                                   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                             NOT FOR PUBLICATION WITHOUT THE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-4541-18T1

STATE OF NEW JERSEY
IN THE INTEREST OF R.J.,
a Juvenile.
____________________________

                 Submitted May 28, 2020 – Decided June 19, 2020

                 Before Judges Koblitz and Mawla.

                 On appeal from the Superior Court of New Jersey,
                 Chancery Division, Family Part, Sussex County,
                 Docket Nos. FJ-19-0166-18 and FJ-19-0072-19.

                 Patti & Patti, LLC, attorneys for appellant (Jeffrey
                 Michael Patti, of counsel and on the briefs).

                 Francis A. Koch, Sussex County Prosecutor, attorney
                 for respondent (Shaina Brenner, Assistant Prosecutor,
                 of counsel and on the brief).

PER CURIAM

       R.J. appeals from a March 4, 2019 adjudication of delinquency for acts

which, if committed by an adult, would constitute possession of a firearm for an

illegal purpose, N.J.S.A. 2C:39-4; aggravated assault, N.J.S.A. 2C:12-1(b)(4);

terroristic threats, N.J.S.A. 2C:12-3(a); criminal mischief, N.J.S.A. 2C:17-
3(a)(1); and harassment, N.J.S.A. 2C:33-4(c) arising from an incident with his

girlfriend K.R. He also appeals from a May 7, 2019 order denying his motion

for a new trial. We affirm.

      This matter was tried for four days during which the State presented seven

witnesses, and R.J. presented the testimony of his mother and brother. R.J. did

not testify, but his voluntary statement to police was admitted into evidence.

      The underlying incident occurred in March 2018, when R.J. sent K.R. a

picture via Snapchat depicting her mother's sweatshirt with the words "fuck you"

spray-painted across it. This prompted K.R. to drive her grandmother's vehicle

to R.J.'s home in an attempt to retrieve the sweatshirt. As K.R. waited in R.J.'s

driveway, he emerged and began to yell at her. He retrieved a shovel and a chain

from the garage and began striking K.R.'s car with them before resorting to

hitting and kicking the car. He retrieved a BB gun, fired it at the windshield

several times, and held the gun to K.R.'s temple, bruising her cheekbone in the

process. R.J. also wrenched the driver's side window, rendering it inoperable.

      R.J.'s brother, who was playing a loud video game inside the residence,

did not witness the assault but heard muffled shouts coming from the driveway,

saw K.R.'s car, and saw R.J. pacing in front of it. The brother alerted his mother

who observed a snow shovel under the vehicle. According to R.J.'s mother, K.R.


                                                                          A-4541-18T1
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advised her that she was there to retrieve her sweatshirt. R.J.'s mother testified

she asked R.J. to go back inside the residence and K.R. to leave multiple times,

but K.R. just stared ahead, emotionless, until eventually leaving after receiving

the sweatshirt.

      K.R.'s vehicle suffered damage to its hood, driver's side door, and roof.

Her grandmother and an auto repair technician testified to the extent of the

damage and repairs, which approximated $3000.             The grandmother also

observed the bruise on K.R.'s cheek.

      K.R. testified she and R.J. continued to communicate following the

incident. During one of their communications, K.R. asked R.J. whether he

would have pulled the trigger on the BB gun when it was against her head and

he responded, "it doesn't matter. I should have." A few days later, K.R. was

admitted to a psychiatric facility for harming herself.

      Following K.R.'s release, her mother contacted Sparta Township Police,

who began an investigation. Detectives interviewed R.J. and he voluntarily gave

a statement admitting to kicking K.R.'s car and putting a shovel under it. The

Sussex County Prosecutor's Office executed a search warrant of R.J.'s residence

and recovered the BB gun, which was tested and found to be operational. The

chain and shovel were obtained from R.J.'s attorney prior to the trial.


