M.M.P. v. R.E.P.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

M.M.P.,

Plaintiff-Respondent,

v.

R.E.P.,

Defendant-Appellant.

_____________________________________________

October 27, 2014

Submitted October 6, 2014 Decided

Before Judges Sabatino and Guadagno.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FV-18-137-14.

Wronko & Loewen, attorneys for appellant (James R. Wronko, of counsel and on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant R.E.P. (Richard)1 appeals from the issuance of a final restraining order (FRO) against him in favor of his stepdaughter M.M.P. (Martha), pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. He claims that the evidence presented at the trial was insufficient to support the issuance of the FRO. We disagree and affirm.

Our reading of the trial transcript, including the judge's findings, reveals the following facts. Where there are conflicting versions, we adopt the testimony found credible by the trial court. Defendant and M.P. (Maureen) were married in 1998. Maureen's two children from a prior relationship, Martha and her brother F.P. (Fred), who were three and five at the time, moved in with their mother to live with defendant. Thereafter, defendant and Maureen had two children.

On the afternoon of Friday, May 24, 2013, defendant came home, dropped off his briefcase, and went to the home of a neighbor. Minutes later, defendant called Martha and asked her to bring wine and ice to the neighbor's home. Defendant and the neighbor drank wine on her porch for approximately two hours.

Later that afternoon, defendant returned home and spoke with Martha about her boyfriend. Martha, who was eighteen at the time, was going to be spending time with her boyfriend that weekend, while defendant, Maureen, and their two youngest children were going to Wildwood. Defendant purported to dispense advice about what to expect. Defendant first told Martha, "[A]ll guys are pigs." He then told her, "[T]hey're going to try to touch you here," while grabbing Martha's breasts. Defendant then grabbed Martha's vagina and said, "Oh, and then they're going to touch you here." Martha pushed defendant away and told him to stop. She then walked into the living room to get away from him, but defendant followed and told her he wanted her to kiss him. Defendant "stumbled" onto Martha, and she again pushed him off of her and told him to "just go away." Defendant persisted, demanding Martha give him a kiss. When Martha tried to kiss him on the cheek, defendant grabbed the back of her neck and tried to kiss her on the lips. Martha again told defendant to stop. At that time, Maureen came downstairs, and defendant left the home with her to go to Wildwood.

Martha described three prior incidents of sexual contact with defendant, all occurring when she was nine or ten. The first occurred while she was lying in her bed. Defendant came into her bedroom and kneeled down to pray with her. Defendant reached under the blankets on top of her clothing and touched Martha in the area of her vagina. When defendant heard Maureen coming, he left the room and closed the door. The second incident occurred in defendant's home office. Martha remembered the office door was locked, and her shirt was off. Defendant first caressed her back, then he touched her breasts. The third incident occurred in the guest bedroom while defendant and Martha were watching a movie. While they were both under the same cover, defendant began caressing Martha all over her body. Martha testified she felt uncomfortable during all three incidents but was scared to tell anyone.

Maureen testified at trial that she did not observe any contact between defendant and Martha on May 24, 2013, but confirmed that defendant was intoxicated when they left for Wildwood.

Defendant testified that he went to the neighbor's home to drink wine around 3:00 p.m. and remained there for more than two hours. While at the neighbor's, defendant testified that Martha called him at 5:03 p.m. and again at 5:35 p.m. and discussed her weekend plans with her boyfriend. When Maureen arrived, sometime thereafter, defendant returned to his home. He then packed the car for the trip to Wildwood. Defendant testified that the only time he spoke with Martha was to tell her good bye before they left. He denied touching her breasts or vagina or forcibly attempting to kiss her. As to the three prior incidents described by Martha, defendant denied ever touching any of his children in a sexual way.

Defendant called the neighbor as a witness. She testified that defendant came to her home a little after 3:00 p.m. and sat on her porch with her until 4:00 or 4:30 p.m. He left when Maureen came home. Defendant also called the neighbor's grandson who lives with her. The grandson testified that he arrived home between 3:30 and 3:45 p.m., and defendant was sitting on the porch with his grandmother. The grandson recalled that they drank wine on the porch, and defendant left around 4:30 or 5:00 p.m. when Maureen got home.

The court found the testimony of Martha credible and that defendant's version, that he was still on the porch waiting for a call from Maureen at 5:30 p.m., was contradicted by both the neighbor and her grandson. Both recalled defendant leaving earlier than that, as soon as Maureen arrived. The judge explained why he was crediting Martha's testimony

I'm satisfied that the testimony of [Martha] is credible . . . . I'm satisfied that what she says happened, did happen, and since that is true, I find by a preponderance of the evidence that the sexual touching and criminal contact occurred on the day in that occasion.

On appeal, defendant claims the evidence produced at trial was insufficient to support the issuance of an FRO and the court failed to make the requisite findings. Defendant also argues that Martha "did not demonstrate a need to prevent further abuse or demonstrate that she was in immediate danger in order to justify the issuance of a [FRO]."

Defendant argues that the elements of criminal sexual contact were not established, as there was no proof that he used force or coercion or that his purpose in touching Martha's breasts and vagina was to degrade or humiliate her or to sexually arouse or gratify himself. We disagree.

Domestic violence is defined in N.J.S.A. 2C:25-19 as the infliction of one or more of an enumerated list of crimes upon a protected person. Among the crimes listed are assault, N.J.S.A. 2C:12-1; sexual assault, N.J.S.A. 2C:14-2; and criminal sexual contact, N.J.S.A. 2C:14-3. To obtain an FRO, a plaintiff must first prove, by a preponderance of the credible evidence, that the defendant committed one or more of these predicate acts. Cesare v. Cesare, 154 N.J. 394, 400 (1998); Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). In determining whether an act of domestic violence has been committed, a court may consider the factors set forth in N.J.S.A. 2C:25-29(a), but it does not necessarily have to incorporate all of these factors into its findings. Cesare, supra, 154 N.J. at 401-02; McGowan v. O'Rourke, 391 N.J. Super. 502, 506 (App. Div. 2007).

N.J.S.A. 2C:14-3(b) provides that "[a]n actor is guilty of criminal sexual contact if he commits an act of sexual contact with the victim under any of the circumstances set forth in section 2C:14-2(c)." "Sexual contact" is defined as "an intentional touching by the . . . actor, either directly or through clothing, of the victim's . . . intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor." N.J.S.A. 2C:14-1(d). Although the statute does not specify the mental state that must be demonstrated to prove the defendant's criminal intent, N.J.S.A. 2C:2-2(c)(3) establishes the principle that criminal statutes that do not designate a specific culpability requirement should be construed as requiring knowing conduct. N.J.S.A. 2C:2-2(b)(2) provides that "[a] person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist . . . ."

The competent credible proof demonstrated that defendant forcibly touched Martha's intimate body parts for his own sexual gratification. Defendant's conduct was unquestionably knowing, intentional, and non-consensual. The trial court's finding by a preponderance of the evidence that "sexual touching and criminal contact" occurred, finds ample support in the record.

After a court determines that an act of domestic violence has occurred, it must determine whether a restraining order should be issued to protect the victim. Silver, supra, 387 N.J. Super. at 126. Although the court failed to make specific findings on this issue, this determination "is most often perfunctory and self-evident, [and] the guiding standard is whether a restraining order is necessary . . . to protect the victim from an immediate danger or to prevent further abuse." Id. at 127.

No reasonable argument can be made that Martha, who lived in the same home as defendant, and testified to incidents of abuse that began when she was nine or ten years old, did not require an FRO to prevent further abuse. Even if this pattern was not established, the need for an order of protection can be justified based on "one sufficiently egregious action[.]" Cesare, supra, 154 N.J. at 402.

Affirmed.

1 We utilize fictitious names to preserve the parties' privacy and for ease of reference.