STATE OF NEW JERSEY v. KEVIN CARABILLO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4288-04T54288-04T5

STATE OF NEW JERSEY

Plaintiff-Respondent,

v.

KEVIN CARABILLO,

Defendant-Appellant.

______________________________

 

Submitted April 24, 2006 - Decided July 17, 2006

Before Judges Cuff and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FO-18-288-05.

Jacqueline A. Holz, attorney for appellant.

Wayne J. Forrest, Somerset County Prosecutor, attorney for respondent (Daryl A. Williams, Assistant Prosecutor, on the brief).

PER CURIAM

On February 9, 2005, following a two-day trial, defendant, Kevin Carabillo, was convicted of criminal contempt, N.J.S.A. 2C:29-9b, a disorderly person's offense for knowingly violating a domestic violence final restraining order. Defendant was sentenced to two years' probation conditioned upon completion of a twenty-six week anger management program. Appropriate assessments were also imposed. Defendant appeals, and we affirm.

On August 12, 2004, following a ten-year on-and-off relationship, defendant's former girlfriend, Sonya Elo, signed a complaint against defendant under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. On August 19, 2004, a final restraining order was entered against defendant that prohibited defendant "from making or causing anyone else to make harassing communications to: Plaintiff." On September 23, 2004, Patrolman Jeremy Cuomo, of the Hillsborough Township Police Department, signed a complaint against defendant charging him with the disorderly person's offense of N.J.S.A. 2C:29-9b by "having a third party [defendant's mother, Madeline Carabillo] call the victim [on September 20, 2004] in an attempt to have the restraining order dropped." The matter was tried in the Chancery Division, Family Part, Somerset County, on January 13, 2005, and February 9, 2005.

Testifying for the State were Elo, Pasquale Rago, Elo's boyfriend, and Patrolman Cuomo. Elo testified that three or four days after the entry of the final restraining order, defendant's mother had telephoned her requesting that she drop the restraining order so that defendant could regain possession of his bow and arrow that had been confiscated by the police. Elo advised defendant's mother "that was not going to happen. I wasn't going to drop the restraining order, and that he [defendant] wasn't going to get his weapons back."

On the evening of September 19, 2004, defendant's mother telephoned Elo's residence three times, all initially answered by Rago. Elo testified that she asked defendant's mother not to call her anymore, and "told her that it was absolutely against the restraining order and to please not to harass me any more."

On September 20, 2004, a message was left on Elo's telephone answering machine by defendant's mother. Although the message was left in a normal tone and cordial manner, Elo described it as "very upsetting," causing her to "flip[] out about it." Elo's interpretation of the telephone message was that Mrs. Carabillo had stated that defendant had contacted her and requested her to contact Elo to have Elo drop the final restraining order so that defendant could obtain the return of his bow and arrows. Lastly, Elo testified that on September 21, 2004, the day following her receipt of the telephone message, she "called [defendant's mother] back and told her to stop calling, and that I wasn't going to drop the restraining order and that he wasn't going to get his weapons back, and that . . . whole weapons situations, his hunting weapons, was out of my control."

Rago testified that he was aware of the final restraining order Elo had obtained against defendant, and that he had answered approximately four telephone calls from defendant's mother while at Elo's residence prior to September 20, 2004. Having been aware of the final restraining order, Rago "informed [defendant's mother] that there should -- as far as I knew there shouldn't have been any contact even with Kevin's family, with Sonya regarding the issue -- of the restraining order." Rago "thought it was in her best order not to call," and expressed this to her during each of the telephone calls. On September 20, 2004, Rago had been in the presence of Elo when she had listened to the telephone message from defendant's mother. He described Elo as "pretty much [in] shock[] . . . . [m]ore in disbelief. Especially that I've had numerous conversations with Mrs. Carabillo stating about not calling, and in the best interest and still receiving another message."

Patrolman Cuomo responded to Elo's residence on September 23, 2004, to investigate a report of criminal mischief. While there, Elo informed him of the telephone calls that she had received from defendant's mother, including the one of September 20, 2004, which remained on her telephone answering machine. Officer Cuomo listened to the telephone message, and made a separate recording of the message, which was played at trial:

Hello, Sonya, this is Madeline Carabillo calling here. I just wanted to know if you would - Kevin had called, he would like to get his bow and arrow[,] and he cannot get it unless you lift the restraining order. He said that he will not bother you[,] and he would just like his bow and arrow. If you could just lift the restraining order, he would appreciate it very much. O.K. He will not bother you. O.K., you can call me back, please. The number is . . . . He is very sincere in what he is saying. O.K., thank you so much. Bye.

Officer Cuomo made telephone contact with defendant's mother, and inquired as to whether she had left the message on Elo's answering machine, to which Mrs. Carabillo replied in the affirmative. When the officer asked Mrs. Carabillo whether defendant had requested her to make the telephone call, she replied "that [defendant] did not have her call. Then she went on to say that she feels that she goofed as far as calling about having the restraining order dropped." Although it was Officer Cuomo's impression that defendant's mother "appeared to be hiding something, that -- Kevin Carabillo had his mother contact Mrs. Elo to have the final restraining order dropped." He conceded on cross-examination that it was possible "the mother took it upon herself to make that phone call . . . in the sense of trying to do something for her son because she was aware her son was upset by something and . . . [defendant] didn't direct her . . . to make that call."

Madeline Carabillo testified on behalf of her son. While admitting that she made several telephone calls to Elo's residence in September 2004, she denied that she made those phone calls at the request of defendant. Acknowledging her awareness that there was a restraining order in effect; that her son was not permitted to contact Elo; and that she had left the message on Elo's telephone answering machine on September 20, 2004, she testified she had made the telephone call because "[w]ell I knew the cops had come to take his bow and arrows, and I know he loved to hunt . . . . I knew he wanted them back because he loved to hunt." When asked whether she had stated in her telephone message that "Kevin says he won't bother you any more," she replied "I guess so." After repeatedly refusing to directly answer the question of whether Kevin had "told her that," the prosecutor asked "[t]hen I'm just curious, how were you able to also convey the message that he wanted Sonya to know that he would leave her alone." In reply, Ms. Carabillo stated: "Well, that's all he wanted was his bow and arrows back." The Prosecutor pressed: "And he said he would leave her alone if he got those back?" and Ms. Carabillo replied, "I would imagine." After determining "[Madeline Carabillo's] testimony to be evasive, and therefore, somewhat incredible, or at least lacking credibility and candor," the trial judge found defendant guilty of the charge:

The [c]ourt finds that there is no question that Mrs. Carabillo, Madeline Carabillo, called the victim, Ms. Elo. And there [is] no question that the defendant conveyed information to his mother, Madeline Carabillo, on or about the 20th of September regarding the fact that a bow and arrow[s] had been taken from his house.

The -- Mrs. Carabillo said she knew that the police had come to take them, but she did [not] say she was present. So the [c]ourt derives from those facts[,] and I think this is certainly a reasonable inference to draw that the defendant told her that it was the bow and arrow[s] that had been taken.

She -- the message on the tape, S-2, says Kevin had called. And it was said in conjunction with the request that the restraining order be dropped, that Kevin wanted his bow and arrow[s] back, meaning the defendant, that -- and the same request being made or referred to throughout the message.

I find that the call clearly has a causative or a causation connection with the phone call made by Mrs. Carabillo. I find that that phone call would not have been made but for the fact that the defendant called her and mentioned his bow and arrow[s], mentioned that it was the hunting season, mentioned that the restraining order had to be dropped.

I find that there was no independent source testified to by Mrs. Carabillo that would have supplied her with that information and indeed all of that information was in the message.

Her evasiveness leads the [c]ourt to believe that[,] in fact[,] her clear understanding from the defendant was that he could [not] call the victim, she could, and these were his concerns.

The [c]ourt need not find that he specifically asked Mrs. -- his mother, Mrs. Carabillo, to call because the language in the final restraining order in this case is you are prohibited from making or causing anyone else to make harassing communications to the plaintiff, Ms. Elo. And causing can occur without direct request or demand.

I further find that there were several calls from Mrs. Carabillo to the victim over the time prior to September 20th in which she was told either by Mr. Rago or by the victim herself, certainly by Mr. Rago[,] that she was not to call and that she was not to harass the victim.

I find it a -- a strong inference and in the realm of common sense a compelling conclusion that the vic -- that Mrs. Carabillo would have conveyed to the defendant the fact that the victim or the victim's boyfriend told her not to call anymore.

When that is pieced together with the information conveyed to Mrs. Carabillo by the defendant which this [c]ourt find[s] caused this call, the [c]ourt finds that based on reasonable inferences and clear facts that permit those inferences the State has proven beyond a reasonable doubt that the defendant caused his mother to call the victim, Ms. Elo, and convey his concerns to Ms. Elo.

And that both he and his mother had good reason to believe that those were unwanted calls and, therefore, seen as harassing. That is annoying or -- well, in this case annoying.

So I find the defendant guilty. And we will move on to sentencing. . . .

On appeal, defendant argues that the State failed to prove beyond a reasonable doubt that he knowingly violated the final restraining order by causing his mother to make harassing telephone communications to Elo. Defendant contends that the trial judge's decision of guilty was not supported by "adequate, substantial [and] credible evidence." We disagree.

A person is guilty of a disorderly person's offense under N.J.S.A. 2C:29-9b "if that person knowingly violates an order entered under the provisions of [the DVA]." The burden of proof is guilt beyond a reasonable doubt. State v. Finamore, 338 N.J. Super. 130, 138-39 (App. Div. 2002); State v. Krupinski, 321 N.J. Super. 34, 45 (App. Div. 1999). In "deciding if the State has proven beyond a reasonable doubt that the defendant has knowingly violated a restraining order," the trial judge is not precluded "from considering all relevant evidence" concerning the issue. State v. Finamore, supra, at 138. In deciding guilt or innocence, the trier of fact may consider either direct or circumstantial evidence. "Circumstantial evidence means evidence that proves a fact from which an inference of the existence of another fact may be drawn." Model Jury Charge (Criminal), Circumstantial Evidence. "Circumstantial evidence may be 'more forceful and more persuasive than direct evidence.'" State v. Mayberry, 52 N.J. 413, 437 (1968) (quoting State v. Corby, 28 N.J. 106, 119 (1958)), cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969).

An appellate court's scope of review of a trial court's determination is limited. We are obligated to "review the record in the light of the contention, but not initially from the point of view of how [we] would decide the matter if [we] were the court of first instance." State v. Johnson, 42 N.J. 146, 161 (1964). Factual findings of the trial judge are generally given deference, especially when they "are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid.; accord State v. Locurto, 157 N.J. 463, 470-71 (1999). When the appellate court is satisfied that the findings of the trial court could reasonably have been reached on sufficient, credible evidence present in the record, "its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal." Johnson, supra, 42 N.J. at 162. "That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect." Ibid.

We have carefully reviewed the record in light of the arguments raised, and are satisfied that the trial judge's determination that defendant caused his mother to make the telephone communications to Elo in direct contravention of the final restraining order is based upon sufficient, credible evidence contained in the record, and could reasonably have been reached upon that evidence. Locurto, supra, 157 N.J. at 472; Johnson, supra, 42 N.J. at 161-62. After having had the opportunity to not only view defendant's mother but also listen to her testimony that defendant never requested her to telephone Elo to suggest Elo drop the final restraining order so defendant could obtain repossession of his hunting equipment, the trial judge found her testimony not credible. The judge reasonably inferred from: 1) the mother's awareness of the final restraining order, as well as having been previously advised not to contact the Elo residence; and 2) from the contents of the recorded telephone message that defendant had made statements in the presence of his mother concerning his hunting equipment, knowing that she would respond by contacting Elo in an attempt to have Elo drop the final restraining order so that defendant could regain possession of his bow and arrows for hunting.

Affirmed.

 

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A-4288-04T5

RECORD IMPOUNDED

July 17, 2006