Opinion
DOCKET NO. A-3328-11T2
07-16-2014
IN THE MATTER OF THE CIVIL COMMITMENT OF L.J. SVP-58-00
Joseph E. Krakora, Public Defender, attorney for appellant L.J. (Thomas G. Hand, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; Victoria R. Ply, Deputy Attorney General, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti, Ashrafi and St. John.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-58-00.
Joseph E. Krakora, Public Defender, attorney for appellant L.J. (Thomas G. Hand, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; Victoria R. Ply, Deputy Attorney General, on the brief). PER CURIAM
Appellant L.J. appeals from his involuntary civil commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, by order entered on February 23, 2012. Acknowledging that he has a qualifying conviction, L.J. contends that the State failed to establish by clear and convincing evidence that he presently has serious difficulty controlling his sexually violent conduct such that he is highly likely to commit a sexually violent offense if not committed. We disagree and affirm.
I.
We briefly summarize the relevant facts adduced from the record. L.J. is a male adult who has been convicted of multiple violent sexual offenses. L.J. was first incarcerated as a juvenile in the early 1980s for sexually assaulting an eleven-year-old boy. He was also convicted for two sexual offenses as an adult.
In 1990, L.J. entered guilty pleas arising from separate violent sexual assaults in 1989. The first involved the sexual assault of a twenty-one-year-old man whom L.J. had forced to engage in sexual acts at knifepoint. The second involved the sexual assault of a fourteen-year-old boy whom L.J. had forced to submit to anal penetration and fellatio. Consequently, L.J. was confined to the Adult Diagnostic and Treatment Center (ADTC) in Avenel from 1990 to 1996.
In 1996, after serving approximately five years of his sentence for the sexual assault convictions, L.J. was committed to the Ann Klein Forensic Center (AKFC) under general civil commitment criteria. After stints at various other facilities in addition to AKFC, L.J. was discharged in February 1999. However, he failed to comply with the conditions of his release, including registration under Megan's Law, and soon afterwards was again committed generally.
In August 2000, the State successfully filed a petition to commit L.J. pursuant to the SVPA, and he was then remanded to the Special Treatment Unit (STU) until December 2006. The evidentiary record is replete with allegations and charges of sexual misconduct committed by L.J. during the period of his incarceration, commitment and hospitalization.
In 2006, L.J. was tried on one count of aggravated arson and three counts of aggravated assault arising from separate incidents in which he had set fire to items in his quarters and attacked two officers. L.J. was determined to be competent to stand trial but was adjudicated Not Guilty by Reason of Insanity (NGRI) on the arson count. The aggravated assault charges were dismissed without prejudice. As a result of the adjudication, L.J. was sent to AKFC under a general civil commitment.
L.J. remained at AKFC through 2011. In September and October 2011, L.J. was accused of separate incidents of misconduct in which he allegedly fondled the buttocks of a male staff member and exposed his genitals to a different male worker.
On January 24, 2012, the State filed an amended petition for civil commitment pursuant to SVPA. The amended petition alleged that there was reasonable cause to believe that L.J. "continues to be a sexually violent predator and that public safety requires that he be committed to the [STU]." On February 1, 2012, the Law Division issued a temporary commitment order pending a full commitment hearing.
On February 10, 2012, in the lead up to the hearing, Roger Harris, M.D., a licensed forensic psychiatrist, evaluated L.J. as part of an SVP risk assessment. During that interview, L.J. described in detail the two violent sexual offenses for which he had been convicted in 1990. He also admitted to seven additional instances of coerced sexual activity for which he had not been arrested or charged, as well as sexual assaults upon eight to ten "inmates" during his institutionalization. L.J. reported to Dr. Harris that "he was fantasizing about raping in prior offenses and . . . how he wanted to humiliate people by using his penis."
Dr. Harris thereafter produced a "20 Day Report" (the Forensic Report), in which he relied on additional sources of information produced by others such as clinical certificates, presentence investigation reports, and prior forensic evaluations and progress notes. The Forensic Report chronicled assorted incidents of sexual misconduct by L.J. over his many years in various state facilities.
In the report, Dr. Harris diagnosed L.J. with schizophrenia paranoid-type in partial remission, paraphilia not otherwise specified (NOS) coercion, paraphilia NOS ephebophilia and antisocial personality disorder. The doctor also concluded that L.J. was at high risk to sexually reoffend, explaining:
[L.J.] is a very impaired man who has struggled to control his behaviors and his sexual and aggressive drives within the most secure settings in New Jersey. He has repeatedly acted on these urges physically assaulting and sexually assaulting others
. . . .
He does not have much insight into his behavior that led to his conviction. While he reported that it was not right, he loses ground as he recalls how abused he felt and how the institution sought to protect him and others in the institution.
While at the ADTC he reported he had fantasies of raping individuals when he felt depressed. He reported during this evaluation that he was fantasizing about raping in prior offenses and he described how he wanted to humiliate people by using his penis.
. . . . He has a deviant arousal, more than one arousal, he offended as a juvenile and as an adult, lack of emotionally intimate relationships with adults, general self-regulation problems, poor cognitive problem solving, resistance to rules and supervision, grievance/hostility and his antisocial attitudes and behaviors.
The SVPA commitment hearing was held on February 23, 2012. Dr. Harris, the State's sole witness, testified as an expert psychiatrist without objection. L.J. did not present any witnesses. Dr. Harris initially explained the results of L.J.'s mental status examination, incorporating into his testimony the findings from the Forensic Report. At the outset of his testimony, Dr. Harris explained that the sources of information used in preparing the report were the type normally relied-upon by persons in his profession. He also explained that, with respect to his use of any sources containing medical diagnoses, "I formulate my own diagnosis, but I also look to see how those clinicians marshal their argument[s] for their diagnoses, so I can better understand how much weight to give that information as well."
Dr. Harris then testified that L.J. "comes across as a man with severe psychiatric problem[s] who has little insight into his behavior." He continued:
[W]hen asked about his assaultive behavior, [L.J.] is able to acknowledge . . . momentarily that those behaviors are wrong, but when . . . we recreate the circumstances that led to the assaultive behavior, [L.J.] quickly loses his insight and lapses into those very behaviors[,] the same cognitive framework that . . . led to the behaviors remains intact.
In other words, those distortions that he had will come full force and lead him to
feeling abused, not listened to, taken advantage of, which . . . can then lead to problematic behavior.
. . . .
He's impulsive, he has poor judgment, he doesn't think in the long run about the impact of his behavior not only on others but on himself, he has profound irritability.
Dr. Harris noted that his diagnosis included schizophrenia paranoid-type in partial remission, paraphilia NOS coercion, paraphilia NOS ephebophilia, and Axis II antisocial personality disorder. The psychiatrist then explained that his diagnoses were not only
based on [L.J.]'s history of sexually offending peri-pubescent and post-pubescent boys and men], but based also on his self-report of how he was fantasizing of raping someone before he goes out and rapes that 14 year old boy, his statements while at the ADTC that he was masturbating to images of coercing people, his statement to me that . . . in relation to the 14 year old, was how he could degrade someone with his penis, all fits into the arousal of Paraphilia NOS coercion.
With respect to L.J.'s recidivism risk, Dr. Harris opined that L.J. possessed two of the "strongest predictors of sexual re-offense," deviant arousal and antisocial personality disorder, which "puts him at higher risk to sexually re-offend." He continued that despite having spent time in highly-structured facilities, such as AKFC, L.J. continued to demonstrate, and act upon, his deviant arousal. Dr. Harris concluded that in his expert opinion, L.J.'s "difficulty controlling that behavior" during previous commitments indicated that he was "highly likely" to reoffend if not committed to the STU.
At the conclusion of the hearing, the judge rendered an oral decision that the State presented clear and convincing evidence justifying an order of commitment. With respect to the mental-abnormality prong, the judge stated that the uncontroverted testimony from Dr. Harris demonstrated L.J. suffers from "several personality disorders," including "schizophrenia paranoid in partial remission, paraphilia NOS . . . [and] antisocial personality disorder." The judge specifically addressed and rejected the argument from counsel for L.J. that his conduct was caused by a schizophrenia-paranoid-type condition.
Dr. Harris is . . . very clear in differentiating [L.J.'s] behavior from that of a schizophrenic to that of a sexually violent predator suffering from paraphilia NOS and other disorders.
A schizophrenic episode is not, as he indicated, goal oriented in any aspect. It's usually a disorganized spontaneous act without any reason, or you could refer to it as bizarre behavior.
The behavior of [L.J.] is not bizarre, it is not disorganized, it was goal oriented. And that goal is sexual
exploitation of his victims. That is not a psychiatric schizophrenic reaction.
Turning then to threat-risk analysis, the judge also found that element satisfied, stating:
Specifically, the February 1 incident where he's discussing his return commitment to the STU, where he on . . . Page 4 of P-4 in evidence, refers to a report that he reported that on September of 2011 he touched a male Ann Klein Forensic staff member, [E.C.]'s buttocks on two occasions. [L.J.] admitted to ["]watching his ass["] for some time, he wanted it.
Institutionalization has no deterrent effect upon [L.J.] He acts out on his sexual urges at the Adult Diagnostic and Treatment Center, he has his own self-reported eight or ten victims at the ADTC, seven other, perhaps one woman, that were never reported.
His [paraphilia] is demonstrated by his deviant arousal and his attempts to act upon those deviant arousals.
Although his schizophrenia may be in partial remission, it is not responsible, in this Court's opinion, for the conduct which he demonstrated and which is so clearly set forth in Dr. Harris' report.
The judge then concluded by clear and convincing evidence that L.J. "is and remains" dangerous to society resulting from his many diagnosed personality disorders, as evidenced by the fact that L.J. "still fantasizes about engaging in sex with force" in order to humiliate others and "still engages in sexual activity while confined under close supervision."
The judge's decision was memorialized in a written order entered February 23, 2012, which committed L.J. to the STU. It is from this order that L.J. now appeals. L.J. contends that the State failed to prove by clear and convincing evidence: (1) that he presently suffers from a mental abnormality which predisposes him to commit acts of violence; and (2) that he is highly likely to commit a sexual offense.
II.
The SVPA authorizes civil commitment of a "sexually violent predator" — a person "convicted . . . of a sexually violent offense" who "suffers from a mental abnormality or personality disorder that makes the person 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. "'Likely to engage in acts of sexual violence' means the propensity of a person to commit acts of sexual violence is of such a degree as to pose a threat to the health and safety of others." Ibid.
The Supreme Court, in addressing the requirements of substantive due process, determined that involuntary commitment pursuant to the SVPA is permissible only when the State proves that a person who has committed a sexually violent offense has a mental abnormality or personality disorder that is presently causing him or her "serious difficulty" in controlling, or a "substantial inability" to control, sexually violent behavior, and that the person's commission of a sexually violent offense in "the reasonably foreseeable future" is "highly likely" unless he or she is confined in a secure treatment facility. In re commitment of W.Z., 173 N.J. 109, 119-33 (2002). These essential elements — qualifying conviction, mental abnormality or personality disorder and the resulting danger to others — must be established by clear and convincing evidence. See N.J.S.A. 30:4-27.32; W.Z., supra, 173 N.J. at 125-26, 133-34.
Our scope of review of a commitment determination is "extremely narrow." In re Civil commitment of R.F., 217 N.J. 152, 174 (2014). 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).
In considering whether a commitment order was based on sufficient evidence, "[t]he appropriate inquiry is to canvass the significant amount of expert testimony in the record and determine whether the [trial judge's] findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996); see also R.F., supra, 217 N.J. at 175. Reversal is warranted only if the court's factual findings are unsupported or "the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)(citation omitted); see also R.F., supra, 217 N.J. at 175. With these standards in mind, we turn to L.J.'s contentions.
L.J. first argues, in essence, that there was insufficient evidence to support the judge's finding that he suffers from a mental abnormality because Dr. Harris's diagnoses and explanations thereof lacked comprehensiveness. We disagree.
We find no merit to L.J.'s argument that the judge erroneously relied on Dr. Harris's schizophrenia diagnosis in reaching his decision vis-à-vis the mental abnormality element. That contention is belied by the record, as the judge did not base his finding of mental abnormality on the schizophrenia diagnosis at all. To the contrary, review of the transcript shows that the judge discussed schizophrenia only insofar as he was rejecting counsel's argument at summation that L.J. should be committed on psychiatric, rather than SVPA-based, grounds.
The SVPA defines a "[m]ental abnormality" as "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." N.J.S.A. 30:4-27.26. Such condition "must affect an individual's ability to control his or her sexually harmful conduct." W.Z., supra, 173 N.J. at 127. However, "substantive due process does not require the extreme finding of a total lack of capacity to control such dangerous behavior." Id. at 126-27. That is, "[a] finding of mental abnormality that results in an impaired but not a total loss of ability to control sexually dangerous behavior can be sufficient." Id. at 126.
We reject L.J.'s argument that Dr. Harris failed to provide sufficient evidence to support a finding that L.J. presently suffers from a mental abnormality predisposing him to sexually-violent acts. Dr. Harris opined that the two diagnosed paraphilia disorders resulted in deviant arousal, and were manifested by L.J. through continued assanltive behavior and fantasized rape. Though Dr. Harris noted that L.J. was at times capable of acknowledging that such behavior was wrong, it was his opinion that L.J. nevertheless was unable to control such problematic conduct despite continuous treatment at psychiatric facilities. Dr. Harris emphasized in particular L.J.'s statements during the interview and his self-reported acts in concluding that L.J. lacked the cognitive and volitional capability to avoid sexual violence. Moreover, the Forensic Report, admitted into evidence and incorporated into the doctor's testimony, specifically addresses the DSM-IV criteria for antisocial personality disorder and notes that L.J. meets not only the minimum requirement of three criteria, but all seven.
Thus, we are satisfied from our review of the record that the finding of a mental abnormality affecting L.J.'s "ability to control his . . . sexually harmful conduct," W.Z., supra, 173 N.J. at 127, was amply supported by sufficient credible evidence. Because the judge's determination was adequately supported and is consistent with the law, we do not find an abuse of discretion that would warrant reversal or modification of the commitment order under review.
L.J. next contends that Dr. Harris's risk analysis improperly relied on unproven allegations of sexual misconduct during L.J.'s confinement at various institutions, for which he was never convicted, in concluding that L.J. was highly likely to reoffend sexually. He cites our decision in In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 490 (App. Div.), certif. denied, 195 N.J. 393 (2005), in which we cautioned that the use of an unproven allegation as "a significant building block" in expert opinions "would present a troubling issue" because commitment under the SVPA "cannot and should not be based on unproven allegations of misconduct."
We do recognize that, in SVPA cases, experts must be cautious in relying upon non-convictions. Ibid. Here, the expert and the trial judge did, in fact, rely to some degree on L.J.'s non-convictions. However, such reliance was for the limited purposes of establishing a pattern of conduct and evaluating the worth of the testifying expert's opinion. State v. Vandeweaghe, 351 N.J. Super. 467, 480-82 (App. Div. 2002), aff'd, 177 N.J. 229 (2003); State v. Burris, 357 N.J. Super. 326, 339 (App. Div. 2002), certif. denied, 176 N.J. 279 (2003); see also Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 9 on N.J.R.E. 703, at 69-700 (2014).
Most critically, however, even absent such consideration, L.J. made sufficient admissions of sexually inappropriate conduct during the pre-hearing interview with Harris to support the doctor's conclusions. Such admissions of an individual being considered for commitment, that are admissible pursnant to N.J.R.E. 803, may be considered as proof of the facts admitted. See In re commitment of J.M.B., 197 N.J. 563, 597 n.9, cert. denied, 558 U.S. 999, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009).
The limited weight given to the non-convictions by the judge is such that we find on abuse of discretion. See State v. Kemp, 195 N.J. 136, 149 (2008)(decisions concerning the admissibility of evidence are within the Court's discretion, and will be overtorned only where there is a clear abuse of discretion).
In sum, we see no mistake in the judge's findings or conclusions, which applied a clear and convincing evidence standard and were consistent with the record and with applicable law. We reject L.J.'s claim of undue reliance upon allegations of sexual misconduct that did not result in convictions, as the record shows the opinions of Dr. Harris were fundamentally based upon his own evaluation of L.J. Cf. A.E.F., supra, 377 N.J. Super. at 492. The unproven allegations did not serve as a "significant building block" in Dr. Harris's opinions. Id. at 490.
We find L.J.'s remaining contentions to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION