On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-98-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Parrillo.
D.G.H., who is now almost fifty-one years of age, is a resident of the Special Treatment Unit (STU), the secure custodial facility designated for the treatment of persons in need of involuntary civil commitment pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. See N.J.S.A. 30:4-27.34a. He appeals from an order of September 22, 2008, continuing his commitment to the STU following a fifth review hearing. On appeal, D.G.H. asserts a general challenge to the court's finding that the State met its burden with clear and convincing evidence that he continues to be a sexually violent predator in need of civil commitment.*fn1 Based on our review of the record, we are not persuaded by this argument and are satisfied the trial judge's findings are amply supported by competent evidence. Accordingly, we affirm substantially for the reasons set forth by Judge Serena Perretti in her oral decision of September 22, 2008.
A person who has committed a sexually violent offense may be civilly committed only if "suffer[ing] 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. Under the SVPA, a mental abnormality is "a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." Ibid. A mental abnormality or personality disorder must "affect an individual's ability to control his or her sexually harmful conduct." In re Commitment of W.Z., 173 N.J. 109, 127 (2002). The finding of a total lack of control is not necessary. Id. at 126-27. Instead, a showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Id. at 127.
Once a person has been initially committed, a court must conduct an annual review hearing to determine whether the individual will be released or remain in treatment. N.J.S.A. 30:4-27.35. Both an order of commitment and order of continued commitment must be based on clear and convincing evidence that an individual who has been convicted of a sexually violent offense suffers from a mental abnormality or personality disorder, and presently has serious difficulty controlling harmful sexually violent behavior such that it is highly likely the individual will re-offend if not committed to the STU. In re Commitment of W.Z., supra, 173 N.J. at 132-33; In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608-10 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35. The State maintains the burden of proof and must demonstrate by clear and convincing evidence that the individual needs continued involuntary commitment as a sexually violent predator. N.J.S.A. 30:4-27.32a. "Once committed under the SVPA, an individual should be released when a court is convinced that he or she will not have serious difficulty controlling sexually violent behavior and will be highly likely to comply with [a] plan for safe reintegration into the community." In re Commitment of W.Z., supra, 173 N.J. at 130; see also In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-57 (App. Div. 2002).
The scope of appellate review of a trial court's decision in a commitment proceeding is extremely narrow. 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 trial court's "determination should be accorded 'utmost deference' and modified only where the record reveals a clear abuse of discretion." In re Commitment of J.P., supra, 339 N.J. Super. at 459 (quoting State v. Fields, 77 N.J. 282, 311 (1978)); see also In re Civil Commitment of V.A., supra, 357 N.J. Super. at 63. "The appropriate inquiry is to canvas the . . . expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996).
The September 22, 2008 order of continued commitment is adequately supported by the record and consistent with the controlling legal principles outlined above. D.G.H. was initially committed to the STU by an order entered on March 26, 2001. Review hearings were held in 2002, 2003, 2004, and 2006, in which judgments of continued commitment were entered. D.G.H. appealed each decision, except for 2003, and we affirmed each judgment continuing his civil commitment. In re Civil Commitment of D.G.H., No. A-1585-02T2 (App. Div. June 30, 2004); In re Civil Commitment of D.G.H., No. A-6219-04T2 (App. Div. Dec. 19, 2005); In re Civil Commitment of D.G.H., No. A-5108-06T2 (App. Div. Feb. 6, 2008). Following the last evidentiary review hearing conducted on September 22, 2008, a judgment of continued commitment was entered, which is the subject of this appeal.
Appellant has a criminal history dating back to 1976, and a long history of sexual offenses beginning in 1981, which we have detailed at length in our earlier opinions. In January 1981, he was charged with kidnapping and sexual assault. He pled guilty to the downgraded charge of crimes against a person and was sentenced to a five-year custodial term, suspended with three years probation. The crimes involved a sixteen-year-old girl who claimed that D.G.H. had approached her while she was walking home from school, grabbed her, carried her to a nearby wooded area, and attempted to remove her clothing. In 1986, D.G.H. was convicted of sexual assault and sentenced to a seven-year custodial term. The crime involved D.G.H. pinning the victim to the ground, slapping her on the shoulder and partially removing her pants. The victim claimed digital penetration of her vagina and touching of her breasts.
The predicate offense for D.G.H.'s commitment involved a charge of criminal sexual contact and stalking, occurring on June 12, 1996. According to the twenty-seven-year-old female victim, G.R., while she was waiting at a bus stop, D.G.H. attempted to lure her to his car. When she thereafter exited from a bus, D.G.H. approached her and touched and fondled her breasts and buttocks. When, on a subsequent occasion, he attempted to follow her, she called the police. On July 25, 1997, D.G.H. was sentenced to a custodial term of eighteen months. Upon serving his term at Avenel (ADTC), D.G.H. was involuntarily civilly committed at Trenton Psychiatric Hospital, ...