January 30, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF J.H.M. SVP-160-01.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-160-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 14, 2008
Before Judges Parrillo and Graves.
Following service of a sex offender sentence, J.H.M. was committed to the Northern Regional Unit (NRU) in Kearny on June 27, 2001 under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He had periodic reviews thereafter at which the commitment was continued. He now appeals from the June 28, 2007 order continuing the commitment. We affirm.
By way of background, the predicate offense occurred in 1987 when J.H.M. sexually assaulted his wife's niece, which took place when she was a student in the karate school he operated at the time. As a result, on August 30, 1990, J.H.M. pled guilty to second-degree sexual assault, N.J.S.A. 2C:14-2(b), which is a sexually violent offense pursuant to N.J.S.A. 30:4-27.26(a), and was sentenced to a seven-year term with a two-and-one-half year parole bar, to be served at the Adult Diagnostic and Treatment Center (ADTC).
J.H.M.'s sex crime history actually predates his commission of the predicate offense in 1987. On June 25, 1975, he was charged with two counts of indecent exposure, subsequently pled guilty to one of the counts, and was sentenced on July 16, 1978 to an indeterminate term not to exceed three years at the ADTC. Meanwhile, J.H.M. had also been charged with impairing the morals of a minor, to which he pled guilty on May 3, 1978, admitting to forcing his six-year old stepdaughter to fellate him at least once monthly over a period of several months. J.H.M. was sentenced to an indeterminate term not to exceed three years at ADTC, to run concurrent to the sentence imposed on the July 16, 1978 conviction for indecent exposure. He was discharged to Yardville on June 5, 1981 and paroled on April 1, 1982.*fn1
J.H.M.'s sex crimes did not cease with commission of the predicate offense. Approximately eighteen months after his 1995 release from the ADTC on the 1987 sexual assault conviction, J.H.M. was arrested on January 22, 1997 and charged with stalking an eleven-year old girl, and failing to register as a sex offender. He was found guilty by jury trial of the former and pled guilty to the latter. In March 1999, J.H.M. received an aggregate sentence of three years, upon completion of which, on February 26, 2001, the State petitioned for his involuntary civil commitment pursuant to the SVPA. At the time, J.H.M. was diagnosed with pedophilia, inadequate personality disorder, and personality disorder, NOS.
In an unpublished opinion, we affirmed the June 27, 2001 order of initial involuntary civil commitment, finding that "the record [of the April 23, May 3 and 23, and June 26, 2001 hearings] amply supports the commitment under the SVPA for the reasons given by Judge Freedman in his extensive opinion of June 26, 2001, enhanced by the finding after remand that the State's evidence 'met by clear and convincing evidence the standard enunciated by the Supreme Court in [In re the Commitment of W.Z., 173 N.J. 109 (2002)].'" In re the Commitment of J.H.M., No. A-3208-02T2 (App. Div. December 9, 2003) (slip op. at 13- 14). Thereafter, following a review hearing on December 18, 2006, the Law Division determined that J.H.M. continued to be a sexually violent predator in need of involuntary civil commitment and, therefore, ordered that he remain confined to the NRU.
Following the next scheduled review hearing on June 25, 2007, which is the subject matter of this appeal, Judge Perretti reached the same conclusion, namely that J.H.M. continued to be a sexually violent predator in need of commitment. At that hearing, Dr. Howard Gilman testified for the State, and Dr. Jeffrey Singer testified on behalf of J.H.M. In essence, Dr. Singer opined that J.H.M.'s "risk for sexual offense recidivism is within the low moderate range[,]" based in part on J.H.M.'s considerable control of his behavior since his arrival at the NRU; advancing age (fifty-nine years old); compromised medical condition; treatment gains; polygraph results; and the fact that while operating his karate school, there was only one reported victim although ample opportunity was presented for J.H.M. to have molested many more. In contrast, Dr. Gillman concluded that J.H.M. continues to be at high risk to sexually reoffend based in part on his actuarial score on the Static-99; his history of repeated sexual offending and general antisocial behavior, including pedophilic sexual interactions with girls; and his lack of progress in treatment. As to the latter, Dr. Gillman reported:
[J.H.M.]'s progress in sex offender specific treatment over the past six years has been spotty. Although at times he has been judged to do well by his treatment team, there are indicators that [J.H.M.]'s progress in treatment has been less than robust. These include continued denial of two of his sexual convictions; changing stories regarding his admitted sex offenses; emotionally "empty" self-endorsement of himself as a pedophile, but more robust denial of pedophilic arousal; a poor understanding of his sex offense cycle; a deviant arousal scenario that was crafted in significant part by his wife; and, an inability or refusal to admit to deviant sexual drives outside of his two admitted sexual crimes.
In discrediting Dr. Singer's opinion, Judge Perretti specifically reasoned:
Both in his testimony and in his report he calls attention to the fact that [J.H.M.] was married and had sex with adult women. Dr. Singer acknowledges that pedophilia can be non-exclusive; however, he uses this relationship with adult females as a matter which discredits the diagnosis.
In addition, he points out that [J.H.M.] had ample opportunity to molest additional victims while he was engaged in the business of karate school. There are no more known victims at the school, and this appears to be accurate. However, there is no proof that there were no more victims and the fact that there were no known victims cannot be used to infer that there were no more victims.
Dr. Singer takes the position that for a diagnosis of pedophilia, it is necessary to establish that there were more victims, although the exact number of victims required for the diagnosis is not suggested by the witness, and certainly is not mentioned in the D.S.M.
