STATE OF NEW JERSEY v. J.C.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.C.D.,

Defendant-Appellant.

_______________________________

July 2, 2014

Before Judges Lihotz and Hoffman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FO-18-168-13.

Caruso Smith Picini, P.C., attorneys for appellant (Steven J. Kaflowitz, on the briefs).

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant J.C.D. appeals from his convictions for the petty disorderly offenses of harassment, N.J.S.A. 2C:33-4(a) and contempt of court, N.J.S.A. 2C:29-9(b).1 Following a Family Part bench trial, defendant was found guilty of violating a domestic violence final restraining order (FRO) by sending a single harassing text message to his former wife, M.B.R. Defendant argues the State's evidence failed to prove each element of harassment. Alternatively, defendant argues his sentence was erroneous as the two convictions must be merged. More specifically defendant asserts:

POINT I

DEFENDANT SHOULD NOT HAVE BEEN CONVICTED OF HARASSMENT OR OF VIOLATING THE RESTRAINING ORDER BY HAVING COMMITTED AN ACT OF HARASSMENT. (PARTIALLY RAISED BELOW).

POINT II

THE CONVICTION FOR HARASSMENT SHOULD MERGE WITH THE CONVICTION FOR VIOLATING A RESTRAINING ORDER BY COMMITTING AN ACT OF HARASSMENT. (NOT RAISED BELOW).

The State concedes merger was applicable, but refutes defendant's challenge to the sufficiency of the evidence supporting his convictions. Based on the State's position, we need only address the arguments directed at whether the proofs sustain the conviction of harassment beyond a reasonable doubt. We conclude they do and affirm.

These facts, taken from the trial record, are undisputed. An FRO pursuant to the New Jersey Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, was entered on April 9, 2002, following a trial on the complaint filed by M.B.R. The FRO prohibited defendant "from having any (oral, written, personal, or other) form of contact or communication with victim [M.B.R.], except parties to communicate by telephone [in case of] emergency, [or] by mail or fax regarding non-emergent med[ical]/parenting" matters. At the conclusion of the in that matter, defendant stipulated he received a copy of the FRO.

The sole witness during trial on the criminal charges was M.B.R. She testified she commenced communications with defendant regarding their daughter's need for substance abuse treatment. On March 3, 2013, the child was about to be released from a short-term rehabilitation program. Defendant had been contacted for approval of the child's recommended placement in a residential long-term care facility. The child's admission to this program required parental permission and M.B.R. understood authorizing the child's admission meant assuming financial responsibility for her care. M.B.R. stated she did not want to assume sole financial responsibility and agreed to execute the authorization only if defendant did the same. Defendant texted he "did not want the financial responsibility" for someone who did not want treatment. M.B.R. responded "Nor do I."

These communications were not relied upon by the State to support proof of defendant's conduct as charged. Rather, only defendant's final message, sent at 2:13 p.m., was presented as evidence. This text message sent to M.B.R. by defendant stated:

You fucking asshole. You will die a slow and painfully [sic] death. We will all laugh. Your kids want nothing to do with you. You will never see [the parties' son], and every penny you make going forward will be taken from you.

I have contacted Judge S. There will be a warrant for your arrest shortly. Worthless piece of shit, die and let everyone rest in peace.

M.B.R. testified she received the message from defendant s phone number, which matched the number he had when the two were married. The content of the threat alarmed M.B.R., who reported it to police. Defendant sent additional text messages to M.B.R. as she was in the police station. The content of these messages was not revealed.

M.B.R. noted she and defendant had pending matters before Judge Maureen P. Sogluizzo and she had no other pending cases in any court before a judge whose name begins with the letter "S." M.B.R. also related past incidents evincing domestic violence conduct by defendant. These past events supported her belief defendant meant what he said and was not making an idle threat. On cross-examination, M.B.R. acknowledged defendant suffered from degenerative spine disease and other conditions, and that he lives in New York. Yet, she insisted his condition and his location did not mitigate her alarm because defendant had the means to effectuate his threat, particularly because he had access to a gun.

At the close of evidence, the trial judge found the text message had "nothing . . . whatsoever that is remotely related to the welfare of their daughter[,]" was harassing and therefore, violated the FRO. Noting the State's proofs were uncontroverted, the judge found the message employed offensively coarse language, was made in a manner likely to cause annoyance or alarm in light of the past history of domestic violence, and was sent "with the intent to harass [M.B.R.] beyond a reasonable doubt." The judge imposed a one year non-custodial probationary sentence and ordered defendant to pay "standard minimum fines." Defendant filed this appeal.

Defendant argues the trial court's findings cannot be sustained, including that his speech as contained in the text message was "offensively course . . . and made in a manner likely to cause annoyance or alarm." He argues the court punished the content of his message, despite the fact that "the First Amendment prohibits criminalizing the words which one chooses to express one's self, absent the use of fighting words. . . ." Alternatively, defendant maintains N.J.S.A. 2C:33-4 must be construed to criminalize only language "understood to have intentionally conveyed a true threat of physical harm, not just an intent to offend or inflict emotional harm." Defendant suggests his expression contained no true threat and was not actionable. Finally, defendant contends the State failed to prove a purpose to harass; he was merely frustrated by M.B.R.'s obstinate response. We are not persuaded.

In reviewing a trial court s order entered following a non-jury trial, our role is limited to "'determin[ing] whether the findings made could reasonably have been reached on sufficient credible evidence present in the record[.]'" State v. Castagna 387 N.J. Super. 598, 604 (App. Div. 2006) (alteration in original) (quoting State v. Johnson, 42 N.J. 146, 161-162 (1964)). We intervene only when the trial judge's factual findings are unsupported or "went so wide of the mark" they are clearly mistaken "and so plainly unwarranted that the interest of justice demand intervention and correction." Johnson, supra, 42 N.J. at 162.

