May 30, 2007
IN THE MATTER OF THE CIVIL COMMITMENT OF C.M., SVP-109-00.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-109-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: May 15, 2007
Before Judges Axelrad and R.B. Coleman.
C.M., who is now forty-three years of age, is a resident of the Special Treatment Unit (STU), the secure custodial facility designated for the treatment of persons in need of involuntary civil commitment pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. See N.J.S.A. 30:4-27.34a. He appeals from an order of January 19, 2006, continuing his commitment to the STU following a fourth review hearing. On appeal, C.M. argues that the court erred in placing undue emphasis on historical evidence and past reports and that the State failed to present clear and convincing evidence that he currently suffers from a mental abnormality or personality disorder which creates a present risk of inability to control his sexually violent behavior such that he would be highly likely to re-offend if released.*fn1 Based on our review of the record, we are not persuaded by appellant's arguments and are satisfied the trial judge's findings are amply supported by competent evidence. Accordingly, we affirm substantially for the reasons set forth by Judge Philip Freedman in his oral decision of January 17, 2006.
A person who has committed a sexually violent offense may be civilly committed only if "suffer[ing] 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. Under the SVPA, a mental abnormality is "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." Ibid. A mental abnormality or personality disorder must "affect an individual's ability to control his or her sexually harmful conduct." In re Commitment of W.Z., 173 N.J. 109, 127 (2002). The finding of a total lack of control is not necessary. Id. at 126-27. Instead, a showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Id. at 127.
Once a person has been initially committed, a court must conduct an annual review hearing to determine whether the individual will be released or remain in treatment. N.J.S.A. 30:4-27.35. Both an order of commitment and order of continued commitment must be based on clear and convincing evidence that an individual who has been convicted of a sexually violent offense suffers from a mental abnormality or personality disorder, and presently has serious difficulty controlling harmful sexually violent behavior such that it is highly likely the individual will re-offend if not committed to the STU. In re Commitment of W.Z., supra, 173 N.J. at 132-33; In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608-10 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35. The State maintains the burden of proof and must demonstrate by clear and convincing evidence that the individual needs continued involuntary commitment as a sexually violent predator. N.J.S.A. 30:4-27.32a. "Once committed under the SVPA, an individual should be released when a court is convinced that he or she will not have serious difficulty controlling sexually violent behavior and will be highly likely to comply with [a] plan for safe reintegration into the community." In re Commitment of W.Z., supra, 173 N.J. at 130; see also In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-57 (App. Div. 2002).
The scope of appellate review of a trial court's decision in a commitment proceeding is extremely narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). The trial court's "determination should be accorded 'utmost deference' and modified only where the record reveals a clear abuse of discretion." In re Commitment of J.P., supra, 339 N.J. Super. at 459 (quoting State v. Fields, 77 N.J. 282, 311 (1978)); see also In re Civil Commitment of V.A., supra, 357 N.J. Super. at 63. "The appropriate inquiry is to canvas the . . . expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996).
The order of continued commitment is adequately supported by the record and consistent with the controlling legal principles outlined above. C.M. was initially committed to the STU in August 2000, and his commitment was continued after yearly reviews, with the prior order entered on July 1, 2003, which C.M. appealed and we affirmed in an unpublished opinion. In re Civil Commitment of C.H.M., No. A-6137-02T2 (App. Div. June 28, 2004). A subsequent review hearing was held on November 4, 2005, November 28, 2005, and January 17, 2006, before Judge Freedman and a judgment of continued commitment was entered, which is the subject of this appeal.*fn2
In 1989, C.M. pled guilty to robbery and aggravated sexual assault of an adult female, which served as the predicate offense under the SVPA, N.J.S.A. 30:4-27.26, and was sentenced to a twenty-year custodial term, of which he served thirteen and one-half years before his civil commitment to the STU. The incident occurred in 1987, during which C.M. invaded the victim's home, grabbed her neck, demanded money, ripped off her clothes and tied her up. He then forced his penis into the victim's mouth and attempted to penetrate her vaginally and anally. He then forced her into the kitchen where he attempted to stab her with a dull knife. The victim received two stab wounds before managing to escape. Prior to the predicate offense, C.M. had a history of simple assault, being under the influence of intoxicating fumes, burglary and shoplifting. C.M. had also been incarcerated after the eleventh grade for the rape of a twenty-four-year-old woman.
