October 12, 2007
IN RE THE CIVIL COMMITMENT OF E.S. SVP 461-07.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-461-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 26, 2007
Before Judges Cuff and Simonelli.
The State appeals from the August 29, 2007 order dismissing its petition to civilly commit E.S. under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. It argues that the trial court abused its discretion in determining that E.S. should be released.*fn1
Under the SVPA, the State must prove by clear and convincing evidence that the person whose commitment it seeks, "has been convicted . . . of a sexually violent offense . . . and 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. Clear and convincing evidence is that which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations. State v. Hodge, 95 N.J. 369, 376 (1984). The standard is as follows:
To be committed under the SVPA an individual must be proven to be a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts . . . [T]he State must prove that threat by demonstrating that the individual has serious difficulty in controlling sexually harmful behavior such that it is highly likely that he or she will not control his or her sexually violent behavior and will reoffend.
Those findings . . . require an assessment of the reasonably foreseeable future. No more specific finding concerning precisely when an individual will recidivate need be made by the trial court. Commitment is based on the individual's danger to self and others because of his or her present serious difficulty with control over dangerous sexual behavior. [In re Commitment of W.Z., 173 N.J. 109, 132-33 (2002).]
E.S., now age thirty-five, has an extensive criminal history dating to his adolescence. He has five drug-related convictions, and one conviction for aggravated assault, sexual assault, simple assault and kidnapping.
In 1991, E.S. was charged with sexual assault after his former girlfriend accused him of rape. E.S. denied raping his former girlfriend. He claimed that the sexual intercourse was consensual and that the former girlfriend accused him of rape because he refused to give her money. A grand jury no-billed E.S. for this offense and the charge was dismissed.
In October 1992, E.S. was charged with sexual assault, criminal sexual assault, criminal restraint and simple assault, after another former girlfriend accused him of raping her. He admitted that he continued to have sexual intercourse after his former girlfriend told him to stop. He pled guilty to sexual assault and simple assault. All other charges were dismissed. E.S. received a five-year sentence on the sexual assault charge, and a concurrent six-month sentence on the simple assault charge. Prior to his sentencing, Kenneth L. McNiel, Ph.D., the principal clinical psychologist at the Adult Diagnostic and Treatment Center, examined E.S. and concluded as follows:
Based on the results of this evaluation, there is no evidence to indicate a pattern of repetitive and compulsive sexual behaviors. Based on available information, it appears that sexual behaviors in this case were related more to antisocial and situational factors than to compulsive sexual urges. Overall clinical impression is of an insecure individual with pronounced antisocial tendencies, who may well be more severely emotionally disturbed than he has reported during this evaluation, based on test responses and clinical presentation.
In 1998, E.S. was charged with kidnapping, aggravated sexual assault, sexual assault, aggravated criminal sexual contact, criminal sexual contact, terroristic threats, criminal restraints, stalking, possession of a weapon for unlawful purposes, unlawful possession of a weapon, witness tampering and possession of an imitation firearm for an unlawful purpose after another former girlfriend accused him of rape. E.S. denied that he raped the former girlfriend and claimed that the sexual intercourse was consensual. He pled guilty to second degree kidnapping. All other charges were dismissed. He received a ten-year sentence with an eighty-five percent parole ineligibility term, and three years of parole supervision.
As the end of E.S.'s prison term drew near, Harry Green, Psy.D., conducted a mental health pre-parole evaluation of him and determined that he fell in the moderate to high range for committing sexual offenses in the future. Dr. Green recommended that E.S. be referred to the Attorney General's office for consideration for SVPA commitment.
Neal Brandoff, D.O., evaluated E.S. on behalf of the State to determine if he should be involuntarily committed under the SVPA. Dr. Brandoff refused to write a clinical certificate to involuntarily commit E.S. because he determined that E.S. "does not appear to be a compulsive repetitive sexual offender, although his relationship skills may well need improvement." Dr. Brandoff concluded:
[I] do not find [E.S.] to be  motivated by sexually deviant appetites. His sexual charges do not represent deviance or necessarily repetitive abnormal sexual behaviors. He does NOT, to my best medical knowledge, seem appropriate for involuntary commitment as a sexually violent offender.
