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In re Civil Commitment of A.X.C. SVP-38-00

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.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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