At the review hearing, Dr. Pogos Voskanian, a psychiatrist, testified for the State and Dr. Paul Fulford, a psychologist, testified on behalf of C.M. C.M. also testified. Judge Freedman reviewed in detail C.M.'s history and the reports rendered by the experts who examined C.M. and testified at trial. He explained the reasons for his finding that Dr. Fulford's opinion, that C.M. was not highly likely to re-offend because of the treatments he received, was totally unsupported by the record. He further explained in detail the reasons he found C.M.'s testimony not to be credible, concluding C.M. developed a story to avoid dealing with the highly deviant nature of his predicate offense by blaming it on drugs and/or not remembering parts of the incident with the knife. The court was unconvinced by C.M.'s assertions that he had lied to the various clinicians about his sexual fantasies focusing on older women of motherly age and his previous admissions of fantasies of rape and sexual torture. Judge Freedman concluded that although C.M. had made some progress, he remained highly likely to reoffend if he was not confined, noting that C.M. even ranked himself as a "five out of ten" in risk to reoffend.
The court accepted Dr. Voskanian's opinion that because C.M. did not accept his sexual pathology, he could not make progress in treatment and that relapse prevention could not be created without dealing with the source of C.M.'s sadism. Judge Freedman summarized his findings in the following way:
So based on this entire record, I'm satisfied by clear and convincing evidence that he certainly has a mental abnormality in the form of a paraphilia on Axis I and he also suffers from sexual sadism. I credit Dr. Voskanian's diagnosis. I find it clearly supported by the record. He has inhalant dependence in remission, as the doctor testified.
He also has a personality disorder on Axis II, be it anti-social personality disorder or personality disorder NOS with anti-social and other traits. Effectively, that's the same thing. That he's affected emotionally, cognitively and volitionally, as the doctor testified. And that if he were released he would have serious difficulty controlling his sexually violent behavior, that he would be highly likely to engage in similar conduct. Probably other criminal conduct, as well. But within the criminal conduct within the reasonably foreseeable future another sex crime.
Taking into account what he tends to do, knives were used on both of his aggravated sexual assault convictions; and taking into account the seriousness of what could possibly happen, this second victim was in fact wounded on her leg in two places, once below the knee and once by the ankle; she was also hit, he admitted that to Dr. Harris, Dr. Siegal; he blurted out in defense of him not being an exhibitionist that his thing was to assault and harm people, not expose himself; very damning statement and totally supportive of the doctor's conclusions. I find that there's a high propensity and an extremely dangerous nature of what he tends to do. And therefore, he is highly dangerous, despite the progress that he's made.
When he makes the breakthrough that he really intends to harm these victims as part of his arousal and, therefore, . . . deals with it, he can make it to Phase IV and discharge. His discharge plans that he's put forward are really nothing more than a bunch of people who say they're going to support him and the existence of a treatment program. It's not much of a discharge plan. His own expert indicated he needs substantial drug treatment in addition to sex offender specific treatment.
This man has not dealt with his problem sufficiently to be let out. He's extremely dangerous and he's an anti-social guy. They're manipulative by nature. He is not the brightest guy in the world and so his manipulations aren't consistent and he trips himself up here and there.
The two experts . . . basically agree on the diagnosis. Their only disagreement was his ability to function safely outside and Dr. Fulford said he's a moderate risk.
The . . . disagreement is between moderate and high, which isn't that far. And taking into account the deficiencies in Dr. Fulford's review of this case I reject his opinion. I credit that of Dr. Voskanian.
And because of that, I find that [C.M.'s] . . . commitment needs to be continued. And I'll do so for those reasons.
The evidence supports the finding that C.M. has not made sufficient progress in the STU programs "tailored to address the specific needs of sexually violent predators" and that the evidence does not, as Judge Freedman determined, permit a finding that he is no longer in need of commitment under the SVPA. See N.J.S.A. 30:4-27.34b. The conclusion that C.M. continues to suffer from a mental abnormality or personality disorder that presently causes his serious difficulty in controlling sexually harmful behavior, such that he is highly likely to re-offend is supported by clear and convincing evidence. In re Commitment of W.Z., supra, 173 N.J. at 132.