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In re Civil Commitment of M.T.H.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 15, 2008

IN THE MATTER OF THE CIVIL COMMITMENT OF M.T.H. SVP-429-06

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-429-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 6, 2008

Before Judges Winkelstein and Yannotti.

M.T.H. appeals from a November 14, 2006, order committing him to the State of New Jersey Special Treatment Unit pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.35. On appeal, he raises the following three points for our consideration:

POINT ONE

THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT M.T.H. WAS SUBJECT TO SVP COMMITMENT.

POINT TWO

THE COURT ERRED IN RELYING ON THE OPINIONS OF DRS. MCALLISTER AND FRIEDMAN BECAUSE THESE OPINIONS WERE BASED IN PART ON THE OPINIONS OF NON-TESTIFYING EXPERTS (Not Raised Below).

POINT THREE

THE EVALUATIONS PREPARED BY NON-TESTIFYING EXPERTS CONSTITUTE HEARSAY, DO NOT COMPLY WITH N.J.R.E. 703, AND SHOULD NOT HAVE BEEN ADMITTED AS EXHIBITS AT TRIAL (Not Raised Below).

We conclude that appellant's arguments are without merit and affirm.

A criminal defendant who has been convicted of a predicate offense to the SVPA may be subject to an involuntary civil commitment when he "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. To warrant commitment, the State must prove 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 Civil Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address the individual's "present serious difficulty with control over dangerous behavior." Id. at 132-33. The State must establish "by clear and convincing evidence . . . that it is highly likely that the person . . . will reoffend." Id. at 133-34; see also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 611 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). Here, the State has met its burden.

M.T.H. is thirty-five years old. On March 17, 1997, he pleaded guilty to five counts of an eight-count accusation. Specifically, he pleaded guilty to two counts of third-degree criminal restraint; third-degree luring; fourth-degree ludeness; and fourth-degree criminal sexual contact. Consistent with the plea agreement, the court imposed a flat four-year sentence. The events underlying the charges occurred in 1995, when on several separate occasions, appellant attempted to lure minors into his car, attempted to physically restrain a minor, exposed his private parts to a minor, and touched the breast and crotch area of another minor in an attempt to gratify himself.

Appellant was convicted in October 2001 of five counts of third-degree luring a child into a motor vehicle for the purpose of committing an offense against the child, and one count of violating conditions of previously-imposed community supervision for life. As part of the factual basis for his plea, he admitted that he committed these offenses with individuals under eighteen years of age in an attempt to lure them into his car to have sexual contact with them. On counts one, two and three, the court imposed a five-year prison term with a thirty-month period of parole ineligibility; on counts four and five, a three-year consecutive period of incarceration; and on count six, an eighteen-month concurrent period of incarceration.

Before appellant completed his prison term, the State petitioned to have him civilly committed under the SVPA. His commitment hearing was held on November 9, 2006, before Judge Freedman, at which time the State presented the testimony of Dr. Brian Friedman, a psychologist, and Dr. Michael McAllister, a psychiatrist.

Dr. Friedman had interviewed M.T.H. for approximately two hours. According to Dr. Friedman, over a six-month period, M.T.H. committed offenses against multiple victims, all of whom were minors, involving physical contact, sexual contact, and twelve instances of non-contact sexual behavior. Dr. Friedman testified that M.T.H. had some insight into his arousal and exhibitionism, but had poor insight into high risk situations, and minimized the extent of his aggressive behavior.

Dr. Friedman diagnosed M.T.H. with paraphilia, N.O.S. (non-consent), and hebephilia, ruling out pedophilia; exhibitionism and personality disorder, N.O.S., with histrionic traits. Dr. Friedman administered personality testing to appellant. The results were consistent with individuals who were typically needy in their relationships, and tended to lack insight into their psychological issues. The doctor testified that those individuals tended to be "treatment-resistant" and were often early dropouts of treatment programs. He opined that M.T.H. had serious difficulty controlling his sexual behavior and posed a high risk to sexually reoffend if not confined.

Dr. McAllister rendered a similar, although not identical, diagnosis. He concluded that M.T.H. suffered from paraphilia, N.O.S.; pedophilia, females; exhibitionism; personality disorder, N.O.S.; and substance abuse. The doctor found that M.T.H.'s urges were very high and his ability to control his impulses was low. M.T.H. had serious difficulty controlling his sexually violent offending behavior, having committed repeated sexually deviant acts or attempted sexually deviant acts against twenty victims. He found that M.T.H. was an extreme risk to commit acts of sexual violence if released, having poor insight and judgment about his sexual perversion.

Having accepted the testimony of these medical professionals, Judge Freedman found that the State proved by clear and convincing evidence that M.T.H. was subject to commitment as a sexually violent predator. In reviewing his decision, our scope of review is extremely narrow; we defer to the trial court's determination unless the record reveals a clear abuse of discretion. In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 493 (App. Div.), certif. denied, 185 N.J. 393 (2005); In re Civil Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001); see also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). Here, we find no abuse of discretion. The record is more than sufficient to support the judge's determination that appellant suffers from mental abnormalities that predispose him to commit sexually violent acts; that he has serious difficulty with control over his dangerous behavior, and he is highly likely to reoffend.

Plaintiff's remaining arguments, that the court improperly relied on opinions that were based in part on opinions of non-testifying experts, and that those opinions of non-testifying experts constitute hearsay and are not in compliance with N.J.R.E. 703, are without merit. An expert may rely on hearsay in forming an opinion concerning a defendant's mental state. State v. Eatman, 340 N.J. Super. 295, 302 (App. Div.), certif. denied, 170 N.J. 85 (2001). A mental health professional is "permitted to testify about a defendant's prior criminal history in order to offer an opinion about a defendant's mental condition." J.H.M., supra, 367 N.J. Super. at 612. The use of a presentence report in forming that opinion is proper. Ibid.

Here, both mental health professionals who testified on behalf of the State properly considered appellant's prior criminal history, and their opinions were based on evidence of the type reasonably relied upon by experts in their field in formulating opinions of an individual's mental condition. N.J.R.E. 703; J.H.M., supra, 367 N.J. Super. at 612. Appellant's arguments to the contrary are without sufficient merit to warrant additional discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

20080515

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