STATE OF NEW JERSEY v. THERESA DURHAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4397-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THERESA DURHAM,

Defendant-Appellant.

________________________________________________________________

March 9, 2011

Argued January 11, 2011 - Decided

Before Judges Payne and Koblitz.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FO-18-176-10.

Robert I. Aufseeser argued the cause for appellant(Purcell, Mulcahy,O'Neill & Hawkins, LLC,attorneys; Mr.Aufseeser, on the briefs).

WilliamA. Guhl, Assistant Prosecutor, argued the causefor respondent(Geoffrey D. Soriano, Somerset County Prosecutor,attorney; Mr. Guhl, on the brief).

PER CURIAM

Defendant Theresa Durham appeals her second contempt conviction for violating a final restraining order, N.J.S.A. 2C:29-9(b).1 She was sentenced to the mandatory minimum penalties of thirty days in jail, a $50 Violent Crimes Compensation Board assessment and a $75 Safe Neighborhoods Services Fund assessment. She argues that she did not have the requisite intent, and her behavior was trivial. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The parties had a six-year dating relationship, which ended prior to the December 14, 2006 final restraining order. The restraining order prohibited defendant from having any contact or communication with the victim. This disorderly persons conviction stems from the events of August 29, 2009. The victim is a Manville police officer who was on duty throughout the time period defendant had contact with him. He testified to the following facts. At 9:04 a.m., he was in his patrol car monitoring traffic on South Main Street when defendant drove past him, glaring at him as she made eye contact. She was traveling seventeen miles-per-hour in a forty-five mile-per-hour zone. At 9:13 a.m., defendant drove past him in the other direction at the same slow rate of speed, again making eye contact and displaying an unpleasant facial expression. The victim then left his patrol position and drove up Main Street. At 9:40 a.m., defendant made eye contact as she walked on the sidewalk. At 10:00 a.m., the victim drove past Main Street and South Fifth Street and saw defendant standing on the street corner staring in his direction. As he drove down Whalen Street at 11:47 a.m., defendant s car passed by his, and she made another unpleasant facial expression toward him. Then he returned to his original patrol location on South Main Street when, at 12:22 p.m., defendant again drove by him at a slow rate of speed, grimacing. At 12:40 p.m., she again drove by him at a slow rate of speed, looking in his direction. He testified to a total of seven encounters between 9:00 a.m. and 12:40 p.m.

Defendant lives in Flemington, about twenty miles from Manville. Defendant called a car mechanic who testified that she brought her car in that morning to fix a window that was stuck in the open position. The mechanic managed to raise the window, but did not repair the underlying problem.

Defendant testified to the following facts. She was in Manville to have her car window repaired. She had lived in Manville in the past and frequented the particular car repair shop in Manville because it accepted partial payments over time. She saw a police car but did not recognize the officer. Defendant remembered seeing the victim two times during her travels around Manville when she was walking and he was in a stationary patrol car. She denied making eye contact or directing any facial expressions at him. She passed many police cars that day as she went out for coffee and a bagel, to a nail salon and to pick up lunch, but could not see which officer was driving the marked police car at any time.

The trial court found defendant incredible and the police officer victim credible.

On appeal defendant argues,

POINT I

THE TRIAL COURT ERRED IN FINDING A VIOLATION OF N.J.S.A. 2C:29-9(b), WHERE NO EVIDENCE WAS PRESENTED AS TO APPELLANT'S STATE OF MIND, AND WHERE APPELLANT'S PRESENCE IN MANVILLE WAS NOT SPECIFICALLY PROHIBITED BY THE RESTRAINING ORDER.

1. The Prosecution Failed to Prove Appellant Knowingly Violated the Terms of the Final Restraining Order.

2. The Restraining Order Failed to Specifically Prohibit Appellant's Conduct.

POINT II

APPELLANT'S ACTIONS WERE TRIVIAL IN NATURE AND DO NOT RISE TO THE LEVEL OF A CRIMINAL VIOLATION.

A person is guilty of contempt if that individual, purposely or knowingly violates any provision in an order, entered under the prevention of Domestic Violence Act. N.J.S.A. 2C:29-9. The final restraining order prohibited defendant from having any form of contact or communication with the victim. The trial court found that defendant s seven interactions with the victim, which included eye contact and unpleasant facial expressions, constituted a form of nonverbal communication prohibited by the restraining order.

Prior to the imposition of sentence for this conviction, the victim stated that when he ended his relationship with defendant she said: You can never leave me, I can always find you. He went on to detail a lengthy history over many years of unrelenting contact and harassment by defendant, including moving close to his home, stalking and filing repeated false police reports accusing him of serious criminal behavior, which caused disruption at his job. Her behavior resulted in the victim suffering from stress-related medical symptoms. Defendant s inability or unwillingness to control her behavior resulted in a prior contempt finding.

We are constrained to accept the credibility determinations found by the trial court. State v. Locurto, 157 N.J. 463, 471 (1999); Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We must also accept the trial court s findings of fact if supported by the record. Locurto, supra, 157 N.J. at 471-72; State v. Johnson, 42 N.J. 146, 162 (1964). As the Supreme Court recently noted in State v. Nunez-Valdez, 200 N.J. 129, 141 (2009) "[a] reviewing court is required to affirm the findings of the trial court if they could reasonably have been reached on sufficient credible evidence in the record." The Court added, "[a]n appellate court '"should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy."'" Ibid. (quoting State v. Elders, 192 N.J. 224, 244 (2007) (quoting Johnson, supra, 42 N.J. at 161)).

The Court further emphasized that:

[a]n appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions."

[Ibid. (quoting Elders, supra, 192 N.J. at 244) (citations omitted).]

To be guilty of contempt of a final restraining order, the State must prove defendant was served with the restraining order and knowingly committed the behavior that violated the order. See State v. L.C., 283 N.J. Super. 441, 447-48 (App. Div. 1995), certif. denied, 143 N.J. 325 (1996). It is not necessary for the State to prove that defendant was aware that her particular behavior would constitute a violation of the restraining order. Even if she mistakenly thought her approaches to the victim would skirt the prohibitions of the restraining order, if those approaches constitute communication, she is factually guilty of contempt. See State v. J.T., 294 N.J. Super. 540, 544 (App. Div. 1996) (where the defendant was convicted of harassment and contempt for violating a final restraining order prohibiting him from entering plaintiff's property because he persistently remained in a position near her property where she could see him). In State v. Hoffman, 149 N.J. 564, 589 (1997), the Court found that a contempt conviction may be sustained without a finding of guilt as to a complaint of harassment because the mailing of letters by defendant to the victim constituted contact that was prohibited by the restraining order. Defendant had no legitimate reason at all to have contact or communication with the victim. They did not have a child, and their relationship ended five years earlier.

Defendant argues that her conduct was not serious enough to be treated as criminal behavior. In the context of the history between the two individuals, her repeated nonverbal communication with the victim contrary to the express language of the final restraining order was not trivial.

1 She was acquitted at trial of harassment. N.J.S.A. 2C:33-4(c).