April 27, 2009
IN THE MATTER OF THE CIVIL COMMITMENT OF A.X.C. SVP-38-00.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-38-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 1, 2009
Before Judges Axelrad and Parrillo.
A.X.C. appeals from a December 1, 2008 judgment continuing 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. We affirm.
A.X.C. was born on October 22, 1972, and has been involuntarily committed under the SVPA since January 21, 2000. Prior to committing the predicate offense in 1997, A.X.C. had engaged in aberrant sexual behavior with minors on three occasions. In March 1993, in separate but very similar incidents, A.X.C. sexually assaulted a twelve year old female, N.W. and an eleven year old female, M.R. A.X.C. was subsequently arrested and indicted on one count of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and one count of endangering the welfare of a child, N.J.S.A. 2C:24-4, and pled guilty to second-degree sexual assault. On May 13, 1994, A.X.C. was sentenced to seven years in prison.
A.X.C. also sexually assaulted a thirteen year old female, M.B., for which he was arrested on June 15, 1993 and indicted on one count of third-degree endangering the welfare of a child. He pled guilty to the charge and, on May 13, 1994, was sentenced to four years in prison, to be served concurrently with the sentence imposed on the first two sexual assaults.*fn1
The predicate offense for which A.X.C. is currently committed, N.J.S.A. 30:4-27.24, occurred sometime between January and February 1997, resulting in his conviction on August 1, 1997, of one count of criminal sexual contact involving a fourteen-year old girl whom A.X.C., after meeting her at a mall, kissed, fondled her breasts, and then attempted to touch her vaginal area. As a result, A.X.C. was sentenced to a term of one year to be served concurrently with the term imposed for his violation of parole.
On or before his initial commitment to the STU in January, 2000, A.X.C. was diagnosed with the following mental abnormalities and/or personality disorders: impulse control disorders, NOS, antisocial personality traits, pedophilia and adjustment disorder. His commitment was continued, following discharge review hearings, by orders of December 20, 2002 and August 19, 2003, which we affirmed. IMO Civil Commitment of A.X.C., A-6876-02T2 (App. Div. June 29, 2004). Thereafter, by orders of November 15, 2004 and December 14, 2005, A.X.C.'s commitment to the STU was continued, and we affirmed those orders, as well. IMO Civil Commitment of A.X.C., A-2087-04T2 (App. Div. May 25, 2005); IMO Civil Commitment of A.X.C., A-3604-05T2 (App. Div. October 11, 2006).
A.X.C.'s most recent review hearing took place on December 1, 2008, and the December 1, 2008 order continuing his commitment as a result of that hearing is the subject of this appeal. At the hearing, the State presented the expert testimony of Drs. Howard Gilman and Shawn McCaul.
Dr. Gilman, a psychiatrist, attempted to interview A.X.C. on November 21, 2008, in conjunction with his upcoming review hearing, but A.X.C. refused to cooperate. Consequently, Dr. Gilman relied on documents and reports in A.X.C.'s file, including three evaluations Dr. Gilman had conducted of A.X.C. previously, one of which where A.X.C. agreed to be interviewed. Dr. Gilman diagnosed A.X.C. with the following: Axis I - trichotillomania, and Axis II - personality disorder NOS, antisocial traits and borderline intellectual functioning.
In his November 24, 2008 report, Dr. Gilman had ruled out pedophilia, but, at trial, he amended that diagnosis to include pedophilia. He based this revision on information in the record that A.X.C. was convicted of three sex crimes, each involving young girls, ranging in age from eleven to fourteen. Furthermore, early during his commitment at the STU, A.X.C. requested visitation by a fourteen year old girl, which Dr. Gilman opined "in some ways belied his explanation of being fooled by the ages [of the girls he assaulted] and may have really underscored his attraction to pubescent and prepubescent girls." Likewise, more recently, A.X.C. was reported being involved in a relationship with a woman who also has a young teenage daughter, and the woman had sent pictures of the young teenage daughter to A.X.C., which greatly "disturbed" him. Even A.X.C. believed that he was a pedophile ten years ago, when he committed the offenses, but that he was no longer a pedophile. Dr. Gilman's pedophile diagnosis was also based on the results of a polygraph exam, which indicated that A.X.C. had masturbated to thoughts of teenage girls within the last six months. Dr. Gilman testified that the pedophilia likely affects A.X.C. either emotionally, cognitively or volitionally so as to predispose him to commit acts of sexual violence.
