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NOT FOR PUBLICATION WITHOUT THE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