September 26, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF H.W.H., SVP #30-99
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. 30-99.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 17, 2008
Before Judges Fisher and C.L. Miniman.
H.W.H. appeals from an order entered on June 11, 2008, which continued his commitment to the Special Treatment Unit pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.35. We affirm.
A criminal defendant, who has been convicted of a predicate offense to the SVPA, may be subject to an involuntary civil commitment when suffering 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. Annual review hearings are required to determine whether the person remains in need of commitment despite treatment. N.J.S.A. 30:4-27.35; N.J.S.A. 30:4-27.32(a).
To warrant commitment of an individual or the continuation of 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 Commitment of W.Z., 173 N.J. 109, 132 (2002). See also In re Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004). In that setting, the court must address the individual's "present serious difficulty with control over dangerous sexual behavior," and the State must establish "by clear and convincing evidence . . . that it is highly likely that the person . . . will reoffend." W.Z., supra, 173 N.J. at 132-34. 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). The State met its burden here.
The record reveals that H.W.H. is now forty-four years old. In 1994, H.W.H. pled guilty to second-degree sexual assault, N.J.S.A. 2C:14-2(b), which conviction qualified as a "sexually violent offense," N.J.S.A. 30:4-27.26. The victims were eight-and nine-year old female relatives. As a result, H.W.H. was sentenced to a five-year prison term to be served at the Adult Diagnostic and Treatment Center at Avenel.
The State first petitioned for and obtained H.W.H.'s civil commitment in 1999. Review hearings resulted in orders of commitment entered on June 29, 2000, June 19, 2001, June 7, 2002, and January 10, 2003. The last of these was appealed; we affirmed by way of an unpublished opinion filed on April 14, 2004. In re Commitment of H.W.H., No. A-3465-02T2. Following another review hearing, commitment was continued by way of an order entered on July 15, 2004. This order was appealed, and we affirmed by way of an unpublished opinion filed on January 27, 2005. In re Commitment of H.W.H., No. A-7069-03T2.
Another review hearing was conducted on June 11, 2008. At that time, the court heard the testimony of the State's two expert witnesses, Dr. Pogos Voskanian and Dr. Jamie Canataro. H.W.H. neither testified nor called any witnesses. At the conclusion of the one-day hearing, the judge held that the State had proven by clear and convincing evidence that H.W.H. should continue to be committed pursuant to the SVPA. An order memorializing that determination was entered at the same time.
H.W.H. has appealed the June 11, 2008 order, arguing that the judge's findings were against the weight of the evidence. We disagree.
In her oral opinion, the judge stated that she found the State's witnesses to be credible and set forth a thorough description of the evidence she found persuasive. Among other things, the judge found that H.W.H. suffers from abnormal mental conditions that predispose him to commit sexually violent acts, has serious difficulty controlling his sexual behavior, and has "regressed in treatment." The judge summarized her findings in the following way:
The diagnosis of pedophilia is based upon [H.W.H.'s] long history of sex offending against children. The diagnosis of poly substance dependence is clearly supported by [H.W.H.'s] own self reports. His behavior, both in society and in custody clearly support the diagnosis of personality disorder with antisocial features.
The state's case was clear and convincing. The [c]court is clearly convinced that [H.W.H.] continues to be a sexually violent predator who suffers from abnormal mental conditions and personality disorders that influence his cognitive, volitional and emotional functioning so as to predispose him to commit sexually violent acts. He has serious difficulty controlling his sexually violent behavior. He continues to demonstrate by his possession of juvenile pornography that his arousal continues strong in the institution. He is highly likely to commit sex offenses within the foreseeable future if not continued in confinement. He has [made] little or no progress in sex offender specific treatment and remains at the very beginning of treatment in Phase 2 after eight years of commitment.
In this appeal, H.W.H. has not only argued, in general, that the State's proofs were inadequate, but he has also presented two specific arguments for our consideration: (1) that Dr. Voskanian's interpretation of the risk of recidivism was faulty or otherwise reveals a bias in favor of such an opinion, and (2) that the judge should have been more discerning regarding Dr. Canataro's alleged inconsistent reliance upon polygraph results. We find the second point to be without sufficient merit to warrant a discussion in a written opinion.
As for the first point, H.W.H. refers us to that part of the trial during which H.W.H.'s counsel and Dr. Voskanian fenced about what constitutes a high risk of recidivism, causing Dr. Voskanian to finally say that "if the risk is five percent to me it's extremely high risk" and would warrant a continuation of commitment. Then, in response to counsel's request for an indication of how many times Dr. Voskanian had "found somebody to be less than highly likely [to reoffend]," Dr. Voskanian said that "[a]ll of them are a high risk," and acknowledged that he had never opined that an individual subject to a review hearing was less than highly likely to reoffend. Based on this testimony, H.W.H. argues that this expert, upon whose testimony the judge's findings rely, incorrectly interpreted what our Supreme Court meant when it imposed a standard of "high risk." See W.Z., supra, 173 N.J. at 132. He also argues that the expert's unblemished record of never having found anything but a high risk of reoffense in any of the cases in which he has testified demonstrated that Dr. Voskanian is merely a "hired gun" and that his opinion is not worthy of being credited.
In W.Z., the Court held that for there to be an involuntary commitment the State "must prove by clear and convincing evidence that the individual has serious difficulty controlling his or her harmful sexual behavior such that it is highly likely that the person will not control his or her sexually violent behavior and will reoffend." 173 N.J. at 133-34 (emphasis added). The Court also explained that although the matter warrants that we be "as precise as possible when describing the required level of likelihood of that harmful behavior," an attempt to quantify this factor by reference to a percentage "can cause confusion where the parties must present and the trial court must evaluate difficult, nuanced medical evidence and reduce it to specific findings affecting a person's liberty." Id. at 131-32.
Certainly, counsel's inquiry into the expert's understanding of what "high likely" means to him in this context is an appropriate -- indeed, fertile -- area of cross-examination. The expert's understanding of what is required for commitment would certainly illuminate for the finder of fact whether the expert's conclusions are worthy of credit or persuasive or whether his opinions were based on a faulty standard. And it was certainly of interest, and perhaps a bit troubling, to consider that this expert may have actually believed that a five percent risk of reoffense is a "high risk." But, in considering the entirety of Dr. Voskanian's testimony, we are not convinced that this is precisely what the expert meant or, more exactly, we are not persuaded that the judge's apparent view that the expert was being sarcastic is a finding not worthy of our deference.
The judge was entitled to view Dr. Voskanian's testimony in light of her apparent belief, which we discern from some of her comments, that Dr. Voskanian was being sarcastic. The judge's decision to credit Dr. Voskanian's opinion despite his defensiveness and combativeness during cross-examination is not something we should lightly second-guess.*fn1 These are the types of findings that are "substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Accordingly, in applying this standard, we are obligated to view the judge's findings not from the point of view of how we might have considered Dr. Voskanian's testimony if we "were the court of first instance," but instead to determine "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Locurto, supra, 157 N.J. at 471 (quoting State v. Johnson, supra, 42 N.J. at 162).
In short, our standard of review is narrow. We defer to a trial judge's findings when they are supported by evidence in the record, and we "give utmost deference to the commitment finding and reverse only for 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); see also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Civil Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). After carefully reviewing the record on appeal, we find no abuse of discretion and conclude that all the judge's findings are supported by testimony the judge was entitled to credit, that these findings are entitled to our deference, and that the judge did not abuse her discretion in continuing the commitment of H.W.H. pursuant to the SVPA.