Opinion
DOCKET NO. A-1589-11T2
06-14-2012
IN THE MATTER OF THE CIVIL COMMITMENT OF D.A.C. SVP-43-00.
Joan Van Pelt, Designated Counsel, argued the cause for appellant D.A.C. (Joseph E. Krakora, Public Defender, attorney). Marvin L. Freeman, Deputy Attorney General, argued the cause for respondent State of New Jersey (Jeffrey S. Chiesa, Attorney General, attorney).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and St. John.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-43-00.
Joan Van Pelt, Designated Counsel, argued the cause for appellant D.A.C. (Joseph E. Krakora, Public Defender, attorney).
Marvin L. Freeman, Deputy Attorney General, argued the cause for respondent State of New Jersey (Jeffrey S. Chiesa, Attorney General, attorney). PER CURIAM
D.A.C. appeals from the March 3, 2010 order continuing his involuntary civil commitment to the Special Treatment Unit (STU) as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. D.A.C. maintains the State's evidence was insufficient to support the court's conclusion that civil commitment was warranted. We disagree and affirm.
An involuntary civil commitment may follow service of a criminal sentence or disposition when the offender "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(b).
[T]he State must prove that threat [to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts] by demonstrating that the individual has serious difficulty in controlling sexually harmful behavior such that it is highly likely he or she will not control his or her sexually violent behavior and will reoffend.The court must address the offender's "present serious difficulty with control," id. at 128 (internal quotation marks omitted), and the State must establish by clear and convincing evidence that it is highly likely the committee will reoffend. See id. at 132-33. Accord In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). "Put succinctly, '[c]ommitment under the Act is contingent on proof of past sexually violent behavior, a current mental condition, and a demonstrated inability to adequately control one's sexually harmful conduct.'" In re Civil Commitment of J.M.B., 197 N.J. 563, 571 (quoting State v. Bellamy, 178 N.J. 127, 136 (2003)), cert. denied, ___ U.S. ___, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009).
[In re Commitment of W.Z., 173 N.J. 109, 132 (2002)].
Our review of the trial court's findings when ordering a civil commitment under the SVPA is extremely narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.) (stating a trial court's decision is given the "upmost deference"), certif. denied, 177 N.J. 490 (2003). We modify a judgment of commitment "only where the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001).
These facts were presented at the commitment review hearing. In 1991, D.A.C. pled guilty to one count of terroristic threats and one count of endangering the welfare of children, after he provided alcohol to and watched pornographic movies with three underage boys, ages ten, twelve, and fourteen. In addition, D.A.C. had disorderly persons convictions for possession of marijuana in 1984 and 1988 and for corruption of the morals of a minor. While on probation for the endangering charge, D.A.C. pled guilty to one count of aggravated sexual assault, N.J.S.A. 2C:14-2a, for the molestation of his three-year-old step-daughter.
D.A.C. admitted to police that for several months he slept in the child's bed, committing repeated acts of cunnilingus, vaginal and anal digital penetration, and vaginal penile penetration upon the child. He also forced the child to fellate him. Prior to sentencing, D.A.C. was evaluated at the Adult Diagnostic Treatment Center (ADTC) by Lawrence A. Siegel, M.D., a psychiatrist. Dr. Siegel concluded D.A.C. was compulsive and repetitive. The court ordered D.A.C. confined to the ADTC to serve his sentence. See N.J.S.A. 2C:47-1 to -3.
Before commencing his confinement at ADTC, D.A.C. attempted suicide and was treated for six months at Ancora psychiatric hospital. While at the ADTC, he committed eleven disciplinary infractions.
Prior to the conclusion of his criminal sentence, the State sought D.A.C.'s civil commitment as a sexually violent predator. An order of temporary civil commitment was entered on February 10, 2000. After a plenary hearing, a judgment civilly committing D.A.C. to the STU was entered on January 23, 2002. Following each subsequent review, D.A.C.'s continued confinement in the STU was ordered.
Most recently, a judgment continuing D.A.C.'s civil commitment was filed on March 3, 2010. For the first time, D.A.C. challenges the judgment on appeal.
During the March 3, 2010 hearing, the only testimony presented was from the State's expert, Pogos Voskanian, M.D., a psychiatrist. Dr. Voskanian reviewed D.A.C.'s long history of treatment refusal, which included refusal to engage in treatment while confined at the ADTC from August 1994 to January 1998. He attended counseling from November 1998 to May 1999. While at the STU, D.A.C. has been on treatment refusal status since August 30, 2004, and is currently not receiving sex offender treatment, except he consistently attends Treatment Orientation (TO) group. During the group meetings, he "rarely participates in group discussions or gives feedback, but will speak when prompted. When he does participate, he expresses victim of the system issues and his feedback is often negative." As a result of D.A.C.'s refusal, he remains in Phase-I of treatment.
Dr. Voskanian attempted to examine D.A.C. on February 19, 2010, but he declined to be interviewed. Dr. Voskanian based his assessment of defendant's current status on his review of the STU Treatment Progress Review Committee (TPRC) report, certifications of completed modules from 2002, and other STU disciplinary or conduct records. The TPRC report reflects D.A.C. interacts with his peers on non-treatment issues and has not engaged in disruptive behavior requiring modified activities placement.
Dr. Voskanian's opinion also considered his 2002 interview with D.A.C., which he described this way:
It was quite a striking interview in terms of [D.A.C.] not exhibiting any empathy, any remorse. H[e] . . . stat[ed] that the three-year-old — his stepdaughter came on [to] him. That, in a sense, he described this child as initiating the sexual interaction. He did not have any sense. He . . . just talked about [it] like having sex with [an] age appropriate female[.]
