Opinion
DOCKET NO. A-1609-11T2
08-22-2014
IN THE MATTER OF THE CIVIL COMMITMENT OF M.R.A., SVP-570-10.
Joseph E. Krakora, Public Defender, attorney for appellant (Ingrid A. Enriquez, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Paul V. Buonaguro, Deputy Attorney General, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ashrafi and Leone. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-570-10. Joseph E. Krakora, Public Defender, attorney for appellant (Ingrid A. Enriquez, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Paul V. Buonaguro, Deputy Attorney General, on the brief). PER CURIAM
After serving a ten-year sentence at the Adult Diagnostic and Treatment Center (ADTC), respondent M.A. was civilly committed under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. Respondent appeals the civil commitment decision, contending there is insufficient evidence to support the diagnosis of a current personality disorder or mental abnormality that predisposes him towards acts of sexual violence. We affirm.
I.
In June 1999, respondent, at age fifteen, was adjudicated delinquent for the aggravated sexual assault of S.H., an eight-year-old girl whom respondent babysat for over a year. That adjudication was based on a police report indicating respondent repeatedly sexually assaulted S.H. over the course of a year. The assaults occasionally occurred in the presence of S.H.'s six-year-old sister, V.H., whom respondent also tried to have sex with on three occasions. Respondent was placed on probation for three years and four months, required to attend and complete KidsPeace, and required to register as a sex offender under Megan's Law, N.J.S.A. 2C:7-1 to -23.
KidsPeace is a residential treatment program for juvenile sex offenders.
In October 2001, about six weeks after his release from KidsPeace, respondent, at age eighteen, had intercourse once with A.F., a twelve-year-old girl, and at least twice with M.S., a thirteen-year-old girl. Defendant was arrested after a school guidance counselor reported the incidents to the police.
On April 24, 2002, a grand jury charged respondent with first-degree aggravated sexual assault against A.F., N.J.S.A. 2C:14-2(a); two counts of second-degree sexual assault against M.S., N.J.S.A. 2C:14-2(c)(4); and three counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:2:24-4(a). Respondent pleaded guilty to the aggravated sexual assault and one count of sexual assault pursuant to a plea agreement, and the remaining charges were dismissed. He was sentenced to ten years at the ADTC, with an 85% parole disqualifier, five years of parole supervision upon release, and community supervision for life, and was required to comply with the registration requirements of Megan's Law.
Before respondent completed his sentence, the State filed a petition seeking involuntary civil commitment under the SVPA. The complaint listed respondent's convictions for the aggravated sexual assault of A.F., sexual assault of M.S., and the delinquency adjudication for the assault of S.H. as the predicate offenses under N.J.S.A. 30:4-27.26. The complaint included two clinical certificates prepared by ADTC psychologists certifying respondent as a sexually violent predator, and noted respondent's inconsistent attendance for treatment at the ADTC.
At the two-day evidentiary hearing before Judge Philip M. Freedman, the State presented, without objection, the expert psychiatric testimony of Dr. Alberto Goldwaser and the expert psychologist testimony of Dr. Rosemarie Stewart. Both State experts diagnosed respondent with a range of personality disorders, which they opined made respondent highly likely to commit new acts of sexual violence.
Dr. Goldwaser diagnosed respondent with polysubstance dependence, antisocial personality disorder (ASPD), and "paraphilia NOS." He testified that respondent has a "history from very early on of a persistent, fixed, rigid, non-adaptive pattern of behavior . . . characterized by poor impulse control, disrespect for the law, and repeated and sustained criminality from an early age," "sexual exploitation of females, lack of remorse," and "lack of empathy." He found respondent has a "strong compulsive need" to have sex with as many partners as possible, including "children and other nonconsenting persons."
"NOS" means "not otherwise specified." In re Civil Commitment of E.S.T., 371 N.J. Super. 562, 566-67 (App. Div. 2004).
Dr. Goldwaser testified that respondent reported beginning to have sex at age six, using alcohol and drugs at age ten, and joining a gang at age twelve. Respondent admitted to resuming drug use after his release from KidsPeace, and to being under the influence of drugs when he had sex with A.F. and M.S.
