                       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                NOT FOR PUBLICATION WITHOUT THE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