Lastly, Dr. Singer points out that [J.H.M.] underwent polygraph tests which according to the witness, "were grossly inconsistent with a pedophilic pattern of sexual arousal." Thus, Dr. Singer would use a polygraph as a diagnostic tool.
In his testimony, he acknowledged his use of a polygraph as a modality for making a diagnosis. . . .
It is not at all clear that the suggestion that a polygraph is a diagnostic tool is anything more than quack science.
Dr. Singer insists that [J.H.M.] is not a pedophile but is merely a child molester. In response to the Court's inquiry, he explained that pedophilia requires sexual orientation to prepubescence to be the person's primary focus. And must be the person's exclusive sexual orientation.
On the contrary, a mere child molester is not drawn by such arousal. This Court is incapable of understanding this distinction since a primary focus on prepubescence for sexual purposes is not a part of the D.S.M. and indeed, the witness acknowledges that pedophilia can be non-exclusive.
Dr. Singer suggests that [J.H.M.]'s release plans are sufficient to so mitigate any possible risk that the respondent may pose as to make it acceptable to discharge him.
These release plans include family support from [J.H.M.]'s present wife and an offer of employment from his nephew.
In addition, [J.H.M.] is committed to a 12 step program to deal with substance abuse.
According to Dr. Singer, being with people who know [J.H.M.]'s history would put him in a good preventive environment. It is noted, however, that [J.H.M.] was married to his current spouse at the time that he commit[ted] the offense which immediately precedes his most recent conviction.
It does not appear that a release plan depending entirely upon returning [J.H.M.] to the environment in which he commit[s] his sex offenses will in anyway serve to protect the interests of the public.
For the reasons above stated, the testimony of Dr. Singer is rejected as neither persuasive nor credible.
In contrast, the court credited the testimony of Dr. Gilman:
Dr. Gilman had a one hour interview with [J.H.M.]. He testified that he noted that [J.H.M.]'s stories of his sex offending conduct and the circumstance thereof are not reliable inasmuch as the stories change from report to report and there is no consistency in the changes.
Thus, there is no way for Dr. Gilman to know the truth. The psychiatrist pointed out that it is important for a person to give a truthful report of his sex offending for purposes of therapy. In order to overcome a difficulty the person must acknowledge what those difficulties are. Thus, according to Dr. Gilman, there can be no outside treatment to effect change, and there is no demonstration that any change has come from within [J.H.M.].
To Dr. Gilman, [J.H.M.] agreed that he is a pedophile, but denies any arousal to children.
In this context, Dr. Gilman discussed the problem of [J.H.M.]'s credibility.
In his review of the interview at the T.P.R.C., Dr. Gilman received the impression that [J.H.M.] cannot utilize treatment. He has a limited inflexible surface understanding but has not personalized what he has learned.
Dr. Gilman states that [J.H.M.] is predisposed to commit sexually violent acts as a result of the diagnoses which the psychiatrist presents in his report and in his testimony. He diagnoses pedophilia, rules out exhibitionism, diagnoses personality disorder not otherwise specified, with narcissistic and antisocial features.
Dr. Gilman gives [J.H.M.] a score of seven on the Static[-]99 putting him in the high category for risk of re-offense.
It's pointed out by the psychiatrist that the combination of pedophilia and personality disorder serve to reinforce each other. The personality disorder plays a major role in [J.H.M.]'s difficulty in treatment.
He also points out that [J.H.M.]'s last offense occurred when he was 50 years old, thus demonstrating that age does not mitigate [J.H.M.]'s risk in this case. And the statistics about decreased recidivism are not applicable to [J.H.M.].
Dr. Gilman considered [J.H.M.]'s proposed release plan and is of the expressed opinion that the support of [J.H.M.]'s wife is not sufficient in this case to mitigate the risk.
Consequently, Judge Perretti concluded:
The [c]court was clearly convinced by the clear convincing evidence provided by Dr. Gilman that [J.H.M.] continues to be a sexually violent predator. He suffers from abnormal mental conditions and personality disorder that influence his volitional, emotional and cognitive functioning so as to predispose him to commit sexually violent acts. He has serious difficulty controlling his sexually violent behavior as he has established by re-offending after being committed to A.D.T.C.
He is highly likely to recidivate if not continued in commitment for further treatment. [J.H.M.] does not recognize in spite of his history of sex offending, that he has any deviant arousal. It would appear that he is thus putting himself beyond treatment.
This appeal follows.
An involuntary civil commitment can follow service of a sentence, or other criminal 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. "[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 that he or she will not control his or her sexually violent behavior and will reoffend." W.Z., supra, 173 N.J. at 132. The court must address "his or her present serious difficulty with control," and the State must establish that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 132-33. See also In re Commitment of J.M.H., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
Once an individual has been committed under the SVPA, a court must conduct an annual review hearing to determine whether the committee will be released or remain in treatment. N.J.S.A. 30:4-27.35. The burden remains upon the State to prove by clear and convincing evidence that the committee continues to be a sexually violent predator, as defined in the SVPA and interpreted in W.Z., supra, 173 N.J. at 131-32. "[A]n 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." Id. at 130. In reviewing a judgment for commitment under the SVPA, the scope of appellate review is "extremely narrow," and the trial court's decision should be given the "'utmost deference' and modified 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) (citing State v. Fields, 77 N.J. 282, 311 (1978)). See also In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower [court's] findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996) (citing Fields, supra, 77 N.J. at 311).
We are satisfied from our review of the record that the judge's findings are amply supported by substantial credible evidence. State v. Locurto, 157 N.J. 463, 470-71 (1999). We affirm substantially for the reasons stated by Judge Perretti in her oral opinion of June 28, 2007.