LAURA SILVA v. JOHNNIE RAMOS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2950-04T12950-04T1

LAURA SILVA,

Plaintiff-Respondent,

v.

JOHNNIE RAMOS,

Defendant-Appellant.

__________________________________________________________

 

Submitted September 20, 2005 - Decided

Before Judges Kestin and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, FV-796-05.

Patrick J. Caserta, attorney for appellant.

Respondent did not participate in the appeal.

PER CURIAM

In this appeal, we are required to determine whether defendant's actions qualify as domestic violence. We hold they do not.

Defendant, Johnnie Ramos, and plaintiff, Laura Silva, had a live-in relationship but on or about January 2004 they separated. The two parties had one child together and plaintiff has a second child from a prior relationship with a different man. After the couple separated, plaintiff became unemployed and she could not afford her new home. Defendant allowed her to move back into his residence, the one they had previously shared, and he moved out.

On January 16, 2005, defendant did not show up to pick up their daughter for visitation as earlier arranged. By not showing up, defendant also failed to honor an agreement that he would pick up his personal property that was stored in the garage when he moved out. When defendant failed to arrive, plaintiff put defendant's property outside the premises even though she knew the weather forecast predicted that snow was very likely. Plaintiff claims to have done so because she had placed a lock on the garage door and might not have been home when defendant finally arrived. At 4:45 p.m., defendant called to see if he could still pick up their daughter, but plaintiff refused. Plaintiff, however, instructed defendant to come to the house anyway because she had placed his property outside.

On January 17, 2005, when defendant arrived at the residence, he observed that some of his furniture and other items had been damaged by the snow. He lost his temper. He banged on the doors and windows of the house, but plaintiff did not respond. Defendant called her "a chicken" and repeatedly asked her to come outside. Plaintiff testified she had retreated to the rear of the house with her two daughters. Not only did plaintiff refuse to respond to defendant's shouts, she also did not answer when defendant used his cell phone to call her. Defendant left plaintiff a voicemail message in which he stated, "you want f...ing war, you've got it."

In his frustration and anger, defendant used a sledgehammer to smash some of his damaged property. He placed the undamaged property in his car. He then called the local Montville police and reported the incident. Plaintiff did not call the police because she asserts defendant has done this before and always leaves after doing what he needs. When he does things of this nature, she stated she does not pay any attention to him.

The trial court concluded defendant knew or should have known his conduct would upset and annoy and cause alarm to plaintiff, which was the result. Although the court found there were no terroristic threats, it concluded there was harassment to support the issuance of a Final Restraining Order (FRO), under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35.

With plaintiff's agreement, the FRO was subsequently dissolved. Defendant has nevertheless appealed and continues to contest the finding that he had committed an act of domestic violence because he is a sheriff's officer in Morris County whose authority to carry and possess firearms is restricted while the Morris County Prosecutor's Office evaluates the situation. He argues there was no purpose to harass, an essential element of the offense. We agree and reverse.

"Domestic violence" is a term of art which defines a pattern of abusive and controlling behavior injurious to its victims. Peranio v. Peranio, 280 N.J. Super. 47, 53 (App. Div. 1995). The legislative history of the Prevention of Domestic Violence Act of 1991 demonstrates the Legislature was focused on "regular serious abuse between spouses." Ibid. "The law mandates that acts claimed by a plaintiff to be domestic violence must be evaluated in light of the previous history of violence between the parties including previous threats, harassment and physical abuse, and in light of whether immediate danger to person or property is present." N.J.S.A. 2C:25-29a(1) and (2). "This requirement reflects the reality that domestic violence is ordinarily more than an isolated aberrant act and incorporates the legislative intent to provide a vehicle to protect victims whose safety is threatened." Peranio, supra, 280 N.J. Super. at 54.

The Act provides in N.J.S.A. 2C:25-19a that specifically enumerated offenses inflicted upon a person protected under the Act by an adult or an emancipated minor shall constitute domestic violence. Among these offenses is harassment, which N.J.S.A. 2C:33-4 defines, in pertinent part, as follows:

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.

A communication under subsection a. may be deemed to have been made either at the place where it originated or at the place where it was received.

N.J.S.A. 2C:33-4

The communication in this case was not made anonymously nor at an extremely inconvenient hour. It occurred at about 5:45 in the evening. Although profanity was used, we do not find the language was so offensively coarse that it was likely to cause annoyance or alarm. In short, we do not find and the court below did not conclude that defendant violated N.J.S.A. 2C:33-4a.

The provision of the harassment statute at issue here is N.J.S.A. 2C:33-4c. "Integral to a finding of harassment under N.J.S.A. 2C:33-4c is the establishment of the purpose to harass," as well as "a course of alarming conduct or repeated acts intended to alarm or seriously annoy another." Peranio, supra, 280 N.J. Super. at 55 (citations omitted). "'Purposeful' or 'with purpose' is the highest form of mens rea contained in our penal code, and the most difficult to establish." State v. Duncan, 376 N.J. Super. 253, 262 (App. Div. 2005). N.J.S.A. 2C:2-2b(1) provides in relevant part:

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.

The trial court stated that defendant knew or should have known his conduct would annoy or alarm plaintiff, but it did not find that defendant engaged in his demonstrative actions for the purpose of harassing plaintiff. Compare Peranio, supra, 28 N.J. Super. at 55 (the words "I'll bury you," evaluated in context, were not uttered with an intent to harass); Corrente v. Corrente, 281 N.J. Super. 243, 249 (App. Div. 1995) (calls to plaintiff's place of employment and the turning off of the phone were not intended to harass). To be sure, defendant here vented his rage about damage to his property. Plaintiff had placed defendant's property outside and some of it was damaged by the snow. Yet, defendant's understandable anger was not specifically directed at plaintiff nor undertaken for the purpose of harassing her. Rather, defendant's wrath was directed at objects he owned. Plaintiff was not in the immediate proximity and she was not in imminent danger of physical harm at the time. Since she did not call the police, it can be inferred that she was not in fear for her safety. Plaintiff indicated she "did not call the police because when he does things of this nature, she does not pay any attention to him."

The judge commented on defendant's "history of a great deal of jealousy and anger," but this was not the result of jealousy or a desire to control plaintiff. Plaintiff testified defendant had never physically abused her, and the record simply does not reflect a history of threats, harassment, physical or mental abuse or violence between plaintiff and defendant.

Defendant did not act with a purpose to annoy or alarm plaintiff. We observe that in the heat of the moment defendant vented his anger and frustration inappropriately. Upon recognizing that he had acted inappropriately, defendant, himself, called the police. The trial court reasoned defendant made that call because he knew or should have known that his conduct would upset and annoy and cause alarm to plaintiff, but that does not satisfy the purposefulness requirement of N.J.S.A. 2C:33-4. In proper context, we hold defendant's actions do not qualify as harassment under our statute.

 
Reversed.

By letter dated June 21, 2005, counsel for plaintiff informed this court that plaintiff "does not oppose the remedy sought by [defendant] in this appeal."

(continued)

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8

A-2950-04T1

RECORD IMPOUNDED

November 17, 2005