D.E.H. v. B.W.M.

• Court: New Jersey Superior Court Appellate Division
• Decided: August 20, 2024
• Docket: A-2056-22
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2056-22

D.E.H.,

Plaintiff-Respondent,

v.

B.W.M.,

Defendant-Appellant. _______________________

Submitted March 11, 2024 – Decided August 20, 2024

Before Judges Berdote Byrne and Bishop-Thompson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FV-04-2199-23.

Afonso Archie, PC, attorneys for appellant (Troy A. Archie, of counsel and on the brief).

Respondent has not filed a brief.

PER CURIAM Defendant B.W.M.1 challenges a February 22, 2023 final restraining order

(FRO) granted to plaintiff D.E.H. pursuant to the Prevention of Domestic

Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Defendant argues the trial

court erred in finding that he committed the predicate act of assault and in not

providing the factual findings and legal conclusion for its ruling. Having

reviewed the record, we reject defendant's arguments and affirm.

I.

We discern the facts adduced at the one-day FRO trial. Both parties

testified and only defendant was represented by counsel.

Plaintiff and defendant met online and were in a dating relationship.

According to plaintiff, on January 19, 2023, she met defendant after work. They

drove to defendant's college in his car because he wanted to speak with his

professors.

After leaving the college, they went to a park in Brooklawn. While in the

parked car, defendant wanted to be "intimate." Plaintiff claimed that she did not

want to be intimate after defendant opened his cellphone and she saw his

1 We identify the parties by initials to protect the identity of the victim of domestic violence. R. 1:38-3(d).

A-2056-22 2 Instagram with photographs of half-naked women. Plaintiff wanted to talk to

defendant about those photographs because that was not the first time she saw

that content on his cellphone. Defendant restated that he wanted to be intimate

and moved to the backseat of the car. Plaintiff remained in the front seat and

insisted they talk.

According to plaintiff, defendant said he would talk about the photographs

"at some point" but wanted to be intimate first because it "calmed him down."

Plaintiff agreed. Shortly after starting to become intimate, plaintiff stopped

because defendant "was not showing [her] affection."

According to plaintiff, her conduct upset defendant, who told her: "So,

you would like to f[***]. So[,] you would ask to f[***] a man you like but then

you are not going to ask the man you don't like to stop?" Plaintiff explained that

defendant was upset because she had a brief intimate relationship with another

man when she and defendant briefly ended their relationship. Plaintiff said that

she apologized to defendant because she did not know what else to do.

Defendant thereafter became aggressive, "put his hands on [her] multiple

times," punched, and choked her. Plaintiff testified that she had marks on her

neck and ear and bruises on her right shoulder from defendant pushing her into

the passenger door, which was supported by a photograph that had been marked

A-2056-22 3 for identification but not admitted into evidence. Defendant made no objection

regarding the photograph.

When plaintiff rolled down the car window to get help, defendant stopped

choking her. In response to plaintiff yelling for help, defendant said: "I'm going

to show you . . . how sluts and ho[e]s are [ ] treated." At that time, plaintiff was

not wearing pants or shoes. Defendant took plaintiff's keys and phone, did not

allow her to get dressed, and threatened to push her out of the car. Plaintiff

stated that she did "everything" that she could stay in defendant's car.

Plaintiff testified defendant "sexually assault[ed] [her] by touching [her],"

"tried to make [her] do lots of stuff," tried to touch her "[genitals]," and "put his

finger up her [rectum]." Plaintiff asked defendant to stop but he did not.

Defendant continued touching plaintiff until he ejaculated on his sweatshirt.

Plaintiff claimed defendant then calmed down and apologized. They left the

park and drove to plaintiff's car. Plaintiff then drove home. Several days later,

plaintiff sought and obtained a temporary restraining order (TRO), alleging

assault.

At trial, plaintiff testified that she did not feel safe because defendant

knew she was five months pregnant and had been violent towards her. Plaintiff

A-2056-22 4 also stated defendant had threatened to hurt her and her family. Defendant also

appeared at plaintiff's workplace after she told him not to come.

At trial, defendant testified that he asked plaintiff to go to campus with

him. He waited for plaintiff, she got out of her car, and they drove to campus

together in his car. When they arrived, defendant went to speak with his

professor and plaintiff went to the bathroom. After speaking with a professor at

the end of the class, defendant had a conversation with a "lady" from the class

about what he missed and the coursework. Following that conversation, the

parties walked outside. Defendant told plaintiff he should have asked for the

classmate's phone number because he needed more information about the class.

According to defendant, plaintiff punched him twice in the chest.

They walked back to defendant's car and had a conversation about how

defendant's conversation with the female classmate made plaintiff feel. They

got food and found a private place at the park in Brooklawn to have a

conversation. Defendant parked the car, turned on the radio, and "hopped" into

the back seat.

As defendant was scrolling through his Instagram, plaintiff "hopped" in

the backseat and asked defendant why he was on his cellphone. Defendant

A-2056-22 5 claimed plaintiff stated: "Oh, you talking to those girls again. Hand me the

phone or we're over." Defendant replied: "You're not getting my phone."

Plaintiff became mad and said: "Why not, I [have given] you my phone;

I let you do this, I let you do that." Defendant claimed plaintiff "dug" into his

hand, causing him to drop his phone. He denied choking plaintiff and claimed

that he was trying to push her off him. Defendant let plaintiff go after she

calmed down.

Defendant testified that plaintiff "grabbed" his phone and went through

his Instagram and unfollowed women. While "constantly" yelling, plaintiff said:

"I don't feel comfortable with you talking to other girls, you cheated on me in

the past."

At the trial, defendant testified plaintiff said they could "get over this" and

then she wanted to have sex. He "gently" moved plaintiff off him, and plaintiff

resumed yelling. According to defendant, he repeatedly asked plaintiff to get

out of his car. But plaintiff remained in the car and told defendant why she was

still mad.

A Brooklawn police officer drove by defendant's car. Defendant told

plaintiff he did not want a "problem" with her, she was "acting crazy," and if

she had a problem the police were present. Again, he asked plaintiff to get out

A-2056-22 6 of his car. They calmed down and defendant hopped back in the front seat.

Plaintiff followed him to the front seat, and he dropped plaintiff off at her car.

The parties had numerous conversations that night and the next day. After

plaintiff hung up on defendant, he sent her multiple text messages. According

to defendant, plaintiff never said defendant choked, punched, or assaulted her.

Defendant denied he choked, punched, pushed, or performed any sexual acts on

plaintiff or himself. He admitted that he was aware plaintiff was pregnant on

the day of the incident and that she believed that he was the father.

Defendant offered his mother's testimony to attack the credibility of

plaintiff. Defendant's mother testified regarding plaintiff's termination of her

prior pregnancy by defendant.

Based on the parties' testimony and the evidence, the trial court issued an

FRO on February 22, 2023. In an oral opinion, the court noted at the outset the

divergent testimony from the parties in assessing the credibility of the witnesses.

The court found plaintiff credible based on the "appropriate eye contact" and the

delivery of her testimony in a "concise and matter of fact manner." The court

found defendant less credible and discredited his testimony that he "gently

moved" plaintiff off him. The court noted defendant's mother's testimony failed

to establish a pattern of false statements by plaintiff.

A-2056-22 7 Relying on the two-prong test articulated in Silver v. Silver, 387 N.J.

Super. 112 (App. Div. 2006), the court found defendant committed the predicate

act of assault. Citing N.J.S.A. 2C:12-1, the court found defendant committed

simple assault because defendant "negligently caus[ed] bodily injury to another,

or at the very least, attempt[ed] by physical menace to put another in fear of

imminent serious bodily injury." The court found plaintiff proved assault based

on evidence of bruising and her credible testimony.

The court noted that the issuance of an FRO is often perfunctory and self-

evident when there is evidence of physical force. The court then concluded an

FRO was appropriate based on the bruising and the choking of plaintiff.

II.

On appeal, defendant raises three arguments. First, defendant contends

that the trial court erred in admitting hearsay evidence and unauthenticated

photographs, contentions he had not raised at trial. Second, he asserts that the

court erred in finding by a preponderance of the evidence that defendant

committed assault. Lastly, defendant argues the court failed to provide specific

law supporting its decision.

Our review of an FRO issued after a bench trial is limited. C.C. v. J.A.H.,

463 N.J. Super. 419, 428 (App. Div. 2020). "The general rule is that findings

A-2056-22 8 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); see also

Gnall v. Gnall, 222 N.J. 414, 428 (2015). We accord substantial deference to

family judges' findings of fact because of their special expertise in family

matters. Id. at 413. That deference is particularly strong when the evidence is

largely testimonial and rests on a judge's credibility findings. Gnall, 222 N.J. at

428. We will "not disturb the 'factual findings and legal conclusions of the trial

judge unless [we are] convinced that they are so manifestly unsupported by or

inconsistent with the competent, relevant and reasonably credible evidence as to

offend the interests of justice.'" Cesare, 154 N.J. at 412 (quoting Rova Farms

Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974)). However, "we

owe no deference to a trial court's interpretation of the law, and review issues of

law de novo." Cumberland Farms, Inc. v. N.J. Dep't of Envt'l Prot., 447 N.J.

Super. 423, 438 (App. Div. 2016).

Domestic violence occurs when an adult or emancipated minor commits

one or more acts on a person protected under the PDVA. N.J.S.A. 2C:25-19(a).

When determining whether to grant an FRO, a trial judge must engage in a two-

step analysis. Silver, 387 N.J. Super. at 125-26. "First, the judge must

determine whether the plaintiff has proven, by a preponderance of the credible

A-2056-22 9 evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25 -

19[(a)] has occurred." Id. at 125; see also N.J.S.A. 2C:25-29(a) (providing that

an FRO may only be granted "after a finding or an admission is made that an act

of domestic violence was committed"). Second, the court must determine that a

restraining order is necessary to provide protection for the victim. Silver, 387

N.J. Super. at 126-27. As part of that second step, the judge must assess

"'whether a restraining order is necessary, upon an evaluation of the fact[or]s set

forth in N.J.S.A. 2C:25-29[(a)](1) to -29[(a)](6), to protect the victim from an

immediate danger or to prevent further abuse.'" J.D. v. M.D.F., 207 N.J. 458,

475-76 (2011) (quoting Silver, 387 N.J. Super. at 127). Although the court is

not required to incorporate all the factors in its findings, "the [PDVA] does

require that 'acts claimed by a plaintiff to be domestic violence . . . be evaluated

in light of the previous history of violence between the parties.'" Cesare, 154

N.J. at 402 (omission in original) (quoting Peranio v. Peranio, 280 N.J. Super.

47, 54 (App. Div. 1995)).

Defendant contends the court erred in finding that he committed the

predicate act of assault. We disagree. After hearing the parties' testimony,

making credibility determinations, and applying the statute, the trial court found

plaintiff proved that defendant committed simple assault. We are satisfied there

A-2056-22 10 is ample evidence in the record that supports the trial court's finding of assault ,

and therefore, defendant's contention lacks merit.

We are also satisfied there was substantial credible evidence that plaintiff

was in need of an FRO. In testimony that the trial court found credible, plaintiff

stated she did not feel safe because defendant had threatened to hurt her and her

family. That testimony, coupled with the finding of an assault, satisfied the need

for a restraining order to protect plaintiff. While the trial court failed to evaluate

all the factors in N.J.S.A. 25-29(a)(1) to (6), its finding concerning the second

prong is sufficiently supported by the evidence at trial.

III.

Defendant also presents several evidentiary arguments for the first time

on appeal. If an error has not been brought to the trial court's attention, an

appellate court will not reverse on the ground of such error unless the appellant

shows plain error: an error "clearly capable of producing an unjust result." R.

2:10-2. That possibility must be sufficiently real to raise a reasonable doubt as

to whether the trial court as a factfinder reached a decision it otherwise would

not have reached. State v. Bass, 224 N.J. 285, 308 (2016). An appellate court

may properly "infer from the failure to object below that in the context of the

A-2056-22 11 trial the error was actually of no moment." State v. Ingram, 196 N.J. 23, 43

(2008) (quoting State v. Nelson, 173 N.J. 417, 471 (2002)).

