Opinion
DOCKET NO. A-0226-10T2
07-28-2014
IN THE MATTER OF THE CIVIL COMMITMENT OF R.D. SVP-561-10
Joseph E. Krakora, Public Defender, attorney for appellant R.D. (Ingrid A. Enriquez, 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; Erick James Lucadamo, Deputy Attorney General, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Parrillo and Alvarez. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-561-10. Joseph E. Krakora, Public Defender, attorney for appellant R.D. (Ingrid A. Enriquez, 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; Erick James Lucadamo, Deputy Attorney General, on the brief). PER CURIAM
R.D. appeals from the July 21, 2010 order civilly committing him to the Special Treatment Unit (STU), New Jersey's secure facility designated for the treatment of persons in need of commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
On August 14, 1992, R.D. was sentenced to three years imprisonment for a charge of second-degree sexual assault, N.J.S.A. 2C:14-2(b), in accordance with his plea agreement with the State. The eight-year-old victim in that case was a member of R.D.'s household.
While on bail pending sentencing, R.D. continued his molestation of two other children, L.W., a twelve-year-old female, and her younger brother, R.W. L.W. reported that the sexual assaults began when she was eleven, but did not end until R.D.'s imprisonment. She also reported that, at times, R.D. would strike her with his hands or a belt and that, on one occasion, he threw a knife at her. L.W. and R.W. had actually told their mother about the sexual assaults; however, the mother never reported the conduct to authorities because, as she later recounted to the county prosecutor's office that investigated the matter, she was afraid of R.D. and his mother.
Following a jury trial, R.D. was convicted of all charges resulting from L.W. and R.W.'s disclosures: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); second-degree sexual assault, N.J.S.A. 2C:14-2(b); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a); third-degree endangering welfare of children, N.J.S.A. 2C:24-4; and fourth-degree cruelty and neglect of children, N.J.S.A. 9:6-3. On May 2, 1997, R.D. was sentenced to an aggregate prison term of thirty years, subject to fifteen years of parole ineligibility, to be served at the Adult Diagnostic and Treatment Center (ADTC).
On March 11, 2010, the Attorney General filed a petition for R.D.'s civil commitment pursuant to the SVPA. An order of temporary civil commitment was entered on March 18, 2010, and the final hearing held on July 21, 2010.
Pogos Voskanian, M.D., testified on behalf of the State. He examined R.D. on July 7, 2010, and reviewed R.D.'s discovery and treatment record. He testified that he formed his own diagnoses when analyzing sources containing the diagnostic impressions of other experts. Voskanian heavily weighed R.D.'s history of years of sexual offenses against children, including continuation of the offending behavior even while on bail pending sentence on his first conviction for the sexual assault of a child. He also noted that the fact that R.D.'s victims included both male and female children put him at greater risk of re-offense.
R.D. had made very little progress during his fifteen years of treatment at the ADTC. In fact, he was placed on "treatment refusal status" for a period of time in 1997 and was removed from the therapeutic community in March 2009 "due to his lack of progress in treatment." R.D. did not successfully complete a victim empathy program and was scored as a medium-high risk to reoffend sexually on the Static-99 and a high risk on the MnSOST-R testing protocols.
R.D. was forthcoming as to his conduct towards the three children, reporting that he remained in a relationship with L.W.'s and R.W.'s mother so that he could continue to molest her children. He also admitted that he continued to be aroused by, and masturbated to, fantasies of thirteen- or fourteen-year-olds. R.D. indicated that he had a need for emotional gratification from his victims, which was an indicator of an even higher risk of reoffense.
Voskanian diagnosed R.D. with pedophilia, prepubescent young girls and boys, dysthymic disorder, social phobia, and personality disorder, not otherwise specified (NOS). The basis for Voskanian's conclusion that R.D. remains at high risk to reoffend included his history of sexual assaults on both male and female victims and the lengths to which R.D. was willing to go in order to avail himself of opportunities for contact with children, including maintaining a relationship with an adult parent of those children. Voskanian considered it consequential that even after his guilty plea for one offense R.D. continued to sexually assault other children, demonstrating impulsivity and poor judgment. Because R.D. had made virtually no progress in treatment, he "ha[d] not mitigated his high risk factors of sexual recidivism. He remain[ed a] practically untreated sex offender and continue[d] to minimize his sexual pathology and remain[ed] at high risk of sexually violent recidivism." Hence, Voskanian opined that R.D. suffered from a mental abnormality and personality disorder affecting him emotionally, cognitively, or volitionally, which predisposed him to commit acts of sexual violence. R.D. presented a high risk to engage in such acts if not confined.
Christine Zavalis, Psy.D., also testified as an expert on behalf of the State. She noted that R.D.'s molestation of his victims escalated over time, not just in frequency but in type of behavior, including with the male victim. R.D.'s sexual assault of the siblings occurred over a fifteen-month period after his initial arrest for molesting the first victim. An indicator of the level of R.D.'s pedophilic arousal was that he continued to molest the children while having access to a consenting sexual partner. Although R.D. would not acknowledge his sexual arousal to boys, he acknowledged sexually assaulting the male victim. R.D. explained that he sexually assaulted the victims because it was a way to manipulate them to do things for him. She scored him as a three on the Static-99R risk assessment tool, indicating that he fell within the moderate-low risk category to sexually reoffend, and a score of seven on the MnSOST-R, indicating that R.D. fell within the moderate risk category to sexually reoffend. She believed, however, that both scores may have understated his risk level.
Zavalis also noted that R.D.'s engagement in treatment while at ADTC was minimal and that he had not "integrate[d]" the information into his daily life or behavior. R.D. admitted having recurring sexual thoughts of children and was not forthcoming with regard to his involvement with treatment. For example, he denied ever having been on treatment refusal status, although the ADTC records showed he had refused treatment in years prior. When confronted, R.D. admitted having been removed from treatment for lack of participation. Zavalis identified R.D. as suffering from a mental abnormality or personality disorder that would affect him emotionally, cognitively, or volitionally so as to predispose him to commit acts of sexual violence. She diagnosed him with pedophilia, dysthymic disorder, and social phobia. Zavalis also concluded R.D. had a personality disorder NOS, with schizoid traits.
In Zavalis's view, R.D. was at high risk to sexually reoffend in light of his continued fantasies involving children, inconsistent participation in treatment, and continuing sexual assaults on two children while awaiting sentence for his first molestation convictions.
Significantly, R.D. had no structured release plan, which if he were to be released could result in a sexual assault cycle because of the number of years that he had been incarcerated. He had a limited repertoire of relapse prevention strategies "necessary to avoid reoffending if he [were to] find[] himself in a high risk situation."
R.D. presented neither witnesses nor evidence on his behalf. In his decision, Judge Mulvihill found both the State's expert witnesses to be credible. Judge Mulvihill enumerated R.D.'s prior convictions for sexually violent offenses. See N.J.S.A. 30:4-27.26. Based on the expert testimony, he found clearly and convincingly that R.D. was suffering from a mental abnormality or personality disorder that would cause him "to engage in further acts of sexual violence if not confined in a secure facility for control, care, and treatment." The judge also found that, as R.D. could not control his sexual behavior, it was "highly likely he will re-offend." See In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004). As the judge said, "[t]his is not a close case."
On appeal, R.D. alleges the following points of error:
POINT I
BY ALLOWING THE STATE'S EXPERTS[] TO BASE THEIR DIAGNOSES AND CONCLUSIONS ON ALLEGED FACTS ESTABLISHED THROUGH INADMISSIBLE HEARSAY, THE SVPA PROCEEDING VIOLATED THE FOURTEENTH AMENDMENT OF THE UNITED STATES
CONSTITUTION AND NEW JERSEY CONSTITUTION ARTICLE 1, PARAGRAPH 10 (PROCEDURAL DUE PROCESS, EQUAL PROTECTION AND SUBSTANTIVE DUE PROCESS CLAUSES).
A. Application Of Criminal Due Process Protections To Civil Cases.
B. The State Cannot Evade The Confines of Apprendi/Blakely/Shepard Through The Backdoor of R. 703.
POINT II
THE TRIAL COURT ERRED AS A MATTER OF LAW IN NOT CONSIDERING OR GRANTING A CONDITIONAL RELEASE WHERE THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT R.D. WOULD BE SUBSTANTIALLY LIKELY TO COMMIT A SEXUALLY VIOLENT OFFENSE IN THE REASONABLY FORESEEABLE FUTURE IF HE WERE SO DISCHARGED.
In our Supreme Court's most recent discussion of the standard of review in SVPA cases, it reiterated that the question on appeal is limited to whether there was sufficient credible evidence in the record to support the trial judge's conclusion. In re Civil Commitment of R.F. SVP-490-08, 217 N.J. 152, 157 (2014). Judges hearing SVPA cases are generally "specialists." Id. at 174 (quotation marks omitted). Although the ultimate determination that they make is a legal one, we defer to their factual findings because only they have the requisite opportunity to see and hear witnesses and, as a result, develop a feel for the case impossible to acquire on a cold record. See id. at 174-75. Hence, we should not modify a trial court's determination unless the record reveals a clear mistake. Id. at 175.
In this case, we find sufficient credible evidence that R.D. was "convicted . . . of a sexually violent offense [and was] suffer[ing] from a mental abnormality or personality disorder that ma[de him] likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." See R.F., supra, 217 N.J. at 173 (omission in original) (quotation marks omitted). R.D.'s arguments lack sufficient merit to warrant much discussion in a written opinion. R. 2:11-3(e)(1)(E).
R.D.'s position that the use by the State's experts of information such as discovery and the reports of others violated his due process rights runs contrary to well-established precedent. See, e.g., In re Commitment of A.X.D. SVP-172-01, 370 N.J. Super. 198, 202 (App. Div. 2004); see also N.J.R.E. 703 (permitting experts to base their opinions on a variety of sources).
Equally lacking in merit is the suggestion that the trial court had an obligation to sua sponte consider a conditional release, given that R.D. did not even have a discharge plan. A conditional discharge is only available when recommended by the Department of Human Services and "the court finds that the person will not be likely to engage in acts of sexual violence because the person is amenable to and highly likely to comply with a plan." N.J.S.A. 30:4-27.32(c)(1); see R.F., supra, 217 N.J. at 181.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION