STATE OF NEW JERSEY v. JEFFREY D. ODOM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4854-07T44854-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEFFREY D. ODOM,

Defendant-Appellant.

_________________________________________

 

Argued August 10, 2010 - Decided

Before Judges Sabatino and Ashrafi.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FO-20-239-08.

Randy P. Davenport argued the cause for appellant.

Sanjay Sethi, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Mr. Sethi, on the brief).

PER CURIAM

Defendant Jeffrey Odom appeals from his conviction after a bench trial of disorderly persons contempt for violation of a domestic violence restraining order, N.J.S.A. 2C:29-9b. We affirm.

At his trial, defendant stipulated that his ex-wife, G.S., had obtained a restraining order against him in early 2007 pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, and that the restraining order had been served upon him. The order barred defendant from the residence of his ex-wife and from having any contact or communication with her.

According to the testimony of G.S., on February 10, 2008, shortly after 4:30 p.m., she stepped outside her residence to smoke a cigarette. She saw defendant walking on her driveway toward his white truck parked at the end of the driveway. Defendant turned toward her and smirked, and then got into the truck and drove away, passing by the house again before leaving the area. She called the police to report the violation, and defendant was charged.

Defendant testified and denied that he had been at or near his ex-wife's residence. He testified that he was sick on the date alleged, and he was home all afternoon watching television and making phone calls. Defendant testified he was living on the bottom floor of his mother's bi-level house. His mother was upstairs in her living area the entire day and had called to him several times that afternoon, mainly about getting a roast into the oven.

In addition, defendant had made six or seven phone calls that day to a friend, Sharon Baldwin, and the calls were documented by his cell phone bill. From the billing record, defendant testified that he had called Baldwin at 3:55 p.m. and at 5:08 p.m. He also testified that all the calls were made from his residence.

The defense called police officer Marcus Giametta, who testified that he went to defendant's home at 6:30 p.m. that evening to notify defendant of the charge. Giametta testified that he touched the hood of defendant's white Ford Explorer to see if the engine was warm as evidence of whether it had recently been driven. The hood was cold. The officer also testified that it was still fairly light out at about 5:20 p.m. that day when he spoke to G.S. at her home, and that defendant's residence is less than two miles from G.S.'s home.

Sharon Baldwin and defendant's mother, Violet Lambert, testified as alibi witnesses for defendant. Baldwin testified about several telephone conversations she had that day with defendant, stating with certainty that she knew defendant was calling from his residence because she could hear the sound of his fish tank in the background. She testified that the call to her at 3:55 p.m. lasted a few minutes and the call at 5:08 p.m. lasted about half an hour.

Lambert testified that defendant was home all day on February 10, 2008, and that she spoke to him several times from the top of the stairs to his area on the first floor. In rebuttal, the prosecution called Detective Carlos Rodriguez of the Union County Prosecutor's Office to impeach the testimony of defendant's mother. Rodriguez testified that he spoke to Lambert by telephone about two months after the incident, and she told him that she spoke to defendant at about noon on the date of the incident and then took a nap, not seeing him or speaking to him again until it was "getting dark."

In his decision, the trial judge discussed the conflicting testimony and found G.S. and the police officers credible but defendant and his alibi witnesses not entirely credible. The judge found that Baldwin's testimony did not account for defendant's whereabouts at the relevant time, and the testimony of defendant's mother had been discredited by her statement to Detective Rodriguez that she had slept most of the afternoon and did not see defendant at the time of the alleged offense. The police officer's testimony about the hood of the white Explorer being cold did not help the defense because it occurred at least one and a half hours after defendant allegedly drove the vehicle from G.S.'s house, and the temperature was in the twenties that evening in February. Based on these findings, the judge found defendant guilty of the offense.

This matter being defendant's first conviction of any kind, he was sentenced to one year of probation with conditions, fines, and money penalties. Defendant has completed service of his sentence.

On appeal, defendant makes the following arguments:

POINT I DEFENDANT'S CONTEMPT CONVICTION MUST BE

REVERSED BECAUSE THE EVIDENCE DOES NOT

SUPPORT A FINDING THAT DEFENDANT VIOLATED

A PROVISION OF A RESTRAINING ORDER ENTERED

UNDER THE PROVISIONS OF THE PREVENTION OF DOMESTIC VIOLENCE ACT. (Partially Raised

Below).

POINT II THE TRIAL COURT'S REFUSAL TO ADMIT

[G.S.]'S PRIOR INCONSISTENT STATEMENT

DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR

TRIAL.

The scope of appellate review is limited to determining whether the record contains substantial credible evidence supporting the findings of the trial court. State v. Adams, 194 N.J. 186, 203 (2008); State v. Chun, 194 N.J. 54, 88-89, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008); State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). An appellate court "may not 'engage in an independent assessment of the evidence as if it were the court of first instance.'" In re Taylor, 158 N.J. 644, 656 (1999) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)).

In particular, we must "give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Locurto, supra, 157 N.J. at 471 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

Here, the trial judge's credibility findings and conclusions are amply supported by the record. The judge found that defendant's alibi was not persuasive, and G.S.'s testimony was straightforward and credible that she saw defendant in her driveway at about 4:30 that afternoon. The telephone calls to Baldwin did not prove otherwise, since defendant could have made them on his cell phone from outside his residence, or he had plenty of time to travel the roundtrip distance of less than four miles from his residence to his ex-wife's home between the call to Baldwin at 3:55 and the next call at 5:08. Also, his mother's alibi testimony was successfully impeached by the rebuttal testimony of Detective Rodriguez that she had been taking a nap until dusk that day and could not have known her son's whereabouts at about 4:30 p.m. Finally, G.S.'s testimony was not impeached by alleged inconsistencies in what she told the police on the evening of the incident.

Defendant argues that the trial judge erred in denying admission of G.S.'s written statement to the police to impeach her testimony. At our request at the time of oral argument, counsel provided a copy of the handwritten statement, which was marked for identification at trial as defendant's exhibit D-1. At trial, defense counsel cross-examined G.S. about the absence from the statement of an allegation that defendant had been in her driveway. G.S. admitted that the statement said she observed defendant getting into his vehicle, which was in the street, but did not specifically state that he was in her driveway.

The trial court sustained the prosecutor's objection to admission of the handwritten statement to impeach G.S. The court appropriately cited N.J.R.E. 803(a), "Prior statements of witnesses," under which the statement could have been admitted. The court's ruling indicates that it did not find the contents of the statement to be inconsistent with G.S.'s trial testimony and also that admission of the written statement would be cumulative of her cross-examination testimony.

While not explicitly so stated, the court had discretion to exclude the handwritten version of the statement under N.J.R.E. 403 as needless presentation of cumulative evidence. See, e.g., State v. Burris, 145 N.J. 509, 534 (1996); State v. Dreher, 302 N.J. Super. 408, 458-59 (App. Div.), certif. denied, 152 N.J. 10 (1997), cert. denied, 524 U.S. 943, 118 S. Ct. 2353, 141 L. Ed. 2d 723 (1998). "[A]ppellate review of a trial court's application of the balancing test of N.J.R.E. 403 . . . is subject to the abuse of discretion standard, which sustains the trial court's ruling 'unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide [of] the mark that a manifest denial of justice resulted.'" State v. Lykes, 192 N.J. 519, 534 (2007) (quoting Verdicchio v. Ricca, 179 N.J. 1, 34 (2004)). In this case, the trial court's ruling was not so wide of the mark that it was a denial of justice to defendant, especially because the relevant contents of the statement were covered during G.S.'s testimony and the court took that testimony into consideration.

In addition, G.S.'s statement did not have strong probative value as impeachment of her trial testimony. Although G.S. did not write explicitly that she had observed defendant in her driveway, she wrote that "he is not allowed on the property" and that she believed defendant had damaged a planter on her property. In including those remarks, G.S. may have believed that she had adequately made the accusation that defendant had violated the restraining order by entering her property.

The court's exclusion from evidence of the handwritten statement was not reversible error.

Having concluded that the trial court's decision was based on sufficient credible evidence, and that the court properly considered any potential impeachment evidence offered by the defense, we have no basis to set aside defendant's conviction.

Affirmed.

 

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9

A-4854-07T4

RECORD IMPOUNDED

August 20, 2010