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N.J.S.A. 2C:25-17 to -35. We vacate the convictions and remand for further proceedings."> Original

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2733-05T12733-05T1 STATE OF NEW JERSEY, Plaintiff-Respondent, v. SHARIA HORNE, Defendant-Appellant.

Argued December 13, 2006 - Decided January 5, 2007 Before Judges Cuff and Winkelstein. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, FO-11112-06. Susan Schleck Kleiner argued the cause for appellant (Drinker, Biddle & Reath, attorneys; David F. Abernethy, of counsel; Ms. Kleiner and Jonathan R. Miller, on the brief). Ryan E. Boyle, Assistant Prosecutor, argued the cause for respondent (Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney; Mr. Boyle, on the brief). PER CURIAM Defendant Sharia Horne appeals from December 19, 2005 convictions for simple assault and for criminal contempt based upon a violation of a restraining order issued under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35. We vacate the convictions and remand for further proceedings. On February 22, 2005, the court issued to Bayshawn Parks a final restraining order against defendant. Quiana McMillan was named as a protected person on that restraining order. As a result of an altercation between

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defendant and McMillan on July 20, 2005, the Trenton police issued two complaints against defendant, one for simple assault, in violation of N.J.S.A. 2C:12-1a, and the other for contempt of a domestic violence restraining order, a violation of 333 N.J. Super. 492, 498-99 (App. Div. 2000). Without those findings, we are unable to adequately conduct appellate review. Here, the court made no credibility findings as to the assault charge. Nor did the court find who started the fight or where the fight took place. We are unable, in the absence of those findings, to conclude that the record shows that defendant violated 208 N.J. Super. 595, 604-06 (App. Div. 1986); see also State v. Josephs, 174 N.J. 44, 101-02 (2002). The same lack of findings requires that the contempt conviction be vacated. The trial court found that the occurrence of the verbal exchange was itself sufficient to convict defendant of violating the final restraining order. We respectfully disagree. While a verbal exchange between a person subject to a final restraining order and a person protected by the order may constitute a violation of the order, no violation of N.J.S.A. 2C:29-9b has occurred unless a court finds that a defendant knowingly violated the order. State v. Finamore, 338 N.J. Super. 130, 138 (App. Div. 2001); see also State v. L.C., 283 N.J. Super. 441, 450 (App. Div. 1995) (restraining order prohibiting harassment only violated where there was "purpose to harass"; mere offensive language is insufficient), certif. denied, 143 N.J. 325 (1996). Here, the court failed to evaluate whether defendant had the requisite mental culpability to have committed the charged offense. Our final reason for vacating the conviction is that at oral argument before this court, the assistant prosecutor represented that the State had failed to consider downgrading the disorderly persons simple assault charge to a petty disorderly persons offense. Such a downgrading would also have a bearing on the contempt charge. wvWare/wvWare version 1.0.3 --> This archive is a service of Rutgers School of Law - Camden. This archive is a service of Rutgers School of Law - Camden.

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