Opinion
DOCKET NO. A-5864-12T3
08-14-2015
STATE OF NEW JERSEY IN THE INTEREST OF K.S., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant K.S. (Jennifer Barr Swift, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent State of New Jersey (Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Rothstadt. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-1020-13. Joseph E. Krakora, Public Defender, attorney for appellant K.S. (Jennifer Barr Swift, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent State of New Jersey (Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
K.S. (Kevin), appeals from the Family Part's May 1, 2013 adjudication of delinquency for conduct which, if committed by an adult, would constitute an act of harassment, N.J.S.A. 2C:33-4A, a disorderly person's offense, and fourth-degree contempt, 2C:29-9, for which the court sentenced him to two concurrent six-month periods of probation. On appeal, he argues:
We use pseudonyms for the minors in order to maintain confidentiality and for clarity.
POINT IIn response, the State argues the court correctly found Kevin committed each of the charged acts.
THE JUDGE BELOW ERRED IN FINDING [KEVIN] GUILTY OF CONTEMPT, WARRANTING REVERSAL.
POINT II
THE JUDGE BELOW ERRED IN FINDING [KEVIN] GUILTY OF HARASSMENT, WARRANTING REVERSAL.
We considered these arguments in light of our review of the record and applicable legal principles. We affirm.
The facts are discerned from Kevin's May 1, 2013 bench trial. At the time, Kevin was almost twelve years old. The charges against Kevin arose from his violation of a July 16, 2012 protective order, which prohibited him from having any contact with a fourteen-year-old girl, M.R. (Mary). On September 12, 2012, the two separately attended a high-school athletic event. While walking to the snack bar, Mary saw Kevin from about ten feet away. According to Mary, who was with two other boys, when Kevin saw her he called her a derogatory name ("skank ass") to which she replied by pointing her middle finger at Kevin. According to Mary, she was "annoyed" by Kevin's conduct.
The order is not included in the record.
As we have previously described, this is "an obscene gesture commonly known as 'giving one the finger.'" Mancini v. Twp. of Teaneck, 349 N.J. Super. 527, 543 (App. Div. 2002). --------
After the game, Mary told her mother about the incident with Kevin. Her mother contacted the police.
One of the boys who was with Mary corroborated, in part, her version of the incident. R.L. (Roy), whom Mary met for the first time that night and developed a good friendship with since the game, could not recall what Kevin said to Mary, but he did remember Mary was "thrown off" and "shocked" by whatever Kevin did say to her. Also, Roy could not confirm that Mary responded to the comment by raising her middle finger or otherwise. Another friend whom Mary met for the first time that day, Z.Y. (Zeke), could not recall anything about the incident, other than he witnessed a change in Mary's demeanor from being happy and having a good time to being upset.
Kevin told a different story. He testified that he went to the event at the high school, he saw Mary, who was alone, but did not say anything to her because he knew he would violate the protective order if he had any contact with her. No other witnesses testified on Kevin's behalf.
After considering the testimony, the Family Part judge found Mary's version of events to be credible as compared to Kevin's. In so doing, he relied upon the independent testimony from Roy that Kevin said something to Mary and both boys' testimony that Mary became upset. The judge found Kevin committed an act of contempt because he knew about the earlier order and that speaking to Mary would be a violation of the order. The judge then turned to the harassment charge. He indicated that an intent to harass could be inferred from the evidence and that "the annoyance or alarm created by" the harassment statute "need not be serious." The court concluded from Kevin's statement to Mary that Kevin could not have had any other purpose in calling Mary the name, other than to harass her. The trial judge determined Kevin's comment was clearly stated with an intent to annoy or alarm Mary, due to its coarseness and in light of the children's relationship, which was already subject to a protective order, and sufficiently supported by the State's evidence garnered from Roy's and Zeke's testimony about Mary's reaction, and Mary's non-verbal response. The court sentenced Kevin to probation and this appeal followed.
Our review of decisions from the Family part is "narrow." State ex rel. J.P.F., 368 N.J. Super. 24, 31 (App. Div.) (citations omitted), certif. denied, 180 N.J. 453 (2004). In our consideration of an appeal, we apply "a strictly limited standard of review from the fact-findings of the Family Part judge." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577 (App. Div. 2010). Due deference is owed "to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family." N. J. Div. of Youth and Family Servs. v. F.M., 211 N.J. 420, 448 (2012). Also, a trial court "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., 198 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M. 189 N.J. 261, 293 (2007) (internal quotation marks omitted)).
We may not "second-guess or substitute [our] judgment for that of the family court," so long as "the record contains substantial and credible evidence to support [its] decision." Id. at 448-49. A family court's findings of fact should be disturbed only if they "are so wide of the mark that [our] intervention is necessary to correct an injustice." Id. at 448 (internal quotations marks omitted). However, "where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded." In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993) (citation and internal quotation marks omitted). "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Applying these standards and turning first to the Family Part's decision regarding the adjudication for contempt, we find Kevin's argument to be without merit. "A person is guilty of a [contempt] if he purposely or knowingly disobeys a judicial order or protective order[.]" N.J.S.A. 2C:29-9(a). We recently stated that a "defendant's mere act of . . . simply staring at a victim sends a message and, in many instances, a message sufficiently alarming or annoying, or even threatening, so as to constitute the type of conduct the Legislature had in mind when enacting" the contempt statute. State v. D.G.M., 439 N.J. Super. 630, 640 (App. Div. 2015).