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      The trial judge made extensive findings, which we summarize here. The

judge found K.R.'s testimony credible because she admitted she could not recall

certain details relating to the incident, which she could have fabricated to her

advantage. By example, the judge noted K.R. could not remember the color of

the shovel R.J. used during the assault, yet the actual shovel was present in court

during her testimony and visible to her. She also could not remember the length

of the chain R.J. used to damage the car. However, the judge found K.R.

credible because it was reasonable for her not to recollect, considering the rapid

succession of events during the rampage and the trauma she experienced,

including having a gun put to her head.

      The judge found the traumatic nature of the event was also corroborated

by R.J.'s mother, who testified to K.R.'s non-responsiveness during the incident,

which the judge found unsurprising. The judge also found K.R.'s testimony

consistent with R.J.'s statement to police in which he admitted he was mad and

kicked her car, as well as messages K.R. and R.J. exchanged after the incident

in which he admitted threatening her with the gun.

      The judge concluded the testimony of R.J.'s brother and mother did not

detract from K.R.'s credibility because they arrived after the rampage. He found

the State's witnesses credible.


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      The trial judge concluded the State proved all of the statutory elements of

the offenses charged. The State proved the weapons offense because a detective

testified the BB gun was tested and operable, and K.R.'s testimony and the text

messages exchanged between her and R.J. after the incident established that he

fired the weapon at her vehicle and held it against her head. The judge also

found the State proved the aggravated assault charge because R.J. knowingly

pointed the gun at K.R.'s head, shot at the vehicle, held the gun to her head and

admitted he should have pulled the trigger, which "manifested extreme

indifference to the value of human life." The judge also found R.J. committed

terroristic threats and made the following findings:

                   Using the firearm to shoot at the vehicle and then
            hold [it] against [K.R.]'s head expresses far more than
            fleeting anger or an effort to alarm. His intent to
            convey menace and fear is confirmed again by his
            words the following day when he responds to her text
            message that he should have pulled the trigger.

                  ....

                  [R.J.] admits numerous times in his statement to
            [police] that he was pissed, mad, angry, irritated, that
            he made threatening movements and that he undertook
            actions against [K.R.] out of spite. While he denied . . .
            using the weapon, as referenced above, his attempt to
            blunt his damning Snapchat and [comment] about
            wishing to pull the trigger undercut[] his assertion that
            he did not use the weapon. [K.R.] was credible in her
            description about how he used the weapon to first shoot

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            at her vehicle and then hold it against her temple while
            he continued to yell at her.

      The trial judge found the State proved criminal mischief, crediting the

testimony of K.R., her grandmother, and the auto repair technician, which

established the nature of the damage to the vehicle and the cost to repair it. The

judge found the vehicle was K.R.'s property because it was under her "regular

dominion and control." He concluded the damage occurred from R.J. kicking

the vehicle and striking it with the shovel and credited K.R.'s testimony that R.J.

used a chain during the incident because

                   [t]he chain appears to be something [R.J.]
            regularly utilizes in connection with his martial arts
            fighting skills. The description by his attorney during
            the proceeding of somebody who wouldn't even weigh
            100 pounds soaking wet is not the observations that this
            [c]ourt made of this young man sitting before the
            [c]ourt for many days. He appears to be athletic,
            muscular, and in good shape.

                   [K.R.] testified about [R.J.]'s knowledge of
            martial arts and [R.J.] did not dispute his martial arts
            knowledge during his videotaped statement when it was
            mentioned by [a detective]. [R.J.] was upset that [K.R.]
            had come to his house that evening demanding the
            return of the sweatshirt after he had texted her a picture
            with the words "fuck you" written on it, and he admitted
            that he had put those words there. They exchanged
            words in the driveway. His emotions escalated to a
            point at which he damaged the vehicle by kicking it,
            striking it with the shovel, and striking it with the chain.


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      The trial judge concluded the State proved harassment because R.J.

admitted he threatened to burn the sweatshirt, defaced it by spraying an expletive

on it, and sent K.R. a picture of the sweatshirt out of spite. The judge concluded

"[t]hese actions represent a course of conduct undertaken with the purpose to

worry and trouble [K.R.] . . . [R.J.'s] actions in making the repeatedly unwanted

communications about the sweatshirt represented an intolerable interference

with the expectation of privacy of [K.R.]"

