STATE OF NEW JERSEY v. TOM WHITE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6198-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TOM WHITE,

Defendant-Appellant.

_________________________________________

September 12, 2012

Argued March 28, 2012 - Decided

Before Judges Cuff and St. John.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-10-2325.

Christopher M. Kurek argued the cause for appellant (McCrink, Kehler & McCrink, attorneys; Charles A. Fiore, on the briefs).

Jack R. Martin, Assistant County Prosecutor, argued the cause for respondent (Theodore F. L. Housel, Atlantic County Prosecutor; Mr. Martin, of counsel and on the brief).

PER CURIAM
 

Following a bench trial, defendant Tom White appeals from his conviction of harassment, N.J.S.A. 2C:33-4(c), a petty disorderly persons offense, and his sentence of a one-year term of probation, plus a $125 fine and submission of a DNA sample. After reviewing the arguments advanced on appeal, in light of the record and applicable law, we affirm defendant's conviction, and vacate his sentence, in part.

I.

The record reveals the following facts relevant to this appeal.

In 2007, Blondell James and her husband, Harry,1 began constructing their new home in Buena Vista, a rural municipality in Atlantic County. Shortly after construction commenced, a "neighborhood dispute" developed between the James family and defendant, who is their next-door neighbor. Over the next two years, numerous police reports were filed as a result of the ongoing dispute. On approximately fifteen occasions, local police or State Troopers were dispatched to their residences.

On July 19, 2008, Blondell went to the State Police Barracks in Buena Vista and complained that defendant was "shouting at" contractors, causing them to "leave the job site early." Troopers discussed the situation with both parties, and determined the dispute was related to the location of a fence near the property line between their residences. Blondell later testified that around that time she also witnessed defendant enter her property and post "no trespassing, no hunting" signs on her trees without permission. In a subsequent State Police report, a trooper concluded that "neither party wanted to file complaints and no further action was taken."

On May 9, 2009, Blondell contacted the State Police, and requested a trooper be dispatched as a result of defendant's noisy use of an all-terrain vehicle (ATV) on the edge of the property line. Upon arrival, the trooper advised Harry that defendant was not in violation of any noise ordinance, and that he could not prevent defendant from riding an ATV on his own property. While still at the scene, the trooper received a call reporting that someone from the James residence just called

9-1-1 and requested the assistance of a trooper "due to the noise." Following this dispatch, the trooper requested that defendant refrain from riding his ATV for the rest of the evening. Defendant agreed, and no further complaints were made at that time.

On May 11, 2009, Blondell filed a complaint against defendant in the Buena Vista Regional Municipal Court, alleging harassment and bias harassment. She cited the ATV incident of May 9, when defendant drove his ATV back and forth on top of the dirt berm next to their property border, while flashing the headlights and revving the engine in a loud manner. She also alleged that on July 19, 2008, "[defendant] stood on top of [the dirt berm]. He yelled and screamed. He took his shirt off, he was swinging his shirt in the air, calling to us . . . 'why did you f**king niggers have to build your house in back of mine?'"

On December 9, 2009, the Municipal Court judge entered an order holding the case in abeyance for six months. The complaint was subsequently dismissed.

On August 5, 2010, Blondell again called the State Police, reporting that she was in her backyard when she observed defendant staring at her. Defendant explained to the responding troopers he was on his property inspecting a fallen tree.

Blondell filed a complaint later that month, alleging that on August 5, defendant engaged in conduct that caused her to fear for the death of herself or a family member. She recounted that defendant regularly watched her through the fence that separates their property, and he would engage in "dipping and dodging" behind the fence to maintain his vantage point toward her. She also testified that defendant would stand under a spotlight during the night and watch her from his property.

On October 12, 2010, an Atlantic County Grand Jury returned Indictment No. 10-10-2325, charging defendant with fourth-degree stalking, N.J.S.A. 2C:12-10b, which the Atlantic County Prosecutor's Office subsequently amended to harassment, N.J.S.A. 2C:33-4c.

