February 5, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF R.J.A. SVP-194-01.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-194-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 14, 2008
Before Judges Parrillo and Graves.
R.J.A. appeals from a June 8, 2007 order of the Law Division continuing his involuntary commitment to the Special Treatment Unit (STU), pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, for a term of one year, a new hearing to be held on May 1, 2008. After reviewing the record in light of the contentions advanced on appeal, we affirm.
R.J.A. has a history of violent sexual offenses. The sexually violent offense for which R.J.A. is currently committed to the STU occurred on December 2, 1995, while he was on parole for two prior sexual assaults. In the 1995 attack, R.J.A. struck and forcibly raped a former girlfriend, M.C., also the mother of one of his children. The two previous sexual assaults happened in 1988 when R.J.A. forcibly raped two other females, one an adult stranger and the second a thirteen-year-old runaway. The second 1988 sexual assault occurred while R.J.A. was out on bail for the first sexual assault. In addition to sexually violent propensities, R.J.A. also has two prior convictions for assault and one for theft, and admits to both drug and alcohol addictions.
For the 1995 sexual assault of M.C., R.J.A. was sentenced to an eight-year term, with a five-year parole bar, to be served at the Adult Diagnostic and Treatment Center. Before completing his sentence, the State filed a petition to have R.J.A. civilly committed pursuant to the SVPA. R.J.A. was temporarily committed to the STU on August 30, 2001, and was ordered committed to the STU after a final hearing on September 18, 2001. Shortly after being committed to the STU, R.J.A. was placed on the restricted activities program for meeting his latest rape victim, M.C., who used false identification to gain access to the treatment facility. R.J.A. knew it was wrong to continue seeing M.C. but refused to cut ties with her until right before his first review hearing in 2002.
The initial review hearing was held on November 18 and December 2, 2002, at which time the court ordered that R.J.A. remain in the STU. Specifically, Judge Perretti found that R.J.A. "has great difficulty controlling his impulses, particularly his impulses relative to his sexual behavior" and "that it is highly likely that he will recidivate without further care and treatment." She concluded that he continues to be a sexually violent predator, suffering from abnormal mental condition and personality disorder.
R.J.A. appealed the December 2002 order, and we affirmed. In the Matter of the Commitment of R.J.A., No. A-2089-02T2 (App. Div. June 27, 2005). We noted that the State's proofs established that R.J.A.'s diagnosis at the time of commitment was "paraphilia NOS (non-consent), alcohol and cocaine dependence, sexual sadism and antisocial personality disorder[,]" id. at 3; that R.J.A.'s initial diagnosis had not changed, and now also included impulse disorder NOS and depressive disorder NOS; that his predisposition for sadistic sex placed him in a high risk category for recidivism, id. at 4; and that R.J.A. is a "power and anger" rapist who uses rape as a means of venting anger out on the victim. Id. at 4. We further noted that even R.J.A.'s expert admitted that R.J.A.'s Static-99 score indicated he was at high risk to reoffend. Id. at 5. Thus, all of the experts had then agreed that R.J.A. needed more treatment and that he was still at high risk to reoffend, particularly given the fact that two of his previous rapes occurred while he was out on bail or parole. Id. at 5-6. We, therefore, affirmed the court's finding that R.J.A. would be highly likely to recidivate if released and that he continued to be a sexually violent predator. Id. at 10-11.
Subsequent review hearings were held on May 15 and 21, 2004 and February 23, 2006, at which times R.J.A. continued to be deemed a sexually violent predator in need of confinement. The latest review hearing, which is the subject matter of this appeal, took place on May 15 and 21, 2007, at the conclusion of which Judge Freedman, on June 8, 2007, ordered R.J.A.'s continued confinement. At this hearing, Drs. Luis Zeiguer and Robert Carlson testified for the State. Both experts again confirmed R.J.A's previous diagnosis of paraphilia NOS (non-consent) and polysubstance dependence, now in sustained institutional remission. In addition, Dr. Carlson diagnosed R.J.A. with antisocial personality disorder.*fn1
R.J.A. had related to Dr. Zeiguer different versions of the three rape offenses than he had previously provided to others and different versions than the victims' actual accounts. He said he knew the first female he raped and she had invited him to her brother's house to do crack-cocaine. In contrast, the victim reported that R.J.A. was a stranger, and there is no evidence in the police report that she ever offered to take R.J.A. to her brother's house or that her brother is a drug dealer. R.J.A. also said he knew his thirteen-year-old victim, and that she presented herself as an adult, which directly contradicts the investigation report of the incident.
Lastly, R.J.A. reported to Dr. Zeiguer that on the night he attacked M.C., the two of them had arranged to meet at the bar, he became angry when she tried to leave without him, and he lost his memory and could no longer remember the sexual assault clearly. The victim, however, initially reported that when she saw R.J.A. at the bar that night they had no plans to meet there, he became angry when she tried to give a male friend a ride home, and, after a fight, he dragged her into an alley and raped her. Although M.C. later recanted her rape accusation in 2004, the judge hearing R.J.A.'s post-conviction relief (PCR) application concluded that M.C.'s recantation was not credible, finding she suffered from a classic case of battered woman syndrome. Dr. Zeiguer agreed with the PCR judge and found it significant that M.C. only recanted her story after R.J.A. reinitiated contact with her after he was convicted of her rape.
Dr. Zeiguer also found significant the fact that while R.J.A. reported no longer having fantasies about forced sex or violence, he had also failed a similar question on a recent polygraph test. Although R.J.A. said that he misunderstood the examiner's question, Dr. Zeiguer found this explanation implausible.
Dr. Zeiguer also referenced two institutional offenses. The first offense, occurring in May 2002, was very violent, and involved allegations that R.J.A. beat another inmate bloody with a broomstick. The incident was reported by confidential informants within the institution but no charges were pressed because the institution did not have the resources to protect the witness. R.J.A.'s most recent institutional infraction was in 2006 when he was discovered with one arm of a small pair of tweezers tucked into his boot, attempting to dispose of the possible weapon.
Dr. Carlson's testimony focused on R.J.A.'s disengagement from the treatment process. Apparently, R.J.A. had withdrawn from treatment and had not been participating in therapy sessions. Dr. Carlson recommended that R.J.A. continue in Phase III of treatment, and since the time of his report, Dr. Carlson's follow-up did indicate that R.J.A. had begun to participate more actively. Dr. Carlson concluded R.J.A. needed to re-engage in his therapy and that he needs to "be a little bit more thoughtful" in order to progress.
Dr. Daniel Greenfield testified on R.J.A.'s behalf. He diagnosed R.J.A. with dysthymia, polysubstance abuse in institutional remission, paraphilia not otherwise specified by history and in institutional remission, and antisocial personality disorder. Dr. Greenfield found that R.J.A. has followed through with the treatment recommended. He also said that R.J.A.'s accounts of his sex offenses were consistent with the official record, however, he never specifically reported R.J.A.'s versions. R.J.A. also denied having deviant fantasies, which Dr. Greenfield found to be significant because continuing deviant fantasies could be a bad prognostic indicator. Dr. Greenfield concluded that R.J.A. was not highly likely to reoffend for five reasons: 1) R.J.A. is in a high level of treatment, Phase III; 2) forty-year old R.J.A. has aged eleven years since his original offense and, though not physiologically old, his age and maturity reduce his likelihood to reoffend; 3) R.J.A. has a viable discharge plan; 4) R.J.A. is aware that he will be under community supervision for life and understands the impact of this sentence; and 5) though R.J.A. does fall into the high risk for reoffending category on the Static-99 scale, his treatment has mitigated the likelihood that he will reoffend, a factor which the Static-99 does not take into account.
At the conclusion of the hearing, Judge Freedman found that R.J.A. "remains a person who would have serious difficulty controlling his sexually violent behavior." Specifically, Judge Freedman discredited Dr. Greenfield's testimony that R.J.A. no longer entertained deviant sexual fantasies, reasoning that a recent treatment note indicated R.J.A. himself admitted to having deviant sexual fantasies in the past six months, and this treatment note was never referenced in Greenfield's report. Judge Freedman found both the treatment note and polygraph test results to be determinative of this fact, which according to Dr. Greenfield's own testimony, would have changed his assessment.
As to R.J.A.'s treatment plan, the court reviewed the sporadic progress made. R.J.A. would at times participate in treatment, then withdraw and refuse to answer any questions or answer questions while refusing to discuss any specific details. In fact, the court noted that previously R.J.A. was disengaged from his treatment and then, right before his polygraph examination, re-engaged in treatment, most likely to prepare for the test. Judge Freedman noted that even more recently, R.J.A. refused to fill out his treatment plan resident update form, or sign the treatment plan itself, and neither of these actions is consistent with "a person who is invested in treatment, [or] fully cooperative with treatment."
Judge Freedman also found R.J.A. to be manipulative: "he's a manipulator and I think he's attempting to manipulate himself out of here without being open and honest about his offenses and without being open and honest about his . . . deviant fantasy life." The court found, on the basis of Dr. Zeiguer's expert opinion, that if R.J.A. were released, he would quickly revert to substance abuse and to committing sexually violent offenses again. Based essentially on R.J.A.'s attitude and lack of frankness in treatment, the court opined that R.J.A. would not use the skills learned in treatment and, if released, would be a "ten," highly likely to reoffend.
Crediting the State's proofs, Judge Freedman found that R.J.A. remained a sexually violent predator in need of further treatment. We agree.
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." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). 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).
We are satisfied from our review of the record that the judge's findings are amply supported by substantial competent, credible evidence. We affirm substantially for the reasons stated by Judge Freedman in his oral decision of June 8, 2007.