STATE OF NEW JERSEY v. M.K.

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NOT FOR PUBLICATION WITHOUT THE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.

M.K.,

Defendant-Appellant.

Before Judges Maven and Hoffman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FO-03-175-13.

Theodore F.L. Housel argued the cause for appellant.

Lisa Sarnoff Gochman, Assistant Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Gochman, of counsel and on the brief).

PER CURIAM

Defendant M.K. appeals his two convictions for contempt and one conviction for harassment, claiming short-term memory loss as well as denial of his right not to testify. For the reasons that follow, we affirm the contempt convictions and reverse the harassment conviction.

I.

We discern the following facts from the trial record. Defendant was charged with two counts of contempt, N.J.S.A. 2C:29-9b, for violating a restraining order issued pursuant to the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35, relating to incidents on November 6 and 25, 2012. In the later incident, defendant was also charged with harassment, N.J.S.A. 2C:33-4a.

Defendant and Mary1 have been married for over ten years and have three children together. Mary obtained a final restraining order (FRO) against defendant on June 6, 2012. The FRO prohibited defendant from communicating with Mary, but a handwritten notation provided "parties may communicate regarding health, education, and welfare of children only." The FRO noted Mary was the primary parent but also stated defendant would have "parenting time alternate weekends" and permitted phone conversations regarding the children's health and welfare. The court issued an amended FRO on October 23, 2012, deleting reference to "phone contact" and replacing it with "email or text contact only re: health, welfare, education of children and to arrange any additional visitation or changes in visitation[.]"

Mary testified that on November 6, 2012, defendant tried calling her three times on her cell phone, which she did not answer. He then sent her a text message inquiring as to the location of their designated polling place so he could vote; Mary did not respond. When Mary and their youngest daughter arrived at the voting location sometime between three and four in the afternoon, defendant was already there. Defendant came over to Mary's car and proceeded to take their daughter out of the car. He then followed her into the polling place, though she "ignored him quietly[,]" hoping to avoid a scene.

After voting, defendant continued to follow Mary as she went to her car and drove to a nearby school to pick up their other two children. At the school, Mary went inside to sign the children out and defendant again followed, even after Mary "told him to stay here[;]" Mary did not object further because, again, she did not want to "cause a scene." Defendant said he came in to see if he could pick the children up, and Mary replied "you know that you can pick them up." Defendant then "started yelling and screaming and making a scene in the parking lot," prompting Mary to go into the school and call the police. Defendant was yelling "[y]ou can't stop me from picking up my kids." Mary explained that according to the school's list, he was permitted to pick up the children, but his behavior that day was "pretty typical." According to Mary, defendant had anger problems from the time they first met in August 2002.

Mary testified a second incident occurred on November 25, 2012. On that date, defendant was dropping off their children at Mary's house following a weekend visit, and Mary came out to the car to get the children. Defendant got out of the car, and asked Mary "when are we going to see the Hobbit [movie]?" Mary responded, "[w]e are not going[,]" and started to walk away. Defendant then asked Mary about a male individual, who Mary testified appeared as a friend on her Facebook homepage, and told her to "keep [her] legs closed." He further stated he was going to sue her for everything she has done. Following this exchange, Mary called the police.

On cross-examination, Mary acknowledged she and defendant were involved in a car accident in October 2009, and they had an ongoing lawsuit seeking damages. Mary stated defendant had suffered a stroke from the accident, which caused him to change; his anger, however, remained consistent before and after the accident.

Defendant did not testify or present any other fact witnesses. The defense presented the testimony of Neil Kaye, M.D., an expert in forensic psychiatry and neuropsychiatry, regarding defendant's brain damage from the October 2009 accident. Dr. Kaye testified he assessed defendant on July 18, 2012, for the civil case regarding the car accident. Dr. Kaye related defendant suffered from "vertebrobasilar strokes bilaterally," which caused "permanent irreparable brain damage." Dr. Kaye said defendant had told him he had changes in his personality, memory, and temper. Dr. Kaye stated the injury created a "lack of a filter," causing defendant to reflexively blurt out inappropriate statements when "triggered emotionally." Dr. Kaye stated defendant told him his anger would flick on like a switch, but then he would feel very remorseful afterward.

Dr. Kaye recounted what defendant told him during their July 18, 2012 interview, relating that "[defendant] was very clear in discussing with me how important his family was to him. He very much loves his wife." At this point, the prosecutor objected on grounds of relevancy. An extended discussion ensued regarding the admissibility of defendant's statements to Dr. Kay. The court and counsel recessed to research and discuss the issue. The judge concluded that under State v. Burris, 298 N.J. Super. 505, 512 (App. Div.), certif. denied, 152 N.J. 187 (1997), she would permit Dr. Kaye to testify as to what defendant told him if his psychiatric opinion depended upon the hearsay declarations made in the clinical interview. Dr. Kaye then testified that he relied on defendant's statements concerning his relationship with his wife in forming his expert opinions.

Dr. Kaye opined the November 6 incident, because of the tense situation between defendant and his wife, was enough to trigger an involuntary reflexive emotional response, which resulted in the outburst at the school. Dr. Kaye stated when defendant's emotions are triggered he experiences memory loss, which includes the terms and conditions of his restraining order. Dr. Kaye testified the involuntary responses meant defendant could not form the requisite mens rea to knowingly or purposely violate the restraining order or harass his wife on the dates in question.

On cross-examination, however, Dr. Kaye conceded defendant remembers his restraining order most times, except when triggered emotionally. Further, Dr. Kaye stated defendant's action on November 6, going to the voting place and following his wife to the school, were actions of his own volition. Likewise, Dr. Kaye said defendant's actions on November 25, when he got out of his car and asked about the Hobbit movie, were of his own volition.

Following Dr. Kaye's testimony, the trial judge rejected defendant's diminished capacity defense and found defendant guilty of contempt for violating the FRO on November 6 because defendant made a conscious decision to go to the voting area and school, and then created a scene "yelling and screaming" at Mary. Likewise, the judge found defendant guilty of contempt for violating the FRO on November 25, by making "unprovoked remarks." The judge also ruled defendant's conduct on November 25 constituted harassment and found him guilty of that charge as well.

The judge noted Dr. Kaye's testimony had several weaknesses, specifically that he based his opinion on a single interview with defendant and accepted defendant's version of his history with anger and his recollection of the incidents without question. The judge also noted Dr. Kaye failed to talk to the family to confirm this anger history, and failed to explain why defendant placed himself in positions where his anger could be triggered.

In reviewing the evidence at the conclusion of the trial, the judge noted the defense had not challenged that the incidents had, in fact, occurred. She then stated, "He doesn't deny that he made these statements. He doesn't deny that he made the scene at the school on November 6th." Counsel for defendant objected, citing the Fifth Amendment. The judge immediately retracted her statement and acknowledged her error, noting defendant had "absolutely . . . no obligation" to deny the allegations against him. Nevertheless, the judge found the state had proven its case beyond a reasonable doubt as she accepted the testimony of Mary as to what occurred each day and rejected the critical aspects of Dr. Kaye's expert opinions.

II.

Our review of a Family Part judge's findings is deferential "to those findings of the trial judge which are substantially influenced by his [or her] 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) (quoting State v. Johnson, 42 N.J.146, 161 (1964)). "Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility." Cesare v. Cesare, 154 N.J.394, 412 (1998) (citation and internal quotation marks omitted). Furthermore, the courts are not required to give controlling effect to expert testimony. State in the Interest of C.A.H. and B.A.R., 89 N.J.326, 343 (1982). This standard applies even if the expert testimony is "uncontradicted" by the opposing party. SeeWaterson v. General Motors Corp., 111 N.J.238, 248 (1988). The trier of fact may adopt whichever parts it chooses, even in the absence of evidence to the contrary. State v. Spann, 236 N.J. Super. 13, 21 (App. Div. 1989), aff'd130 N.J.484 (1993).

The purpose of the Act is to assure victims of domestic violence "'the maximum protection from abuse the law can provide.'" State v. Hoffman, 149 N.J.564, 584 (1997) (quoting N.J.S.A.2C:2-18). To establish a disorderly person's contempt of court, the State must prove that defendant "knowingly" violated the restraining order. N.J.S.A. 2C:29-9(b); State v. L.C., 283 N.J. Super. 441, 447 (App. Div. 1995), certif. denied, 143 N.J. 325 (1996). "[T]he evidence must allow at least a reasonable inference that a defendant charged with violating a restraining order knew his conduct would bring about a prohibited result." State v. S.K., 423 N.J. Super. 540, 547 (App. Div. 2012). N.J.S.A. 2C:2-2(b)(2) states in relevant part: "A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence."

A person is guilty of harassment if he or she, with the purpose to harass another,

a. 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; [or]

. . . .

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

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

Under either section of this statute, a defendant must act with the purpose to harass. Bresocnik v. Gallegos, 367 N.J. Super. 178, 182-83 (App. Div. 2004). Subsection (a) targets specific modes of speech, including communications "at extremely inconvenient hours," and requires that the manner of speech be "likely to cause annoyance or alarm[.]" Hoffman, supra, 149 N.J. at 576 (quoting N.J.S.A. 2C:33-4(a)). Subsection (c) requires a course of repeated conduct, motivated by a higher degree of purpose, "to alarm or seriously annoy[.]" Id. at 581. The harassment statute was not enacted to "proscribe mere speech, use of language, or other forms of expression." L.C., supra, 283 N.J. Super. at 450; see also State v. Fin. Am. Corp., 182 N.J. Super. 33, 36-38 (App. Div. 1981). Rather, since the First Amendment to the United States Constitution "permits regulation of conduct, not mere expression," the speech punished by the harassment statute "must be uttered with the specific intention of harassing the listener." Ibid.

On appeal, defendant argues that: (1) the trial court denied defendant his rights under the Fifth Amendment when it considered his failure to testify; and (2) the record lacked substantial credible evidence to support a finding that defendant committed any violations of N.J.S.A. 2C:29-9(b) or N.J.S.A. 2C:33-4(a) beyond a reasonable doubt. We reject defendant's arguments except as to the harassment conviction.

The Fifth Amendment to the United States Constitution guarantees the right to remain silent, including the right to not testify at trial, and "any comment suggesting that an adverse inference may be drawn from such silence, absent a clear showing of harmless error, requires a reversal." State in Interest of D.A.M., 132 N.J. Super. 192, 195 (App. Div. 1975) (citing Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965)). This standard also applies in non-jury trials where the judge is the factfinder. Id. at 196. However, "[e]ven a direct comment on a defendant's failure to testify may be cured by a judge's timely and effective action." State v. Scherzer, 301 N.J. Super. 363, 441 (App. Div. 1997). A curative action is adequate as long as the erroneous remark does not lead to an unjust verdict. State v. Winter, 96 N.J. 640, 647 (1984).

Defendant cites several instances in the record where he asserts the judge took defendant's failure to testify into account. However, defendant's citations mischaracterize the court's discussing the admissibility of evidence or lack of evidence as a bias against defendant for failing to testify. Indeed, in the first passage raised by defendant, the issues were the relevance of Dr. Kaye's statement, "[defendant] very much loves his wife," and, as defendant acknowledges, the admissibility of Dr. Kaye's statements. In this exchange, the trial judge clearly acknowledged defendant's Fifth Amendment right not to testify. Moreover, the judge ultimately ruled in favor of defendant on the issue of the admissibility of his statements to Dr. Kaye.

Defendant also cites select statements from the judge's ruling, but then mischaracterizes the judge's comments on the lack of evidence of any defense as a criticism of defendant's failure to testify. The judge admittedly erred when she commented that defendant did not deny his actions and statements of November 6 and 25. However, counsel promptly objected and the judge immediately retracted the statement and acknowledged her misstatement. Defendant argues the judge took defendant's lack of testimony into account despite this curative action, but the record clearly indicates the judge found the prosecution had proven its case beyond a reasonable doubt based upon Mary's testimony, without regard to defendant's decision not to testify. The contempt convictions here were fully supported by the evidence presented by the prosecution. Because the amended FRO limited defendant to communicating with Mary by email or text, and then only regarding matters relating to the children, defendant's direct statements to Mary on each occasion clearly violated the FRO. We therefore perceive no real possibility the court's corrected error led to an unjust verdict.

Defendant next argues the trial judge erred by failing to accept Dr. Kaye's expert testimony that defendant's short-term memory problems affected his ability to remember the terms of the FRO. We disagree.

Defendant contends the court should have accepted Dr. Kaye's opinion that defendant's memory loss affected his memory of the stricter terms of the October 23 amended FRO. However, defendant concedes the court is free to accept or reject expert testimony, in whole or in part, which the court did after taking issue with several aspects of Dr. Kaye's testimony. Even if the court had accepted the testimony in full, Dr. Kaye clearly admitted defendant was quite aware of his restraining order, even though he may experience memory loss when "triggered." Specifically, Dr. Kaye acknowledged defendant put himself into the situations on November 6 and November 25 by his own volition, before he became triggered, in clear violation of his restraining order. SeeL.C., supra, 283 N.J. Super.at 447 (defendant experiencing emotional distress, even though it may have detracted from her ability to reason and make sound judgments, did not negate her ability to understand and disobey the provisions of her restraining order).

As the judge further noted, Dr. Kaye conceded that defendant otherwise functions "quite well" by maintaining employment as a project manager, paying child support, and appropriately caring for his children. Dr. Kaye further conceded defendant's brain injury did not cause him to show up at the polling place on November 6, 2012, knowing his wife would be there, nor to ask his wife to see a movie on November 25, 2012. Finally, in assessing Dr. Kaye's opinions, the judge appropriately considered Dr. Kaye's interview of defendant occurred in July 2012, approximately four months before the incidents in question.

Regarding the harassment charge, "[a] finding of a purpose to harass may be inferred from the evidence presented[,]" and "[c]ommon sense and experience may inform that determination." Hoffman, supra, 149 N.J. at 577. Nonetheless, we note that purposeful conduct "is the highest form of mens rea contained in our penal code, and the most difficult to establish." State v. Duncan, 376 N.J. Super. 253, 262 (App. Div. 2005). Its establishment requires proof, in a case such as this, that it was the actor's "conscious object to engage in conduct of that nature or to cause [the intended] result," N.J.S.A. 2C:2-2(b)(1), i.e. to alarm or seriously annoy another person. A person's assertion that the conduct is harassing is not sufficient. J.D. v. M.D.F., 207 N.J. 458, 484 (2011) (citing Chernesky v. Fedorczyk, 346 N.J. Super. 34, 40 (App. Div. 2001)). Further, a "victim's subjective reaction alone will not suffice; there must be evidence of the improper purpose." Id. at 487.

Here, the judge made no specific finding defendant acted with this requisite purpose, nor may defendant's words and conduct be viewed as implicitly embodying a purpose to harass. Accordingly, in the absence of this integral finding, the judge's determination that defendant committed harassment must be reversed. See Corrente v. Corrente, 281 N.J. Super. 243, 249-50 (App. Div. 1995).

We note, however, that reversal of defendant's harassment conviction does not impact defendant's contempt conviction arising out of the same conduct. In Hoffman, supra, 149 N.J. at 589, the Court found 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. Here, defendant's communications on November 25, 2012, asking about Mary's Facebook friend and telling her to keep her legs closed, clearly went beyond the FRO's proscription limiting communications to matters involving the health, welfare, and education of the children, thus violating the FRO.

Regarding the two contempt convictions, we conclude the judge's factual findings are supported by the record evidence and the judge applied the correct legal principles in reaching her ultimate decision. Accordingly, we discern no basis to reverse either contempt conviction. As for the harassment conviction, we are constrained to reverse, based upon our review of the trial record.

1 We use a pseudonym for defendant's wife for ease of reference.