On August 8 and 9, 2011, defendant was tried before Judge Max A. Baker. In an oral decision, the judge determined:

I have uncontradicted testimony that during that day [July 19, 2008] you yelled some pretty vial and disgusting words at Mr. and Mrs. James. The first thing you said, which I think is extremely telling, is why'd ya have to build your house behind mine? You didn't want a house built there at all. Maybe obstructed your view. Maybe there is some reason for wildlife that you enjoyed you didn't want a house there at all. I'm satisfied that is why you said it. And then in your anger you called them some pretty vial and disgusting names and I find, beyond a reasonable doubt, that that is, in fact, what you did.

Although the judge described Blondell as "an alarmist" who "embellished upon a lot" during her testimony, he concluded:

But even knowing that, I do accept and I do believe [her] testimony concerning the signs, the spotlight, the revving of the ATV and the racial slurs. They're uncontradicted, clearly meet the definition of N.J.S.A. 2C:33-4 whereby [defendant] made a communication, one of them at least an offensively coarse language and the others clearly in a manner likely to cause annoyance or alarm.

The judge found defendant guilty, and sentenced him to a one-year term of probation and imposed a $125 fine. The Judgment of Conviction ordered defendant to submit a DNA sample.

II.

Defendant raises the following arguments for our consideration on appeal:

I. THE STATEMENT OF REASONS FOR THE GUILTY VERDICT CONTAINED FACTS NOT PRESENTED TO THE COURT AT THE TIME OF TRIAL BUT HAD PREVIOUSLY BEEN ADJUDICATED IN MUNICIPAL COURT.

II. THE COURT ERRED IN RELYING ON MATERIAL OUTSIDE THE COMPLAINT FOR THE GUILTY FINDING.

III. THE JUDGE HAD IMPROPER EX-PARTE COMMUNICATIONS WITH THE ATLANTIC COUNTY PROBATION DEPARTMENT PRIOR TO THE TRIAL.

IV. THE COURT PERMITTED TESTIMONY REGARDING ACTS PREVIOUSLY ADJUDICATED.

V. THE STATE FAILED TO PRODUCE EVIDENCE PRIOR TO TRIAL THAT MAY HAVE BEEN EXCULPATORY.

VI. THE SENTENCE IMPOSED WAS EXCESSIVE.

At the outset, we note that the scope of an appellate court's review of a trial court's fact-finding is a limited one. Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988). "Trial court findings are ordinarily not disturbed unless 'they are so wholly unsupportable as to result in a denial of justice,'" and are upheld wherever they are "'supported by adequate, substantial and credible evidence.'" Ibid. (quoting Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974)). The 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." State v. Locurto, 157 N.J. 463, 471 (1999). To the extent that the trial court's decision implicates legal principles, we independently evaluate those legal assessments de novo. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); Finderne Mgmt. Co., Inc. v. Barrett, 402 N.J. Super. 546, 573 (App. Div. 2008), certif. denied, 199 N.J. 542 (2009).

With these principles in mind we address defendant's contentions on appeal.

A.

Defendant argues that because Blondell's testimony at trial recounted incidents previously adjudicated in a 2009 municipal court action in Buena Vista, defendant was improperly exposed to double jeopardy. He further contends that because the municipal court action was dismissed on December 9, 2009,2 and stemmed from the same incident before the Criminal Part in 2011, the trial judge "should not have considered any charges or actions by [] defendant or exchanges between complaining witnesses and [] defendant prior to August 2010 . . . [because] [i]t was alleged behavior that occurred in August [2010] or shortly prior to August [2010] that sparked the filing of the complaint in this matter."

The judge's guilty verdict was supported by his findings that defendant posted signs on the James' property; shined a spotlight from his property on occasion; revved the motor of his ATV; and made racial slurs directed at Blondell. According to the record, these events occurred between 2008 and 2009. Blondell's testimony at trial indicated that her August 2010 complaint, which resulted in the indictment, stemmed from defendant's watching her through the fence dividing their properties.

It is well established that in a nonjury trial, "'jeopardy attaches when the first witness is sworn.'" Samarel, supra, 231 N.J. Super. at 139 (quoting State v. Lynch, 79 N.J. 327, 341 (1979)). Further, "'[i]n applying the prohibition against double jeopardy, the emphasis should be on underlying policies rather than technisms. The primary considerations should be fairness and fulfillment of reasonable expectations in the light of the constitutional and common law goals.'" Ibid. (quoting State v. Currie, 41 N.J. 531, 539 (1964)). "Dismissal of criminal charges may or may not bar a later prosecution, depending on whether the dismissal was grounded on bases related to guilt or innocence." Ibid. Ordinarily, a dismissal before trial does not bar later prosecution. Ibid.

The record is clear that, notwithstanding the dismissed complaint against defendant, no issue presented in 2008 or 2009 was adjudicated on the merits in the Buena Vista Regional Municipal Court, and no witness was sworn at any trial. The December 9, 2009 order dismissing the complaint against defendant appears to have been entered after the abeyance period, which was subject to the condition that neither defendant nor Blondell file a subsequent complaint against one another for a six-month period.

Accordingly, jeopardy for all incidents between 2008 and 2010, which were alleged to constitute harassment, attached for the first time when the first witness against defendant was sworn at trial on August 8, 2011. As such, the State was not barred from bringing its case in the Criminal Part by the principle of double jeopardy.

B.

In defendant's Point II, he asserts that he was unaware the judge "would make a guilty finding based on actions alleged during trial that were not part of the original complaint." In his Point IV, defendant similarly argues the judge erred in finding, in support of the conviction, that prior incidents involving the dispute between defendant and Blondell constituted an effort to harass her.

Defendant also argues the judge erred by referencing the "totality of the circumstances" in support of finding him guilty of harassment because an analysis of the totality of the circumstances was inappropriate in sustaining his conviction.

The record reflects that in support of his findings, the judge stated:

"All I have is that you stood in your second floor patio door and looked out at the James'. That's not to say that I believe that you were staring at them, but understanding what took place, the whole totality of this circumstances as soon as they move in, you put up these signs[.]"

In State v. Hoffman, 149 N.J. 564, 576 (1997), the Supreme Court noted the purpose served by the harassment statute, N.J.S.A. 2C:33-4, is "to make criminal, private annoyances that are not entitled to constitutional protection. Thus, the substantive criminal offense proscribed by subsection (a) is directed at the purpose behind and motivation for making or causing the communication to be made." The Court also made clear that "a purpose to harass may be inferred from the evidence" and that "common sense and experience" may be used in making that determination. Id. at 577. Further, the Court held: "In determining whether a defendant's conduct is likely to cause the required annoyance or alarm to the victim, that defendant's past conduct toward the victim and the relationship's history must be taken into account. The incidents under scrutiny must be examined in light of the totality of the circumstances." Id. at 585.

Here, the totality of the circumstances mentioned in the judge's decision was related to defendant's course of conduct over a two-year period, and is considered relevant when determining whether the State proved he caused annoyance or alarm to Blondell, which is a statutory element of the offense, N.J.S.A. 2C:33-4. Accordingly, the judge did not err in considering Blondell's testimony regarding prior incidents involving defendant's actions directed toward her.

C.

Defendant asserts that before his trial, the judge improperly communicated with a probation officer and inquired about sentencing defendant to probation. The only support for this argument on appeal is defense counsel's "Certification in Support of Notice of Motion for Recusal of Judge Baker Pursuant to Rule 1:12-1," included in defendant's appendix, which states: "Point III of the issues to be raised in this appeal is the issue of Judge Baker erring by contacting a probation officer in Atlantic County prior to the end of Trial and inquiring about a sentence that he could impose on the defendant."

Defendant's bald factual assertion is wholly unsupported by the record on appeal. R. 2:5-4(a) specifies that the record on appeal "shall consist of all papers on file in the court or courts or agencies below . . . ." Thus, an Appellate Court will not consider evidentiary material which was not part of a record below. State v. Harvey, 151 N.J. 117, 201-02 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000); Burt v. W. Jersey Health Sys., 339 N.J. Super. 296, 311 n.3 (App. Div. 2001). Additionally, both defendant and defense counsel failed to provide an affidavit in which either party attests to the facts at issue. We, therefore, strike the materials in defendant's appendix that were not included in the record below, and we have not considered them in this decision. We decline to address defendant's argument and refuse to comment on any alleged extrajudicial or alleged improper inquiry by Judge Baker, concerning a probationary sentence for defendant prior to the imposition of sentence. However, we note that probation officers are members of the judiciary, R. 1:34-4, and defendant has offered no support for his assertion that such contact, if in fact it occurred, would be inappropriate.

D.

In defendant's Point V, he contends that the prosecution either possessed exculpatory evidence that was not provided to defense counsel, or, in the alternative, there was available evidence that was "offered" to the prosecutor but never supplied to the defense. Specifically, defendant asserts that on cross-examination, the victim revealed that she had accumulated various photographs and audio recordings prior to trial, which were not previously made available to the defense, resulting in a denial of due process for defendant.

In order to establish a Brady3 violation, the defendant must show that: (1) the prosecution suppressed evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material. State v. Martini, 160 N.J. 248, 268 (1999). "[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985). Our Supreme Court has stated that the focus should be on the essential fairness of the trial. State v. Carter, 69 N.J. 420, 433 (1976). The test is whether the evidence could induce reasonable doubt as to the verdict or would tend to exculpate defendant. Id. at 433-34. The focus of Brady, however, is on nondisclosure of exculpatory evidence. State v. Morton, 155 N.J. 383, 413 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).

It is important to note that defendant has not asserted any specific exculpatory value that the victim's photographs and audio recordings may have produced. Additionally, defendant has not established even the remotest connection to the record suggesting there was a "reasonable probability" that the outcome would have been different had the defense been provided the photographs and audio recordings in advance of trial. Simply because Blondell possessed the photographs during trial, does not suggest the State withheld them from the defense, or that the evidence was material or exculpatory in nature.

E.

Plaintiff's final argument on appeal is that his sentence is excessive. At the outset, we acknowledge, as does the State, that the Judgment of Conviction's condition, requiring defendant to provide a DNA sample pursuant to N.J.S.A. 53:1-20.20, was inappropriately imposed following conviction of a petty disorderly persons offense. Therefore, we vacate that portion of the sentence.

However, we affirm the sentence of a one-year term of probation and a $125 fine. Defendant was convicted of a petty disorderly persons offense, and under N.J.S.A. 2C:43-3d, the maximum fine allowable following such a conviction is $500. Here, the $125 fine imposed was the minimum allowable following such a conviction. See N.J.S.A. 2C:43-3.1a(2)(a) (requiring a $50 assessment following any conviction for a petty disorderly persons offense); N.J.S.A. 2C:43-3.2a(1) (requiring a $75 assessment for Safe Neighborhood Services following any conviction for a petty disorderly persons offense). Further, defendant's conviction potentially subjected him to a sentence of thirty-days imprisonment, N.J.S.A. 2C:43-8, which the judge declined to impose.

Accordingly, a sentence imposing a $125 fine and a one-year term of non-custodial probation does not "shock[] the judicial conscience," requiring a reversal on appeal when, as here, the court's "findings of fact [] are grounded in competent, reasonably credible evidence." State v. Roth, 95 N.J. 334, 363-64 (1984). We discern no abuse of discretion in the judge's imposition of the fine and term of probation.

Defendant's conviction is affirmed; the DNA sample is vacated, and the matter is remanded for entry of an amended Judgment of Conviction.

1 For ease of reference, we shall refer to Mr. and Mrs. James by their first names.

2 The record on appeal does not state whether the 2009 municipal court complaint was dismissed with prejudice. Defendant's appellate brief submits, however, the Buena Vista Regional Municipal Court disposition dated December 9, 2009, states only that the action was "HELD 6 MOS-NO PROBLEMS-DISMISSED," and that defendant entered a plea of "Not Guilty" on June 24, 2009. Nowhere on the document does it state whether the complaint was dismissed with or without prejudice. In the absence of such information contained on the face of the order, and considering there was no trial in the municipal court or an adjudication on the merits, we will proceed as if no prejudice attached to the dismissal order. See State v. Samarel, 231 N.J. Super. 134, 139 (App. Div. 1989).

3 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).