STATE OF NEW JERSEY VS. O.D.C. (FO-03-0306-20 AND FO-03-0378-20, BURLINGTON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

S
                                      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                                NOT FOR PUBLICATION WITHOUT THE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-0303-20

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

O.D.C.1,

     Defendant-Appellant.
_______________________

                    Submitted May 25, 2021 — Decided June 10, 2021

                    Before Judges Yannotti and Mawla.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Burlington County,
                    Docket Nos. FO-03-0306-20 and FO-03-0378-20.

                    Kalavruzos, Mumola, Hartman & Lento, LLC,
                    attorneys for appellant (W. Les Hartman, of counsel
                    and on the brief; Jessica A. Wilson, on the brief).

                    Scott A. Coffina, Burlington County Prosecutor,
                    attorney for respondent (Alexis R. Agre, Assistant
                    Prosecutor, of counsel and on the brief).


1
     We utilize the parties' initials pursuant to Rule 1:38-3(c)(12).
PER CURIAM

      Defendant O.D.C. appeals from an August 18, 2020 judgment of

conviction for contempt, N.J.S.A. 2C:29-9(b)(2), of a final restraining order

(FRO) entered pursuant to the Prevention of Domestic Violence Act (PDVA),

N.J.S.A. 2C:25-17 to -35. We affirm.

      By way of background, three children were born of defendant's marriage

to M.C.   The parties became estranged and were in the midst of divorce

proceedings throughout this matter.        Defendant was also involved in a

relationship with a girlfriend, A.B., who had children of her own. In November

2018, M.C. filed a domestic violence complaint and following a trial received

an FRO on December 18, 2018, which restrained defendant from having any

contact with M.C. and their children. On March 27, 2019, the parties appeared

for a hearing on an enforcement motion filed by M.C. alleging he violated the

FRO. A Family Part judge entered an amended FRO, which continued to

restrain defendant from contacting M.C., but granted him the ability to

communicate with the children through the eldest child's cell phone and

parenting time pursuant to an order entered in the parties' non-dissolution case.

The FRO further noted M.C. should contact the police and file a criminal

complaint "to address violations of the FRO[.]"


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                                       2
      On July 30, 2019, defendant was tried for contempt of the amended FRO

based on a complaint-warrant filed on behalf of M.C. The complaint-warrant

alleged defendant downloaded a tracking application onto the eldest daughter's

cell phone and used the cell phone to send messages to M.C. Defendant was

convicted of contempt, sentenced to one year of probation, and ordered to pay

fines and penalties.

      On August 28, 2019, defendant sent the following text to M.C. and A.B.:

            Listen, [I] know I caused you guys a lot of problems, I
            regret for ever coming into either of [your] lives. I truly
            do. I wish I could have been what you guys needed in
            life. I always just wanted what was best for the kids.
            Please tell them I loved every[]day, and every[]day I
            woke up just wanting to spend more time with them.
            [A.B.], tell [your daughter] I love[] her and always will.
            She was someone I always aspired my kids to be.
            [M.C.], I know [you] hate me but I love [our kids] more
            than []anything please . . . just don't let them forget how
            much I loved them. I truly hope that they all have the
            best life they can possibly and I'm sorry for everything.

                   I'm sorry for all the pain I caused [you] both.

                   Please tell [. . . j]ust forget about me, they need
            to l[i]ve happy lives and it's up to [you] guys to take
            care of them. I'm sorry I'm leaving [you two] with this
            burden, but it's best for them. I'm toxic. I don't deserve
            to be around them. Please take care of them, and please,
            please tell them I love them all so much.

                  [A.B.], [you are] the executor please just make
            sure my kids are cared for[.]

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                                        3
             I love them so [much.]

             Goodbye[.]

             Please tell them they deserved them me as their shit
             father.

