STATE OF NEW JERSEY v. ORLIN HOWELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2874-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ORLIN HOWELL,

Defendant-Appellant.

______________________________

Argued April 5, 2011 Decided May 3, 2011

Before Judges Parrillo and Roe.

On appeal from Superior Court of New Jersey, Law

Division, Sussex County, Municipal Appeal No. 22-06-09.

George T. Daggett argued the cause for

appellant (Daggett, Kraemer, Kovach & Gjelsvik,

attorneys; Mr. Daggett, on the brief).

Rachelle C. Jones, Assistant Sussex County Prosecutor, argued the cause for respondent (David J. Weaver,

Sussex County Prosecutor, attorney; Robin Lawrie,

Assistant Sussex County Prosecutor, and Ms. Jones, of counsel and on the brief).

PER CURIAM

Defendant Orlin Howell was found guilty in the municipal court of the disorderly person's offense of lewdness, N.J.S.A. 2C:14-4a, and sentenced to pay fines and assessments, and to undergo a psychological evaluation. On appeal to the Law Division, Rule 3:23-2, he was again found guilty of the same offense after a trial de novo and sentenced identically. Defendant appeals, and we affirm.

According to the State's proofs, on January 7, 2008, around 9:30 a.m., defendant, an Embarq technician, was dispatched to the Vernon Township home of Myra Kneer for a scheduled residential telephone repair. At the time, Kneer was at home with her youngest son and family dog. At defendant's request, Kneer put the dog away, then went back to the door to let defendant inside.

After explaining the problem with the telephone jacks in the upstairs children's bedrooms and showing defendant the location of the telephone box in the basement, Kneer returned to the main level of the house and went about her normal daily activities. During this time, defendant went up and down the stairs multiple times, occasionally passing Kneer and engaging in small talk.

At 11:35 a.m., Kneer put her son on the school bus, returned to the house, and went upstairs to clean her son's bedroom. She saw defendant upstairs and also observed that the attic stairs were down. According to defendant, the problem with the jacks was that the "feeder line that went from the basement to the attic was bad," requiring him to run a new wire from the telephone box located on the outside of the house up to the attic. While working in the attic, defendant snagged his leg on a metal vent cover, cutting his leg and causing a rip in his pants.

Defendant came down the attic stairs and called to Kneer, who was in her son's bedroom, that he was finished with the repair. Defendant put his tools down by the top of the stairs and warned Kneer to be careful in the attic, explaining that he had just cut his leg on an attic vent. According to Kneer, the cut was smaller than an inch and a half and could be seen through the hole in defendant's pants. When she asked if he was okay, defendant requested a band-aid. Kneer went to the boys' bathroom and found a band-aid in the linen closet. As she turned in the direction of the door, Kneer, in her peripheral vision, saw defendant in the mirror standing in front of the toilet. She found it strange that defendant had come into the bathroom and "immediately got a sense of feeling uncomfortable."

Kneer showed the band-aid to defendant, who asked for a bigger one. Kneer nervously turned back to the linen closet and looked through a first aid kit, pulling out a bigger band-aid. Before she could turn around to give it to him, defendant asked for something to clean the wound. Kneer continued looking through the first aid kit until she found an antiseptic swab. She ripped open the package and, without lifting her head, turned to her right with her right arm extended. She then saw that defendant was "unclothed from the waist down, holding his shirt." He did not have underwear on and she could see his genitals.

As Kneer held her hand out with the swab, defendant said "do you think you should clean it?" She replied, "no, I think you can do that." Then, within seconds, defendant reached for the swab and said, "do you think we should shave around the wound?" At that point, defendant had grasped Kneer's fingers and the antiseptic swab.

Kneer "freaked out," pulled her hand away and tried to exit the bathroom, which was not easy because the doors kept banging against each other. In fact, Kneer bruised her back when she was hit by the doorknob while trying to get out of the

bathroom.

Kneer ran down the stairs into the dining room to get her dog out of his crate. She then ran halfway back up the stairs, where she saw defendant, still exposed, looking down at her from the handrail. Defendant's pants were still down and he was applying the band-aid. The dog started to bark and urinate everywhere. Hysterical, Kneer told defendant "you need to leave now."

Kneer grabbed the dog by his collar and ran back down the stairs. Thereafter, defendant descended the stairs dressed and approached Kneer at the front door, "maybe four or five feet away." Defendant put his tools down and asked Kneer if the dog, who was barking uncontrollably and urinating, needed to go out. Kneer was dumbfounded by defendant's comment and said "you need to get the hell out of here. You need to leave."

Defendant, however, did not leave immediately. Instead, he asked Kneer if she had a chain for the dog. Still hysterical, Kneer screamed "you need to leave. You need to get out of here now." Defendant then left. As soon as defendant left, Kneer's husband telephoned, at which time Kneer lost control and started to cry hysterically. However, she did not tell her husband what happened for fear he would come racing home.

Kneer told her sister-in-law about the incident, and went to the home of her neighbor, Gail Woods, who called the police. Woods confirmed that on January 7, 2008, around noontime, Kneer rang the doorbell, "almost apologetic," shaking and almost in tears. Kneer told her "that the telephone man did something to her."

Vernon Township police officer William Fischer responded to the Wood's residence, where he saw Kneer "crying, hyperventilating . . . her eye makeup was running down her face." At a later interview with Officer Fischer and Detective Brian Jernick, defendant admitted he had pulled his pants down and did not have any underwear on at the time. Defendant explained that he had soiled himself on the way to work and therefore had to remove his underpants. He also told the officers that "he could understand why [Kneer] would be alarmed"; that it was "inappropriate" and he was "sorry"; and "it was probably wrong to do so."

Officer Fischer observed a tear in the defendant's pants, but did not see any blood on the outside of his pants. Defendant then "took his fingers and he spread his pants open and he showed that there was a cut." Fischer described the cut as an "[i]nch and a half, maybe two inches."

According to Detective Jernick, who testified on defendant's behalf, defendant told him that his pants were down only as far as his knees; that he did not lift his shirt; and that there was nothing sexual about what took place at the Kneer residence.

At trial, defendant reiterated this version. He simply asked Kneer for a band-aid and then sat on the toilet to treat the wound. When she gave him a band-aid, Kneer then exited the bathroom and returned a few seconds later "with antiseptic wipes or, some kind of cream, antiseptic cream on the band-aid, handed me that and I applied it to my leg." Upon her return, Kneer did not appear to be offended. Nor did she "freak out" or ever ask defendant to leave the residence.

According to defendant, his pants were down only to his knees and for no longer than a minute and a half. Moreover, during this entire time, he never stood up, but remained seated on the toilet. Defendant denied grabbing Kneer's hand or purposefully exposing himself to her. Defendant also denied asking Kneer to clean or shave around the wound, although he admitted asking her if he should shave the area. He was not wearing underwear because earlier that morning, around 7:30 a.m., he had an accident and continued on to work rather than return to his residence, which was only ten minutes away, to change his clothes. When he pulled his pants down, defendant was concentrating on treating his cut, which was bleeding, and was not thinking about his lack of underwear.

After attending to his cut, Kneer tested the jacks while defendant was present in the room. She went to the computer room and got a phone, then returned to the boys' rooms and checked both jacks in each room. Defendant then picked up his tool pouch and went downstairs near the front door, where he engaged Kneer in a brief conversation. She did not yell or scream for him to leave.

Crediting the State's version, the municipal court judge found defendant guilty of the disorderly person's offense of lewdness. On a de novo review of the record, the Law Division judge reached the same result, reasoning

The question is raised if, indeed, [defendant] knew he was lacking any underclothing. He knew he sustained this wound to his leg. He needed some type of attention to it. She was willing to provide him with that. The obvious answer is to address that in the bathroom with a closed door outside of her presence.

So when the Mandalakis [State v. Mandalakis, No. A-1787-05T1 (App. Div. Apr. 19, 2007) case speaks to the nature of the act and the circumstances in which it was committed, by his actions in entering the bathroom in the manner in which he did, removing his trousers, exposing his genitals, asking this lady about attending to that wound, and the manner of her description of him with his hand grabbing her fingers to the point that she had to tug, pull away, and then she becomes upset, seeks to enter this -- exit, rather, this bathroom rather quickly, only to be confronted by the door configurations, and then getting downstairs, and him -- and then deciding to go up the stairs to tell him to get out, now only to have him exit the bathroom in the same condition, with his genitals again fully exposed, staring down at her, these are the nature and circumstances of the offense in the Court's judgment that convinced me beyond a reasonable doubt that he's guilty of the Lewdness Statute.

Anything else presented or suggested, in my view, does not challenge this conclusion.

. . . .

It's clear to me under these circumstances, that this lady was upset. She was alarmed and affronted by his flagrant actions in removing his trousers and engaging in this extra conduct with this lady and continuing in that manner after she had made an effort to quickly exit this bathroom area.

On appeal, defendant argues:

DUE TO A LACK OF ANY EVIDENCE OF A "FLAGRANTLY LEWD" ACT BEYOND A REASONABLE DOUBT, DEFENDANT WAS WRONGFULLY CONVICTED IN MUNICIPAL AND SUPERIOR COURTS.

We reject this contention as without merit. R. 2:11-3(e)(2).

The function of the Law Division on an appeal from the municipal court is not to search the record for error by the municipal court, or to decide if there was sufficient credible evidence to support the municipal court conviction, but to determine the case completely anew on the record made before the trial judge, giving due, although not necessarily controlling, regard to the opportunity of the judge to evaluate witness credibility. R. 3:23-8(a); State v. Johnson, 42 N.J. 146, 157 (1964); State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000). In other words, the judge in a trial de novo must make independent findings of fact. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995) (citing State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983)). In contrast, our function as a reviewing court is governed by the "substantial evidence" rule, namely to determine whether the findings of the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162.

[T]he rule of deference is more compelling where . . . two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of fact and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error.

[State v. Locurto, 157 N.J. 463, 474 (1999).]

When we are satisfied that the findings and conclusions of the Law Division are supported by sufficient credible evidence, our "task is complete and [we] should not disturb the result" even if we "might have reached a different conclusion" or if the case was "a close one." Johnson, supra, 42 N.J. at 162; see also Avena, supra, 281 N.J. Super. at 333. So measured, we are satisfied that the evidence in this case established defendant's guilt beyond a reasonable doubt.

Under N.J.S.A. 2C:14-4a,

[a] person commits a disorderly persons offense if he does any flagrantly lewd and offensive act which he knows or reasonably expects is likely to be observed by other nonconsenting persons who would be affronted or alarmed.

More than nudity is involved in the offense of lewdness. Disorderly persons lewdness requires a lewd or offensive act that the defendant knows or reasonably anticipates is likely to be observed by a person who would be affronted or alarmed by the conduct. State v. Hackett, 323 N.J. Super. 460, 474 (App. Div. 1999), aff d, 166 N.J. 66, 76 (2001). The "lewd or offensive act" may be exposure of the defendant's genitals, if that exposure is for sexual arousal or gratification. Id. at 474. Indeed, the subsection c. definition of lewdness, requiring the purpose of arousal or gratification, N.J.S.A. 2C:14-4(c), makes it plain that the sexual desire of the actor is an essential element of lewdness. Hackett, supra, 323 N.J. Super. at 474. But see State v. Zeidell, 154 N.J. 417, 430 (1998) (indicating in dicta that the disorderly persons subsection a. offense encompassed conduct which included "exposing the actor's own genitals regardless of whether done for the actor's sexual arousal or gratification").

Here, defendant's knowing exposure of his genitals to Kneer in the confined space of her upstairs bathroom with no one else home, his subsequent request that she clean and shave the area around his wound, and his grabbing her fingers in furtherance of that invitation constitutes lewdness within the meaning of N.J.S.A. 2C:14-4a. Given Kneer's visible reaction to the incident, and evaluated by a standard of reasonable expectation, defendant knew such offensive and uninvited conduct would affront and alarm his victim. Moreover, it may reasonably be inferred from the nature of the acts themselves, and the circumstances under which they were committed, that defendant exposed his genitals to Kneer for sexual gratification. Accordingly, we are satisfied that sufficient credible evidence supports the conclusion that defendant committed the disorderly person's offense of lewdness.