We have also, as Kevin correctly argues, found that some communication is so trivial that it should not be considered a violation of a protective e order. Specifically, Kevin argues his communication with Mary was no worse than that of the restrained father who was the subject of our opinion in State v. Wilmouth, 302 N.J. Super. 20 (App. Div. 1997). There, the father was restrained from communicating with his child's mother. During an exchange of the child he became annoyed and asked the mother "Am I going to get to see [the child] tomorrow?" We reversed the father's conviction for contempt finding his communication to be trivial and not contemptuous. Kevin also relies on our decision in State v. S.K., 423 N.J. Super. 540 (App. Div. 2012), which dealt with an alleged contempt based solely on a restrained parent appearing at a school event at the same time as the victim protected by a domestic violence restraining order. We reversed that conviction because we found the restraining order did not put the father on notice of being enjoined from public events attended by the victim. We again found the alleged action to be "trivial."
We disagree with Kevin that calling Mary a "skank ass" is similar to the defendant's action in either cited case. Kevin argues that his communication was "trivial" and "non-actionable" because he made it in a general direction and while he and Mary were in a crowd. We find, however, his communication to Mary was not trivial regardless if it was made while the two of them were in a room alone or, as Kevin argues, it was made in a crowded area. It was clearly a remark directed to Mary with the knowledge that it was in violation of the protective order.
We turn next to Kevin's argument that there was insufficient evidence that he committed an act of harassment, N.J.S.A. 2C:33-4. "[A] person commits a petty disorderly persons offense if, with purpose to harass another, he [m]akes, or causes to be made, a communication . . . in offensively coarse language, or any other manner likely to cause annoyance or alarm." N.J.S.A. 2C:33-4. "[T]he speech punished by the harassment statute 'must be uttered with the specific intention of harassing the listener.'" E.M.B. v. R.F.B., 419 N.J. Super. 177, 182-83 (App. Div. 2011) (quoting State v. L.C., 283 N.J. Super. 441, 450 (App. Div. 1995), certif. denied, 143 N.J. 325 (1996)).
A conviction requires the State to prove, beyond a reasonable doubt, "two distinct elements: defendant had the requisite intent to harass and he committed a 'free-standing' offense," outlined in one of the subsections of the statute. State v. Duncan, 376 N.J. Super. 253, 260 (App. Div. 2005) (citations omitted). "A finding that defendant acted with a purpose or intent to harass another is integral to a determination of harassment." Id. at 261 (citing State v. Hoffman, 149 N.J. 564, 576 (1997)). "[W]e do not measure the effect of the speech upon the victim; we look to the purpose of the actor in making the communication." E.M.B, supra, 419 N.J. Super. at 182.
The phrase "with purpose to harass another" in N.J.S.A. 2C:33-4 imposes "a specific-intent requirement." State v. Mortimer, 135 N.J. 517, 536 (internal citations omitted), cert. denied, Mortimer v. New Jersey, 513 U.S. 970, 115 S. Ct. 440, 130 L. Ed. 2d (1994). Accordingly, a conviction requires a showing that defendant has acted in a manner proscribed by the statute with the specific intent to harass the intended victim. Ibid.
A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances or he believes or hopes that they exist. "With purpose," "designed," "with design" or equivalent terms have the same meaning.
[N.J.S.A. 2C:2-2(b)(1).]
The assessment of an actor's state of mind is not conducted in a vacuum. In particular, to determine whether a defendant is guilty of harassment, "courts must consider the totality of the circumstances." Cesare v. Cesare, 154 N.J. 394, 404 (1998) (citing Hoffman, supra, 149 N.J. at 584-85). In most cases, there is no "direct proof of intent." State v. Castagna, 387 N.J. Super. 598, 606 (App. Div.), cert. denied, 188 N.J. 577. Purpose "may be inferred from the evidence presented. Common sense and experience may inform that determination." Hoffman, supra, 149 N.J. at 576-77 (citations omitted). See also State v. J.T., 294 N.J. Super. 540, 542, 545 (App. Div. 1996), (holding that a defendant's purpose to harass could be inferred, based on the totality of the circumstances). "When determining whether the harassment statute has been violated, 'courts must consider the totality of the circumstances,'" E.M.B., supra, 419 N.J. Super. at 183 (quoting H.E.S. v. J.C.S., 175 N.J. 309, 326 (2003); Cesare, supra, 154 N.J. at 404), "in light of the parties' history." Ibid. (citing Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006)).
Applying these standards, we conclude from our review of the record the Family Court correctly inferred from the circumstances Kevin's intent to harass Mary by calling her a derogatory name in public. We agree with the court's finding that no other purpose was served by Kevin's statement to her.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION