J.M.M v. A.P.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5896-09T2

J.M.M.,

Plaintiff-Respondent,

v.

A.P.,

Defendant-Appellant.

________________________________________________________________

April 12, 2012

Submitted October 4, 2011 Decided

Before Judges Yannotti and Espinosa.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-002929-10.

A.P., appellant pro se.

Respondent J.M.M. has not filed a brief.

PER CURIAM

Following an altercation at defendant A.P.'s home on May 11, 2010, three complaints seeking restraining orders pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, were filed. J.M.M. filed a complaint against A.P., the father of her child, alleging assault. T.P., who had a dating relationship with A.P. in the past, also filed a complaint against him, alleging assault. A.P. filed a complaint against T.P., alleging terroristic threats.1 After a hearing, the trial court granted the requests of each of the parties for a final restraining order (FRO). Defendant A.P. appeals from the entry of the order granted to J.M.M. against him.2 We affirm.

There was testimony regarding an unfortunate history among the parties, most of which need not be repeated here. However, some background information is required to provide a context for the evening of May 11, 2010. On Mother's Day, T.P. and J.M.M. learned that A.P. was having unprotected intercourse with each of them. T.P. and J.M.M. found this objectionable and chose to express their displeasure. On one occasion, J.M.M. took some of A.P.'s clothing, set it on fire in T.P.'s presence, and then posted a photograph of the occurence on Facebook.

T.P. testified that she accompanied J.M.M. to A.P.'s home to retrieve clothing belonging to J.M.M.'s child. A.P. appeared on the balcony and threw down a bag containing the clothing, which infuriated J.M.M. who then started ripping the mailboxes from the house. According to T.P., A.P. shouted from the balcony, "I have something for you all bitches[,]" and came downstairs. He opened the door and hit both J.M.M. and T.P. in the head with a steel baseball bat. He continued to strike T.P. on the leg and on her thigh, causing her to fall to the ground. T.P. stated she was injured and went to the hospital afterward to receive medical care. She denied allegations A.P. made against her but admitted her participation in the posting of the photograph on Facebook that depicted J.M.M. burning some of A.P.'s clothes.

Jasmine Irving, a friend of T.P.'s, remained in the car during the altercation. She observed the clothes thrown off the balcony, J.M.M. ripping the mailboxes off the building, and A.P. hitting J.M.M. and T.P. with the bat. She later accompanied them to the hospital where J.M.M.'s jaw had to be wired shut because it was broken.

J.M.M.'s testimony regarding the events of May 11 was consistent with that given by T.P. and Irving. She admitted going to A.P.'s home, getting angry when the clothes were thrown off the balcony, ripping the mailboxes off the building and throwing them at A.P. She testified that, while still on the balcony, A.P. said, "I got something for you all bitches." He then opened the door and swung the bat. She admitted grabbing his collar and punching him in the face. J.M.M. stated that A.P. hit her three times in the face, breaking her jaw in two places and creating a "knot on [her] head." J.M.M. testified that A.P. also hit T.P. with the bat, causing her to fall. She testified that she and T.P. never got inside the house; that they were all on the porch. J.M.M. admitted that A.P. tried to close the door and she kicked it back open, and that she threatened him.

J.M.M. also testified about a prior incident of domestic violence. She stated that on February 28, she and A.P. got into an argument when he took ten dollars from her wallet and announced he was going to buy "a bag of weed" instead of diapers for their daughter. She stated that A.P. told her to get out of his house and flung her approximately twenty feet from his front door down the steps to the curb.

Harold Wright, a friend of A.P.'s, testified that he arrived at A.P.'s residence the evening of May 11 to see T.P. and J.M.M. yelling and screaming at A.P.'s door. He stated A.P. opened the door and described the incident as follows:

And right when he opened the door [J.M.M.] was the first one up the steps and he proceeded, like, to back up. He backed into the hallway while swinging the bat. And [J.M.M.] ran into it.

Wright also testified that A.P. never left the house with the bat in his hand. Wright's sister, Christine Mann, gave a similar account. She stated that the two ladies were trying to get into the house and shouted that they wanted to beat A.P.'s mother up. Mann testified further that on Mother's Day, T.P. and J.M.M. had come to her house. They had A.P.'s clothing, bleached and burned, and wanted to pour bleach on him as well.

A.P. testified that, on May 11, he opened his front door because T.P. and J.M.M. were attacking Wright and Dunn and he was trying to get his two friends inside. He stated he was attacked by J.M.M., "mushed her" and, after she grabbed his collar again, he "had to kick her." He lost a shoe in the process, closed and locked the door, and ran upstairs to change his shoes. He returned with a bat "because they was throwing bricks, mailboxes." A.P. testified that he never went outside his house with the bat. He remained inside his house and swung the bat in front of himself. He was not moving toward the door but was actually moving away from the door while "they were charging at [him]." A.P. testified that he was later charged with aggravated assault and assault with a deadly weapon.

A.P.'s mother testified as well. Her testimony was not particularly helpful in sorting out the facts because she was not present when the "bat incident" occurred.

In his appeal, A.P. argues that the trial court erred in failing to find he acted in self-defense; that he had ineffective assistance of counsel; that the trial court's decision was against the weight of the credible evidence; and that the court committed reversible error in assuming that he had taken a weapon to respondent's house.

We accord deference to the trial court's fact-finding, and will not disturb the result if the findings are "supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Here, the court found that J.M.M. had shown, by a preponderance of the evidence, that A.P. had committed an assault.3

It was undisputed that, because J.M.M. and A.P. had a child together, she was a person protected under the PDVA. See N.J.S.A. 2C:25-19(d). Therefore, the judge's task here was two-fold:

First, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred. . . . [W]hen determining whether a restraining order should be issued based on an act of assault . . . the court must consider the evidence in light of whether there is a previous history of domestic violence, and whether there exists immediate danger to person or property.

. . . .

The second inquiry . . . is whether the court should enter a restraining order that provides protection for the victim.

[Silver v. Silver, 387 N.J. Super. 112, 125-126 (App. Div. 2006) (internal citations omitted).]

The predicate act of assault is committed when a person "[a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another[.]" N.J.S.A. 2C:12-1(a)(1). "Bodily injury" is "physical pain, illness or any impairment of physical condition[.]" N.J.S.A. 2C:11-1(a). See also State v. Stull, 403 N.J. Super. 501, 505 (App. Div. 2008).

Again, it is undisputed that A.P. struck J.M.M. with a steel baseball bat and that her jaw was broken in two places. However, A.P. argues that the court erred in determining that he committed an assault because he acted in self-defense. In support of this argument, he maintains that he remained inside his house and was entitled to use force to defend himself, his friends and family and property.

N.J.S.A. 2C:3-4(c)(1) provides that

the use of force or deadly force upon or toward an intruder who is unlawfully in a dwelling is justifiable when the actor reasonably believes that the force is immediately necessary for the purpose of protecting himself or other persons in the dwelling against the use of unlawful force by the intruder on the present occasion.

The requisite "reasonable belief" exists

when the actor, to protect himself or a third person, was in his own dwelling at the time of the offense . . . and the encounter between the actor and the intruder was sudden and unexpected, compelling the actor to act instantly and:

(a) The actor reasonably believed that the intruder would inflict personal injury upon the actor or others in the dwelling; or

(b) The actor demanded that the intruder disarm, surrender or withdraw, and the intruder refused to do so.

[N.J.S.A. 2C:3-4(c)(2).]

There was no testimony that A.P. demanded that J.M.M. leave. Therefore, the questions that remained applicable to A.P.'s claim of self-defense were whether he and J.M.M. were in his dwelling or outside when he struck J.M.M. with a baseball bat; whether the encounter between him and J.M.M. was "sudden and unexpected, compelling [him] to act instantly[,]" and whether he had a reasonable belief that she would inflict injury upon him or others in his dwelling.

The parties gave divergent versions of the events and so, the trial judge's evaluation of the witnesses' credibility was a threshold factor in finding the facts here. It is evident that the judge's rejection of A.P.'s claim of self-defense was largely based upon his assessment of credibility:

I find credible testimony that [J.M.M.] and [T.P.] came to pick up clothes of the child. I find credible testimony that both parties, all three parties were angry at each other over incidents that happened previously, including but not limited to the Mother's Day incident, of the clothes burning. The prior incident where I heard testimony that there [were] arguments with the mother, and obviously with [A.P.] after the incident on Mother's Day. Did he hit her with the bat that day? She's given me testimony that he did, and it was not in self-defense, it was out of anger, because he didn't want her there. He didn't want her there under those circumstances. He didn't want her there yelling and arguing, and screaming. And again I'm not condoning the behavior, but I find her to be very credible as to what happened.

I think she came there angry. I think she said she punched him in the face. But I think she also credibly testified that before that happened, he hit her with a bat. And she also testified that she was injured as a result of being hit with the bat. She showed me . . . the pictures of her. No doubt she's was injured. I don't find self-defense to these allegations. So I do find that she met her burden of proof with regard to the occurrence of an assault on that night being hit with the bat.

[Emphasis added.]

We pay substantial deference to the credibility determinations made by the trial judge. State v. Nunez-Valdez, 200 N.J. 129, 141 (2009); State v. Barone, 147 N.J. 599, 615 (1997). We are satisfied that the evidence deemed credible by the trial judge was sufficient to reject the self-defense claim and prove assault by a preponderance of the evidence. Moreover, J.M.M.'s testimony regarding a prior assault provided sufficient evidence of a prior act of violence to support the trial judge's conclusion that a protective order was necessary, satisfying the second prong of the Silver analysis.

A.P.'s remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

1 Copies of the initial complaints filed were not included in the record before the court. The allegations are identified by reference to the trial court's findings.

2 Defendant also filed a notice of appeal from the FRO granted to T.P. However, that appeal was dismissed in December 2010, and defendant has not sought reinstatement.

3 Although the court found that the predicate act of assault had been proven, the FRO stated that the order was granted on the ground of terroristic threats. When there is a conflict between the oral opinion of the trial judge and the order entered, the oral opinion is controlling. State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956); see also State v. Warmbrun, 277 N.J. Super. 51, 58 n.2 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). Therefore, we review the court's decision to determine if there was sufficient credible evidence to support the court's finding that the predicate act of assault was proven.