      On October 29, 2019, a second complaint-warrant was filed on M.C.'s

behalf alleging defendant committed fourth-degree contempt, N.J.S.A. 2C:29-

9(a), for communicating with her in violation of the amended FRO. The State

downgraded and tried the charge as a disorderly person's contempt, N.J.S.A.

2C:29-9(b)(2).2    The State presented testimony from M.C. and defendant

testified in his defense.

      M.C. testified the amended FRO in place at the time defendant sent his

text prohibited contact or communication between the parties. She explained

when she received defendant's text, she contacted his mother and together they

contacted A.B. M.C. explained why she waited until October to report the

contempt to police as follows:

             We were just in court in August and he was found guilty
             of violating the restraining order. And we're in court a
             lot with the divorce and the custody issues, and
             honestly I'm tired. Like I feel like it's a lose, lose for

2
  The trial also included a violation of probation charge for which the State
presented the testimony of a probation officer, but it is unrelated to the issues
presented on appeal.
                                                                           A-0303-20
                                         4
           me. Like either I'm being harassed by him, and if I
           speak up, then I'm in the court all the time like this . . . .

     On cross-examination, M.C. further explained her reasons for reporting

the contempt in the following colloquy with defense counsel:

           [Defense counsel:] Okay. And so what changed [o]n
           October 28[,] that caused you to at 9:50 at night drive
           to the police station . . . and report that text?

           [M.C.:] I went at night because I had to put all three
           kids to bed. But I believe that we were in court a little
           bit before that, and I had spoken to [the] [j]udge . . .
           about the harassment that . . . [defendant] was doing
           and violating the restraining order, and he said to go to
           the police station.

           [Defense counsel:] So your purpose in going to the
           police station that night was to report to the police the
           harassment that you felt [defendant] was doing to you?

           [M.C.:] Yes. I had told them about a few things that
           were happening at the time.

           [Defense counsel:] So your intent that night was not to
           solely report this text?

           [M.C.:] There was, I think, three matters that I spoke
           to the police about.

           [Defense counsel:] And what were those three matters?

           [M.C.:] That he continued to call [in] wellness checks
           [regarding the children] up to three times day. And I
           had started a new job, and he was harassing them and
           me, and my job was on the line because he wouldn't
           leave them alone.

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                                         5
      Defense counsel sought to elicit testimony from M.C. that her true motive

for reporting the contempt was that defendant had allowed the children to

celebrate Halloween over M.C.'s religious objections and M.C. reported the

contempt in retaliation. M.C. denied this was her motive and explained she

allowed the children to play dress-up in costumes although she did not celebrate

Halloween.

      Defendant testified M.C. reported the contempt because she objected to

defendant celebrating the children's birthdays and Halloween over her religious

objections. Defendant admitted he sent M.C. the text and admitted the amended

FRO contained no exceptions regarding the bar on communication between the

parties. However, he denied sending the text with the purpose of harassing M.C.

Instead, he claimed it was to ensure his "kids were taken care of." He claimed

the text was his "last will and testament" because he believed he would be dead

the next day. On cross-examination, defendant claimed he intended to take his

own life and had "practiced for hours" how to cut his arm, yet testified when

police responded to the incident, they took him home rather than to the hospital

despite his testimony he had damaged his arms.

      The trial judge found defendant guilty of violating probation and

purposely and knowingly committing contempt of the amended FRO. The judge

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                                       6
noted the amended FRO stated defendant was "prohibited from having any oral,

written, personal, electronic, or other form of contact or communication with

[M.C.]" The judge found the State proved the contempt because the amended

FRO

            was served personally upon [defendant] on March 27[],
            2019, at approximately 2:18. . . .

                    The fact that he was present, was served with the
            . . . amended [FRO], and the fact that he made reference
            to actually the other individual for which he sent a text
            message to, as well as [ . . . M.C.] the victim in this
            matter, the [c]ourt does find that it was his conscious
            purpose to send that text message. He referenced their
            children, and again he referenced [M.C.] by name.

The judge also rejected defendant's claim the text was intended to be his last

will and testament because the amended FRO contained no exceptions to the bar

on communication between the parties.

