STATE OF NEW JERSEY v. SHARIA HORNE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2733-05T12733-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHARIA HORNE,

Defendant-Appellant.

 

Argued December 13, 2006 - Decided January 5, 2007

Before Judges Cuff and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, FO-11-112-06.

Susan Schleck Kleiner argued the cause for appellant (Drinker, Biddle & Reath, attorneys; David F. Abernethy, of counsel; Ms. Kleiner and Jonathan R. Miller, on the brief).

Ryan E. Boyle, Assistant Prosecutor, argued the cause for respondent (Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney; Mr. Boyle, on the brief).

PER CURIAM

Defendant Sharia Horne appeals from December 19, 2005 convictions for simple assault and for criminal contempt based upon a violation of a restraining order issued under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35. We vacate the convictions and remand for further proceedings.

On February 22, 2005, the court issued to Bayshawn Parks a final restraining order against defendant. Quiana McMillan was named as a protected person on that restraining order. As a result of an altercation between defendant and McMillan on July 20, 2005, the Trenton police issued two complaints against defendant, one for simple assault, in violation of N.J.S.A. 2C:12-1a, and the other for contempt of a domestic violence restraining order, a violation of N.J.S.A. 2C:29-9b.

A trial on those offenses was held before the Family Part on December 19, 2005. The judge found defendant guilty, and on each complaint, imposed a concurrent sentence of a one-year period of probation with a condition that defendant have no contact with McMillan. Defendant was also ordered to enroll in and complete a course of anger management counseling.

A summary of the evidence elicited at trial shows that the altercation arose between 7:00 p.m. and 8:00 p.m. on July 20, 2005, after McMillan parked her vehicle in front of defendant's home. A fight between the two women ensued; it is disputed whether the fight took place on the street or sidewalk near McMillan's car, or on the porch of defendant's residence. In rendering its decision, the trial court did not make a specific finding as to where the fight took place or who started it. Nor did the court make credibility findings as to any of the material witnesses.

The court observed that even if McMillan started a conversation with defendant, defendant "had an obligation not to engage in conversation or any verbal exchange with . . . [her]." Accordingly, the court found that because such a verbal exchange did occur, defendant knowingly violated the final restraining order. The judge further opined that defendant was guilty of simple assault based on the "unconflicted testimony that [a] physical altercation occurred between the two parties. Not only once, but twice."

Defendant did not deny that she and McMillan had a fight, but claimed she acted in self-defense. In addressing defendant's claim of self-defense, the court said:

I don't find this to be any -- I think close to anything approaching a justification or -- along the lines of self defense to negate any elements of the charge based on the behavior of the defendant.

I find that by engaging in a physical altercation not once, but twice, after the first round was broken up by [other individuals], that the defendant knowingly committed the act of simple assault under N.J.S.A. 2C:12-1a(1) in that she attempted to cause or purposely, knowingly or recklessly caused bodily injury to another.

We vacate the convictions. First, we conclude that the findings placed on the record by the trial judge were inadequate. In a criminal case such as this, a judge is required to make specific findings of fact regarding the elements of the offense. State ex. rel. L.W., 333 N.J. Super. 492, 498-99 (App. Div. 2000). Without those findings, we are unable to adequately conduct appellate review.

Here, the court made no credibility findings as to the assault charge. Nor did the court find who started the fight or where the fight took place. We are unable, in the absence of those findings, to conclude that the record shows that defendant violated N.J.S.A. 2C:12-1a.

The court also failed to make clear its reasons for rejecting defendant's assertion of self-defense. It is the State's burden to prove beyond a reasonable doubt that a defendant's claim of self-defense does not accord with the facts, and the court failed to make any findings related to that issue. State v. Burks, 208 N.J. Super. 595, 604-06 (App. Div. 1986); see also State v. Josephs, 174 N.J. 44, 101-02 (2002).

The same lack of findings requires that the contempt conviction be vacated. The trial court found that the occurrence of the verbal exchange was itself sufficient to convict defendant of violating the final restraining order. We respectfully disagree. While a verbal exchange between a person subject to a final restraining order and a person protected by the order may constitute a violation of the order, no violation of N.J.S.A. 2C:29-9b has occurred unless a court finds that a defendant knowingly violated the order. State v. Finamore, 338 N.J. Super. 130, 138 (App. Div. 2001); see also State v. L.C., 283 N.J. Super. 441, 450 (App. Div. 1995) (restraining order prohibiting harassment only violated where there was "purpose to harass"; mere offensive language is insufficient), certif. denied, 143 N.J. 325 (1996). Here, the court failed to evaluate whether defendant had the requisite mental culpability to have committed the charged offense.

Our final reason for vacating the conviction is that at oral argument before this court, the assistant prosecutor represented that the State had failed to consider downgrading the disorderly persons simple assault charge to a petty disorderly persons offense. Such a downgrading would also have a bearing on the contempt charge. N.J.S.A. 2C:29-9b.

We reverse and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

The final restraining order is not included in the appendix on appeal and was not in evidence before the trial court; defense counsel stipulated to its existence.

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A-2733-05T1

January 5, 2007