October 1, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF W.A.L. SVP-333-03
On appeal from Superior Court of New Jersey, Law Division, Essex County, SVP No. 333-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 17, 2008
Before Judges Cuff and Baxter.
W.A.L. appeals from a July 3, 2008 order that continued his commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. W.A.L.'s commitment to the STU began on August 28, 2003, when he was temporarily committed. The Law Division entered an order of involuntary civil commitment at an initial hearing on January 8, 2004. Although W.A.L. appealed the January 8, 2004 order to this court, he subsequently withdrew that appeal. Thereafter, review hearings were held on July 12, 2006, and June 28, 2007, both of which resulted in orders continuing W.A.L.'s commitment to the STU. The most recent hearing, and the subject of this appeal, was held on July 2, 2008. We affirm.
W.A.L.'s predicate offense is a September 30, 1999 conviction for an August 27, 1998 second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1). On the day in question, forty-six year old W.A.L. drove J.W., a forty-one-year old woman whom he knew, to a vacant field where he forced her into the backseat of the car, held her down by applying his right arm against her neck, and sexually assaulted her twice. On September 30, 1999, W.A.L. was sentenced for that offense to a six-year term of imprisonment at the Adult Diagnostic and Treatment Center (ADTC) at Avenel, placed on community supervision for life and ordered to register as a sex offender.
W.A.L.'s sexual assault against J.W. was preceded by other sexual offenses, against both adolescent females and adult women. Specifically, on July 18, 1980, W.A.L. was sentenced to six to twenty-three months imprisonment in Monroe County, Pennsylvania as a result of an April 1980 incident in which W.A.L., then age twenty-seven, put his hand in the underpants of E.W., his eleven-year-old half-sister, and fondled her vaginal area. On October 10, 1980, W.A.L. was paroled. On May 1, 1981, while still on parole, W.A.L. was arrested for a sexual assault against sixteen-year-old F.F. at a motel, in which F.F. reported that W.A.L. forced her into the motel room by grabbing her arm and slapping her.*fn1 On May 10, 1982, W.A.L. was convicted of second-degree sexual assault and sentenced to a seven-year term of imprisonment for that crime.
During the July 2, 2008 hearing that is the subject of this appeal, the State presented the testimony of Pogos H. Voskanian, a psychiatrist. Dr. Voskanian diagnosed W.A.L. as suffering from: paraphilia, NOS; pedophilia, attracted to females, non-exclusive type; personality disorder NOS with anti-social traits; borderline intellectual functioning; and a history of alcohol dependence. Dr. Voskanian's twenty-seven page written report of June 6, 2008 was the result of Voskanian's clinical evaluation of W.A.L. on June 4, 2008, which lasted for approximately one-and-one-half hours. Voskanian's June 6, 2008 report was also based upon his review of the August 2003 petition for W.A.L.'s civil commitment to the STU, the records of W.A.L.'s treatment at the ADTC, and evaluations by Robert Carlson, Psy. D., and Evan Feibusch, M.D. Dr. Voskanian also reviewed and considered the report of the Treatment Progress Review Committee (TPRC) dated June 20, 2007, as well as all of W.A.L.'s treatment progress notes from the year preceding the July 2, 2008 hearing.
At that hearing, Voskanian was asked to describe the impact of those materials on the formulation of his own opinion. In answering, he testified that his review of those sources of information allowed him to "gather factual information" and "develop . . . a more complete and comprehensive picture of [W.A.L.'s] functioning and progress in treatment." Voskanian emphasized that his review of those documents was merely as background because he "ultimately formulate[d] [his] own diagnoses." In the course of his testimony, Voskanian commented that Dr. Feibusch, who had prepared a psychiatric report the previous year, had written an "excellent report."
Voskanian described W.A.L.'s sex offense history as encompassing "sexualized anger." According to Voskanian, W.A.L. "expresses his anger by raping, molesting and committing acts of violence . . . ." Voskanian also opined that when an individual such as W.A.L. "suffers from both personality disorder and a paraphilia or pedophilia, those conditions in combination . . . markedly increase the risk that such person will sexually re-offend. He commented that W.A.L.'s untreated alcohol abuse would exacerbate W.A.L.'s poor judgment and lack of self-control.
