Opinion
DOCKET NO. A-2187-10T4
02-12-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAVID L. CUSPILICH, Defendant-Appellant.
Michael W. Kahn, attorney for appellant. Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Bethany L. Deal, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Nugent.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 10-03-0267.
Michael W. Kahn, attorney for appellant.
Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Bethany L. Deal, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
This appeal requires us to decide whether the trial court correctly concluded that defendant David L. Cuspilich should be sentenced under N.J.S.A. 2C:47-1 to -10 (the sex offender act). Defendant argues he should not have been sentenced under the sex offender act because the State did not prove at his sentencing hearing that his conduct was characterized by a pattern of repetitive, compulsive behavior, and he was amenable to sex offender treatment. After considering defendant's argument in light of the record, we affirm.
I.
A.
The State charged defendant in a two-count accusation with second-degree sexual assault, N.J.S.A. 2C:14-2c(4) (count one), and endangering the welfare of a child, N.J.S.A. 2C:24-4a (count two). After negotiating a plea, defendant pled guilty to both counts. Because defendant's guilty plea to a sexual offense triggered the sex offender act, the court ordered that he undergo a psychological evaluation to determine whether his "conduct was characterized by a pattern of repetitive, compulsive behavior and, if it was, a further determination of [his] amenability to sex offender treatment and his willingness to participate in such treatment." N.J.S.A. 2C:47-1. Dr. Mark Frank, a psychologist, evaluated defendant and issued a report in which he concluded that defendant's "repetitive criminal behavior was performed compulsively," and that defendant was eligible for sentencing under the sex offender act at the Adult Diagnostic Treatment Center (ADTC). Defendant rejected Dr. Frank's opinion and requested a Horne hearing.
At the hearing's conclusion, the trial court found that defendant's conduct was characterized by a pattern of repetitive and compulsive behavior, and defendant was amenable to treatment at the ADTC. The court sentenced defendant to serve consecutive prison terms of five years on count one, and four years on count two. The court also imposed special sentences of parole supervision for life, N.J.S.A. 2C:43-6.4(a), on each count; required defendant to register as a sex offender, N.J.S.A. 2C:7-2; and ordered him to have no contact, directly or indirectly, with the victim or the victim's family. Lastly, the court also imposed mandatory assessments and penalties.
Because defendant was unwilling to participate in sex offender treatment, his sentence will not be reduced by commutation time for good behavior or credits for diligent application of work and other institutional assignments. N.J.S.A. 2C:47-3(g). Additionally, he is subject to the parole restrictions of N.J.S.A. 2C:47-5, as N.J.S.A. 2C:47-3(f) provides that an offender who is unwilling to participate in sex offender treatment shall become primarily eligible for parole in accordance with the provisions of N.J.S.A. 2C:47-5. Defendant appeals the sentence and argues:
SINCE THE STATE FAILED TO PROFFER ANY EVIDENCE WHATSOEVER AT DEFENDANT'S HORNE HEARING REGARDING HIS PRESENT-DAY STATE OF SEXUAL COMULSIVITY [SIC], AS OPPOSED TO WHEN THE SEX CRIMES OCCURRED, THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT WAS A "REPETITIVE AND COMPULSIVE" OFFENDER UNDER N.J.S.A. 2C:47-3.
B.
The State must prove at a Horne hearing, by a preponderance of the evidence, that a defendant is a repetitive and compulsive sex offender amenable to sex offender treatment. State v. Howard, 110 N.J. 113, 130-31 (1988). The burden of persuasion "becomes a crucial factor only . . . when all of the evidence has been introduced." 2 McCormick on Evidence, §336 at 471 (6th ed. 2006). For that reason, we review all of the evidence presented at the hearing, including the evidence presented by the defense.
Dr. Frank testified on behalf of the State. Dr. Leland Mosby, also a psychologist, testified on behalf of defendant. The parties also introduced into evidence the transcript of a consensual telephone intercept of defendant's conversation with his victim.
During the telephone conversation, defendant told his victim he loved her. When she asked why he touched her and performed various sex acts with her, he could not explain his conduct. He admitted that he was wrong and conflicted: "It was like, it was like I wanted to, but I didn't and I just, you know what I mean?" Acknowledging that his feelings toward his victim were wrong because of her age, defendant admitted that he could not control himself; "[i]t's like I was in control but out of control[.]"
The psychologists gave conflicting opinions about whether defendant would benefit from sex offender treatment. The court found that both experts were qualified to express opinions concerning the evaluation, treatment, and assessment or recidivism of sex offenders. Dr. Frank interviewed defendant, considered the results of defendant's intellectual functioning and personality tests, and reviewed a "variety of self-report questionnaires." According to Dr. Frank, there is no test that can determine whether an individual's conduct "was characterized by repetitive [or] compulsive behavior." Dr. Frank expressed no opinion "as to [defendant's] present compulsivity." According to Dr. Frank, "compulsivity refers to a characteristic of behavior, not a characteristic of an individual." He explained: "The current sample is [defendant] sitting there. . . . To determine whether or not that behavior is compulsive, we might begin to make some inferences. But to determine whether some future behavior that we don't have available for examination will be compulsive, I don't know how to do that." Dr. Frank repeated that "compulsivity is a characteristic of the behavior, not of the individual." He also reiterated that "[n]one of the tests that Dr. Mosby administered are designed to determine whether or not the defendant is repetitive/compulsive under the New Jersey State statute."
Nevertheless, Dr. Frank concluded that defendant's conduct was "repetitive" as evidenced by his "multiple acts of sexual misconduct that took place over a period of time[.]" Dr. Frank also concluded defendant's behavior was compulsive and explained that "compulsive is something that has to be inferred." Referring to statements defendant made during an interview, the doctor further explained:
As [defendant] described it, it was a struggle. This was not something that he did without thought. This was behavior that he knew to be wrong, he acknowledged that, but he felt caught up. He felt as though he couldn't stop it. He told the victim during the telephone intercept that he wasn't -- didn't feel completely in control. After each incident he said he told himself that he would have to put a stop to it. And not only didn't it stop, it escalated from touching to oral sex over the time period the offenses took place. This basic struggle, knowing it's wrong here in discovery, telling himself constantly it has to stop, but not being able to stop is characteristic of compulsion as we define it at the [ADTC].Dr. Frank restricted his determination of "compulsivity" to the "time of the offensive conduct."
Lastly, Dr. Frank concluded defendant was amenable to treatment because defendant was an intelligent man who wanted to avail himself of treatment opportunities. Dr. Frank felt that defendant would do well in treatment.
Dr. Mosby disagreed. Dr. Mosby had met with defendant five times for, collectively, approximately nine hours. In addition to considering statements and other documentary evidence, Dr. Mosby relied upon tests that included the "Hare instrument, the PCLR2," that measures whether a person is a psychopath. Dr. Mosby tested defendant for personality disorders, and defendant "scored fairly high in the predominance of histrionic personality patterns [but] did not score high in compulsive patterns." On the PCLR-90, "the instrument that does have a section again for assessing compulsive patterns[,]" defendant scored a 59T. Dr. Mosby explained that a "T score is on a scale of zero to one hundred." Dr. Mosby characterized defendant's T score as "slightly above 50 but [not] overly high."
Dr. Mosby also "utilize[d] standard recidivism instruments" that indicated defendant was in the low risk category for sexual recidivism. On a VSOR, which measured both sexual reoffending and violence, defendant scored plus ten on the reoffense risk scale and plus ten on the violence scale. According to Dr. Mosby, both were well below the mean on the instrument. The doctor also utilized a "Bumby Cognitive Distortion Scale which reflected a mild level of distortion which could be addressed during any type of out-patient therapy in later times."
Dr. Mosby believed that empirical testing was superior to a mental status exam in determining a person's compulsivity. He explained that during his evaluation of defendant, he was looking for psychopathic behavior, sexual recidivism issues, and repetitive and compulsive behaviors. He also assessed violence, looked at personality patterns or disorders, and evaluated defendant to see if he was amenable to treatment. The doctor did not read the transcript of defendant's telephone conversation with his victim, but did consider defendant's admitting to having an illicit sexual relationship with his victim over a period of four years.
Dr. Mosby opined that because of defendant's low risk of recidivism, he was not going to benefit from treatment. Based on the battery of tests he administered during the nine or ten hours he evaluated defendant, Dr. Mosby "certainly [did not] believe that [defendant] is compulsive at the present time." According to the doctor, compulsion or compulsivity is "an irresistible urge to do something that's irrational." Dr. Mosby did not believe defendant was compulsive, either at the time of the hearing or during the time that defendant engaged in the illicit relationship. When confronted during cross-examination with the telephone intercept transcript, Dr. Mosby opined that defendant's statements indicated defendant was histrionic but not compulsive.
Following the hearing, the trial court issued a written opinion in which it found the State had "met its burden of demonstrating that defendant's conduct . . . is characterized by a pattern of repetitive, compulsive behavior so as to warrant ADTC treatment, that defendant is amenable to such treatment, and that this determination is made with a consideration of defendant's condition at the time of sentencing." The court recounted that defendant had met his victim through the church to which his wife belonged, the victim's family had become his tenants, and he had sexually assaulted the young victim over a six-year period from the time the child was ten years old until just before she turned sixteen. The court also noted that when the victim asked defendant during the intercepted telephone conversation if his actions indicated he was unable to control himself, defendant acknowledged, "if I could control myself than I would have made other, other decisions."
The court also cited defendant's statements to Dr. Frank that he felt remorseful and ashamed after each incident; however, the sexual relationship escalated and defendant became even more upset with himself. Defendant developed rationalizations to enable him to continue the relationship, but nevertheless struggled internally because he knew what he was doing was wrong. The court noted Dr. Mosby's report that defendant "'had some level of cognitive distortions,' which 'can allow an individual to have excuses and to keep them from accepting full accountability for viewing their sexual crimes in a complete manner.'" The court found "[t]his would explain defendant's statement to Dr. Mosby that defendant 'does not presently agree with the statement during his interview [with Dr. Frank] that he was compulsive.'"
The court found Dr. Frank's testimony more compelling than that of Dr. Mosby, not only because Dr. Frank was a member of the Association for the Treatment of Sex Abusers, but also because Dr. Mosby had overlooked significant information, such as the forty-nine minute telephone conversation between defendant and his victim. Additionally, the court noted that Dr. Mosby focused primarily on testing, and did not know that defendant had sexually abused his victim over a six-year period. Although Dr. Mosby believed that because his testing showed defendant had a lower than average chance of recidivism he was not presently compulsive, the testing showed there was some chance of recidivism for defendant. In the court's view, the chance of recidivism was sufficient to meet the test announced in State v. N.G., 381 N.J. Super. 352 (App. Div. 2005), which requires a court to consider a sex offender's "condition at sentencing, not merely his behavior on the dates that the criminal conduct in question occurred." Id. at 363. Having concluded that the State had carried its burden of persuasion and that defendant came within the purview of the sex offender act, the court sentenced defendant accordingly.
II.
The sex offender act requires that upon conviction of any of certain enumerated sex offenses, including sexual assault, an offender undergo a psychological examination that includes "a determination of whether the offender's conduct was characterized by a pattern of repetitive, compulsive behavior and, if it was, a further determination of the offender's amenability to sex offender treatment and willingness to participate in such treatment." N.J.S.A. 2C:47-1. If the report of the examination determines that these criteria exist, then the offender is subject to sentencing under the sex offender act. N.J.S.A. 2C:47-3. The offender may exercise the right to a hearing, before sentencing, to challenge the conclusions in the report. Horne, supra, 56 N.J. at 374. As previously indicated, the State has the burden of proving by a preponderance of the evidence that the offender's conduct was characterized by a pattern of repetitive, compulsive behavior and that the offender is amenable to sex offender treatment. Howard, supra, 110 N.J. at 113. "[T]o decide whether an offender's conduct is characterized by a pattern of repetitive, compulsive behavior so as to warrant ADTC treatment, a court must consider the offender's condition at sentencing, not merely his behavior on the dates that the criminal conduct in question occurred." N.G., supra, 352 N.J. Super. at 363.
When reviewing a trial court's determination that the State has met its burden of proof at a Horne hearing, we apply a well-established standard of review. We must uphold the court's findings of fact if they are "'supported by sufficient credible evidence in the record.'" State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007) (further citation omitted)). We give deference to those findings because the trial court has had the "opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). On the other hand, our review of a court's legal conclusions is plenary. Handy, supra, 206 N.J. at 45.
Here, the trial court's factual determinations were not only supported by sufficient credible evidence, they were virtually undisputed. Defendant's criminal conduct was indisputably repetitive, as defendant repeatedly assaulted his victim over a period of six years. See N.G., supra, 381 N.J. Super. at 361 (explaining the well-understood meaning of the word "repetitive" as "to do, experience, or produce again[]") (quoting Webster's II New Riverside Dictionary, 1996-97 (1994)).
The evidence also supported the court's conclusion that defendant's criminal conduct was compulsive. Defendant admitted during the telephone conversation with his victim that he knew his physical relationship with her was wrong, and he was internally conflicted because he wanted to continue it, but at the same time he did not want to continue it. Defendant admitted, in essence, that he could not control himself, that is, he felt as though he had some control, but no control. From the time his victim was ten years old until shortly before her sixteenth birthday, defendant indulged his "'irresistible impulse to act irrationally.'" Id. at 361-62 (quoting Webster's II New Riverside Dictionary, 1996-97 (1994)).
The trial court considered defendant's "condition at sentencing, not merely his behavior on the dates that the criminal conduct in question occurred." Id. at 363. The court evaluated not only defendant's compulsive criminal behavior that continued for nearly six years, but Dr. Mosby's finding that there was a chance of recidivism. The chance of recidivism indicated that defendant could still give in to his irresistible impulse to act irrationally. The trial court's conclusions -- derived from defendant's indisputable inability to control himself while he sexually abused his young victim for nearly six years, the chance of recidivism, and his credibility assessments of the opinions of the psychologists -- were amply supported by sufficient credible evidence.
Although Dr. Mosby believed that defendant's low risk of recidivism indicated that defendant "probably is not going to benefit from treatment [at the ADTC]," Dr. Frank believed that defendant would benefit from treatment. The court's resolution of that credibility issue was also supported by sufficient credible evidence.
Defendant insists that Dr. Frank's failure to address his condition at the time of sentencing is fatal to the determination that defendant came within the purview of the sex offender act. Defendant asserts that the testimony of his expert, Dr. Mosby, "was rendered moot by the State's inadequate case at the Horne hearing." In other words, defendant implicitly suggests that when the court made its determination, it could not consider any part of Dr. Mosby's testimony. We disagree.
The trial court decided the issues before it in its role as fact-finder. A fact-finder applies the burden of persuasion after all evidence is presented. Because defendant chose to present the testimony of Dr. Mosby, the trial court was obligated to consider it. As part of its fact-finding function, the court was required to consider the credibility of the witnesses and weigh the evidence. The court could accept all, none, or part of any witness's testimony. The court did precisely that, and as we have said, the court's credibility determinations were supported by sufficient credible evidence in the record.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
State v. Horne, 56 N.J. 372 (1970).