STATE OF NEW JERSEY v. J.C.

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NOT FOR PUBLICATION WITHOUT THE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,

Plaintiff-Respondent,

v.

J.C.,

Defendant-Appellant.

_______________________________

May 28, 2015

Submitted February 2, 2015 - Decided

Before Judges Lihotz and Rothstadt.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FO-12-0399-13.

Thomas J. Bean, attorney for appellant.

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Deputy First Assistant Prosecutor, of counsel and on the brief; Yael Spiewak, on the brief).

PER CURIAM

Defendant J.C. appeals from a December 4, 2013 judgment of conviction for the disorderly persons offense of contempt for violating a final domestic violence restraining order (FRO), N.J.S.A. 2C:29-9(b). Defendant maintains the conviction is not supported by the weight of the evidence. We disagree and affirm.

The following pertinent facts were elicited at trial. A FRO was entered against defendant, pursuant to the New Jersey Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, enjoining him from all contact and communication with the victim, who is the mother of his child. Further, the FRO barred defendant from the victim's residence and place of employment; from making harassing communications, stalking, following, or threatening to harm, to stalk, or to follow the victim; and from possessing weapons. The victim was granted temporary custody of the child and defendant's parenting time was set at every other weekend. Defendant was served with a copy of the FRO on the date of the final hearing.

On March 28, 2013, the parties attended a hearing on defendant's motion to vacate the FRO, or alternatively amend its provisions. The judge denied the motion to vacate, but amended the visitation provisions to permit defendant visitation for the upcoming Easter holiday.

Three days later, defendant attended services at a church located on Somerset Street, also known as Route 27, on the border of Somerset and New Brunswick. Defendant, accompanied by his brother and the parties' child, drove to church using his red and white work van labeled "Oasis Taxi." He arrived for services at approximately 10:30 a.m. and left with the child a little before 2 p.m., to meet his family at a Piscataway restaurant.

The same day, the victim, accompanied by her fourteen-year-old son and ten-year-old niece, attended church services at a different church, located in New Brunswick near Livingston Avenue. While driving to the church, the victim decided to stop at a local convenience store and purchase snacks for the children. As she waited on Somerset Street to turn left into the convenience store parking lot (headed toward Somerset), she saw defendant, traveling in the opposite direction. During trial, the victim and her son testified they saw defendant driving his red and white "Oasis" taxi. The victim stated, "[w]e were facing each other" and "[h]e was looking at me."

The victim observed defendant engage his right turn signal and proceed into the convenience store parking lot, directly behind her car. Her son confirmed defendant "followed in behind us," and suggested defendant recognized them before turning into the parking lot.

The victim parked first and hurried into the store. Defendant parked approximately thirty feet from her car on the opposite side of the lot and entered immediately behind her. Other than the store clerks, the victim stated she and defendant were the only customers.

As she attempted to pay for her items, defendant approached. The victim testified defendant walked up behind her and, speaking in a low voice, stated: "[You are] not going to get away with this bitch, I'm going to kill you." Defendant then walked to the back of the store and the victim exited. She observed defendant left the store without making a purchase. Were defendant traveling to his church, he would have had to pass the store to enter the church parking lot.

The victim returned to her car. Her son testified his mother appeared "[u]pset and "seem[ed] afraid." "She said that [defendant] had said something slick to her," a slang term which he believed to mean "something rude."

Five days later, the victim contacted 9-1-1 and the New Brunswick Police Department when she mistakenly believed defendant picked up their son from school on a day he was not scheduled for visitation. She also reported the incident occurring the prior Sunday at the convenience store. As a result, defendant was arrested for violating the FRO.

Defendant presented testimony from his mother and grandmother, who confirmed his attendance at church on the date of the alleged incident. Both testified that, once services concluded, the family left the church together and drove by caravan to the restaurant. Defendant's mother testified defendant drove separately, but arrived at the restaurant simultaneously with the others, who entered the restaurant "as a group."

She also discussed receiving a telephone call on April 5, 2013 from the victim, inquiring whether defendant would give up his weekend with their child because she had plans to visit relatives and wanted to bring him with her. His mother asked defendant, who declined the request. When she called the victim to inform her, the victim became "very angry," threating to contact police and "tell on him" if the child was not returned that night.

Defendant also testified in his own behalf. He admitted driving his taxi to the church service, which ended close to 2 p.m.; however, he maintained the victim fabricated her story, and denied entering the convenience store or its parking lot on March 31, 2013. Further, he described the route he took to the Piscataway restaurant after the church service concluded, which he stated did not involve driving on Route 27 "[b]ecause the [church's] parking lots don't exit or enter off of Route 27." When describing the day he was arrested, he stated his mother called him to verify it was his day for visitation because the victim called looking for their child; he did not mention the alleged threats reported by his mother in her trial testimony.

At the close of evidence, the judge generally related the trial evidence. She rejected the testimony of defendant and his relatives as incredulous. Specifically, she found their stories were "tightly orchestrated" aligned to "in no way allow[] for even the slightest possibility that [defendant] could not have left the group for any period of time from . . . getting to the church at around 11 o'clock to getting to the . . . [r]estuarant . . . around the 2:30 hour."

Conversely, she found the victim's son's testimony "unassailable in [its] recitation," noting "he was clear and forthright in his testimony as to what he observed that day." Based upon this "credible testimony," she concluded defendant saw the victim and followed her into the store in violation of the FRO.

Regarding the crime of harassment, however, the judge found the State's evidence failed to prove defendant's conduct inside the convenience store beyond a reasonable doubt. She acquitted defendant of the charge and imposed the mandatory minimum thirty-day sentence for contempt. See N.J.S.A. 2C:25-30. This appeal ensued.

Our review of a trial court's factual findings is limited. In a non-jury trial, we defer to a trial judge's factual findings, so long as they are supported by sufficient credible evidence. State v. Lamb, 218 N.J.300, 313 (2014). Particular deference is afforded to credibility determinations, as such findings "are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). Ibid.

The same standard, however, does not apply to legal conclusions which flow from those established facts. Lamb, supra, 218 N.J.at 313. "On such matters, a reviewing court owes no deference to the trial court's determinations and decides the question de novo." State v. Coles, 218 N.J. 322, 342 (2014). Ultimately, "we [will] not disturb the factual findings and legal conclusions of the trial judge unless . . . convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant[,] and reasonably credible evidence as to offend the interests of justice." State v. Whitaker, 79 N.J. 503, 514 (1999).

Defendant suggests the State failed to satisfy it burden of proof. He argues the rationale in State v. Finamore, 338 N.J. Super. 130, 132 (App. Div. 2001), dictates, "absent a finding that a defendant was guilty of an underlying offense the commission of which also constituted the violation of a restraining order and its constituent mens rea element, the evidence offered . . . must necessarily include specific proofs as to the mens rea." More specifically he maintains

POINT I

THE STATE DID NOT PROVE THE MENS REA ELEMENT OF THE OFFENSE OF KNOWING VIOLATION OF A DOMESTIC VIOLENCE RESTRAINING ORDER (Not Raised Below).

POINT II

THE DEFENDANT'S CONVICTION FOR HIS PRESENCE AT A PUBLIC PLACE OF BUSINESS WITH NO PRIOR KNOWLEDGE OF THE ALLEGED VICTIM'S WHEREABOUTS ENGENDERS A PATENTLY UNFAIR RESULT (Not Raised Below).

We conclude these arguments are unavailing.

In contempt proceedings, "the primary consideration is vindication of the authority of the court . . . [as] court orders must be obeyed." In re Adler, 153 N.J. Super. 496, 501 (App. Div. 1977) (internal quotation marks omitted). See also State v. Gandhi, 201 N.J. 161, 189 (2010) ("Restraining orders are entered for purposes of shielding a victim who needs protection and who is compelled to seek judicial assistance to obtain that security; thus, we have insisted on full compliance with restraining orders no matter the flaws a defendant may discern in their form or entry."). "A person is guilty of a disorderly persons offense if that person knowingly violates an order entered under the provisions of [the PDVA]." N.J.S.A. 2C:29-9(b). See Finamore, supra, 338 N.J. Super. at 132 (stating the State satisfies its burden by proving a "knowing violation of an existing domestic violence restraining order").

Under the Code, "[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, or he is aware of a high probability of their existence." N.J.S.A. 2C:2-2(b)(2).

In determining whether a defendant possesses the requisite mental state, this court has explained

We do not suggest that a defendant must personally acknowledge the legal implications of his conduct. See N.J.S.A. 2C:2-2(d); State v. Rowland, 396 N.J. Super. 126, 128-29 (App. Div. 2007)[, certif. denied, 193 N.J. 587 (2008)]. But the evidence must allow at least a reasonable inference that a defendant charged with violating a restraining order knew his conduct would bring about a prohibited result. See N.J.S.A. 2C:2-2(b)(2); cf. State v. Breakiron, 108 N.J. 591, 605-06 (1987) (inferences drawn from evidence to prove knowledge element in homicide prosecution); State v. Moore, 330 N.J. Super. 535, 544 (App. Div.) (inference permissible that the defendant knew [the] car in which he was riding was being driven without [the] consent of the owner), certif. denied, 165 N.J. 531 (2000).

[State v. S.K., 423 N.J. Super. 540, 547 (App. Div. 2012) (footnote omitted).]

See also State v. Washington, 319 N.J. Super. 681, 690 (Law Div. 1998) (convicting defendant of contempt when he ignored an FRO by chancing the victim would not call the police when he contacted her).

Pointing to circumstantial evidence such as, defendant parked his vehicle on the opposite side of the store lot and entered the store after the victim was inside defendant suggests the facts show he was unaware of the victim's presence and the evidence failed to convincingly prove contact inside the store. Therefore, he concludes the evidence did not support a finding he knowingly violated the FRO.

Defendant's argument ignores the judge's detailed credibility determinations supporting her conclusions, to which we defer. Having had the opportunity to observe the witnesses and consider their testimony, she rejected defendant's version of events that he was not traveling on Route 27 and never entered the store. The judge also determined testimony from defense witnesses was orchestrated and not believable. On the other hand, she found the victim's son's testimony "unassailable in his recitation" of events which occurred that day.

The judge's analysis of the evidence presented at trial fully considered defendant's mental state and set forth objective evidence of defendant's intent. See S.K., supra, 423 N.J. Super. at 547. She concluded: "He saw her, he followed her in [with] . . . the restraining order in effect at the time."

We also reject the suggestion a conviction resulting because of defendant's presence in a public place is a "patently unfair result" making the restraint "a poorly tailored restriction on freedom of movement." Defendant was not convicted for a "chance" encounter at a local convenience store; he was convicted for knowingly following the victim into the store, at a time when he was prohibited from all contact and communication with her. The State's evidence proved beyond a reasonable doubt the meeting was no accident. We have no basis to interfere with defendant's conviction.

Affirmed.