The State had two other psychiatrists examine E.S. They both wrote a clinical certificate, each concluding that he "suffers from a mental abnormality or personality disorder that makes him likely to engage in acts of sexual violence if not confined to a secure facility for control, care and treatment." The State then filed a petition to civilly commit E.S. under the SVPA. The court found probable cause to believe that E.S. was a sexually violent predator in need of commitment and temporarily committed him to the Special Treatment Unit (STU) pending a final hearing.
Michael R. McAllister, D.O., Doreen Stanzione, Ed.D., and Timothy P. Foley, Ph.D., evaluated E.S. prior to the final hearing. Drs. McAllister and Stanzione testified on the State's behalf and Drs. Brandoff and Foley testified on E.S.'s behalf at the hearing. They all agreed that E.S. has a diagnosis of antisocial personality disorder.
Dr. McAllister also gave a provisional and conditional diagnosis of paraphilia, N.O.S. He testified, however, that because there is only one sexual offense to which E.S. pled guilty, and one guilty plea to kidnapping, there was only a limited degree of certainty about this diagnosis. He did not believe that the conditions were satisfied to make such a diagnosis without reservation. Nevertheless, he concluded that E.S.'s antisocial behavior and criminal sexual behavior toward women would strongly lend itself to further sexual offenses against them. He also concluded that E.S. will have serious difficulty controlling his sexually violent behavior if not confined and that his risk of reoffending sexually is very high. In reaching his conclusions, Dr. McAllister accepted as true the statements made by E.S.'s former girlfriends in the 1991 nobilled incident and the 1998 kidnapping incident and concluded that he raped them.
Dr. Stanzione also gave a provisional and conditional diagnosis of paraphilia, N.O.S. Regarding the antisocial personality disorder diagnosis, she admitted that such a diagnosis in itself does not mean that a person will act out sexually. Nevertheless, she concluded that it "appears that [E.S.] has acted out sexually in service of this disorder" and would act out in a sexually violent manner in the future. In reaching her conclusions, Dr. Stanzione accepted as true the statements made by E.S.'s former girlfriends in the 1991 nobilled incident and 1998 kidnapping incident and concluded that he raped them.
Dr. Stanzione also testified about E.S.'s MMPI-2 results, which were clinically valid and showed no significant elevations. She further testified that E.S.'s PCL-R score was twenty-six, indicating that he possesses a high level of psychopathic traits. She admitted, however, that the elevated PCL-R score can be attributed to E.S.'s extensive criminal history. She also admitted that, ordinarily, if someone has an elevated PCL-R, they would also have an elevated MMPI-2. That was not the case here.
Dr. Brandoff testified that he refused to write a clinical certificate to involuntarily commit E.S. because he did not find E.S. to be a sexually violent predator. He based his refusal on the following facts:
[T]here were no stranger victims. All charges arose out of existing relationships or -- at least originally consensual relationships. There were no juvenile victims. There's no evidence of deviancy. There's no evidence of compulsivity. I was concerned about the current  incident offense that there were 15 charges including six sex offenses and yet, he was only convicted of kidnapping. I could not make sense out of that course of events if it was so clear that he had sexually offended the victim.
The actuarial data, the [MnSOST-R] was a plus one, which puts him at a low risk of reoffense. The -- the Static 99 was plus seven but I -- I really felt that didn't hold as much validity in this case as the [MnSOST-R].
Dr. Brandoff also did not see any evidence of paraphilia because there was no evidence of deviancy or that E.S. obtained gratification from violent sexuality. There also was an absence of stranger victims, which Dr. Brandoff found to be a significant factor.
Dr. Foley testified that E.S. does not meet the criteria for any sexual or Axis I disorder because he has only one sexual assault conviction and no evidence of sexual deviancy. Dr. Foley explained that because the 1991 and 1998 incidents and the 1992 kidnapping conviction are not sex offenses, from a forensic psychological point of view, sex offenses in those cases are not established and, therefore, there is no pattern of sexual offenses. He cautioned that it would be inappropriate for an evaluator to draw factual conclusions from incidents that were not legally supported. He concluded that E.S.'s diagnosis of antisocial personality disorder alone, in the absence of a paraphilic disorder, does not predispose sexual misconduct.
Dr. Foley also emphasized that E.S.'s MMPI-2 results were within normal limits and his Static 99 score accurately reflects his high risk of engaging in future criminal behavior. However, absent a paraphilic disorder or pattern of sexual misconduct, these test results do not predict future sexual misconduct. He also concluded that, while the test results may give rise to a provisional sexual disorder, this does not mean a sexual disorder exists. There must be a pattern of sexual misconduct, which does not exist here.
Judge Freedman found that there was clear and convincing evidence that E.S. committed a sexually violent offense in 1992, and, therefore, is subject to the SVPA. He also found, however, that there was insufficient evidence to support the opinions of Drs. McAllister and Stanzione that E.S. is predisposed to commit acts of sexual violence and will sexually reoffend. He emphasized that neither Dr. McAllister nor Dr. Stanzione could make a diagnosis of paraphilia and that a diagnosis of antisocial personality disorder could not support their conclusions.
Judge Freedman rejected Drs. McAllister's and Stanzione's opinions because they relied on the 1991 no-billed incident and the 1998 kidnapping incident. Regarding the 1991 no-billed incident, Judge Freedman stated:
In reviewing records, in reviewing this history in all these cases, the experts can't know whether any particular document or fact is true because they're dealing with hearsay, they have no personal knowledge. So, what they look for is patterns. If you see the same thing happening over time and time again, over and over, then valid clinical conclusions can be made.
It's this court's opinion that in this case, there is not a sufficient basis to come to those kinds of valid clinical conclusions. We know nothing about why the case was no-billed. We don't know if the victim testified and the grand jury nobilled it. We don't know if the victim wasn't notified. We don't know if they couldn't find her. We have no idea why this case was no-billed.
And to place the reliance that these two experts did on those statements, despite the fact that there are some similarities, the similarities were not all that striking. I think the testimony of the state's experts that there was a pattern or similarities was a stretch -- somewhat of a stretch and not a sufficient establishment of a pattern to justify their conclusions as far as I'm concerned.
Regarding the 1998 kidnapping incident, Judge Freedman stated:
Once again, the state's experts relied heavily on statements and accepting them as true for the dismissed parts of that case. And the facts -- the facts of that case are such that there was a personal relationship between these people, the victim and the perpetrator. It's not your typical sex offense. And there was no conviction of a sex offense.
And, again, I think the reliance was too heavily placed by the state's expert because the prosecutor said we don't know what happened, we don't know why the state dismissed 14 counts in return for a second-degree kidnapping plea. The state --prosecutors don't ordinarily give up aggravated sexual assault charges lightly. At the time of sentencing, if a sentence transcript is in the -- is in the -- in the record, the prosecutor started referring to the dismissed parts of the case.
Respondent's expert -- respondent's --at that time, defendant's counsel, rather, objected and raised issues with regard to the case and pointed out that the prosecutor would plea bargain the case was not there, and that the case in his view was nowhere near as strong as the prosecutor at sentencing was trying to make out, and he pointed to certain problems that they had.
Regardless, we don't know what the circumstances were. So, as W.Z. [, supra, 173 N.J. at 132-33] teaches us, and as Dr. Foley, the respondent's own expert agreed, if there is a sufficient basis for a pattern, to show a pattern, then we can say that a person with an anti-social personality disorder who does, in fact, commit these kinds of offenses, is predisposed within the meaning of the statute. I don't believe we can say that here. And I think that's the reason that the state's proofs fail.
Judge Freedman dismissed the petition and ordered E.S.'s release, concluding that the State did not meet its burden of showing by clear and convincing evidence that his antisocial personality disorder predisposes him to engage in acts of sexual violence.
Our scope of 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). We afford "special deference" to a committing judge's decision and modify it only where the record reveals a clear abuse of discretion. In re Commitment of T.J.N., 390 N.J. Super. 218, 225-26 (App. Div. 2007); In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)).
We agree with Judge Freedman that this case is a "close call." We find, however, that he did not abuse his discretion in "calling" it against the State. The record supports his conclusion that the State failed to meet its heavy burden of proof. We, therefore, affirm the August 29, 2007 order. The matter is stayed for ten days to permit the State to file a petition for certification with the New Jersey Supreme Court.