      The judge concluded the State met its burden of proof beyond a reasonable

doubt because it proved the existence of the amended FRO, defendant was

served with it, and he sent the text in violation of its clear terms because he

testified "[i]t was his purpose and intention for this message to be sent to get to

A.B., as well as [M.C.], as he stated[,] a last will and testament."

      The trial judge rejected defense counsel's argument that the case be

dismissed on de minimis grounds. The judge found as follows:

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                                         7
             This was a text message between the parties, and it was
             a rather long text message where [defendant] spoke to
             [M.C.] by name, the children by name, and then
             discussed their relationship. The . . . [c]ourt doesn't
             find that that is de minimis as it relates to the
             proceeding here today. And . . . certainly not only is
             [it] not de minimis, but . . . [based upon] the testimony
             of [M.C.], it calls for alarm, because she contacted
             [defendant's] parents when she received this text
             message. So the [c]ourt doesn't find it to be de minimis,
             it does find it to be a violation.

      The judge sentenced defendant on the violation of probation ordering him

to complete his probation as previously ordered, have a psychiatric evaluation,

and pay mandatory fines and penalties. He also sentenced defendant on the

contempt charge to a mandatory thirty-days in Burlington County jail and a one-

year term of probation to run concurrent with his sentence on the violation of

probation.

      Defendant raises the following points on this appeal:

             POINT I:

             [DEFENDANT]'S TEXT MESSAGE DID NOT
             VIOLATE THE TERMS OF THE FINAL
             RESTRAINING ORDER.

             POINT II:

             THE TRIAL COURT FAILED TO TAKE INTO
             CONSIDERATION [DEFENDANT]'S EXTENSIVE
             HISTORY OF PSYCHIATRIC ILLNESS WHICH


                                                                         A-0303-20
                                        8
            PREVENTED HIM FROM FORMULATING THE
            REQUISITE INTENT TO COMMIT CONTEMPT.

            POINT III:

            [DEFENDANT] CAN ESTABLISH THE COMMON-
            LAW DEFENSE OF NECESSITY.

            POINT IV:

            [DEFENDANT]'S ORIGINAL COUNSEL                      WAS
            CONSTITUTIONALLY INEFFECTIVE.

      "The scope of appellate review of a trial court's fact-finding function is

limited. The general rule is that findings by the trial court are binding on appeal

when supported by adequate, substantial, credible evidence." Cesare v. Cesare,

154 N.J. 394

, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Invs. Ins., 

65

N.J. 474

, 484 (1974)). "Deference is especially appropriate 'when the evidence

is largely testimonial and involves questions of credibility.'" 

Id. at 412

 (quoting

In re Return of Weapons to J.W.D., 

149 N.J. 108

, 117 (1997)). Moreover,

"[b]ecause of the family courts' special jurisdiction and expertise in family

matters, appellate courts should accord deference to family court factfinding."

Id. at 413

. However, we do not defer to the judge's legal conclusions if "based

upon a misunderstanding of . . . applicable legal principles." T.M.S. v. W.C.P.,

450 N.J. Super. 499

, 502 (App. Div. 2017) (quoting N.T.B. v. D.D.B., 

442 N.J.

Super. 205

, 215 (App. Div. 2015)).

                                                                             A-0303-20
                                        9
                                         I.

       In Point I defendant re-asserts the purpose of his text was to have it serve

as his "last will and testament for his children" rather than violate the amended

FRO.    Defendant repeats the argument that M.C.'s delay in reporting the

contempt shows she did not fear defendant, but instead retaliated against him

for the parties' dispute over Halloween and to gain an upper hand in the parties'

divorce. Defendant also repeats the claim the complaint should have been

dismissed on de minimis grounds. Defendant claims the trial judge failed to

reference a February 7, 2020 amended FRO, which permits communication

regarding the children between the defendant and M.C. and claims the judge

incorrectly relied on the March 27, 2019 amended FRO.

       In contempt proceedings, "the primary consideration is vindication of the

authority of the court . . . [as] court orders must be obeyed." In re Adler, 

153

N.J. Super. 496

, 501 (App. Div. 1977) (internal quotation marks omitted); see

also State v. Gandhi, 

201 N.J. 161

, 189 (2010) ("Restraining orders are entered

for purposes of shielding a victim who needs protection and who is compelled

to seek judicial assistance to obtain that security; thus, we have insisted on full

compliance with restraining orders no matter the flaws a defendant may discern

in their form or entry.").


                                                                             A-0303-20
                                       10
      A person is guilty of contempt "if that person purposely or knowingly

violates any provision in an order entered under the provisions of the [PDVA.]"

N.J.S.A. 2C:29-9(b)(1). If the violation is not itself a crime or a disorderly

person's offense, then contempt is a disorderly person's offense. N.J.S.A 2C:29-

9(b)(2). The State satisfies its burden by proving a "knowing violation of an

existing domestic violence restraining order."     State v. Finamore, 

338 N.J.

Super. 130

, 132 (2001).

      N.J.S.A. 2C:2-2(b) defines the requisite mens rea as follows:

            (1) Purposely. 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.

            (2) Knowingly. 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 acts
            knowingly with respect to a result of his conduct if he
            is aware that it is practically certain that his conduct
            will cause such a result.

      "[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).

The statute "may not be construed in a manner that precludes otherwise


                                                                           A-0303-20
                                       11
reasonable conduct unless the orders issued pursuant to the [PDVA] specifically

proscribe particular conduct by a restrained [party]." State v. Krupinski, 

321

N.J. Super. 34

, 45 (App. Div. 1999).

      We reject the arguments defendant has repeated related to the trial judge's

contempt findings and affirm substantially for the reasons expressed in the

judge's oral opinion. We add the following comments.

      The State clearly proved defendant knew there was an amended FRO in

place prohibiting him from contacting M.C., yet he sent the text to her in

violation of the court ordered restraints. We have no reason to second guess the

judge's rejection of defendant's claim that he merely intended to communicate

his last will and testament to M.C. or the assertion that M.C. reported the

contempt to retaliate against defendant, especially given her credible

explanation for the delay in reporting the contempt. In light of our standard of

review, there is substantial credible evidence in the record to support the judge's

findings of fact.

      Furthermore, we reject as without merit, defendant's argument that the

trial judge relied upon the wrong version of the amended FRO. Defendant's

contempt occurred sixth months prior to the February 7, 2020 amended FRO,

which permitted the parties to communicate through the OurFamilyWizard


                                                                             A-0303-20
                                       12
application regarding the children. Defendant committed contempt when the

terms of the March 27, 2019 amended FRO controlled, which prohibited him

from communicating with M.C. in any manner. The February 2020 amended

FRO was irrelevant.    Even if it was applicable, defendant still committed

contempt because he communicated via text and relayed alarming information

to M.C. having nothing to do with a parenting issue.

      For these reasons, we also reject defendant's repeated argument that his

conduct warranted dismissal on de minimis grounds. In State v. Hoffman our

Supreme Court stated, "in the area of domestic violence, as in some other areas

in our law, some people may attempt to use the process as a sword rather than

as a shield." 

149 N.J. 564

, 586 (1997). The trial court must therefore serve "as

the gatekeeper" by applying the "[s]elf-regulating provision in the Code, . . .

[namely] the de minimis infraction provision." 

Ibid.

 N.J.S.A. 2C:2-11(b) states

a court may dismiss a prosecution if it finds the defendant's conduct "[d]id not

actually cause or threaten the harm or evil sought to be prevented by the law

defining the offense or did so only to an extent too trivial to warrant the

condemnation of conviction."

      "Sympathetic considerations play no part in a determination" under the de

minimis statute. State v. Brown, 

188 N.J. Super. 656

, 670 (App. Div. 1983).


