STATE OF NEW JERSEY v. DONNA L. SLOTA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0042-05T50042-05T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONNA L. SLOTA,

Defendant-Appellant.

____________________________

 

Submitted September 11, 2006 - Decided October 11, 2006

Before Judges Lintner and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, F0-18-460-05.

Mathews, Shepherd, McKay & Bruneau, attorneys for appellant (Moira J. Selinka, on the brief).

Wayne J. Forrest, Somerset County Prosecutor, attorney for respondent State of New Jersey (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

Respondent Stephen Slota did not file a brief.

PER CURIAM

Defendant, Donna Slota, appeals from a trial court order, entered after a bench trial, finding her guilty of violating an amended domestic violence final restraining order (FRO), N.J.S.A. 2C:29-9(b), and sentencing her to probation and psychological counseling. We reverse the conviction because the facts as found by the trial judge do not support the conclusion that defendant violated the FRO.

I

During the relevant time period, defendant and her husband were involved in divorce proceedings including a dispute over custody of their four year old son. A May 12, 2005 final restraining order prohibited defendant from contacting her husband and their son, "except as per parenting time and phone calls to son by defendant." On May 23, 2005, an amended order was entered which permitted supervised visits with the son, as well as "telephone contact."

Defendant was charged with harassment and violating the May 23 FRO, for making repeated telephone calls to her husband on June 5, 2005, between the hours of 8:50 p.m. and 9:40 p.m.

At the trial, her husband testified that defendant called him "four or five" times, cursing him, asking if he still cared about her, threatening to commit suicide, and saying that she did not want to see their son anymore. He testified that in her final call to him, defendant asked him if he had called the police.

On cross-examination, he admitted that he refused to allow defendant to speak with their son. He contended that his refusal was based on a telephone conversation with their son that occurred earlier that day, in which defendant had told their son to tell him "to go fuck himself." Defendant's husband, however, admitted that he had not included this alleged incident in a contemporaneous list he had made of problematic encounters with defendant. He also admitted that he had Caller ID on his telephone and that he could have refrained from picking up the phone on defendant's subsequent calls.

Defendant made a motion for a directed verdict of acquittal at the close of the State's case. The trial judge denied the motion, concluding that the facts to which the husband testified, including the cursing and suicide threats, could support a guilty verdict on both charges.

Defendant's counsel stipulated that defendant made repeated phone calls, but contended that they were not in violation of the FRO, because she was calling to speak to her son, which the FRO permitted. Defendant testified that the first time she called she was able to speak to her son briefly, before her husband "hung up the phone." She testified that she called back "[b]ecause I wanted to finish my conversation with my son. I didn't want him to get upset." She testified that she called back repeatedly because her husband kept hanging up the phone and refusing to allow her to speak to their son. Defendant denied cursing at defendant or telling their son to curse at him. She also denied threatening to commit suicide. She also contended that "[i]t's happened quite often" that her husband would hang up the telephone while she was speaking to their son. The prosecutor did not cross-examine her.

The trial judge concluded, and we agree, that since the son was very young, the FRO necessarily contemplated that defendant would call the house and speak to her husband in order to have contact with the son. The judge concluded that the repeated telephone calls were a violation of the FRO because, after the first time the husband told defendant she could not talk to their son, defendant knew that when she called back she would be talking to her husband.

[B]ecause these domestic violence restraining orders are taken very seriously, strictly, and . . . literally . . . once she had said, may I speak with my son . . . and that didn't happen, she has to hang up and the Court finds that she knew in those last three phone calls, even accepting her version of what was said, that she was going to be speaking with Mr. Slota and that she was going to be engaging him in an argument, which, in fact, she did on at least one such call. And so I find that the State has demonstrated the knowingly aspect of the N.J.S.A. 2C:29-9(b) offense.

The judge then reasoned that defendant had also committed "an actual violation of the restraining order."

[D]efendant spoke with . . . the victim in this case, and she engaged in a conversation and then called him back again after that and that tells this Court that, again, she was calling knowing that she was not going to be allowed to speak with her son, so the calls themselves were violations and the substance of what she said in engaging in argument, even if it was a minimal amount of argument, is a violation.

The judge, however, declined to make specific credibility determinations with respect to the parties' diametrically opposing versions of the facts:

Even if I found the parties equally credible, and I find no reason not to, although clearly one of them is not telling the truth about the substance of the conversations, based on the defendant's testimony alone, this conviction could stand.

She found defendant not guilty of the charge of harassment, because she could not find beyond a reasonable doubt that defendant cursed or threatened suicide. Nor did she find that defendant's making three phone calls after being told she could not talk to her son constituted harassment:

Now, on the harassment, 2C:33-4, I don't know what was said and, because I don't know what was said on the phone calls other than what defendant admits, I find that the State has not proven harassment beyond a reasonable doubt because I don't know if the defendant swore at her husband and I don't know if she threatened to commit suicide, nor do I find that three phone calls after being told that she couldn't speak with her son constitute harassment. They certainly constitute a violation of a domestic violence restraining order, but they don't constitute harassment. . . . [T]he victim of domestic violence is entitled to be left alone.

II

We will defer to a trial court's factual findings provided "'the findings made could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Locurto, 157 N.J. 463, 471 (1999) (citation omitted); Cesare v. Cesare, 154 N.J. 394, 412 (1998). We will not disturb the trial court's conclusions drawn from those facts unless they are "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412. (citation omitted). On the other hand, we owe no special deference to a trial court's "interpretation of . . . the legal consequences that flow from established facts." Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

We have previously noted the difficulty we face where a trial court does not "resolve the credibility contest" between parties to a domestic violence case. Peterson v. Peterson, 374 N.J. Super. 116, 122 (App. Div. 2005). In this case, the credibility disputes between defendant and her husband were critically important.

If defendant's testimony is accurate, she was only calling her husband for the purpose of trying to speak to their son, which was permitted under the FRO. According to her testimony, her husband was violating the FRO by refusing to let her speak to the child, and she was attempting to assert her rights under the FRO by making repeated phone calls. Even if she should have anticipated getting into an argument with her husband if she did so, her actions do not constitute a knowing violation of the FRO. Indeed, the verdict in this case only makes sense if the judge actually believed the husband's testimony, but she did not make such a finding. Instead, she concluded that she could not determine which witness was telling the truth. That factual conclusion fatally undermines the defendant's conviction.

In State v. Finamore, 338 N.J. Super. 130 (App. Div. 2001), we emphasized the importance of a finding that a defendant intentionally violated a domestic violence FRO, particularly where the FRO is unclear in its prohibitions against contact between the parties:

The trial judge never specifically found that defendant had the requisite state of mind to violate N.J.S.A. 2C:29-9b. Defendant was not charged with violating a restraining order by conduct that constituted "a crime or disorderly persons offense," so it cannot be argued that finding defendant guilty implicitly included a finding of a specific mens rea. Defendant was convicted of the disorderly persons offense of knowingly violating a restraining order. Unfortunately, that finding was made without any real consideration of an essential element of the offense-defendant's state of mind. In light of all the factors we have mentioned, we are satisfied the proofs, as a matter of law, cannot support a finding beyond a reasonable doubt that defendant knowingly violated a restraining order.

[Id. at 138-39.]

We reach a similar conclusion here. The FRO was not a model of clarity, but it plainly contemplated that defendant would need to call her husband to initiate telephone contact with their son. If, as defendant testified, her purpose in telephoning her husband, even repeatedly, was to try to contact their son, she was not intentionally violating the FRO. At most, the facts as found by the trial court would warrant an admonition to defendant to seek the court's intervention if, on a future occasion, her husband refused to let her speak to their son. Defendant's criminal conviction is not supported by this record. "The Domestic Violence Act affords critically needed protections in appropriate situations. It was not intended to attempt to regulate and adjudicate every loss of temper, angry word, or quarrel between persons connected by a familial relationship." State v. Wilmouth, 302 N.J. Super. 20, 23 (App. Div. 1997)

Reversed.

 

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9

A-0042-05T5

RECORD IMPOUNDED

 

October 11, 2006