State of New Jersey v. D.G.M.

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5783-12T4
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
March 20, 2015
v. APPELLATE DIVISION
D.G.M.,
Defendant-Appellant.
___________________________________________________
Argued December 9, 2014 – Decided March 20, 2015
Before Judges Fisher, Accurso1 and Manahan.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Hunterdon County, Docket No. FO-10-000135-
13.
Peter D. Espey argued the cause for
appellant (Hardin Kundla McKeon & Poletto,
PA, attorneys; Mr. Espey, on the brief).
Jeffrey L. Weinstein, Assistant Prosecutor
argued the cause for respondent (Anthony P.
Kearns, III, Hunterdon County Prosecutor,
attorney; Mr. Weinstein, of counsel and on
the brief).
The opinion of the court was delivered by
FISHER, P.J.A.D.
1
Although not originally on the panel, the parties have consented
to Judge Accurso's participation without the need for further
argument.
In this appeal of a contempt conviction, we consider
whether defendant violated the "no contact or communication"
provision of an amended final restraining order (FRO) – obtained
by J.R. (Joan, a fictitious name), pursuant to the Prevention of
Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35 – by
sitting near and briefly filming Joan at their six-year-old
son's soccer game. Although such conduct falls within the FRO's
prohibition on "communication," we conclude that defendant could
not have fairly anticipated this result. In applying the
doctrine of lenity, we reverse.
I
The record reveals that in 2006 Joan and defendant had a
short romantic relationship which produced one child and a good
deal of subsequent rancor. In 2010, Joan commenced a domestic
violence action and obtained an FRO, which was later amended on
a few occasions for child-related reasons. For example, an
amended FRO entered in 2012 directed that defendant and Joan
would communicate only by "the on-line family wizard system or
[defendant's] father's cell phone." This amended FRO – in
effect on the date in question – did not otherwise alter the
standard provision in the original FRO that "prohibited"
defendant "from having any (oral, written, personal, electronic
2 A-5783-12T4
or other) form of contact or communication with" Joan, as well
as other individuals not relevant here.2
As noted, the parties have a child and both are involved in
the child's life. The Supreme Court has recognized the right
"to raise one's children [is an] essential, basic civil right[]
. . . far more precious . . . than property rights." Stanley v.
Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d
551, 558 (1972) (internal citations and quotation marks
omitted). This fundamental right, however, may be limited and
when defendant committed an act of domestic violence in 2010, a
Family judge properly limited defendant's ability to communicate
or contact the child's mother by entering an FRO. That
consequence has generated further conflict, as evidenced by the
proceedings leading to subsequent amendments to the FRO. And
those amendments have chafed further, as revealed by the
circumstances leading to this contempt prosecution.
The record reveals that defendant appeared at the child's
soccer game on November 17, 2012. The FRO then in effect did
not prohibit his attendance but it did prohibit defendant from
having "any . . . contact or communication" with Joan, who also
attended the game. Based on the allegation that defendant
violated the FRO "by sitting directly next to" Joan during the
2
In the FRO, the word "any" is presented in bold type.
3 A-5783-12T4
soccer game and "us[ing] a cellular phone to videotape or take
pictures" of her, defendant was charged with violating the FRO,
a disorderly persons offense, N.J.S.A. 2C:29-9(b).
At the conclusion of a one-day trial, defendant was
convicted in only one respect.3 In coming to that result,4 the
judge greatly relied on the video captured by defendant's
cellphone that the judge described in the following way:
[Joan] was seated in . . . a lawn chair, a
folding chair. The defendant . . . videoed
her. He was videoing other things, too, but
you could see the camera panning. He
approached her, he was within a few feet of
her. She turned to her right. As soon as
she saw him, he immediately took the camera
and . . . pointed it in [the] direction of
the field.[5]
3
Defendant was also charged with violating the FRO and making
harassing communications in a separate complaint; the judge
acquitted defendant of those charges.
4
Defendant was sentenced to a one-year probationary term.
5
Although the judge did not make a finding about the duration of
the video, it is contained in the record on appeal and speaks
for itself. See State v. Diaz-Bridges, 208 N.J. 544, 566 (2012)
(holding that when "factual findings are based only on . . . a
recorded interrogation . . . equally available to the appellate
court and are not dependent on any testimony uniquely available
to the trial court, deference to the trial court's
interpretation is not required"). Based on our examination, we
note the entire video is approximately 100 seconds long. During
the critical stage referred to by the judge, defendant pointed
the cellphone at Joan for approximately three seconds and then,
when she turned to look at him, he abruptly turned the cellphone
and videotaped what occurred on the soccer field for
approximately three seconds. Defendant then pointed the
(continued)
4 A-5783-12T4
In making these comments, the judge mentioned defendant had
placed his chair "within a few feet" of Joan, but he also
discussed how defendant testified "he was maybe 10 or 15 feet
away" and, ultimately, the judge never made a definitive finding
as to the distance between Joan and defendant.
We do not interpret the judge's decision as convicting
defendant for violating the FRO by being too near Joan. The
decision instead rests on defendant's act of filming or
photographing Joan:
I am satisfied beyond a reasonable doubt
that the defendant in fact did violate the
terms of the restraining order. There is no
question in my mind but that based upon what
I have just stated, that recording her was a
form of contact. And he should have known
better. He had no right to contact her. So
I find the defendant guilty beyond a
reasonable doubt.
[Emphasis added.]
Because defendant was acquitted in all other respects, we
examine the sufficiency of the judge's conclusion that defendant
violated the FRO's "no contact" provision by recording Joan's
image with his cellphone or, in the trial judge's words, whether
"recording [her] was a form of contact."
(continued)
cellphone back at Joan for approximately five seconds while she
watched the action on the soccer field.
5 A-5783-12T4
II
We commence our analysis of that narrow issue by first
assuming – once it is determined a plaintiff meets the
definition of a victim of domestic violence, N.J.S.A. 2C:25-
19(d), the defendant committed an act of domestic violence as
defined by the Act, N.J.S.A. 2C:25-19(a), and there is a need to
prevent further domestic violence, S.K. v. J.H., 426 N.J. Super.
230, 232 (App. Div. 2012); Silver v. Silver, 387 N.J. Super.
112, 127 (App. Div. 2006) – that the Act places no other limit
on a court's power to restrain a defendant from engaging in a
host of activities including but not limited to filming or
photographing the victim. The Act authorizes entry of an order
restraining a defendant, for example, from a range of locations
– the residence, property, school or place of employment of the
victim or the victim's family or household members and from "any
specified place . . . frequented regularly by the victim or
other family or household members." N.J.S.A. 2C:25-29(b)(6).
And the Act authorizes restraints on various forms of
interaction with the victim; a judge may "restrain the defendant
from making contact with the plaintiff or others" and may
further "forbid[] the defendant from personally or through an
agent initiating any communication likely to cause annoyance or
alarm including, but not limited to, personal, written, or
6 A-5783-12T4
telephone contact with the victim or other family members, or
their employers, employees, or fellow workers, or others with
whom communication would be likely to cause annoyance or alarm
to the victim." N.J.S.A. 2C:25-29(b)(7).
Considering this broad grant of authority, N.J.S.A. 2C:25-
29(b) (directing that courts are empowered to "grant any relief
necessary to prevent further abuse"); see also State v. S.K.,
423 N.J. Super. 540, 545 (App. Div. 2012); Zappaunbulso v.
Zappaunbulso, 367 N.J. Super. 216, 226-27 (App. Div. 2004),
there is no doubt that the judge who entered and amended the FRO
could have crafted the order in any number of ways that would
have rendered what occurred here a violation of the restraining
order. For example, defendant could have been precluded from
attending the child's soccer games, or other school events,
Finamore v. Aronson, 382 N.J. Super. 514, 520-21 (App. Div.
2006), or he could have been barred from coming closer to Joan
than a particular amount of feet. We also assume N.J.S.A.
2C:25-29(b) allows our courts to specifically prohibit a
defendant from photographing or filming a domestic violence
victim or others. In short, we find nothing in the Act that
would limit the flexibility possessed by courts in imposing
7 A-5783-12T4
restraints for the protection of a domestic violence victim.6
The real issue in dispute, therefore, concerns whether the FRO
prohibited defendant from filming or photographing Joan.
III
The FRO – insofar as it purports to bar the conduct the
judge found occurred7 – prohibited defendant "from having any
(oral, written, personal, electronic or other) form of contact
or communication with" Joan (emphasis added). Although the
judge interpreted defendant's momentary filming of Joan as a
form of "contact," we nevertheless examine whether defendant's
6
We question but need not decide whether the conduct criminalized
by N.J.S.A. 2C:29-9 – the violation of an FRO – may encompass a
violation of a provision that is not expressly authorized by
N.J.S.A. 2C:25-29(b). Stated another way, in recognizing the
flexibility of a Family judge to craft an FRO that best protects
the victim, we do not necessarily suggest the scope of N.J.S.A.
2C:29-9 expands with that flexibility. See Cooper v. Cooper,
144 P.3d 451, 457 (Alaska 2006) (observing that the statute
defining the scope of a restraining order "implies that only" a
violation of an authorized provision may constitute the crime of
violating a protective order); State v. Herren, 339 P.3d 1126,
1130 n.1 (Idaho 2014) (recognizing the unlikelihood that "a
judge issuing a no contact order has the power to define conduct
by a particular individual which would constitute a crime other
than contempt").
7
The parties have argued the relevance or weight of various
electronic communications. The judge, however, found these
communications did not violate the FRO or constitute independent
offenses. Consequently, we will not burden this opinion with
their description.
8 A-5783-12T4
actions may be interpreted as a form of "communication." 8
"Contact" and "communication" are not defined by the Act or the
FRO in question.9
A
"Contact" has numerous commonly-used meanings. In this
context, we assume the Legislature in enacting N.J.S.A. 2C:25-
29(b)(7) – and the Family judge in crafting the FRO – intended
to limit the word to its common and ordinary meaning when used
as a verb, since in both the statute and the FRO the word was
8
In light of the disposition of this appeal, we need not
determine whether double jeopardy principles bar upholding the
conviction on grounds other than those expressed by the judge,
i.e., by holding defendant engaged in a prohibited
"communication" instead of a prohibited "contact."
9
The FRO also prohibits defendant "from stalking, following, or
threatening to harm, to stalk or to follow" Joan and others.
Stalking is defined as "a course of conduct directed at a
specific person that would cause a reasonable person to fear for
his [or her] safety or the safety of a third person or suffer
other emotional distress," N.J.S.A. 2C:12-10(b), and "[c]ourse
of conduct" is defined, in part, as "repeatedly maintaining a
visual or physical proximity to a person," N.J.S.A. 2C:12-
10(a)(1). Defendant was not charged with violating this portion
of the FRO, and we need not decide whether the conduct the judge
found to have occurred could form the basis for such a charge.
See H.E.S. v. J.C.S., 175 N.J. 309, 328-31 (2003) (determining
that an ex-husband's placement of hidden cameras and microphones
in his ex-wife's bedroom constituted stalking); N.G. v. J.P.,
426 N.J. Super. 398, 404-05, 418-20 (App. Div. 2012) (concluding
that defendant's picketing, while gesturing and making obscene
remarks, of his sister's home on twenty-nine occasions
constituted stalking).
9 A-5783-12T4
used as a verb.10 In that regard, we think it likely "contact"
as used here means "to get into contact or in touch with." 3
The Oxford English Dictionary 806 (2d ed. 1989). Indeed, since
the FRO bars defendant from having "any form of contact or
communication" with Joan, we can reasonably assume the
Legislature intended a meaning similar to or in harmony with
"communication," a neighboring word in the statute and FRO. See
Shelton v. Restaurant.com, Inc., 214 N.J. 419, 440 (2013);
Germann v. Matriss, 55 N.J. 193, 220 (1970). But, while this
may suggest the two words should be understood as having a
similar scope or reach, "contact" certainly also includes, as
any dictionary definition would suggest, a prohibition on the
defendant actually "touching" the victim. See Cooper, supra,
144 P.3d at 457-58 (reasoning that "contact" in this context
includes "physically touching or communicating"). It would be
quite anomalous to conclude that the Act, which was designed
specifically to prevent domestic violence, would not authorize a
restraining order that prohibits the defendant from physically
touching the victim. We also think – although with less certainty
– that "contact" in this setting may fairly be interpreted as
10
For example, it cannot rationally be argued that the Act's
intent was to use a common definition of the noun "contact,"
such as used in the following sentence: "The news reporter had
a reliable contact within the halls of Congress."
10 A-5783-12T4
prohibiting a defendant from closely approaching the victim,
i.e., "invading" a domestic violence victim's "personal space,"
or close enough to be heard in a normal tone of voice.11
"Communication," as its ordinary dictionary definition
suggests in this context should be understood as the "imparting,
conveying, or exchange of ideas, knowledge, information, etc.
(whether speech, writing or signs)." See 3 Oxford English
Dictionary, supra, at 578. This scope of banned behavior would
obviously extend to a host of words or conduct, which, unlike
"contact," would not necessarily be dependent on the distance
between the defendant and the victim. A defendant prohibited
from having any form of "communication" with a domestic violence
victim might reasonably be found to have violated an FRO by
telephoning the victim even when separated by many miles, or by
gesturing at or toward the victim from across a room, from a
passing automobile, or from the opposite side of a soccer field
or baseball diamond. See, e.g., State v. Tunley, 294 P.3d 1092
(Hawaii Ct. App. 2013) (holding that defendant's "lengthy
11
Because our disposition of the appeal does not require it, we
venture no further in defining how close a defendant may
approach a victim without violating a similarly-worded FRO.
When crafting an order restraining a defendant whose conduct
suggests a likelihood of future testing of the order's limits,
as may be what occurred here, the better practice may be for the
Family judge to further define "contact" in the FRO by setting
an actual distance in feet within which the defendant may not
approach.
11 A-5783-12T4
staring and grinning at" the complainant from "across the
street" constituted a communication barred by the restraining
order); State v. Elliott, 987 A.2d 513, 522-23 (Me. 2010)
(upholding a conviction for violating a restraining order when
the defendant "monitor[ed]" the complainant by parking in
locations along the route of complainant's daily commute);
Elliott v. Commonwealth, 675 S.E.2d 178, 181-82 (Va. 2009)
(holding that defendant engaged in "contact of any type" but did
not violate a restraining order by gesturing toward the victim's
home from a block away; a dissenting judge disagreed with that
interpretation).
B
The large and ever-growing body of law emanating from the
Act demonstrates it is too late in the day for a defendant to
suggest that either "contact" or "communication" would not
include the words and conduct described in the section above.
But this case provides a different and more unusual example.
Here, as we have observed, the judge found defendant to
have violated the FRO by filming Joan while seated near her.
Although the judge defined defendant's conduct as "contact" with
Joan, we do not interpret his findings as suggesting defendant
was "in contact" with Joan simply because he was seated nearby.
Instead, we discern from the judge's findings that it was the
12 A-5783-12T4
act of filming that constituted the forbidden "contact." In
that regard, we think this conduct – if prohibited at all by
this portion of the FRO – must fall within the scope
contemplated by the word "communication" or only that part of
"contact" which is synonymous with "communication." That is, if
defendant violated the FRO it was because he was engaged in
sending a message or conveying thoughts by pointing a
cellphone's camera at Joan.
The message may not have been understandable to strangers
but likely had meaning for the parties. Moreover, whether the
message was intelligible is not the point. A defendant's mere
act of filming or even 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 N.J.S.A.
2C:25-29(b)(7). Cf., State v. J.T., 294 N.J. Super. 540, 544
(App. Div. 1996). Accordingly, we hold a defendant restrained
by a similarly-worded FRO engages in a "communication" by
pointing a camera at a domestic violence victim from a
standpoint close enough as to be observed by the victim. For
this reason, we conclude that defendant engaged in communication
with defendant when he filmed her, albeit very briefly, with his
cellphone.
13 A-5783-12T4
IV
Our determination that defendant's conduct was a form of
communication forbidden by the FRO, however, does not
necessarily lead to an affirmance of defendant's conviction.
Defendant is entitled to the application of the rule of lenity,
first described by Justice Holmes as a principle that an accused
is entitled to "fair warning . . . of what the law intends to do
if a certain line is passed." McBoyle v. United States, 283
U.S. 25, 27, 51 S. Ct. 340, 341, 75 L. Ed. 816, 818 (1931); see
also United States v. Bass, 404 U.S. 336, 347-48, 92 S. Ct. 515,
522, 30 L. Ed. 2d 488, 496 (1971); State v. Gelman, 195 N.J.
475, 482 (2008). Stated another way, "where there is ambiguity
in a criminal statute, doubts are resolved in favor of the
defendant." Bass, supra, 404 U.S. at 348, 92 S. Ct. at 523, 30
L. Ed. 2d at 497.
To be sure, in making this determination, courts may
resolve statutory ambiguities by resort to extrinsic aids.
Gelman, supra, 195 N.J. at 482. In fact, in prosecutions
pursuant to N.J.S.A. 2C:29-9, the court is required to consider
something outside the statute – the FRO itself – in determining
whether the statute has been violated. Accordingly, whether a
defendant has been given "fair warning" that his conduct
constitutes a criminal act requires resort to and a
14 A-5783-12T4
consideration of the clarity of the FRO. As we have already
explored, an understanding of the reach of the "no contact or
communication" provision of the FRO required an interpretation
of that language. Because, until today's holding, no defendant
would fairly be expected to understand that the filming or
photographing of the victim falls with the scope of "contact" or
"communication" contained in either N.J.S.A. 2C:25-29(b)(7), or
an FRO crafted in accordance with that statute, we are compelled
to employ the doctrine of lenity and reverse this conviction.
Before he could be fairly convicted, defendant had the
right to know where the line existed between permitted and
prohibited conduct. Although we are satisfied there is a host
of prohibited conduct that a defendant would understand to be
prohibited despite the generalities employed in the FRO, the
precise conduct found by the judge to support the conviction –
the filming of Joan – is not as assuredly encompassed by the
Act, or the FRO entered here,12 as most other conduct normally
12
To be precise, defendant was convicted pursuant to N.J.S.A.
2C:29-9(b), which makes it a disorderly persons offense for a
person to "knowingly" violate a domestic violence restraining
order. This statute is clear; defendant was fairly apprised
that his violation of the FRO would constitute an offense. But
his conduct could not be criminalized under this statute if the
FRO did not bar the conduct with sufficient clarity to
communicate to the defendant that the conduct was barred.
Accordingly, in assessing his guilt, the trier of fact was
required to make a determination of whether defendant's conduct
(continued)
15 A-5783-12T4
considered by our domestic violence courts. Because the Act
does not further define the terms contained in N.J.S.A. 2C:25-
29(b)(7), and because of the dearth of decisional law that would
convey that this type of conduct is prohibited, the doctrine of
lenity must preclude defendant's conviction here.
Moreover, the State was obligated to prove defendant's
knowing violation of the FRO beyond a reasonable doubt.
N.J.S.A. 2C:29-9(b); see also S.K., supra, 423 N.J. Super. at
546; State v. L.C., 283 N.J. Super. 441, 447 (App. Div. 1995),
certif. denied, 143 N.J. 325 (1996). Because, until today's
decision, it was not clear whether the brief filming of a victim
in an open and public place constituted a form of prohibited
communication, defendant could not have known to a sufficient
certainty that he was violating the FRO by engaging in the
conduct found to have occurred by the trial judge.
Reversed.
(continued)
fell within the prohibitions described in the FRO and, in
applying the doctrine of lenity, whether defendant fairly
understood that his conduct violated those expressed
prohibitions. In cases like this, whether there is an ambiguity
sufficient to require application of the doctrine of lenity
turns on the terms of the FRO and their interpretation.
16 A-5783-12T4