                                                                          A-0303-20
                                      13
"An objective consideration of surrounding circumstances is authorized." State

v. Smith, 

195 N.J. Super. 468

, 472 (Law Div. 1984). "Judicial discretion . . .

takes into account the law and the particular circumstances of the case before

the court." Higgins v. Polk, 

14 N.J. 490

, 493 (1954).

      We affirm the rejection of defendant's de minimis defense for the reasons

articulated by the trial judge. Defendant's communication of thoughts of self -

harm, even if couched as an effort to communicate his final wishes to his

children, were still addressed in a communication he sent directly to M.C. Given

the history of domestic violence, the trial judge did not abuse his discretion in

finding this conduct was not trivial and did not require a dismissal on de minimis

grounds pursuant to N.J.S.A. 2C:2-11(b).

                                       II.

      We reject the argument raised in defendant's Point II, namely, the judge

failed to consider defendant's psychiatric history and whether he possessed the

capacity to formulate the requisite intent to commit contempt. Defendant argues

he was "severely decompensated and in need of help," and the text was a "cry

for help" and akin to an emergency call for assistance following an automobile

accident. In support of his argument, defendant includes his medical records as

a part of his appellate appendix.


                                                                            A-0303-20
                                       14
      Rule 2:5-4(a) states: "The record on appeal shall consist of all papers on

file in the court . . . below, with all entries as to matters made on the records of

such courts . . . ." We do not consider questions not properly presented to a trial

court unless the issue raised relates to the jurisdiction of the trial court or

concerns a matter of great public interest. Nieder v. Royal Indem. Ins., 

62 N.J.

229

, 234 (1973).

      Defendant did not adduce the medical records evidence before the trial

judge. Therefore, we cannot consider evidence not presented to the trial judge

for the first time on appeal. Furthermore, this was not defendant's strategy at

trial as demonstrated by the following colloquy during the State's summation:

            [Prosecutor: Defendant] also acknowledged that he
            knowingly typed [M.C.'s] address into that phone, that
            he knowingly sent that text message to her. What we
            are supposed to take away from this is that because he
            was suicidal at the time, it's de minimis, and it really
            doesn't count because he wasn't in the right frame of
            mind. And I would argue that that is certainly –

            [Defense counsel]: I object, Your Honor. . . .

            THE COURT: Okay. What's your objection?

            [Defense counsel]: I — in my closing, and certainly
            during our testimony, we did not state that he was not
            in his right mind when he sent that text and that's our
            excuse. That is not what we said.

            THE COURT: Okay. Thank you.

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                                        15
      For these reasons, the judge did not err for not considering defendant's

psychological condition.

                                      III.

      In Point III, defendant argues the common law defense of necessity

applied because of his "clearly documented history of mental illness," which

required him to communicate his last will and testament to his children through

the only means possible. We disagree.

      A defendant asserting the necessity defense must establish the following:

            (1) There must be a situation of emergency arising
            without fault on the part of the actor concerned;

            (2)    This emergency must be so imminent and
            compelling as to raise a reasonable expectation of harm,
            either directly to the actor or upon those he was
            protecting;

            (3) This emergency must present no reasonable
            opportunity to avoid the injury without doing the
            criminal act; and

            (4) The injury impending from the emergency must be
            of sufficient seriousness to outmeasure the criminal
            wrong.

            [State v. Romano, 

355 N.J. Super. 21

, 29 (App. Div.
            2002) (citing State v. Tate, 

194 N.J. Super. 622

, 628
            (App. Div. 1984), rev'd on other grounds, 

102 N.J. 64

            (1986)).]


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                                      16
      "The 'necessity' defense is based on public policy" and it "[e]ssentially . . .

'reflects a determination that if, in defining the offense, the legislature had

foreseen the circumstances faced by the defendant, it would have created an

exception.'" 

Ibid.

 (citing Tate, 

102 N.J. at 73

). "Thus, 'the defense is available

at common law only when the legislature has not foreseen the circumstances

encountered by a defendant.'" 

Ibid.

 (citing Tate, 

102 N.J. at 74

).

      In Romano, we reversed the defendant's DWI conviction where he drove

his car while intoxicated in order to escape assailants who had severely beaten

him. 

Id.

 at. 36. We noted the trial judge interpreted defendant's necessity

defense as a duress defense and shifted the burden of proof to defendant to prove

the defense rather than requiring the State to disprove it.         

Id. at 23

.      We

concluded the necessity defense applied and defendant was entitled to a

judgment of acquittal because "the Legislature did not weigh the competing

value of driving while intoxicated to escape a brutal, and possibly deadly attack,

against the values served by ridding the roads of drunk drivers." 

Ibid.

 We held

the facts were "so bizarre and remote from the public policy underlying the law

that even a [c]ourt as committed as this one to the strict enforcement of the

drunk-driving statutes can pause to make certain that no injustice has been

done." 

Id. at 33

 (citing State v. Fogarty, 

128 N.J. 59

, 74 (1992)).


                                                                                 A-0303-20
                                        17
       Defendant likens his case to Romano and argues the facts here are "so

remote from the public policy underlying the [PDVA] that the [c]ourt must pause

to make certain that no injustice is done." He alleges because he thought he was

going to successfully commit suicide after he sent the text and would be dead

by the morning, his actions are "clearly an injury of sufficient seriousness to

outweigh the criminal wrong."

       We reject defendant's arguments because he failed to raise the necessity

defense at trial. See Nieder, 

62 N.J. at 234

. Even if the defense was raised, the

record does not demonstrate the second, third, or fourth Romano factors were

met.    Defendant was neither hospitalized, nor administered emergency

psychiatric treatment. Furthermore, defendant had alternatives to violating the

amended FRO such as expressing his wishes to other persons who could deliver

his message to the children or doing so in a writing not addressed to M.C.

       Moreover, defendant's conduct was not beyond the Legislature's

considerations when it enacted the PDVA. The purpose of the PDVA is to

"assure the victims of domestic violence 'the maximum protection from abuse

the law can provide.'" Hoffman, 

149 N.J. at 584

 (quoting N.J.S.A. 2C:25-18).

The Act "effectuates the notion that the victim of domestic violence is entitled

to be left alone. To be left alone is, in essence, the basic protection the law seeks


                                                                               A-0303-20
                                        18
to assure these victims." 

Ibid.

 Defendant's conduct was exactly contrary to and

violative of the public policy of the PDVA. Accepting defendant's logic that he

had to violate the amended FRO in order to communicate his thoughts would

elevate impulsive conduct by a perpetrator of domestic violence to the detriment

of a victim of domestic violence, thereby nullifying the PDVA's purpose.

                                        IV.

      Finally, defendant argues his trial counsel was ineffective. He claims

counsel "was a pro-bono appointed [a]ttorney, whose primary practice area was

medical malpractice in Philadelphia, Pennsylvania [and] she was completely

unfamiliar with criminal law and procedure as a whole and specifically in New

Jersey." He argues counsel "failed to contact the Office of the Public Defender

to request that they hire an expert to assess [defendant's] ability to formulate the

requisite intent for the offense", she "failed to file a de minimis motion with the

Assignment Judge", and she "failed to plead the 'necessity' defense."

      "Ineffective-assistance-of-counsel claims are particularly suited for post-

conviction review because they often cannot reasonably be raised in a prior

proceeding. . . . Our courts have expressed a general policy against entertaining

ineffective-assistance-of-counsel claims on direct appeal because such claims

involve allegations and evidence that lie outside the trial record." State v.


                                                                              A-0303-20
                                        19
Preciose, 

129 N.J. 451

, 460 (1992). For these reasons, we decline to consider

defendant's claims raised for the first time on appeal because they include

allegations outside of the appellate record.

      Affirmed.




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                                       20

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