STATE OF NEW JERSEY v. N.L.

RECORD IMPOUNDED

                            NOT FOR PUBLICATION WITHOUT THE
                           APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
 internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-0111-17T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

N.L.,

     Defendant-Appellant.
______________________________

                Submitted September 24, 2018 – Decided October 1, 2018

                Before Judges Fasciale and Rose.

                On appeal from Superior Court of New Jersey,
                Chancery Division, Family Part, Monmouth County,
                Docket No. FO-13-0268-17.

                Christopher T. Campbell, attorney for appellant.

                Christopher J. Gramiccioni, Monmouth County
                Prosecutor, attorney for respondent (Monica do
                Outeiro, Assistant Prosecutor, of counsel and on the
                brief).

PER CURIAM
      After a bench trial, defendant appeals from her conviction of disorderly

persons contempt,  N.J.S.A. 2C:29-9(b)(2), for violating a restraining order (RO)

previously obtained by her mother (the mother) under the Prevention of

Domestic Violence Act (the Act),  N.J.S.A. 2C:25-17 to -35.1 The judge believed

the mother's testimony, concluded that defendant purposely violated the RO, and

imposed a one-year probationary sentence.

      On appeal, defendant raises the following points:

             POINT I
             THE [JUDGE] ERRED [BY] FINDING THE
             [MOTHER] CREDIBLE FOR ONE ISSUE OF FACT
             BUT NOT [FOR] ANOTHER.

             POINT II
             THE [JUDGE] ERRED [BY] DENYING . . .
             DEFENDANT'S MOTION FOR ACQUITTAL.

             POINT III
             THE STATE FAILED TO PROVE BEYOND A
             REASONABLE DOUBT THAT DEFENDANT'S
             MERE PRESENCE IN THE PARKING LOT NEXT
             TO THE [MOTHER'S] CAR WAS A VIOLATION OF
             THE [RO].

We affirm.




1
    The judge acquitted defendant of petty-disorderly-persons harassment,
 N.J.S.A. 2C:33-4(c).
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       Our review of a finding of guilt in a contempt proceeding is limited to

determining "whether the record contains sufficient [credible] evidence to

support the judge's conclusion." State v. J.T.,  294 N.J. Super. 540, 544 (App.

Div.1996) (citing State v. Johnson,  42 N.J. 146, 161 (1964)). Factual findings

of the trial judge are generally accorded deference given the judge's "opportunity

to make first-hand credibility judgments about the witnesses who appear on the

stand; [the judge] has a 'feel of the case' that can never be realized by a review

of the cold record." N.J. Div. of Youth & Family Servs. v. E.P.,  196 N.J. 88,

104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M.,  189 N.J. 261,

293 (2007)). Nevertheless, in evaluating a trial judge's findings in a criminal

case, we must ensure that the State has carried its burden of proving a

defendant's guilt beyond a reasonable doubt.

       Here, about six weeks after the mother obtained the RO – which barred

defendant from the mother's residence and having any contact with the mother

– defendant drove to the mother's residence, arriving early in the morning. The

mother heard a noise, looked out the window, and saw defendant standing in the

parking lot near the mother's car, which was parked directly in front of her

apartment. The mother also noticed defendant's Audi convertible parked in the

lot.   The mother saw defendant "punch [the mother's] tire, [get] back in


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[defendant's] car with a cigarette in her hand," and look the mother "in [the]

face." She yelled to defendant and told her she was calling the police. When

the police arrived, they informed the mother that her tire was leaking air, and it

would need to be replaced.

      Defendant elected not to testify at the trial. The evidence at the trial

consisted of various stipulations, a photograph showing the outside of the

mother's apartment, and the mother's testimony.            The judge candidly

acknowledged that the mother gave some inconsistent testimony. But as to the

contempt charge – and the primary issue of whether defendant knowingly

violated the RO – the judge assessed the mother's credibility and found that her

testimony was "clear," "unwavering," and "very credible."        Relying on her

testimony, the judge found that

            [the mother] saw [defendant], she knows [defendant].
            She knows [defendant's] car. She[,] with detail[,]
            described [defendant's] car as an Audi convertible. She
            testified that she had been in that convertible when she
            and [defendant] shared a better relationship, and that
            she had driven around with [defendant] in that car.

