STATE OF NEW JERSEY v. KEVIN HUTTMAN

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3771-05T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

V.

KEVIN HUTTMAN,

Defendant-Appellant.

_______________________________________

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October 30, 2006

Submitted October 12, 2006 - Decided

Before Judges Sapp-Peterson and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FO-14-109-06.

Evan F. Nappen, attorney for appellant (Louis P. Nappen, on the brief).

Michael M. Rubbinaccio, Morris County Prosecutor, attorney for respondent (Joseph Connor, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

After a one-day bench trial on March 7, 2006, defendant Kevin Huttmann was convicted of contempt for violating an outstanding domestic violence restraining order, contrary to N.J.S.A. 2C:29-9(b). He was sentenced to a one-year term of probation, conditioned on a mental health evaluation, and fifty hours of community service. Defendant appeals the Family Part judge's finding of guilt, which we affirm.
The pertinent facts are as follows. Defendant had a dating relationship with K.S. See footnote 1 from May 2004 through the early part of 2005. Shortly after their relationship ended, K.S. procured a Temporary Restraining Order (TRO) against defendant in the Family Part, on or about March 25, 2005. See footnote 2 A Final Restraining Order (FRO) was issued several days later on March 30, 2005. The FRO contains a finding by the Family Part judge that defendant committed domestic violence by his "continued harassing communication" with K.S. As is customary, the FRO continued to prohibit defendant from having contact with K.S. and also required defendant to surrender any firearms in his possession.
The evidence from the contempt trial shows that on July 13, 2005, at about 7:30 in the morning, defendant went to the private gym where K.S. was doing her routine workout. Defendant approached the treadmill where K.S. was exercising. He started to pace in front of her and yell. According to K.S., defendant was ranting about his displeasure with her actions and about his desire to recover his hunting weapons from the police. This irate behavior caused K.S. to get off the treadmill and run to the front desk, where she asked an employee to call 9-1-1 for her. Defendant then fled the building.
Less than five minutes later, a local police officer, Patrolman James Lommatzsch, responded to the emergency call. The patrolman interviewed K.S., who he found to be "very upset [and] very excited." She explained what had transpired at the treadmill. The patrolman next interviewed defendant, who was sitting in his car in the gym parking lot and who likewise appeared to be upset. According to the patrolman's trial testimony, defendant admitted to speaking to K.S. Defendant advised the patrolman that he had specifically asked K.S. to drop her restraining order in order to get back his guns and other belongings. The patrolman then verified that an active restraining order against defendant was in place. The officer arrested the defendant and drove him to police headquarters, where a contempt citation was prepared.
Two witnesses testified at the contempt trial: Patrolman Lommatzsch and the complainant K.S. Defendant did not testify or produce any witnesses. Following the testimony and the arguments of counsel, Judge Thomas Weisenbeck found defendant guilty of violating the domestic violence restraints and imposed the penalties we have already noted.
On appeal, defendant raises the following arguments:

POINT I
 
THE COURT BELOW ERRED BY CONVICTING THE APPELLANT OF VIOLATING A FINAL RESTRAINING ORDER (FRO) OF WHICH THE APPELLANT HAD NO ACTUAL KNOWLEDGE OR SERVICE

POINT II
 
THE COURT BELOW ERRED BY CONVICTING THE APPELLANT OF VIOLATING A TEMPORARY RESTRAINING ORDER (TRO) WHICH WAS NEVER ENTERED INTO EVIDENCE AND WHOSE TERMS ARE UNKNOWN

POINT III
 
THE COURT BELOW ERRED BY FAILING TO MAKE A FINDING AS TO WHICH RESTRAINING ORDER WAS VIOLATED, THE UNSERVED FRO OR THE TRO NOT PLACED IN EVIDENCE

After careful consideration of the record and the applicable law, we are unpersuaded by these arguments. Hence, we affirm defendant's conviction, substantially for the reasons set forth in Judge Weisenbeck's oral opinion of March 7, 2006. We do add a few comments.
Defendant makes much of the circumstance that the "return of service" section of the FRO was blank at the time of trial, and that there was no specific testimony confirming that he had been served with the FRO before his gym club encounter with K.S. on July 13, 2005. See footnote 3 He argues that he cannot be found guilty of purposely or knowingly violating a restraining order without proof that he was aware of the order at the time of his actions. See State v. Chenique-Puey, 145 N.J. 334, 341-42 (1996). However, a defendant need not have been physically served with a restraining order to have been aware of its existence. "The law has long been settled that a contempt action may proceed against a defendant who has actual knowledge of the restraints imposed, even though the injunction was not . . . served." State v. Mernar, 345 N.J. Super. 591, 594 (App. Div. 2001). Moreover, such knowledge, like any other element of the offense, may be proven by circumstantial evidence. See State v. Finamore, 338 N.J. Super. 130, 138 (App. Div. 2001)(in deciding whether the State has proven beyond a reasonable doubt that a defendant knowingly violated a restraining order, a trial judge may consider "all relevant evidence" on that issue); see also State v. Mayberry, 52 N.J. 413, 437 (1968)(noting that circumstantial evidence is properly admitted in criminal cases and at times is "more forceful and persuasive than direct evidence").
Here, there is ample circumstantial proof that defendant knew that he was subject to a domestic violence restraining order when he confronted K.S. on the treadmill. According to K.S., defendant was agitated about getting his guns back, which is indicative of his recognition that the restraints which had led to the seizure of his firearms were still in effect. When K.S. had a call placed to 9-1-1, defendant fled the gym, consistent with a consciousness of guilt. Additionally, Patrolman Lommatzsch testified that defendant specifically acknowledged, during the course of his interview in the parking lot, that he had asked K.S. inside the gym to "drop the restraining order." See footnote 4 All of these proofs strongly corroborate that defendant was acutely conscious on the morning of July 13, 2005 that he was prohibited by court order from having contact with K.S.
Although we do regard defendant's contempt offense as being predicated upon the FRO, it is of no moment whether the conviction flows out of a violation of the original TRO or of the succeeding FRO. No proof is before us that the TRO was ever dissolved or suspended before the FRO was issued on March 30, 2005. This is not a situation in which defendant could have harbored a reasonable belief that the restraints on his behavior were no longer in force when he tracked down K.S. at the gym. Additionally, the FRO extending those restraints indefinitely into the future was placed in evidence at trial, without any objection from defendant's counsel.
For similar reasons, we reject defendant's contention that he was denied due process of law. In this regard, defendant's citation to the constitutional precepts of notice, as espoused in H.E.S. v. J.C.S., 175 N.J. 309, 321-22 (2003), is inapposite here. This case is not akin to H.E.S., where a finding of domestic violence was improperly based upon a charge that had not been contained in the complaint. See Id. at 321-25. Here, defendant's own actions show that he knew very well that he was subject to the restraining order, and that he persisted in contacting K.S. in spite of that order. Defendant has not been ambushed; to the contrary, he has been given a fair chance to conform his behavior and thereafter to plan his defense.
All other points and subsidiary points raised by defendant lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).
In sum, we sustain defendant's conviction, one which is supported by substantial credible evidence. State v. Johnson, 42 N.J. 146, 161-62 (1964).
Affirmed.
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Footnote: 1 Although the record is not impounded, we perceive no reason to refer to K.S. by name in this opinion.
Footnote: 2 The TRO is not part of the record. However, the Final Restraining Order (Exhibit S-1 in evidence) recites that K.S. filed her domestic violence complaint on March 25, 2005, which ordinarily would be the same date that a judge considered her application for temporary restraints.
Footnote: 3 As requested by defendant, we ignore the computer printout, which was included in the State's appendix on appeal, reflecting the status of service of the FRO, since the printout was not part of the evidence at trial. We do so for the sake of argument without reaching the issue of whether we can properly take judicial notice of the printout as a court record under R. 2:5-4(a) and N.J.R.E. 201(b)(4).
Footnote: 4 We are mindful that K.S. denied on cross-examination that defendant specifically mentioned "the restraining order" while he was berating her on the treadmill. Nonetheless, we accept the trial judge's factual determination accepting the police officer's competing version of defendant's statements. See State v. Locurto, 157 N.J. 463, 470-71 (1999)(requiring deference to a trial judge's factual determinations and "feel of the case") (quoting State v. Johnson, 42 N.J. 146, 161 (1964) (internal quotations omitted)).

A-