December 15, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF W.W.P. SVP-208-01
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-208-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 17, 2008
Before Judges Fisher and C.L. Miniman.
W.W.P. appeals from an order of continued commitment to the Special Treatment Unit (STU) as a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
Defendant is a pedophile who sexually assaulted his six-year-old sister in 1984, when he was sixteen years old. He admitted that he raped her over a period of one-and-a-half years. His predicate offenses were multiple sexual assaults on his two half-brothers, ages seven and nine. He admitted to performing anal intercourse and fondling the buttocks of both boys and of forcing fellatio on his nine-year-old half-brother. W.W.P. was charged with two counts of aggravated sexual assault, sexual assault, and endangering the welfare of a child and was found guilty of aggravated sexual assault on October 5, 1993. W.W.P. was sentenced on April 7, 1994, to sixteen years at the Adult Diagnostic Treatment Center. Thereafter, W.W.P. was temporarily committed to the STU on October 31, 2001. A judgment of commitment was entered on November 16, 2001, and his commitment was continued by judgments entered on June 18, 2002, February 3, 2003, April 22, 2005, April 10, 2006, and March 21, 2007. His commitment was most recently continued by judgment of March 12, 2008, from which he now appeals.
This is the third time that W.W.P. has appealed judgments for continued commitment. First, W.W.P. appealed the judgment of February 2, 2003. In re Civil Commitment of W.W.P., No. A-3802-02 (App. Div. Dec. 1, 2004) (W.W.P. I). Second, W.W.P. appealed the judgment of April 10, 2006, and, in affirming this continued commitment, we summarized the evidence existing in the record as of that date, In re Civil Commitment of W.W.P., No. A-4352-05 (App. Div. Nov. 21, 2006) (W.W.P. II), and we incorporate that summary here, id., slip op. at 4-9.
In continuing his commitment on March 12, 2008, Judge Serena Perretti summarized the treatment records and expert opinions respecting W.W.P. The state's evidence was uncontradicted and the only witnesses to testify at this sixth annual review were Dr. Howard Gilman and Dr. Jamie Canatara.
Dr. Gilman diagnosed W.W.P. as having pedophilia, sexual attraction to boys and girls, nonexclusive type; sexual sadism by history; alcohol dependence in institutional remission; antisocial personality disorder; and borderline intellectual functioning. Dr. Gilman based these diagnoses on W.W.P.'s patent pedophilia and his self-reported history of sexual sadism. Dr. Gilman also based his diagnoses on W.W.P.'s history of antisocial personality disorder; of preying upon weaker men in institutional settings; of continued sexual acting out, most recently by possessing a pornographic DVD; and of borderline intellectual functioning. Dr. Gilman further based his diagnoses on the assessment of W.W.P.'s treaters that W.W.P. was stagnant in therapy and had only a superficial knowledge of relapse prevention techniques and offense cycle dynamics. Additionally, Dr. Gilman based his diagnoses on the assessment of the Treatment Progress Review Committee (TPRC), which concluded that W.W.P. had made little progress in treatment over the preceding year, despite good attendance and participation in group.
Dr. Gilman observed that overall W.W.P.'s treatment was seen as superficial and limited by the professionals on his team and Dr. Gilman stated that he agreed with this assessment. Dr. Gilman concluded that W.W.P.'s "denial of ongoing pedophilic arousal is worrisome in that it does not appear likely to be genuine, especially when contrasted with his ongoing predatory behavior toward others" in institutional settings.*fn1 Dr. Gilman concluded that W.W.P. was at high risk to sexually reoffend despite a Static-99 score that did not predict a high likelihood of reoffense. Dr. Gilman opined that the Static-99 score "may not be an accurate overall predictor of his sexual reoffense potential" in light of W.W.P.'s other behaviors and attitudes, including the minimization of the pedophilic nature of his sexual arousal. Dr. Gilman concluded that W.W.P. required continued civil commitment under the SVPA.
The judge found that W.W.P. "has not addressed all of his sexually violent predatory behavior toward underage children" because he would only discuss three victims with Dr. Gilman whereas in earlier questionnaires he had admitted to at least five victims prior to the assaults on his half-brothers and he had a history of sexual abuse of children from the time he was thirteen until he was twenty-three. The judge continued:
Dr. Gilman also pointed out that [W.W.P.] continues to express confusion as to his sexual identity. He has represented to the TPRC in the past that he is a homosexual. His current statement is to the effect that he masturbates to thoughts of his girlfriend. He also refers to his girlfriend in connection with his viewing of the pornographic DVD.
The court infers that [W.W.P.] is either confused as to his own sexual identification or, which is more likely, that [W.W.P.] is not candid with the psychiatrist or his treaters.
The judge concluded that the testimony and other evidence presented by the State were clear, convincing, and uncontradicted. She found that W.W.P. continues to suffer from abnormal mental conditions and a personality disorder that influence his volitional, cognitive and emotional functioning so as to predis-pose him to commit sexually violent acts. She found that W.W.P. has clearly not progressed sufficiently in sex-offender-specific therapy to mitigate the risk that he poses and she found that he was highly likely to commit additional, sexually violent offenses against underage children in the foreseeable future if not continued in custody for further care.
W.W.P. asserts on appeal that the State failed to prove its case by clear and convincing evidence because W.W.P. had a low Static-99 score and there was nothing in the record to support raising that score. W.W.P. also argues that the judge noted a decrease in his therapeutic participation, but argues that the TPRC did not note such a decrease.*fn2 W.W.P. also contends that the judge "bolstered" Dr. Gelman's testimony. He argues that this matter should be remanded for a discharge plan.
The scope of our review is narrow as we defer to the trial judge's fact findings when they are supported by evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citation omitted). 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 Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001).
The SVPA defines SVP in the following manner:
"Sexually violent predator" means a person who has been convicted . . . for commission of a sexually violent offense . . . and 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 continue commitment, the State must prove by clear and convincing evidence 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 Civil Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004). The judge must focus upon the individual's "present serious difficulty with control over dangerous sexual behavior." W.Z., supra, 173 N.J. at 132-33; 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).
After carefully reviewing the record in the light of the oral arguments advanced by the parties, we conclude that the issues presented by W.W.P. are without sufficient merit to warrant discussion in this opinion, R. 2:11-3(e)(1)(A), -3(e)(1)(E), and we affirm substantially for the reasons expressed by Judge Perretti in her oral opinion delivered on March 12, 2008. The findings and conclusions of the judge are supported by substantial, credible evidence in the record. See Rova Farms Resort, supra, 65 N.J. at 483-84. We are satisfied that the State has proven by clear and convincing evidence that W.W.P. is highly likely to reoffend and that he requires continued commitment for treatment as a sexually violent predator.
We add only the following comment. The Supreme Court has recognized that, although a Static-99 assessment of the likelihood of reoffense is admissible, it is not alone determinative of the risk of reoffense:
We conclude, as did the courts below, that actuarial risk assessment instruments may be admissible in evidence in a civil commitment proceeding under the SVPA when such tools are used in the formation of the basis for a testifying expert's opinion concerning the future dangerousness of a sex offender. The testifying expert shall be permitted to refer to such instruments in explaining how he or she reached a conclusion concerning an individual's risk assessment. In so holding, we acknowledge that a testifying expert now may rely on actuarial as well as clinical information when formulating an opinion concerning future dangerousness. We anticipate that the trial court will regard the actuarial assessment information, as did Judge Freedman below, as simply a factor to consider, weigh, or even reject, when engaging in the necessary factfinding under the SVPA. [In re R.S., 173 N.J. 134, 137 (2002) (emphasis added) (citation omitted).]
The reasons expressed by Dr. Gilman for rejecting W.W.P.'s Static-99 score as a valid measure of the risk of reoffense were supported by substantial evidence in the record as a whole and the judge did not err in rejecting that actuarial evidence and concluding that it was highly likely that W.W.P. "will not control his . . . sexually violent behavior and will reoffend." W.Z., supra, 173 N.J. at 132.