Respondent also reported to Dr. Goldwaser that he had raped S.H. "both vaginally and anally . . . up to six, seven times" over a one-year period because he was angry about being "forced to babysit." Respondent told Dr. Goldwaser that S.H. was frightened and in pain, but "he did not care," and that he "used pillows to cover her mouth."
Regarding his 2002 convictions, respondent reported that he had sex with A.F. and M.S. after fighting with his girlfriend, who had "berated him for not being sexually active" with her. Respondent acknowledged that "he knew that [it] was not right, because [of] the[ir] age," but denied knowing the girls' ages at the time. He stated that, even if he had known their ages, he "wouldn't have cared."
Dr. Goldwaser observed that respondent appeared to take pride in recounting his conduct, and failed to demonstrate empathy towards his victims. He opined that respondent's lack of empathy, substance abuse, and criminal history made respondent's risk of re-offending "highly likely," noting that respondent's paraphilia and ASPD "have an additive effect" because the disorders "feed off each other."
Dr. Stewart's testimony was largely similar to Dr. Goldwaser's testimony. She diagnosed respondent as having ASPD, polysubstance dependence, paraphilia, pedophilia, post-traumatic stress disorder, and depressive disorder NOS. In addition, she testified that respondent scored "in the high range" for psychopathy, and showed "some signs" of paranoia. She found respondent showed "an early onset of deviant sexual interest," with "paraphilic," "pedophilic," "hebephilic," "nonconsensual rape dynamic," and "possibly some sadistic elements." She noted respondent admitted to having the "ability to sustain arousal[] when [using] force" to have intercourse with someone against their will, and that he was aroused by inflicting pain. Dr. Stewart found it "highly likely" that respondent would commit new acts of sexual violence.
Respondent presented, without objection, the expert psychologist testimony of Dr. Christopher Lorah and Dr. Timothy Foley. Both experts disagreed with the State's experts that respondent had ASPD because respondent had not been disruptive during his incarceration at the ADTC, and they did not believe respondent's criminal conduct prior to turning eighteen should be considered when making an ASPD determination. Similarly, both experts disagreed that respondent could be diagnosed with pedophilia because Dr. Stewart based her diagnosis on conduct that occurred before respondent turned sixteen, and the Diagnostic and Statistical Manual of Mental Disorders (4th ed. Text Revision 2000) (DSM-IV-TR) guidelines preclude such a diagnosis based on conduct occurring before an individual is sixteen years old. Dr. Lorah testified he could not diagnose respondent with paraphilia because respondent denied experiencing sexual arousal when causing his victims pain.
Both of respondent's experts found it significant that respondent's predicate offenses were for statutory rape. They found his conduct in 2001 was a de-escalation from his earlier offenses because respondent used no force, and they assumed A.F. and M.S. were post-pubescent.
No evidence was offered on this point. However, Dr. Lorah noted respondent gave "no indication of any deviant patterns related to" prepubescent girls in the testing he administered.
Judge Freedman issued an oral opinion on June 2, 2011, crediting the State's experts and finding by clear and convincing evidence that respondent should be civilly committed. The court did not rely on the pedophilia diagnosis, and acknowledged that the paraphilia NOS diagnosis may "raise some questions." The court instead found that respondent "clearly has antisocial personality" disorder, and credited the opinions of the State's experts who "were clearly justified in diagnosing antisocial personality disorder." The court found "the facts as relied on by the State's experts clearly belie" the conclusion of the experts that respondent did not have a disorder. The court noted that even respondent's experts acknowledged that respondent "has a significant history of psychological problems," that he had a conduct disorder before the age of fifteen, and that he has other current problems.
In any event, "whatever the diagnosis," the trial court found that "there's a mental abnormality here, no question, and that's supported by the testimony of all four experts." The court found "no question" that respondent has "serious psychiatric problems" that led to "a disorder of sexual appetite that is clearly compulsive in nature," "that clearly affects his [volitional] capacity and also affects his emotional capacity," and which "predisposed [him] to engage in acts of sexual violence." The court also found that "he would have serious difficulty controlling his sexually violent behavior, and would be highly likely to engage in acts of sexual violence in the reasonably foreseeable future."
Judge Freedman entered an order on June 7, 2011, committing respondent to the New Jersey Special Treatment Unit, and scheduling a review date one year later. Respondent filed a notice of appeal on November 30, 2011.
II.
Respondent challenges the trial court's reliance on the testimony of the State's experts, arguing that the evidence did not support the experts' conclusions. When reviewing the trial judge's factual findings, we must hew to our "extremely narrow" standard of review. 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 must defer to the findings of the trial judge when . . . the findings are based on sufficient evidence in the record, considering the record in its entirety, 'with due regard to the opportunity of the one who heard the witnesses to judge of their credibility.'" In re Civil Commitment of M.L.V., 388 N.J. Super. 454, 468 (App. Div. 2006), certif. denied, 190 N.J. 255 (2007). A judge's "findings warrant particular deference when they are substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy" on a cold record. State v. Rockford, 213 N.J. 424, 440 (2013) (alteration in original; quotation marks omitted). "An appellate court should not overturn a trial court's findings because it 'might have reached a different conclusion were it the trial tribunal' or because 'the trial court decided all evidence or inference conflicts in favor of one side' in a close case." R.F., supra, 217 N.J. at 175.
Furthermore, "[t]he judges who hear SVPA cases generally are 'specialists' and 'their expertise in the subject' is entitled to 'special deference.'" Id. at 174. "A trial judge is 'not required to accept all or any part of [an] expert opinion,'" as "[t]he ultimate decision is 'a legal one, not a medical one.'" Ibid. (first and second alterations in original). "We must give the 'utmost deference' to the reviewing judge's determination of the appropriate balancing of societal interest and individual liberty." In re Civil Commitment of W.X.C., 407 N.J. Super. 619, 630 (App. Div. 2009), aff'd, 204 N.J. 179 (2010), cert. denied, ___ U.S. ___, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011).
III.
Under the SVPA, "[i]f the court finds by clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator, it shall issue an order authorizing the involuntary commitment of the person to a facility designated for the custody, care and treatment of sexually violent predators." N.J.S.A. 30:4-27.32(a). "If the court finds that the person is not a sexually violent predator," he "shall be discharged" if he has completed his prison term. N.J.S.A. 30:4-27.32(b).
There are three requirements for classifying a person as a "sexually violent predator." N.J.S.A. 30:4-27.26. First, the person must have "been convicted [or] adjudicated delinquent . . . for the commission of a sexually violent offense." Ibid. Second, the person must "suffer[] from a mental abnormality or personality disorder" which makes him likely to engage in acts of sexual violence if not confined in a secure facility. Ibid. Third, in upholding the constitutionality of the SVPA, our Supreme Court required that "the State must prove by clear and convincing evidence that the individual has serious difficulty controlling his or her harmful sexual behavior such that it is highly likely that the person will not control his or her sexually violent behavior and will reoffend." In re Commitment of W.Z., 173 N.J. 109, 133-34 (2002).
"'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.
It is not disputed that respondent's delinquency adjudication and criminal convictions satisfy the first requirement. Instead, he contends the State failed to show that he suffers from a mental abnormality or personality disorder making him highly likely to engage in acts of sexual violence.
IV.
The SVPA defines "mental 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. The SVPA does not define "personality disorder." Rather, it is a psychological term, and its definition depends on the specific nature of the condition. See In re Civil Commitment of J.M.B., 197 N.J. 563, 590, cert. denied, 558 U.S. 999, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009). Whatever the nomenclature, if there is sufficient evidence showing the person has a "mental condition" affecting "ability to control his or her sexually harmful conduct," then the State has satisfied the second requirement. W.Z., supra, 173 N.J. at 127. Here, the trial court found that respondent had both ASPD and a mental abnormality.
"Antisocial personality disorder is defined by 'a pervasive pattern of disregard for, and violation of, the rights of others that begins in childhood or early adolescence and continues into adulthood.'" R.F., supra, 217 N.J. at 163 n.8 (quoting DSM-IV-TR, supra, at 701). A diagnosis of ASPD is sufficient to show a "personality disorder" under N.J.S.A. 30:4-27.26. E.g., W.Z., supra, 173 N.J. at 117.
Both of the State's experts diagnosed respondent as having ASPD because he exhibited an early onset of deviant behavior, compulsivity, lack of empathy, and disregard for the law. See W.Z., supra, 173 N.J. at 116 (finding symptomatic of ASPD a respondent's highly impulsive and hedonistic behavior, inability to maintain intimate relationships, violence and aggression against others when angry or frustrated, lack of remorse, and poor insight into his own behavior); W.X.C., supra, 407 N.J. Super. at 629 (finding ASPD indicated by a respondent's remorselessness, disregard of the rules and of the rights of others, "'manipulativeness,'" and "'his taking what one wants when one wants it'").
As the trial court noted, even Dr. Foley "conceded that [respondent] before the age of eighteen met all the adult criteria" of the DSM-IV-TR for ASPD. Once, respondent turned eighteen, he sexually assaulted A.F. and M.S. All of the experts believed respondent's conduct prior to his incarceration at the ADTC showed a personality disorder. Finally, the State's experts testified that ASPD is an "enduring personality disorder," and not something that could eventually go away. See State v. King, 387 N.J. Super. 522, 532 (App. Div. 2006).
Respondent nonetheless argues that because his most recent sexual assault convictions were statutory rather than violent, they do not show a pattern of antisocial activity. The State's experts testified, however, that respondent's commission of the sexual assaults against A.F. and M.S., only six weeks after completing treatment at KidsPeace for his sexual assault of S.H., was especially troubling and was indicative of ASPD.
Respondent next argues that there was insufficient evidence to show he has ASPD because there was no evidence of antisocial tendencies during respondent's ten-year incarceration at the ADTC. However, the State's experts testified that, despite a lack of significant infractions at the ADTC, respondent's conduct from childhood through the commitment hearing was indicative of ASPD. The court particularly cited respondent's "refusal to deal with authority," as "clearly related to his [ASPD]," concluding that respondent's "conduct and [] treatment record in the ADTC shows [respondent] was antisocial in nature." The court acknowledged that respondent had not gotten into fights in the ADTC, but noted Dr. Goldwaser's testimony that "people with antisocial personality disorder are able to comply with rules and regulations" while incarcerated, as Dr. Lorah conceded. The court's finding that respondent has ASPD was supported by sufficient evidence.
In any event, the trial court also found that respondent suffered from a mental abnormality. As the court correctly observed, "mental abnormality" was defined by statute "without reference to the DSM-IV-TR," and thus it is not "necessary to have a diagnosis under the DSM-IV-TR to have a mental abnormality." The Supreme Court has held, "[i]t is not necessary that the Legislature define its class of targeted individuals by limiting the class to those with identified psychiatric diagnoses," because "[m]edical terminology need not circumscribe precisely the drafting of legislation intended to impose legal consequences for dangerous behavior." W.Z., supra, 173 N.J. at 129. "It is sufficient for the Legislature to confine its targeted class of sex offenders subject to civil commitment because of their dangerousness by identifying the degree of lack of control that each must exhibit, tied to a finding of mental abnormality or illness." Ibid.
Here, the trial court properly found that respondent had "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. The court's conclusion that respondent has a "disorder of sexual appetite that is clearly compulsive in nature" was not based on a specific diagnosis. Rather, the court based its finding on "the testimony of all four experts," respondent's "significant history of psychological problems," his history of criminal activity and substance abuse, and his failure to meaningfully benefit from treatment. Thus, whether under "the nomenclature of 'mental abnormality' or 'personality disorder,'" the court properly found respondent had a mental condition that affects his "ability to control his . . . sexually harmful conduct." W.Z., supra, 173 N.J. at 127.
V.
There is also sufficient evidence to support the court's finding that respondent met the third requirement, that "it is highly likely that the individual will not control his or her sexually violent behavior and will reoffend." Id. at 130. Such a finding requires "an assessment of the reasonably foreseeable future . . . based on the individual's danger to self and other because of his . . . present serious difficulty with control over dangerous sexual behavior." Id. at 132-33.