The pertinent provision of the criminal harassment statute provides a person is guilty of the petty disorderly offense of harassment if, with "the purpose to harass another," she or he:

Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm[.]

[N.J.S.A. 2C:33-4(a).]

As applied here, in addition to proving defendant issued an offensively coarse communication, likely to cause annoyance or alarm, the State must also demonstrate defendant's purpose was to harass the recipient. Cannel, N.J. Criminal Code Annotated, comment 3 on N.J.S.A. 2C:33-4 (2014). There is no dispute that defendant authored and sent the text message at issue and that its content is offensively coarse. The question for our review is whether the State has proven beyond a reasonable doubt defendant sent the message with the intent to cause his former wife annoyance or alarm.

"A finding of a purpose to harass may be inferred from the evidence presented." State v. Hoffman, 149 N.J. 564, 577 (1997) (citing State v. McDougald, 120 N.J. 523, 566-67 (1990); State v. Avena, 281 N.J. Super. 327, 340 (App. Div. 1995)). "Common sense and experience may inform that determination." Ibid. (citing State v. Richards, 155 N.J. Super. 106, 118 (App. Div.), certif. denied, 77 N.J. 478 (1978)). See also Avena, supra, 281 N.J. Super. at 340 ("While we might or might not have made the same inferences, our role is one of determining whether the trial judge's inferences were rationally based on evidence in the record."). Because direct proof of intent is often absent, "purpose may and often must be inferred from what is said and done and the surrounding circumstances[,]" and "[p]rior conduct and statements may be relevant to and support an inference of purpose." Castagna, supra, 387 N.J. Super. at 606 (citations omitted). See also H.E.S. v. J.C.S., 175 N.J. 309, 327 (2003) (the purpose to harass may be inferred from "common sense and experience.").

As the trial judge noted, defendant's text had no legitimate purpose as its content was devoid of substance related to the parties' children. Further, she found "nothing from the communication . . . as having pr[e]ce[]ded this [text] that would have provoked an outrageous, horrific, threatening response" by defendant. "Absent a legitimate purpose behind defendant's actions, the trial court could reasonably infer that defendant acted with the purpose to harass" M.B.R. Hoffman, supra, 149 N.J. at 577.

Regarding whether the content of the text was likely to cause annoyance or alarm, the Supreme Court has instructed "the Legislature intended that the term 'annoyance' should derive its meaning from the conduct being scrutinized." Id. at 580. We have no difficulty concurring with the trial judge that a review of the content of defendant's text message and M.B.R.'s testimonial evidence satisfies this provision beyond a reasonable doubt.

The judge credited M.B.R.'s testimony expressing her fear upon receipt of the text containing the threat: "You will die a slow and painful[] death." During her marriage to defendant, M.B.R. had been physically victimized and asserted she had no doubt defendant was capable of executing such a threat. The factual findings by the trial judge that defendant intended to alarm M.B.R. when she read the texts is supported by the uncontroverted evidence in the record, especially in light of the parties' past relationship and the prior history of domestic violence.

On the other hand, the record contains no support for defendant's suggestion he was merely expressing himself, perhaps in a vulgar manner. Relying on authority from other jurisdictions, defendant suggests his speech was non-actionable and akin to "mere puffery, bluster, jest or hyperbole." We reject this argument as specious and conclude the proofs satisfy each element of N.J.S.A. 2C:33-4(a) beyond a reasonable doubt, and sustain defendant's conviction.2

Also, we easily reject defendant's First Amendment attack, as the substantive provisions of the statute defining harassment as a criminal offense have survived constitutional challenge. Hoffman, supra, 149 N.J. at 582. The Court held:

N.J.S.A. 2C:33-4(a) is not unconstitu-tionally vague. The specific state of mind required, with purpose to harass the intended recipient of the communication, is sufficiently clear and serves to clarify any vague phrases in subsection (a). The ordinary usage of the term "harass" is sufficient to inform a person of normal intelligence of the type of mental culpability needed.

[Ibid.]

The harassment statute's purpose "'is to make criminal, private annoyances that are not entitled to constitutional protection.'" Id. at 576 (1997) (quoting 2 Final Report of the New Jersey Criminal Law Revision Commission, commentary to 2C:33-4, at 296 (1971)). "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." Ibid. (quoting State v. Mortimer, 135 N.J. 517, 528 (1994).

Similarly, in Mortimer, the Court reaffirmed its prior holding, stating the harassment statute proscribed harassing conduct, not speech. Mortimer, supra, 135 N.J. at 528. See also State v. Fin. Am. Corp., 182 N.J. Super. 33, 38 (App. Div. 1981) (holding the harassment statute "principally proscribes conduct").

Based on our review, we affirm defendant's convictions. We remand to the trial court to correct the judgment to reflect merger of the two convictions.

1 We note N.J.S.A. 2C:29-9(b) specifies that

a person is guilty of a crime of the fourth degree if that person purposely or knowingly violates any provision in an order entered under the provisions of the "Prevention of Domestic Violence Act of 1991," . . . when the conduct which constitutes the violation could also constitute a crime or a disorderly persons offense.

In all other cases, a person who violates the conditions of an FRO is guilty of a disorderly persons offense. Ibid.

2 Defendant's reliance on this court's holding in Peranio v. Peranio, 280 N.J. Super. 47 (App. Div. 1995), is erroneous. In Peranio there was no prior history of domestic violence between the parties. Id. at 56. Therefore, there was no contextual basis to substantiate the plaintiff's claim that the defendant's statement made during an argument was actually a threat. Ibid.