First, defendant asserts the trial court erred by "entirely" relying on

photographs that were not marked for evidence nor moved into evidence. While

defendant is correct neither photograph was moved into evidence, plaintiff's

photograph of the bruised shoulder sustained on January 19 was marked for

identification. Defendant's argument is unavailing. He did not object to the

photographs or plaintiff's testimony regarding the photographs. We conclude

the trial court did not commit plain error clearly in considering the photographs,

which supported plaintiff's testimony regarding the assault on January 19 .

Second, defendant argues the court erred when it admitted plaintiff's

hearsay evidence regarding additional facts not alleged in the TRO and

unauthenticated photographs. Specifically, defendant argues the court allowed

plaintiff to testify about photographs she did not take or store, entered the

photographs into evidence, and permitted plaintiff to expand the allegation of

prior alleged domestic violence, including testimony regarding pictures of the

alleged abuse that were not admitted into evidence. Defendant further argues

the trial court impermissibly amended the TRO without notice. Defendant's

contentions lack merit.

A-2056-22 12 We defer to a trial court's evidentiary ruling absent an abuse of discretion.

State v. Garcia, 245 N.J. 412, 430 (2021). We do so because "the decision to

admit or exclude evidence is one firmly entrusted to the trial court's discretion."

State v. Prall, 231 N.J. 567, 580 (2018) (quoting Est. of Hanges v. Metro. Prop.

& Cas. Ins. Co., 202 N.J. 369, 383-84 (2010)).

We evaluate defendant's arguments after considering the applicable

evidentiary rules. "[A] photograph is a 'writing,' N.J.R.E. 801(e), and, therefore,

must be authenticated," but the authentication requirement embodied in N.J.R.E.

901 is "not designed to be onerous." State v. Hockett, 443 N.J. Super. 605, 613

(App. Div. 2016). Accordingly, "any person with the requisite knowledge of

the facts represented in the photograph . . . may authenticate it." State v. Brown,

463 N.J. Super. 33, 52 (App. Div. 2020) (quoting State v. Wilson, 135 N.J. 4,

14 (1994)). In that regard, an authenticator must be able to "verify that the

photograph accurately represents its subject." Wilson, 135 N.J. at 14.

In addition, hearsay is defined as "a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted." N.J.R.E. 801(c). Hearsay is deemed

"untrustworthy and unreliable," State v. White, 158 N.J. 230, 238 (1999), and

therefore, it is "not admissible except as provided by [the Rules of Evidence] or

A-2056-22 13 by other law." N.J.R.E. 802. However, "if evidence is not offered for the truth

of the matter asserted, the evidence is not hearsay, and no exception to the

hearsay rule is necessary to introduce that evidence at trial." State v. Long, 173

N.J. 138, 152, (2002).

We reject defendant's argument that plaintiff's photographs were not

properly authenticated. In a single photograph related to the January 19

incident, plaintiff testified regarding the bruise on her right shoulder to support

the assault occurred on that date in defendant's car. Plaintiff described the

photograph of her shoulder and testified it was taken by her mother on January

20. We are satisfied the photograph was properly authenticated.

We likewise reject defendant's argument that plaintiff's testimony

regarding the photographs showing her bruised left arm taken two to three weeks

before January 19. The record shows the trial court considered plaintiff's

testimony regarding that photograph because it supported her testimony of prior

domestic violence. The trial court sufficiently assessed plaintiff's testimony and

the photographs in making its factual findings. Again, defendant offered no

objection. We discern no basis to disturb the trial court's ruling because its

findings were adequately supported by substantial, credible evidence contained

in the record. See State v. Locurto, 157 N.J. 463, 472 (1999).

A-2056-22 14 Lastly, defendant's contention that the trial court permitted plaintiff to

"ramble" concerning additional allegations not included in the TRO or any

police report and did not state whether it considered that testimony. This

argument is belied by the record. Following plaintiff's testimony that defendant

installed a tracking application on her phone, had access to her phone, and that

she had text messages and photographs that defendant "broke" her car, the court

stated that it could not consider those allegations because the TRO only alleged

assault and not harassment, criminal stalking, or criminal mischief. Based on

our review of the record, the trial court properly limited its analysis to the

allegation of assault as set forth in plaintiff's TRO.

To the extent we have not addressed any of defendant's remaining

contentions, we conclude they lack sufficient merit to warrant further discussion

in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed

A-2056-22 15