STATE OF NEW JERSEY IN THE INTEREST OF G.E.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY IN THE

INTEREST OF G.E.1

__________________________________

December 23, 2014

Submitted October 28, 2014 - Decided

Before Judges Fasciale and Whipple.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-1721-12 and FJ-20-1783-12.

Joseph E. Krakora, Public Defender, attorney for appellant G.E. (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).

Grace H. Park, Acting Attorney General, attorney for respondent State of New Jersey (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a bench trial, G.E., a juvenile, appeals from a final delinquency adjudication for committing an act, which, if committed by an adult, would constitute the petty disorderly persons offense of harassment, N.J.S.A. 2C:33-4b. We affirm.

We discern the following facts from the record. On April 25, 2012, at 7:15 a.m., M.P. was at a convenience store. While waiting in line to pay for her purchase and receive change, G.E. walked past her, brushing her buttocks with his hand. Thinking she had not left enough room for him to get past, M.P. stepped forward to get out of the way. M.P. paid for her purchase but needed additional change, so she waited for the cashier to open the cash register drawer again. While she was waiting, G.E. came up behind her, and as he was pointing to what he wanted behind the counter, he touched her buttocks.

M.P. turned away, shocked that he was touching her again, and waited for G.E. to finish his purchase transaction. She was still waiting to get change from the cash drawer. As she reached to get the change, G.E. felt M.P.'s buttocks again and then he left the store. M.P. was upset, knowing that the juvenile was likely to be outside when she left.

M.P. waited a few minutes, before exiting the store to go to her car. She got into her car and locked it immediately, having seen G.E. in the parking lot. Before she could turn on the ignition, G.E. was at the driver's side window asking M.P. what time it was. M.P. responded that she did not have it and, as she began to pull away, she lowered her window and told G.E., "I know what you did . . . my husband's a police officer, and we're going to hold you accountable for what you did to me."

In May 2012, G.E. was charged in a juvenile complaint with a violation of N.J.S.A. 2C:33-4b. In June 2012, G.E. was charged under a separate complaint with violation of juvenile probation.

The judge conducted a bench trial in September 2012. At the completion of the State's case, G.E. moved to dismiss the harassment charge, arguing that the State had failed to prove that he had touched M.P. with a purpose to annoy or alarm her. The trial court denied the application. The defense did not call any witnesses.

The trial court, having reviewed video of the incident and having found that the victim, M.P., was credible, determined the State had proven the elements of N.J.S.A. 2C:33-4b beyond a reasonable doubt. G.E. was adjudicated delinquent of petty disorderly persons, harassment. On the basis of that adjudication, he pled guilty to the violation of probation. G.E. was continued on probation for six months, was ordered to attend five individual counseling sessions, and was ordered to perform sixteen hours of community service.

G.E. raises the following issue on appeal

THE COURT ERRONEOUSLY DENIED THE MOTION TO DISMISS THE HARASSMENT CHARGE AT THE CLOSE OF THE STATE'S CASE BECAUSE THE STATE DID NOT PROVE THAT G.E. HAD THE REQUISITE STATE OF MIND TO COMMIT THE OFFENSE.

We exercise a limited scope of review over a trial judge's findings of fact. State v. Locurto, 157 N.J. 463, 471 (1999); State v. Johnson, 42 N.J. 146, 157 (1964). We give due regard to the trial judge's credibility determinations based upon the opportunity of the trial judge to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We do not substitute our own assessment of the evidence for that of the trial judge. See State v. Minitee, 210 N.J. 307, 317 (2012) (citing Johnson, supra, 42 N.J. at 162). Our task is complete upon determining there is sufficient credible evidence in the record to support the trial court's factual findings. Cesare, supra, 154 N.J. at 411-12 (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).

We reject G.E.'s contentions that the elements of harassment were not met because the State did not prove that he intended to annoy or alarm M.P., and that he was signaling sexual interest in M.P., contrary to an intention to harass.

N.J.S.A. 2C:33-4b defines harassment as, among other things, "subject[ing] another" to "offensive touching" with a "purpose to harass" them. Thus, the elements are: 1) defendant's touching of another person, 2) defendant's purpose in touching another was to harass that person, and 3) defendant's touching was offensive.

G.E. acknowledges that the three instances of touching occurred, but argues that the State was required to prove that his conscious object was to annoy, not simply to show that he knew M.P. would be annoyed. He argues that M.P.'s reaction, by itself, was not sufficient to infer an intention to harass, relying upon State v. Fuchs, 230 N.J. Super. 420, 428 (App. Div. 1989). Such reliance is misplaced. In Fuchs, a Peeping Tom case, intent to harass was not proved beyond a reasonable doubt because there was no evidence that the object of harassment was present in the room being peered into. Id. at 425-26.

This case is more akin to State v. Avena, 281 N.J. Super 327, 339 (App. Div. 1995), where the object of harassment was evident because it involved physically touching another person in an uninvited sexually suggestive manner. Here, G.E. concedes he touched M.P. to show sexual interest. He did not simply ogle, stare, whistle or catcall, but touched a woman he did not know repeatedly on the buttocks.

Indeed, "[a] person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result." N.J.S.A. 2C:2-2b(1). "A finding of a purpose to harass may be inferred from the evidence presented." State v. Hoffman, 149 N.J. 564, 577 (1997) (citing State v. McDougald, 120 N.J. 523, 566-67 (1990); Avena, supra, 281 N.J. Super. at 340). "Common sense and experience may inform that determination." Ibid. (citing State v. Richards, 155 N.J. Super. 106, 118 (App. Div.), certif. denied, 77 N.J. 478 (1978)). Under the facts of this case, the judge properly inferred that G.E. acted with a purpose to harass.

Finally, the judge properly denied G.E.'s motion for acquittal. When a motion for judgment of acquittal is made at the close of the State's case, the trial judge must deny the motion if, "viewing the State's evidence in its entirety . . . and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable fact-finder could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 458-59 (1967) (citing State v. Fiorello, 36 N.J. 80, 90-91 (1961), cert. denied, 368 U.S. 967, 82 S. Ct. 439, 7 L. Ed. 2d 396 (1962)). We apply the same standard on appeal. State v. Moffa, 42 N.J. 258, 263 (1964) (citing Fiorello, supra, 36 N.J. at 90).

The trial court correctly found that it was not appropriate to dismiss the matter after the State rested, applying the appropriate legal standards summarized above and under Rule 3:18-1, giving the State the benefit of all favorable testimony as well as all favorable inferences which reasonably could be drawn therefrom. State v. Kaiser, 74 N.J. Super. 257, 269 (App. Div.), certif. denied, 38 N.J. 310 (1962), aff'd, 80 N.J. Super. 176 (App. Div.), certif. denied, 41 N.J. 200 (1963), cert. denied, Kaiser v. New Jersey, 376 U.S. 950, 84 S. Ct. 966, 11 L. Ed. 2d 970 (1964). We discern no error in that decision, nor in the trial court's ultimate determination that G.E.'s offensive touching of M.P. three times with a purpose to harass, annoy or alarm her, warranted an adjudication of delinquency for violation of N.J.S.A. 2C:33-4b.

Affirmed.

1 We note that on the original complaint as well as the transcripts the juvenile is referred to as G.E. We will refer to him as G.E.