Dr. Gilman also believed that A.X.C. has been "kind of stalled" in his overall treatment, having been in Phase-3 of treatment for at least a couple of years without making progress. In this regard, A.X.C. has had problems getting to group on time and participates only sporadically in the groups when he is there. Dr. Gilman attributed A.X.C.'s tardiness to his diagnosed condition of trichotillomania*fn2, which causes him to "spend inordinate amounts of time in the bathroom and in the mirror with grooming - plucking his eyebrows, shaving his hair from his body..."
As noted, Dr. Gilman also diagnosed A.X.C. as suffering from personality disorder NOS with anti-social traits:
[He] has had trouble kind of getting along, following rules. He's had other crimes, mostly petty crimes, in addition to his sexual crimes. He had some crimes with C.D.S. He was charged with terroristic threats and larceny, also with shoplifting.
Here, at the STU, he's had I believe a couple of times in RAP, or modified activities programming, for problems with others. So, that's where the - that's where the anti-social traits come in. Certainly, [A.X.C.]... also had some enduring personality features that seem to work against him, and that's where the personality disorder comes in.
According to Dr. Gilman, this personality trait "is associated with a higher rate of sexual re-offending." Dr. Gilman further explained that the risk of sexually re-offending in the foreseeable future, unless confined to a secure facility for treatment, is "high" because of A.X.C.'s personality disorder and other factors including,
[A.X.C.'s] crimes, the fact that they... were repetitive crimes, that he offended both after an arrest as well as after a conviction and after serving a prison sentence; that he has the history of the anti-social traits, as I mentioned; that he has had what I called ambiguous responses to issues of sexual arousal in pre- and post-pubescent teenage girls, meaning that he denies it, but there are these polygraph examinations which seem to indicate that he may not be truthful.
Also, that his own statement about no longer being a pedophile and yet still, you know, having arousal and problems with a picture from his current - the picture of the daughter of his current girlfriend seems to speak otherwise; the failed polygraph examinations I think I already mentioned; and, finally, the difficulty he's had in progressing in treatment.
In Dr. Gilman's opinion, A.X.C. has "serious difficulty" controlling his sexually-violent acts.
Dr. Shawn McCaul, a member of the Treatment Progress Review Committee (TPRC or Committee), conducted a clinical interview with A.X.C. on October 22, 2008. His November 18, 2008 report referenced the Committee's treatment recommendations for A.X.C., which included that A.X.C. be maintained in Phase 3 treatment, Phase 4 treatment being the maintenance stage of treatment. In supporting this recommendation, Dr. McCaul testified,
[A.X.C.] had a mixed year in that he did not appear to be very active during the early portion of the review period. However, near the latter end of the review period, he did appear to become more engaged in treatment by following through with interventions prescribed by the therapists, as well as starting to show some behavioral changes also, which were indicative of his willingness to re-engage into working on some of his core issues.
When [the Committee] look[s] at his willingness to work with others, to be able to accept and provide feedback, control his impulses, manage his anger, there are still... concerning points that developed. At one point, he verbally lashed out towards another resident who had confronted him and made a racial slur in group toward the individual.
He's been hesitant to accept and act on feedback provided by treatment providers, which is going to be an important part of the maintenance stage in that after he gets out of here, he is going to be in treatment for a long time. And he needs to be able to show that he can work with information provided by treatment providers here so that we could think that he would work with information provided by treatment providers on the outside.
Dr. McCaul added that A.X.C. does not "take floors" in group therapy with regard to his sexual offending, and this is important because "[t]hat's the reason he's here." Although A.X.C. takes issue with this latter observation, our review of the record reveals that A.X.C. took the floor only about fifteen out of the 176 group therapy sessions he attended at the STU between November 27, 2006 and November 5, 2008.
