Opinion
DOCKET NO. A-2217-13T2
06-11-2014
IN THE MATTER OF THE CIVIL COMMITMENT OF G.M., SVP-196-01.
Lewis P. Sengstacke, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney). Timothy Patrick Malone, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Rothstadt.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-196-01.
Lewis P. Sengstacke, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney).
Timothy Patrick Malone, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney). PER CURIAM
Appellant G.M. appeals from the November 12, 2013 order continuing his involuntary commitment to the Special Treatment Unit (STU), pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
Appellant is a fifty-two-year-old male with an extensive history of sexual offenses and other criminal behavior. That history has included numerous assaults on prepubescent female children, in addition to burglary, larceny, simple assault, and disorderly conduct. The predicate offense for which he is currently committed is the sexual assault of his then four-year-old daughter, for which he pled guilty to sexual assault, N.J.S.A. 2C:14-2(b), in 1998.
Appellant was later sentenced to a five year term, to be served at the Adult Diagnostic and Treatment Center (ADTC), and to community supervision for life. At the expiration of his sentence, the State successfully petitioned for his involuntary commitment pursuant to the SVPA. Subsequent annual review hearings have resulted in the continuation of appellant's commitment. The instant appeal arises out of his most recent review hearing, held on October 31, 2013 before Judge Philip M. Freedman, after which the court again continued appellant's commitment.
The sole testifying witness was the State's expert, psychiatrist Roger M. Harris, M.D. Shortly before the hearing, Dr. Harris attempted to interview appellant , but he refused. However, Dr. Harris was able to form an opinion of his diagnosis and risk of reoffending after reviewing appellant's records, including his criminal history, treatment records from the ADTC and STU, appellant's own self-reporting, and evaluations and reports made by experts. Dr. Harris said that these materials were the type that treating experts would typically prepare in the ordinary course of business; and that the records were of the type typically relied on by other members of his profession. He said that some of the materials were forensic reports, meaning they were made in preparation for litigation. However, he said he took into consideration that certain reports were prepared for litigation, and relied more heavily on the ADTC and STU treatment records.
Based on his review, he ultimately formed his own diagnosis, and submitted a report on October 11. Dr. Harris testified consistent with his report. As the doctor began recounting the facts of appellant's predicate offense, appellant became disruptive:
DR. HARRIS: . . . [Appellant] has been convicted for two sexual offenses against young girls. The most recent offense . . . was in 1999, where [appellant] sexually offended against his four year old daughter.
. . . [T]he daughter was lying on her mother's bed. [Appellant] took off his clothes and penetrated both her vagina and her anus with his penis.
APPELLANT: I did not.
APPELLANT'S COUNSEL: Don't do that. Understand?
HARRIS: The — the child —
APPELLANT: I didn't do that.
HARIS: — allegedly began to —
COUNSEL: I'm sorry.
THE COURT: Mr. . . .
APPELLANT: I am tired of this, Your Honor. I didn't —
THE COURT: You may be tired of it, but you can't interrupt the proceedings.
APPELLANT: I took that plea because that judge scared the hell out of me, man.
THE COURT: Mr. —
APPELLANT: I didn't hurt my daughter.
. . . .
I didn't hurt her.
THE COURT: If you — if you can't be quiet in the hearing, we'll have to ask you to leave.
APPELLANT: Yes, Your Honor.
The court asked appellant if he had ever applied for post-conviction relief (PCR), and appellant replied that he had not. Appellant continued to plead his innocence, and said that the plea hearing judge had "scared" him, and said that his children would be taken away. As he further complained, "[E]very year that goes by, they put up more stuff that's not true. There's more lies into this more and more they backed it all up. They back everything up with lies. There's lies everywhere." The court maintained that it could not review the underlying conviction, and that the proper avenue was to file a PCR petition.
We make no determination that such a petition, if filed at this juncture, would be timely. See R. 3:22-12.
Dr. Harris then continued his testimony, describing the facts of appellant's predicate offense. The doctor testified that appellant had vaginally and anally raped his daughter. However, at the plea hearing, appellant only admitted to fondling her for his own sexual gratification. Two months later, while under treatment at ADTC, appellant denied that he had done anything wrong, and said he had no idea why his daughter made the accusation. His presentence report indicated that he said he took the plea offer to save his family the embarrassment of a trial. Dr. Harris said that he credited the victim's account more than appellant's, because "her statements just make sense," while appellant's accounts were inconsistent. Dr. Harris further stated that even if he had credited appellant's statement that he only fondled his daughter, appellant would still meet the criteria for pedophilic arousal.
Dr. Harris also described appellant's prior sexual offenses, against a three-year-old girl and her one-year-old sister in 1992, and appellant's six-year-old niece in 1989. He mentioned another 1989 charge that was dismissed, though he nonetheless gave it weight as, prior charges "are predictive of future sexual re-offending."
Dr. Harris testified that appellant "did not do well" in ADTC treatment. He completed a module on anger management, but failed to demonstrate techniques to control his anger. He was initially recruited to a sex offender treatment "fast track process group." However, he never returned to the group to which he was assigned, and did not advance to phase two treatment. He was given treatment refusal (TR) status.
Appellant fared similarly in STU treatment. He completed two modules, Family of Origin in 2005, and anger management in 2006. He signed up for several more modules, but withdrew from all of them. He attended treatment orientation up until a year and a half before the hearing, but then stopped going. He did not engage in treatment or evaluations, nor did he attend treatment progress review interviews. As to appellant's sexual offense cycle, and relapse prevention strategies:
[T]hat's not possible for him to demonstrate that since he's not participating in treatment and he denies the sexual offenses.
So he's not able to . . . build a sex offense cycle or basic relapse prevention techniques since . . . in doing that, one has to start understanding what led to the sexual offense. And since, in his mind, there was no sexual offense, then he's not able to create any understanding of triggers
or emotional states that lead to his sexual offending.
Dr. Harris also graded appellant on a Static-99, a risk assessment tool for sex offenders. He said that the test did not predict the risk posed by a particular individual, but placed that individual in a class of other persons with similar characteristics based on the existence of certain factors. Based on a scale from zero (low risk) to six plus (high risk), Dr. Harris rated appellant a five (moderate to high risk). However, he opined that appellant posed an even higher risk than the test indicated, based on his deviant arousal, antisocial attitudes and behaviors, and unwillingness to engage in treatment. The court clarified that while treatment could mitigate appellant's risk, non-treatment did not necessarily increase it. In addition, the court stated that the test was to be considered, but was not dispositive in determining appellant's risk.
Dr. Harris diagnosed appellant with "pedophilia, girls, not exclusive, not limited to incest." He concluded that appellant "is unable to control himself volitionally." He also diagnosed appellant with alcohol dependence, which was in remission since he had been institutionalized. Appellant had been offered substance abuse treatment, but he repeatedly refused to take it, and "reportedly [became] angry when it was recommended for him." Dr. Harris said that appellant's alcohol dependence increased his risk of re-offending, as it "impair[ed] his judgment and put him at risk to be more disinhibited and not be able to control impulses, his sexual drive."
The doctor also diagnosed appellant with antisocial personality disorder, in light of his "history of not conforming to societal norms, failure to plan ahead, being aggressive, and reckless disregard for the safety of others." In support, Dr. Harris noted appellant's numerous sexual and non-sexual offenses. He said that "[a]ntisocial attitudes and behaviors, with or without a full diagnosis of antisocial personality disorder, has been shown empirically to increase the risk to sexually re-offend." Dr. Harris opined that these various diagnoses would cause appellant to have serious difficulty controlling his sexual offending behavior.
At the end of Dr. Harris' testimony, appellant's counsel challenged the doctor's reliance on hearsay evidence of appellant's past, non-conviction offenses. The court rejected the argument based on N.J.R.E. 703, which allows experts to base their opinion on "facts or data . . . if of a type reasonably relied upon by experts in the particular field." In re Civil Commitment A.E.F., 377 N.J. Super. 473, 493 (App. Div. 2005). Appellant's counsel also contended that appellant was in a "Catch-22," because the treatment team would not acknowledge that appellant was making any progress so long as he maintained his innocence. The court found that this was not true. It noted that that issue was addressed in an appellate review of one of appellant's prior review hearings — in that hearing, a doctor testified that it was possible for appellant to participate in treatment without having to admit that he committed a sexual offense.
With the consent of both parties, appellant's most recent treatment progress review committee (TPRC) report was admitted as evidence, without testimony or cross examination. The report was prepared by Christine E. Zavalis, Psy.D. It reiterated many of the same details provided in Dr. Harris' testimony. Significantly, it included the additional diagnosis of sexual sadism, meaning "recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving acts (real, not simulated) in which the psychological or physical suffering (including humiliation) of the victim is sexually exciting to the person." "The level of arousal he experienced to the suffering of his victims, however, remains unclear since he has refused to discuss his arousal in treatment, therefore his diagnosis remains provisional."