      R.J. raises the following points on appeal:

            POINT I - APPELLANT R.J.'S APPEAL IS
            APPROPRIATE AS A TIMELY MOTION FOR NEW
            TRIAL WAS MADE TO THE TRIAL COURT
            PURSUANT TO R. 2:10-1.

            POINT II – K.R. GAVE MULTIPLE DIFFERENT
            STATEMENTS AND WAS UNABLE TO RECALL
            SIMPLE, BUT ESSENTIAL, KEY FACTS AT TRIAL
            BUT     THE     COURT    IGNORED      ALL
            INCONSISTENCIES AND LACK OF RECALL AND
            GAVE HEAVY WEIGHT TO HER HIGHLY
            INCONSISTENT AND UNRELIABLE TESTIMONY.

            POINT III - THE COURT DID NOT PROPERLY
            WEIGHT K.R.'S PSYCHIATRIC RECORDS AND
            INSTEAD MADE UNSUPPORTED INFERENCES
            TO MAKE K.R. APPEAR MORE CREDIBLE.

            POINT IV – TRIAL TESTIMONY OF R.J.'S
            BROTHER [] AND HIS MOTHER [] WAS NOT
            AFFORDED THE WEIGHT IT DESERVED
            WITHOUT ANY REAL EXPLANATION.

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            POINT V - THE TRIAL COURT MADE WILD AND
            UNSUBSTANTIATED LOGICAL LEAPS TO
            JUSTIFY ITS FINDING OF DELINQUENCY AND
            BASED UPON THE TESTIMONY OF K.R., THERE
            IS NO WAY R.J. COULD HAVE CAUSED THE
            DAMAGE DEPICTED IN THE PICTURES
            ADMITTED AS EVIDENCE.

      Our standard of review in juvenile delinquency bench trials "is narrow and

is limited to evaluation of whether the trial judge's findings are supported by

substantial, credible evidence in the record as a whole." State in Interest of

J.P.F., 368 N.J. Super. 24, 31 (App. Div. 2004) (citing State v. Locurto, 157 N.J.

463, 471 (1999)). We do not engage in an independent assessment of the

evidence as if "[we] were the court of first instance." State v. Johnson, 42 N.J.

146, 161 (1964). Rather, we give special deference to the trial judge's findings,

particularly those that are substantially influenced by the judge's opportunity to

observe the witnesses directly. Id. at 162.

      The gravamen of the arguments raised on appeal challenge the trial judge's

credibility findings. Having considered these arguments in light of the record

and the deference we must afford to a trial court's credibility determinations; we

affirm substantially for the reasons expressed in the judge's thorough and well -

reasoned oral opinion.



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                                        8
      We add that R.J.'s assertions that the judge did not accord enough weight

to K.R.'s psychiatric records are unpersuasive. The judge considered K.R.'s

records from her stay in a psychiatric facility following the incident. However,

those records corroborated the judge's findings relating to the traumatic nature

of the incident. Indeed, the judge stated: "While [K.R.] was hospitalized, she

explained to the hospital staff that the root cause of a lot of her problems [was]

the incredibl[y] dysfunctional relationship with R.J. . . ."

      R.J. argues the trial judge's conclusions regarding K.R.'s credibility could

not be drawn without expert testimony on the effect of trauma on memory and

recall. He also argues that because K.R. was hospitalized and her records

indicated drug use, her testimony was untruthful. However, R.J.'s counsel stated

K.R.'s mental health was not an issue, did not challenge her competency to

testify, and stated the admission of her psychiatric records into evidence was

"purely for impeachment." Expert testimony was not required to consider the

materiality of K.R.'s medical records.

      Finally, in juvenile delinquency matters, the State bears the burden of

proving all elements of the offenses charged beyond a reasonable doubt.

N.J.S.A. 2C:1-13(a). The trial judge's conclusions that the State proved the




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                                         9
statutory elements of each offense are supported by the adequate, substantial and

credible evidence in the record.

      Affirmed.




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