Dr. McCaul diagnosed A.X.C. as suffering from Axis I: paraphilia NOS (hebaphilia), body dysmorphic disorder, obsessive compulsive disorder, alcohol abuse, and Axis II: antisocial personality disorder. Hebaphilia is a "fixation upon sexual arousal towards peri-pubescent children [who] are not yet to the age of maturity[, i.e. t]hey are unable to consent by virtue of their age." According to Dr. McCaul, this is a behavior that will not spontaneously disappear or go away, since "[s]exual arousal tends to remain fairly fixed throughout the course of a lifetime."
Dr. McCaul ruled out pedophilia as a diagnosis for A.X.C., noting that, although A.X.C.'s victims' ages fell within the age range specified by the DSM, he "had some concerns about there being a sufficient duration to really solidify that diagnosis." What was clear to Dr. McCaul, however, was that A.X.C. has "a sexual interest towards young girls" and that he could definitely solidly make a hebaphilia diagnosis, and "pedophilia could very well be a concern there also."
Like Dr. Gilman, Dr. McCaul also diagnosed A.X.C. as suffering from anti-social personality disorder:
[h]e appears to have a long-term pattern of having difficulty adjusting, empathizing with others, taking other people's feelings into consideration, doing what's expected of him that appears to have extended to some of his school days with difficulties behaving appropriately and fighting.
Characteristics of this disorder relevant to issues of sexually re-offending include the disregard for the well-being of others; impulsivity; lack of remorse; exercising poor decision-making; low frustration tolerance; and failing to conform to social norms for lawful behavior.
Dr. McCaul also diagnosed A.X.C. as suffering from obsessive-compulsive disorder and body dysmorphic disorder. Problems with self-regulation (i.e., being able to manage one's moods/emotional states) are a "research-supported risk factor" for sexual re-offending. A.X.C.'s obsessive-compulsive disorder problems may, in part, drive his work performance. Despite this diagnosis, A.X.C. appeared to Dr. McCaul to be trying to work through some of the issues surrounding his hesitancy to accept feedback and has, very recently, started to accept recommendations made by the treatment providers. In fact, if this behavior continues, (i.e., consistency in using interventions, working with others over a sustained period of time) the Committee would consider elevating A.X.C. to Phase 4 maintenance.
Following the close of evidence, Judge Perretti found that A.X.C. "continues to present currently a high risk to re-offend" and, thus, ordered his continued commitment. The judge based this conclusion on factors listed by Dr. Gilman including (i) the repetitive nature of his crimes; (ii) his re-offending after his arrests and imprisonment; (iii) his history of anti-social traits; and (iv) his ambiguous statements relating to his current arousals for young females. The judge also concluded that the testimony supported a diagnosis of a sexually-related mental abnormality, involving A.X.C. hovering in a sexually deviant arena with children who are not post-pubescent:
[T]his man suffers from abnormal mental conditions and personality disorder that impact his volitional, emotional and cognitive functioning so as to predispose him to commit sexually violent acts.
In addition, Judge Perretti found that A.X.C.'s trichotillomania, although not connected with his sexual offending, nevertheless interferes with his treatment progress. The court rejected A.X.C.'s denial of ever being aroused by the young victims he sexually assaulted and stated that the fact that A.X.C. does not realize he was aroused is a "defect in his treatment." In this vein, the judge also expressed concern that A.X.C. did not have relapse prevention strategies or arousal reconditioning. In sum, Judge Perretti concluded, "[A.X.C.] continues to be, based on this record, a sexually violent predator with a high risk to re-offend who requires additional treatment at the STU."
This appeal follows.
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 that 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[,]" 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 Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
Once an individual has been committed under the SVPA, a court must conduct an annual review hearing to determine whether the committee will be released or remain in treatment. N.J.S.A. 30:4-27.35. The burden remains upon the State to prove by clear and convincing evidence that the committee continues to be a sexually violent predator, as defined in the SVPA and interpreted in W.Z., supra, 173 N.J. at 131-32. "[A]n 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." Id. at 130.
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 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) (citing Fields, supra, 77 N.J. at 311).
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 affirm substantially for the reasons stated by Judge Perretti in her oral opinion of December 1, 2008.