2000), to find that Jessica's act of grabbing Captain Tourner's arm, which he conceded did not cause him any physical pain, was sufficient to find her guilty of simple assault.

Finally, turning his attention to Romilus and Janvier, the Law Division judge found them both guilty of disorderly conduct under N.J.S.A. 2C:33-2. The judge rejected defendants' argument that neither one of them incited those gathered to take any action against the police. Although calling the evidence against Romilus on this issue "a closer case, " the judge found that Janvier caused a risk of harm or a dangerous condition by shouting "into the crowd" and "into a highly emotional area."

With respect to Romilus, the judge found that "he inserted himself into the . . . confrontation between the -- Captain [Tourner] and [Mrs. Theodore], and created a -- a physically dangerous condition." The judge gave the following explanation for finding Janvier guilty of disorderly conduct:

Language can constitute an act, in my view, and the language in this particular case when you have the police going into a neighborhood where somebody was just murdered, and -- and who these people presumably believe that the police were somehow involved in that killing. And then yelling to the people that they're racists and they're abusive, is clearly meant, in my view, to create a hazardous or physically dangerous condition. There's no legitimate purpose to the actor.


Against this record, defendants now appeal raising the following arguments:


After reviewing the record before us, mindful of our standard of review, see State v. Locurto, 157 N.J. 463, 474 (1999), we affirm Mrs. Theodore's conviction and reverse the convictions against Jessica, Romilus, and Janvier, remanding the matter to the Law Division for an entry of a judgment of acquittal as to these three defendants.

We will first elaborate on our standard of review. We are bound to defer to a trial court's factual findings provided they are supported by sufficient credible evidence on the record. Id. at 471. We will also accord "deference to those findings of the trial judge which are substantially influenced by his [or her] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). With respect to determinations of law, however, our review is plenary. State v. Handy, 206 N.J. 39, 45 (2011).

We start our analysis by reaffirming the "special status" and unique privacy protections afforded a person's home under the Fourth Amendment of our nation's constitution, and Article I, Paragraph 7, of our State's constitution. Welsh v. Wisconsin, 466 U.S. 740, 748, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732, 742 (1984); State v. Johnson, 193 N.J. 528, 554 (2008). "The warrant requirement protects an individual in his home from official intrusion whether the purpose of the search is to further a criminal investigation or the government's enforcement of an administrative regulation." State v. Vargas, 213 N.J. 301, 313 (2013) (citing Camara v. Mun. Court of S.F., 387 U.S. 523, 530, 87 S.Ct. 1727, 1732, 18 L.Ed.2d 930, 936 (1967)). The entry by the police into a person's home without a warrant is presumptively invalid; the State thus bears the burden of establishing the validity of the entry, by demonstrating that it falls within one of the few well-delineated exceptions to the warrant requirement. Id. at 314.

Here, the Law Division found, and the State maintains on appeal, that Captain Tourner did not enter Mrs. Theodore's home when he arrested her for blocking his path to arrest her brother Romilus. It is undisputed that the encounter between Captain Tourner and Mrs. Theodore occurred on the steps leading directly to the front entrance of Mrs. Theodore's home. In State v. Johnson, 171 N.J. 192 (2002), the Court defined the scope of the Fourth Amendment's protections under the constitutional concept of "curtilage, " writing:

It is settled law that certain lands adjacent to a dwelling called the curtilage have always been viewed as falling within the coverage of the Fourth Amendment. Whether a part of the curtilage is afforded Fourth Amendment protection depends on the proximity of the area to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by. It is also settled that a portion of the curtilage, being the normal route of access for anyone visiting the premises, is only a semi-private area. Thus, when the police come on to private property to conduct an investigation or for some other legitimate purpose and restrict their movements to places visitors could be expected to go (e.g., walkways, driveways, porches), observations made from such vantage points are not covered by the Fourth Amendment.
[Id. at 208-09 (alterations omitted) (emphasis added) (citations and internal quotation marks omitted).]

It is thus clear that Captain Tourner's encounter with Mrs. Theodore occurred in an area of her home that does not enjoy the traditional constitutional protections afforded to a place of abode.

A person is guilty of the disorderly person offense of obstructing the administration of law if she "purposely obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from lawfully performing an official function by means of flight, intimidation, force, violence, or physical interference or obstacle." N.J.S.A. 2C:29-1(a) (emphasis added). The evidence supports the Law Division's finding that Mrs. Theodore purposely obstructed Captain Tourner from arresting her brother Romilus. Whether Captain Tourner's decision to take such action was unwise or insensitive to the tragic circumstances facing the Theodore family that woeful day is beyond the authority of this court to decide. Mrs. Theodore's conviction for obstruction must stand as a matter of fact and law.

We turn next to Romilus's conviction for disorderly conduct. Under N.J.S.A. 2C:33-2(a):

[a] person is guilty of a petty disorderly persons offense, if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he
(1) Engages in fighting or threatening, or in violent or tumultuous behavior; or
(2) Creates a hazardous or physically dangerous condition by any act which serves no legitimate purpose of the actor.
[N.J.S.A. 2C:33-2(a) (emphasis added).]

And, under N.J.S.A. 2C:2-2(b)(1):

[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. A person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances or he believes or hopes that they exist. "With purpose, " "designed, " "with design" or equivalent terms have the same meaning.
[N.J.S.A. 2C:2-2(b)(1) (emphasis added).]

Finally, under N.J.S.A. 2C:2-2(b)(3):

[a] person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation. "Recklessness, " "with recklessness" or equivalent terms have the same meaning.
[N.J.S.A. 2C:2-2(b)(3) (emphasis added).]

Captain Tourner explained his exact basis for arresting and charging Romilus for disorderly conduct:

Q [Y]ou and Mrs. Theodore are standing on the stairway [leading to the entrance of the house].
A Right. I'm halfway up. She came a step or two down.
Q And Mr. Romilus says what?
A He says, you need to leave.
Q What else does he say?
A Pretty much that, you're not coming in.
Q What else does he say?
A That's about it.
Q Do you consider that to be defiant?
A Very much so.

Later on cross-examination Captain Tourner testified that Romilus also said that he "better go." Captain Tourner testified that he inferred that Romilus meant to say the following: "[T]hink about it, you better do the right thing, you better do what's good for you, you better understand what's happening. . . . In other words, I was making a bad judgment call in his mind, that I better rethink this whole thing." (Emphasis added).

The Law Division judge found Captain Tourner's testimony credible. Based on these facts, the judge found Romilus guilty of disorderly conduct because he "inserted himself" into the "confrontation" between Captain Tourner and Mrs. Theodore and created a "physically dangerous condition." The record does not support the trial judge's findings. Based on Captain Tourner's description of Romilus's words and actions, there is no rational basis to find that Romilus purposely or recklessly caused "public inconvenience, annoyance or alarm" or created "a hazardous or physically dangerous condition." In short, the State did not meet its burden of proving beyond a reasonable doubt that Romilus's conduct amounted to disorderly conduct. State v. Stampone, 341 N.J.Super. 247, 255 (App. Div. 2001).

The Law Division also found Janvier guilty of disorderly conduct. Again, the trial court's findings were based entirely on Captain Tourner's testimony. On direct examination, Captain Tourner testified that, after Mrs. Theodore and Romilus were arrested, he yelled into the house for everyone inside to leave. At this point, Janvier said something that, in Captain Tourner's view, constituted "inciting the crowd." When asked by the prosecutor what specific words Janvier uttered that formed the basis for his arrest, Captain Tourner replied, "I can't remember any words in particular."

On cross-examination, Captain Tourner conceded that Janvier was charged with inciting the crowd and did not use offensive or profane language toward the police or the crowd. Despite this, he ordered Janvier arrested because he was "yelling out to the crowd" allegations of abuse and racism.

Based exclusively on Captain Tourner's testimony, the Law Division judge found Janvier guilty of disorderly conduct. Although earlier stated herein, we restate the judge's findings in the interest of clarity:

Language can constitute an act, in my view, and the language in this particular case when you have the police going into a neighborhood where somebody was just murdered, and . . . who these people presumably believe that the police were somehow involved in that killing. And then yelling to the people that they're racists and they're abusive, is clearly meant, in my view, to create a hazardous or physically dangerous condition. There's no legitimate purpose to the actor.

[(Emphasis added).]

The trial court's findings are not supported by Captain Tourner's testimony. There was no evidence presented at trial that the people who were gathered to mourn Curtis's passing believed the police were in any way responsible for causing his death. Based on Captain Tourner's candid concession on direct examination, the record is devoid of a clear understanding of what Janvier actually said that triggered his arrest. No rational fact finder could determine that the State presented sufficient evidence to prove Janvier committed this offense beyond a reasonable doubt. Stampone, supra, 341 N.J.Super. 247.

Accepting, arguendo, that, after witnessing Mrs. Theodore, Jessica, and Romilus arrested, Janvier expressed his opinion that the police's actions were unfair, unjust, and possibly motivated by racial animus or at least insensitivity, there is nothing in the record that supports the trial court's conclusion that Janvier "clearly meant to create a hazardous or physically dangerous condition." The State did not present any evidence that those gathered in and around the Theodore residence (other than defendants, three of whom were close family members of the murdered youth) behaved unruly or were at any time uncooperative with the police. In short, there is no evidential support for the Law Division judge's mischaracterization of the event.

We finally turn our attention to Jessica's conviction for simple assault. According to Captain Tourner, as he removed Mrs. Theodore's hand from the handrail to place her in handcuffs, Jessica "grabbed a hold" of his right arm while he was hanging on to her mother's arm. Captain Tourner momentarily released Mrs. Theodore and escaped from Jessica's grip. He ordered another officer to handcuff Mrs. Theodore while he restrained Jessica. It is not disputed that Captain Tourner did not feel any pain or suffer any discomfort from this brief encounter with Jessica.

A person commits the disorderly persons offense of simple assault if she "[a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another." N.J.S.A. 2C:12-1(a)(1) (emphasis added). "'Bodily injury' means physical pain, illness or any impairment of physical condition." N.J.S.A. 2C:11-1(a). Here, the Law Division misapplied our decision in S.B., supra, 333 N.J.Super. 236, to find Jessica guilty of this offense. In S.B., a teacher was kicked in his left leg by one of two students embroiled in a physical fight, as the teacher attempted to separate the students. Id. at 239. The teacher "felt the impact of the kick, but was not in any particular pain." Id. at 239-40. On cross-examination, the teacher testified that as soon as he felt the kick he "went down and grabbed his leg." Id. at 244.

Against this record, we upheld the trial court's findings noting that,

physical discomfort, or a sensation caused by a kick during a physical confrontation, as well as pain, as that word is commonly understood, is sufficient to constitute bodily injury for purposes of a prosecution for simple assault. Indeed, here [the teacher] did not say he did not suffer pain, he said he did not suffer any "particular" pain.


Here, by contrast, Captain Tourner testified as follows, explaining his understanding of the law: "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." There is thus no evidential support for Jessica's conviction for simple assault. Locurto, supra, 157 N.J. at 474.


Defendant Chantal Theodore's conviction for obstructing the administration of law is affirmed. The convictions of defendants David Romilus and Walter Janvier for disorderly conduct are reversed. Defendant Jessica Theodore's conviction for simple assault is reversed. The matter is remanded to the Law Division for an entry of judgment of acquittal as to these three defendants.

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