                   Although it was dark, she explained that there
            were enough lights on the [apartment] complex
            building to allow her to see [defendant]. There were no
            obstructions to her view. She described looking out her
            front door windows on the second floor, down to where
            [defendant's] car was parked in front of [the mother's]


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            space, and described exactly where she saw [defendant]
            next to [the mother's] car in front of her building.

                  She described her complex as one single
            driveway in and out. [Defendant] would have no other
            reason to be there [except] to be directly in front of [the
            mother's] home. The [RO] . . . barred [defendant] from
            returning to the residence of the [mother].

Applying our deferential standard of review, we see no reason to disturb the

judge's findings.

      We reject defendant's argument that her "mere presence" in front of the

mother's apartment was insufficient to show that she violated the RO. The RO

prohibited defendant from the mother's residence and barred her from having

any communication with the mother. Defendant essentially argues that her

presence at the mother's apartment was of a trivial nature that did not warrant

guilty findings.

      To obtain a conviction of the disorderly persons offense of contempt for

violating a RO issued under the Act, the State must prove beyond a reasonable

doubt that defendant knowingly violated such an order.  N.J.S.A. 2C:29-9(b)(2);

see also State v. Finamore,  338 N.J. Super. 130, 138 (App. Div. 2001). "[T]he

evidence must allow at least a reasonable inference that a defendant charged

with violating a [RO] 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)

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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."

      This is not a situation where defendant's actions amounted to a "trivial,

non-actionable event." State v. Krupinski,  321 N.J. Super. 34, 45 (App. Div.

1999) (stating that the defendant's dropping off the children to the front door,

returning a car seat, and requesting a lawn mower – conduct not proscribed by

the RO – amounted to a "trivial, non-actionable event"). We have also held – in

a different context – that expressing some level of anger during a parenting

exchange is insufficient to prove the requisite mental state. See Finamore,  338 N.J. Super. at 138-39 (finding the evidence insufficient to demonstrate a

knowing violation of the FRO). As we have said, the Act "was not intended to

attempt to regulate and adjudicate every loss of temper, angry word, or quarrel

between persons connected by a familial relationship." State v. Wilmouth,  302 N.J. Super. 20, 23 (App. Div. 1997) (holding that despite the existence of a

restraining order, the defendant's statement to his estranged wife in the presence

of a police officer was not a violation subject to a prosecution for criminal

contempt).


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      But unlike Krupinski, Finamore, and Wilmouth, here, defendant's actions

were not "trivial" because the RO specifically barred her from the mother's

residence. The undisputed evidence demonstrated that defendant knew her

mother lived in the apartment. And yet, defendant went to the residence, exited

her Audi, and stood next to the mother's car. Our Supreme Court has stated that

"[a]n abuser who spontaneously appears or makes surprising communications

without any legitimate purpose enhances the victim's apprehension. The fears

of a domestic violence victim and the turmoil she or he has experienced should

not be trivialized." State v. Hoffman,  149 N.J. 564, 586 (1997). Such is the

case here. We therefore conclude that there exists sufficient evidence in the

record to support the judge's finding that defendant is guilty beyond a reasonable

doubt.

      As to defendant's remaining assertion that the judge erred by denying her

motion for acquittal pursuant to State v. Reyes,  50 N.J. 454 (1967), we reject

such an argument and conclude that it is without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief

remarks.

      We review a trial court's denial of a motion for acquittal de novo, State v.

Williams,  218 N.J. 576, 593-94 (2014), using "the same standard as the [judge]


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                                        7
in determining whether a judgment of acquittal was warranted." State v. Ellis,

 424 N.J. Super. 267, 273 (App. Div. 2012). Like the judge, we "must consider

only the existence of such evidence, not its 'worth, nature, or extent.'" State v.

Brooks,  366 N.J. Super. 447, 453 (App. Div. 2004) (quoting State v. Kluber,

 130 N.J. Super. 336, 342 (1974)). A motion for judgment of acquittal at the

close of the State's case may be granted "if the evidence is insufficient to warrant

a conviction." R. 3:18-1.

            [T]he question the trial judge must determine is
            whether, viewing the State's evidence in its entirety, be
            that evidence direct or circumstantial, and giving the
            State the benefit of all its favorable testimony as well
            as all of the favorable inferences which reasonably
            could be drawn therefrom, a reasonable jury could find
            guilt of the charge beyond a reasonable doubt.

            [Reyes,  50 N.J. at 458-59.]

Giving the State the benefit of all reasonable inferences, we conclude that the

judge could find defendant guilty beyond a reasonable doubt.

      Affirmed.




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