Voskanian concluded that W.A.L. remains at "a high risk" of sexually re-offending because his paraphilia and personality disorder "affected him emotionally, cognitively and volitionally so as to currently predispose him to commit acts of sexual violence." When asked whether W.A.L.'s anger and risk of re-offending had diminished because of his age, now fifty-seven, Voskanian disagreed, comparing W.A.L. to a "volcano. You see the smoke. One day it's going to erupt. Basically, . . . all the elements that can relate to [an] anger outburst are still there."
The State also presented the testimony of Jason Fleming, a psychologist who serves as a member of the TPRC. Fleming described W.A.L.'s progress in treatment over the past year as "unproductive" because, according to the treatment team, W.A.L. is "not internally motivated, but just complying--just doing what he thinks he has to do." Fleming's written report, which was admitted in evidence, and his oral testimony, provided the following facts and opinions: 1) W.A.L's Static-99 actuarial score of 6 places W.A.L. in the "medium-high risk category" of committing another sexually violent offense; 2) W.A.L. was removed from the Therapeutic Community (TC) in May of 2008 because he was "unproductive and unwilling to address his treatment issues;" 3) although W.A.L. attended sixty-one group therapy sessions while in the TC, he "took the floor" to discuss his sexual offense cycle on only three occasions; 4) his "floors" were described by treatment team members as "not voluntary," because W.A.L. had to be continually prodded by group members and facilitators to address the group; 5) on the three occasions that W.A.L. "took the floor, he became "frustrated, angry, annoyed, [and] resentful of the process" when prompted by others to discuss his sexual offense cycle; 6) W.A.L. "has a history of sexually offending adult women against their will and has acknowledged an arousal to the struggle . . . and the taking [of] sex from an individual against their will"; 7) W.A.L.'s difficulty in "maintaining positive self-esteem . . . impair[s] his functioning and . . . affect[s] his ability to continue to make progress in the treatment program;" 8) despite the recommendation of W.A.L.'s psychiatrist that he continue on anti-depressant medication in order to increase his chance of benefiting from treatment, W.A.L. has "taken himself off medications at different times against the recommendation of . . . the psychiatry staff"; 9) W.A.L. did not benefit significantly from the Anger Management or Relapse Prevention II modules and was consequently directed to enroll in those modules for a second time, but has not done so; and 10) W.A.L. "has not clearly discussed his [offense] cycle in groups" and has only "an elementary understanding of relapse prevention."
Dr. Fleming agreed with Dr. Voskanian's diagnosis of paraphilia, NOS; however, Fleming concluded that the evidence of pedophilia was not sufficiently strong to warrant a definitive diagnosis. Consequently, Dr. Fleming established a provisional diagnosis of pedophilia. Fleming observed that W.A.L. admits to continued pedophiliac arousal, commenting that W.A.L. "vaguely and inconsistently admits to being aroused by his eleven-year-old victim." Fleming concluded that W.A.L. was likely understating the extent to which his deviant arousal extends to other pre-pubescent children.
Ultimately, Fleming opined that W.A.L. "has a very elementary grasp of his sexual offense cycle and he has failed to consider how anger, frustration and self-esteem issues aggravated his substance use and fueled and re-enforced his deviant fantasy life." Consequently, according to Fleming, W.A.L. is "experiencing difficulty with sufficiently engaging in sex-offender-specific treatment at this time." Indeed, when interviewed by the TPRC and asked about his progress in treatment during the past year, W.A.L. stated, "being honest, I slacked off for the past few months. I'm not doing as well as I should have been doing." Dr. Fleming concluded his testimony by recommending, as had the TPRC, that W.A.L. remain confined because his "treatment response appears to be limited at this time" and his risk of re-offending is "high."
W.A.L. presented no evidence and no witnesses. At the conclusion of the testimony, Judge Freedman concluded that:
[W.A.L.] has demonstrated a pattern of disregard for the well-being of others, poor decision making, impulsivity, and difficulties with empathy and remorse.
The quality of his floors is not good. He has to be forced to participate. Doesn't take the initiative, particularly when given the opportunity. He has exhibited anger in group. . . . The doctor pointed out that [W.A.L] needs to discuss things in process group, not just tell them to evaluators. [Dr.] Fleming testified that [W.A.L] had acknowledged arousal to his eleven-year-old half-sister, but denied being aroused to other children. However, in the past, he has admitted to being aroused to other children.
Based on the testimony of the two experts, whom I credit, and my review of the record, I am satisfied to find by clear and convincing evidence that [W.A.L.] suffers from a mental abnormality in the form of paraphilia on Axis-1, that there is a substantial amount of evidence that he also suffers from pedophilia.
And that these mental abnormalities and the personality disorder individually and in combination clearly predispose him to engage in acts of sexual violence, as his record shows. . . . He has a clear pattern of sex offending over a fairly substantial period of time against a wide range of victims in age, which increases his risk.
I am satisfied that if he were released, he would have serious difficulty in controlling his sexually violent behavior based on the experts and based on the record, which supports those views. And to such a degree that there's no question he will be highly likely to engage in acts of sexual violence in a reasonably foreseeable time if he were released.
On appeal, W.A.L. argues that the trial court erred by: 1) accepting Dr. Voskanian's opinion even though Voskanian impermissibly bolstered his opinion by relying on the opinion of non-testifying doctors, in violation of In re Commitment of E.S.T., 371 N.J. Super. 562, 575 (App. Div. 2004); and 2) finding that the State established by clear and convincing evidence that W.A.L. was a sexually violent predator in need of continued involuntary commitment.
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(b). "[T]he State must prove [a] 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 over dangerous sexual behavior," and the State must establish that it is highly likely that he or she will reoffend by clear and convincing evidence. Id. at 132-34; see also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 607-08 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
We begin by addressing W.A.L.'s first argument. He contends that Dr. Voskanian's opinion was impermissibly bolstered by the opinion of non-testifying experts and that the opinion of such experts was "bootstrapped into evidence through the testimony of [Voskanian] without an opportunity for cross- examination of the underlying opinions" in violation of E.S.T., supra, 371 N.J. Super. at 575. We disagree.
Unquestionably, Voskanian conducted his own interview, which lasted for an hour-and-a-half. He also reviewed more than twenty documents, including all of W.A.L.'s treatment records, which was not the case in E.S.T. See Ibid. Moreover, unlike in E.S.T., where the testifying expert made it clear that he based his diagnosis of paraphilia "upon other individuals' evaluations," see id. at 568, here Dr. Voskanian repeatedly commented that his diagnosis was based upon his own interview with W.A.L. and his own review of the records, rather than "upon other individuals' evaluations," ibid., as was the case in E.S.T. We agree with the State's argument that Dr. Voskanian's "off-the-cuff" compliment of Dr. Feibusch's report is a "slender reed" upon which to base a claim that Voskanian's testimony violates the teaching of E.S.T. Consequently, we reject W.A.L.'s argument that the judge erred when he failed to reject the testimony of Dr. Voskanian.
W.A.L. also maintains that the evidence was insufficient to support the finding that he was a sexually violent predator in need of continued involuntary commitment.
Our scope of review is "extremely narrow," and we must defer to the trial judge's determination unless 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 Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003).
Measured by this standard, the July 2, 2008 order must be affirmed. Our review of Judge Freedman's findings and conclusions demonstrates that he properly evaluated the actuarial and clinical evidence before him. The record amply supports his conclusion that: W.A.L.'s diagnosis is unchallenged, his participation in treatment, even by his own admission, has been indifferent; and his progress has been insubstantial. The judge's findings fully comply with the requirement of W.Z., supra, that the court address the committee's present condition.
We conclude that the record fully supports Judge Freedman's findings and satisfies the State's heavy burden of proof that W.A.L. continues to qualify as a sexually violent predator and remains subject to involuntary commitment.