As set forth above, respondent committed a sex offense six weeks after completing probation and treatment at KidsPeace. Dr. Foley opined that the predicate offense of statutory rape represented de-escalation from respondent's earlier, violent rape of S.H. The court was nevertheless entitled to find that respondent's commission of the predicate offenses so soon after his sentence was completed indicated he is highly likely to commit sex offenses. In addition, his record of non-sexual crimes, his commission of his sexual crimes against S.H. while on house arrest and electronic monitoring, and his prior violations of probation indicated a likelihood of sexual re-offense despite supervision.
Further, the State's experts diagnosed respondent as having a polysubstance abuse problem. This diagnosis was not disputed by respondent's experts. All four experts agreed that, if respondent abuses drugs again as did after completing therapy at KidsPeace, the risk that he would reoffend would increase. See W.X.C., supra, 407 N.J. Super. at 632.
Importantly, there is substantial evidence that respondent had not benefitted from treatment at the ADTC. The State's experts noted and agreed with the psychological evaluation prepared at the ADTC, which concluded respondent's treatment "was inadequate to address and reduce [respondent's] risk of sexual offending." The ADTC evaluation noted that respondent's attendance, participation, and engagement in therapy were limited, and that respondent stated he thought treatment was "pointless" because it was "too late" for him. Dr. Foley testified that respondent "sort of gave up" on therapy. Likewise, Dr. Lorah described respondent's treatment as "not very good." Dr. Goldwaser opined that respondent demonstrated a pattern "of doing the bare minimum in order to get by" to avoid getting into trouble. Dr. Stewart found respondent's failure to accept the reasons for his criminal conduct suggested an overall ineffectiveness of treatment.
Dr. Goldwaser was particularly troubled by respondent discontinuing therapy with a female psychiatrist because she reminded him of his thirteen-year-old victim. Dr. Goldwaser stated that this showed respondent, at age twenty-seven, was still fixated on under-aged girls.
Respondent argues the State's experts failed to consider his completion of a relapse module at the ADTC. However, the completion of one additional module during his ten years of confinement at the ADTC would not reasonably compel the State's experts to conclude that he benefitted from treatment. Considering the uncontested reports of his inconsistent attendance and participation, the State's experts could properly find he had not benefitted from treatment.
Respondent also complains that the State's experts failed to consider his completion of an application for an aftercare program that he claims would provide him with nine months of intensive treatment. However, Dr. Goldwaser was aware respondent was "looking into" such a program. The aftercare-program letter provided by respondent, moreover, failed to specify what treatment or services the program offered.
Respondent further complains that Dr. Stewart found him at a high risk of recidivism based on the "Static-99" test, which he contends, "over predicted" his dangerousness. He cites In re Commitment of J.P., 339 N.J. Super. 443, 455 (App. Div. 2001), where we expressed "some doubt whether actuarial tools can be used to evaluate a sex offender's risk of recidivism" when the sex offenses occurred while the offender was an adolescent.
The Static-99 test is an actuarial test used to predict a patient's risk for sexual offense recidivism. See In re Commitment of R.S., 339 N.J. Super. 507, 517-19 (App. Div. 2001), aff'd o.b., 173 N.J. 134 (2002).
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This argument is no basis for reversal. First, the court acknowledged the critique that the Static-99 test was inappropriate because of respondent's age at the time of his first offense. As a result, the court stated it was "not relying" on the Static-99 test at all. Second, the Static-99 test was only one of five tests employed by Dr. Stewart, in addition to her case review and clinical interview. Dr. Stewart's report evinced that the Wide Range Achievement Test-4 indicated respondent was moderately intelligent; the Minnesota Multiphasic Personality Inventory suggested "high excitability, anger, disregard for rules, suspiciousness, and lack of trust;" the "Bumby Cognitive Distortions Scales test" showed "some cognitive distortions frequently associated with sexual offenders;" and respondent tested in the "[h]igh range" on the Psychopathy Checklist. Dr. Stewart also noted respondent's statements that he did not care about how old A.F. and M.S. were, and that he chose to seek out and have sex with under-aged girls despite the availability of a sexual relationship with an age-appropriate partner. Thus, there was sufficient evidence to support the court's finding that respondent was at a high risk of recidivism without reliance on the Static-99 test results.
Accordingly, there is ample support in the record validating the court's determination that respondent is a sexually violent predator.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office. CLERK OF THE APPELLATE DIVISION