The report showed he attended process treatment groups earlier on in his commitment, and was supportive of his peers. However, he never discussed his sex offenses in treatment. His group attendance was inconsistent, and "[h]is presentation in group varied from appropriate and respectful to disruptive depending if certain residents were expressing system complaints." Furthermore, the report noted that:
[Appellant] presents as resistant and has demonstrated a propensity to victimize as demonstrated by his recent statement to a therapist [i.e., "You do such a good job of explaining, you must be a victim."] He has not taken full responsibility for his crimes. His plans to return to the ADTC for aftercare are unlikely to be followed through on since, to date, he has not adequately availed himself of treatment while incarcerated at ADTC. . . .
The court also reviewed the STU treatment notes, which indicated that,
Over the last review period when he did attend his process group, [appellant's] personality exhibited a calm but resistant nature. He became defensive, at times, primarily when confronted about his TR status. [Appellant] did not present as hostile or agitated, but he did not want to discuss treatment or anything related to it and was only willing to talk about system issues and how he does not deserve to be committed at the STU.
After having considered the evidence before it, much of which was uncontradicted, the court found by clear and convincing evidence that appellant "continues to suffer from a mental abnormality in the form of pedophilia, and a personality disorder, as well as substance abuse problems, which independently and certainly in conjunction clearly predispose him . . . to engage in acts of sexual violence." The court further found that "if released, [appellant] would have . . . serious difficulty controlling his sexually violent behavior and that he would, within the reasonably forseeable future if released, be highly likely to engage in acts of sexual violence."
The court found under the test of In re Commitment of W.Z., 173 N.J. 109 (2002), that appellant poses a danger and a high propensity commit sexually violent offenses, and that his commitment should be continued. In support of that conclusion, the court noted appellant's lack of treatment progress since the Appellate Division last reviewed his case:
And he's just stuck here. He's just stuck in a rut. And hopefully at some point he can be roused out of it to get to the point where he might be capable of having a conditional discharge. He certainly is not capable now.
On appeal, appellant contends that he does not presently suffer from a mental abnormality that makes him highly likely to commit another sexual offense. He says he did not commit the predicate offense for which he is confined, but argues that the treatment team will not acknowledge his progress because he maintains his innocence. He also argues that the trial court and the State's experts unduly relied on alleged past behavior that did not result in convictions. A.E.F., supra, 377 N.J. Super. at 484. We have reviewed the trial court's determination in light of the record and applicable law and affirm.
By agreement of the parties and with the permission of the court, the appeal was argued without briefs. We summarize the arguments raised by appellant based upon the presentation at oral argument.
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Pursuant to the SVPA, an offender may be involuntarily committed after serving his sentence, if he 1) "has been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent offense"; 2) "suffers from a mental abnormality or personality disorder"; and 3) is "likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." N.J.S.A. 30.4-27.26. A "mental abnormality" is "a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." Ibid. A likelihood to reoffend "is based on the individual's danger to self and others because of his or her present serious difficulty with control over dangerous sexual behavior." W.Z., supra, 173 N.J. at 132-33. The State has the burden to prove by clear and convincing evidence that the offender is a sexually violent predator, and needs continued involuntary commitment under the SVPA. N.J.S.A. 30:4-27.32.
Our scope of review of a commitment determination is "extremely narrow." In re Civil Commitment of R.F., 217 N.J. 152, 174 (2014) (quoting In re D.C., 146 N.J. 31, 58 (1996)). We defer to the trial court's findings, in light of its opportunity to hear witness testimony firsthand and to develop a "feel" of the case, which we cannot enjoy. Ibid. (citing State v. Johnson, 42 N.J. 146, 161 (1964)). "Moreover, the committing judges under the SVPA are specialists in the area, and we must give their expertise in the subject special deference." In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007). We therefore decline to modify or reverse an SVPA judge's determination "unless the record reveals a clear mistake." R.F., supra, 217 N.J. at 175. We are bound to uphold the judge's findings that are supported by "sufficient credible evidence present in the record." Ibid. (quoting Johnson, supra, 42 N.J. at 162) (internal quotations omitted).
Applying the above principles here, we affirm substantially for the same reasons expressed by Judge Freedman in his oral opinion of November 12, 2013. We see no mistake in Judge Freedman's findings or conclusions, which applied a clear and convincing evidence standard and were consistent with the record and with applicable law. We reject appellant's claim of excessive reliance upon his behavior that did not result in convictions, as the record shows the opinions of the State's experts were fundamentally based upon their "own evaluation of [appellant], prior offenses, and objective test data." A.E.F., supra, 377 N.J. Super. at 492. Appellant's non-conviction offenses did not serve as a "significant building block" in the experts' opinions. Id. at 490.
There is substantial, credible evidence in the record that appellant has not progressed enough in his treatment to the point where he can understand his sexual offense cycle, or develop relapse prevention strategies. He therefore remains a high risk to reoffend if released, and his commitment should be continued.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION