December 12, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF R.S. SVP-450-07
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-450-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 19, 2008
Before Judges Parrillo and Lihotz.
R.S. appeals from an April 19, 2007 order of the Law Division requiring 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. After reviewing the record in light of the contentions advanced on appeal, we affirm.
The predicate sexually violent offense for which thirty-seven-year-old R.S. is currently committed to the STU occurred in 2001 and involved a fourteen-year-old girl, K.J. R.S. admitted having sexual intercourse with her, performing oral sex on her, and having her fellate him. R.S. pled guilty to child endangerment, N.J.S.A. 2C:24-4, and was sentenced to a five-year term, which was served at the Adult Diagnostic and Treatment Center (ADTC), having been evaluated a repetitive and compulsive sex offender pursuant to the Sex Offender Act, N.J.S.A. 2C:7-1 to -11. During his Avenel evaluation, R.S. admitted having sexual problems that required treatment. He explained that "it keeps happening and happening and I want it to stop happening."
R.S.'s prior sexually violent offenses date back to 1985, when as a fourteen-year-old, he was adjudicated delinquent for exposing his genitals to a four-year-old, whom he also asked to "suck" his penis. He was given probation and ordered to submit to a psychological evaluation. Two years later, in 1987, he was adjudicated delinquent for an offense, which if committed by an adult, would have constituted aggravated sexual assault. This incident involved a nine-year-old mentally impaired boy who said he was sodomized by R.S. In fact, R.S. admitted the offense, and further, that he forced his victim to perform oral sex on him on multiple occasions. As a result of this adjudication, R.S. was sentenced to two years probation on a suspended sentence with the condition that he complete the Pinelands Residential Program. Despite having received treatment at the Pinelands facility,*fn1 in 1992, R.S. was convicted of child endangerment involving sexually offending an eleven-year-old female on multiple occasions and whom R.S. admitted having penetrated. For this offense, R.S. was sentenced to a five-year probationary term, 365 days in county jail, and ordered to continue counseling.
At the completion of R.S.'s Avenel sentence for the 2001 predicate offense, the State petitioned for his civil commitment. At the ensuing hearing, the State presented two expert witnesses, Natalie Barone, Psy.D., and Dr. Luis Zeiguer, a psychiatrist. Their testimony was unopposed.
Based on her interview and psychological evaluation of R.S., Barone concluded that R.S. is a life-long sex offender with a longstanding sexual pathology that is a part of his sexual orientation. Dr. Barone diagnosed R.S. with pedophilia, (sexually attracted to females, non-exclusive), paraphilia (NOS), hebephilia, alcohol abuse in institutional remission, history of cannabis abuse, rule-out exhibitionism, and antisocial personality disorder. According to Dr. Barone, R.S.'s score on the Static-99 indicates he is at high-risk for sexual recidivism. In addition to the actuarials, Dr. Barone identified other high-risk factors, including the number of R.S.'s sex offenses, his non-sexual violence, the length of his offending behavior, his compulsivity, his inability to respond to community supervision, and his diverse victim pool.
Dr. Barone also found that R.S. minimizes, justifies or flat-out denies his sex offending behaviors, and does not believe he needs sex offender treatment. Previous treatment has apparently not reduced his high-risk to sexually reoffend, as according to his termination report at the ADTC, R.S. was resistant to treatment for most of his three-year confinement. Dr. Barone noted that R.S. had failed several modules, including Relapse Prevention -1 and -2, which are crucial components of sex offender treatment; became angry in groups; and made repeated attempts to drop out of the Therapeutic Community before he was eventually removed.
Dr. Zeiguer essentially agreed with Barone's diagnoses. He noted that R.S.'s pedophilia was early onset and that evidence of a conduct disorder surfaced before the age of fifteen. Characteristics of R.S.'s antisocial personality include failure to conform, deceit, manipulation, impulsivity, aggression, and a reckless disregard for the safety of others. According to Dr. Zeiguer, the early onset of these conditions and R.S.'s failure to respond to treatment lead to a poor prognosis, and increased the severity of the risk that R.S. will sexually offend in the future. R.S.'s risk is "very, very high" because he views himself as a victim and takes no responsibility for his actions.
As noted, the State's expert testimony stands uncontradicted. At the conclusion of the hearing, Judge Perretti found
The evidence offered is clear and convincing. The court is clearly convinced that the respondent is a sexually-violent predator. He suffers from abnormal mental conditions and personality disorders 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 a result, it is highly likely that he will repeat and commit sexually-violent acts within the foreseeable future if not committed for treatment.
On appeal, R.S. raises the following issues:
I. THE STATE FAILED TO PROVE BY COMPETENT, CLEAR AND CONVINCING EVIDENCE THAT R.S. WAS SUBJECT TO SVP COMMITMENT BECAUSE THE STATE RELIED UPON EXCESSIVE AMOUNTS OF HEARSAY AND UNPROVEN ALLEGATIONS.
II. 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.
III. THE COURT ERRED IN RELYING ON THE OPINIONS OF DRS. MCALLISTER [SIC] AND BARONE BECAUSE THESE OPINIONS WERE BASED IN PART ON THE OPINIONS OF NON-TESTIFYING EXPERTS. (Not Raised Below).
We have considered each of these issues in light of the facts and applicable law, and find none of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We therefore affirm substantially for the reasons stated in Judge Perretti's oral opinion of April 19, 2007. We add, however, the following comments.
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 [an apparent] threat [to the health and safety of others] 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 Civil Commitment of J.M.H., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
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 Civil 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 credible evidence. State v. Locurto, 157 N.J. 463, 470-71 (1999). We are also satisfied that Judge Perretti properly permitted the State's testifying experts to utilize pre-sentence investigation reports, police reports, and the reports generated by prior psychiatric and psychological evaluations. These are precisely the type of records relied upon by experts in the fields of psychiatry and psychology in arriving at their own independent diagnoses and opinions. See In re Civil Commitment of A.X.D., 370 N.J. Super. 198, 201-02 (App. Div. 2004); J.H.M., supra, 367 N.J. Super. at 612; N.J.R.E. 703. Clearly, "the use of hearsay as [a] basis for expert testimony and the hearing judge's evaluation of expert credibility" is permissible. In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 55 (App. Div. 2004); In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 489 (App. Div.), certif. denied, 185 N.J. 393 (2005); A.X.D., supra, 370 N.J. Super. at 201-02. In fact, some hearsay is admissible for the truth of the matter asserted, such as treatment records, under N.J.R.E. 803(c)(6). See A.X.D., supra, 370 N.J. Super. at 202.
Similarly, the introduction of pre-sentence reports is proper since such evidence is of a type reasonably relied upon by mental experts in formulating their evaluations of an individual's mental condition. J.H.M., supra, 367 N.J. Super. at 612. So too, a court may accept the records made by police officers "as reliable insofar as they relate that [the victim] actually told [the] story to [the officer]." In re Registrant C.A., 146 N.J. 71, 98 (1996).
To be sure, "experts at the [civil commitment] hearing cannot simply parrot the findings of the doctors who author the clinical certificates." A.E.F., supra, 377 N.J. Super. at 491. However, reliance is not precluded "as long as the opinion ultimately rendered at the . . . commitment hearing is that of the [expert] witness based on his or her own evaluation of the committee, [the committee's] prior offenses, and objective test data." Id. at 492.
Here, Judge Perretti properly considered the limited purpose for which evidence of the non-testifying experts' reports were admitted. It is equally clear that the State's testifying experts formed their own opinions based on their independent interviews and evaluations of R.S., his prior offenses, and objective test data, and that each was subject to full cross-examination by counsel for R.S. Under the circumstances, we find no error in any of the evidentiary rulings of the trial judge.