Dr. Voskanian explained D.A.C. "leaves [the] impression of someone that would go for anything. [H]e clearly understand[s] that it's illegal to make sexual advances or sexually assault a youth but, nevertheless, he was not able to control himself." Dr. Voskanian diagnosed D.A.C. as suffering "Pedophilia, males and females, non-exclusive type." Dr. Voskanian found no evidence which would cause him to modify his diagnosis following the 2002 interview. Further, Dr. Voskanian opined D.A.C.'s refusal of treatment reflects a lack of "interest to change[,]" which he maintained was necessary to change. D.A.C. has not discussed discharge plans with the STU professionals.
D.A.C. also demonstrated traits of an "Antisocial Personality Disorder[, which] is something that the person has disregard for social norms. He can violate the rights of others. Has little consciousness for societal norms. Does not care. Does not exhibit empathy. Remorseless." D.A.C.'s conduct, including his lack of empathy or remorse, refusal of treatment for several years, admitted serious substance abuse dependence, and the molestation of his three-year old stepdaughter while on probation for another sexually-related offense, all reflect this condition. Moreover, Dr. Voskanian testified the pleasure D.A.C. received from the sexual encounter with his three-year-old stepdaughter, his lack of remorse, and his lack of desire to change made him a "high risk" to re-offend.
Judge John McLaughlin assessed the evidence presented and found:
[D.A.C.] was convicted of a sexually violent offense, namely the aggravated sexual assault on the three-year-old, M.F., and that he suffers from abnormality personality disorders, namely: pedophilia, as diagnosed by Dr. Voskanian; additionally, Personality Disorder, NOS, with antisocial traits; and, the marijuana and alcohol dependence in a controlled environment. That these disorders cause him to have serious difficulty to control his harmful sexually violent behavior [and] this condition will not go away without adequate treatment. That he has refused[.]Further, Judge McLaughlin found it "highly likely that [D.A.C.] will reoffend in the reasonably foreseeable future if not committed to the STU" and ordered his continued commitment with a review hearing to be conducted on February 16, 2011.
At oral argument, D.A.C. challenged the trial judge's factual findings and credibility determinations. He suggests the judge erred in failing to consider his successful completion of modules at the STU and by relying on Dr. Voskanian's opinion that the 1991 endangering conviction was a sexual offense. We reject these contentions.
D.A.C. does not dispute the sexual assault of his stepdaughter qualifies as a sexually violent offense, N.J.S.A. 30:4-27.26(a), but challenges the characterization of the endangering offense as a "sexual offense." He argues his conduct contained no sexual act and should not have been considered when determining whether he suffers from pedophilia.
The conduct underlying D.A.C.'s endangering conviction included supplying three young boys with alcohol then allowing them to view a cartoon which led into a pornographic video. It was noted that "cartoons such as this could be used to entice children's interest and/or participation in inappropriate sexual behaviors." The trial judge accepted the assessment of the conduct as sexual. We determine the evidence supports the trial court's finding as D.A.C.'s conduct was predatory, sexually oriented, and designed to target children.
We note a sexually violent offense under the SVPA includes, "any offense for which the court makes a specific finding on the record that, based on the circumstances of the case, the person's offense should be considered a sexually violent offense" may be considered. N.J.S.A. 30:4-27.26(b).
By focusing on [the] conduct underlying an offense claimed to be sexually violent under subsection (b), and not just on the elements of the offense, the conduct precipitating commitment under subsection (b)'s definition of a sexually violent offense can be kept compatible with the standards gleaned from the crimes identified in subsection (a), notwithstanding that the predicate conviction is for an offense whose elements do not encompass completely the sexually violent conduct.
[J.M.B., supra, 197 N.J. at 576.]
Here, D.A.C.'s civil commitment was not grounded on subsection (b) of the statute, relying on the endangering offenses. Rather, the predicate offense was an aggravated sexual assault against a three-year-old. D.A.C. admitted he repeated the molestation for approximately a year. The consistent psychiatric diagnosis of pedophilia was primarily based upon the assault of his step-daughter, with consideration of past criminal conduct involving children.
As to the remaining factual challenges, we determine the trial judge's comment that D.A.C. "has not completed any written program requirements or attended any modules" was followed by the qualifying language "at least since 2004" clearly shows the court recognized the evidence of completed modules in 2002. Finally, the judge's crediting of Dr. Voskanian's uncontroverted expert opinion testimony was proper.
Following our review, we determine the challenge to Judge McLaughlin's factual findings, including his credibility determinations, lack merit. R. 2:11-3(e)(1)(E). The State's proofs satisfy the statutory requirements as they clearly and convincingly prove D.A.C. "suffers from a mental abnormality [pedophilia] or personality disorder that makes [him] highly 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. Although D.A.C. engaged in some treatment in 2002, and now attends TO group, his refusal to engage in treatment and counseling for more than six years to control his pedophilia. Further, his untreated anti-social personality disorder and substance abuse also prevent his ability to control his aberrant sexual conduct. When these facts are coupled with D.A.C.'s lack of empathy, remorse, or desire to change, the State has clearly and convincingly established the risk of D.A.C.'s reoffense remains extremely high. Accordingly, we affirm the March 3, 2010 order continuing D.A.C.'s involuntary civil commitment to the STU.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION