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In re Civil Commitment of R.J.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 21, 2009

IN THE MATTER OF THE CIVIL COMMITMENT OF R.J.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-395-05.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 22, 2009

Before Judges Stern, Rodríguez and Espinosa.

R.J. appeals from the July 6, 2006 order, continuing his involuntary civil commitment to the Special Treatment Unit (STU) as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

R.J. is a twenty-four-year old male, who was adjudicated a delinquent for conduct, which if committed by an adult would constitute first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(4). This charge stemmed from his performing fellatio on a sixteen-year-old boy while armed with a knife. At the time, R.J. was also sixteen years old. R.J. gave a statement to the police in the presence of Eric Messer, whom he falsely described as his "father." He admitted the allegations and stated that, while staying at a motel room with Messer:

[R.J.] did in fact invite a young white male into his motel room. [R.J.] stated that [Messer] left the room early in the morning to go to church. [R.J.] stated that as soon as the victim entered his room he grabbed him by the throat and pushed him into the rear of the main door. [R.J.] advised that once the male's pants were removed he did in fact perform fellatio on him. [R.J.] stated that the male subject tried to get away and he had to physically restrain him by using a headlock on him. [R.J.] advised that he threw the subject to the floor of [sic] once again performed fellatio on him. . . . [R.J.] advised that he let the white male subject leave. [R.J.] noted that before this subject departed from his motel room, he did show him a knife, and told him that he would kill him if he told anybody of what had happened.

R.J. was committed to the Juvenile Medium Security Facility for four years. As he approached his release date, in May 2005, the State filed a petition for R.J.'s commitment pursuant to the SVPA. R.J. was committed on November 10, 2005. On July 6, 2006, following a review hearing, the commitment was continued.

At the hearing, the State presented the testimony of Luis Zeiguer, M.D., Brian Friedman, Psy.D., and Kate Gallagher, MSW, LCSW. R.J. presented the testimony of June Sharyn Kennedy, Ph.D., Timothy Foley, Ph.D., and Sinde Hillman.

Dr. Zeiguer's Testimony

Dr. Zeiguer, a forensic psychiatrist, testified that he had the opportunity to evaluate R.J. in May 2006. He also reviewed various sources of information including reports of psychiatrists/psychologists who had previously evaluated R.J., as well as police reports, juvenile records and parole records.

Dr. Zeiguer discussed with R.J. the sexual crimes of which R.J. was adjudicated. R.J. admitted to him that he lured the sixteen-year-old victim into his motel room on the pretext of "showing him something." R.J. alleged that he did not have to use the knife because the victim allowed him to perform fellatio on him. R.J. stated that he mentioned the knife only when he let the victim go. At that time, he threatened the victim with harm if he reported the incident. R.J. claimed that this was the first time in his life that he had experienced a coercive thought or fantasy and that it lasted only ten minutes.

However, Dr. Zeiguer noted that R.J. previously described to a team of psychologists and social workers that he had forced another boy, who was thirteen years old, to perform fellatio by threatening him with a knife. These statements were memorialized in an evaluation report conducted by Kate Gallagher of the Darmaan Center on March 28, 2002. R.J. had also previously acknowledged experiencing and enacting sadomasochistic fantasies, and tricking males and females into having sex by getting them drunk. R.J. described "powerful urges" to perform these acts and stated that if he were released, he would probably do it again. When Dr. Zeiguer questioned R.J. about the statements he made in the Darmaan report, R.J. claimed that he had been misquoted.

According to Dr. Zeiguer, R.J. told him that all of his sexual encounters had been consensual and that his most extensive relationship was with A.J., which lasted for a period of three years. R.J. explained that the relationship ended when A.J. committed suicide. R.J. claims to have had at least ten consensual partners. R.J. denied prior allegations that his parents had abused alcohol and/or drugs, telling Dr. Zeiguer that he never made claims that his stepfather had abused him as a child. When confronted with accusations made to the Division of Youth and Family Services (DYFS) that his stepfather had beaten him, R.J. insisted that he had no idea about the origin of the DYFS report.

According to Dr. Zeiguer, as time has gone by, R.J. has progressively "shaved off" all the negative factors in his life circumstances. R.J. now claims that certain circumstances in his life were a result of his being kidnapped by Eric Messer and that Messer forced drugs on him. R.J. alleges that Messer tied him down and injected him with drugs. Messer then forced him to engage in mutual fellatio and intercourse. R.J. stated that he did not try to escape because Messer threatened to harm his family.

Dr. Zeiguer questioned R.J. about the meaning of a tattoo on his hand. Although R.J. stated that he did not want to discuss it, he at one time had relayed to Rusty Reeves, a forensic psychiatrist, that it was satanic, meaning "kids in devil's den."

Dr. Zeiguer reached the following conclusions and recommendations:

[R.J.] suffers from Paraphilia NOS and Antisocial Personality Disorder that manifested by his crimes and his descriptions to the predisposition evaluators, he did not respond to treatment within the Juvenile Facility or the STU environment. As the treatment progresses his denial of his behavioral, sexual, alcohol and drug problems becomes more recalcitrant, this is accompanied by his refusal to discuss his deviant relationship with other residents, here and at the juvenile facilities.

He has limited empathy for other human beings, is self-centered.

Because of his cognitive distortions he perceives himself as the victim of a system that, in his view, magnified his risk and ignored that, also in his view and those of his advocates, it could be managed and treated while at large in the community.

He is extremely impulsive and grandiose and is not deterred by punishment, he does not learn from experience.

He is a treated sex offender whose very high risk has not yet been significantly mitigated by treatment or by the aging process.

If intoxicated would become more grandiose and impulsive and engage in more poorly planned offenses, he would tend to care less about getting caught. [R.J.'s] discrepant versions of history, while subject to being recorded and the versions cross referenced and contrasted, amount to pathological lying and thus preclude the use of the self-report to monitor his behavior or inner psychological processes. The validity of self report is a pre-requisite for any form of psychotherapy that is going to rely on the content of [R.J.'s] utterances.

The Court mandated for the STU to plan a release, this is consequent to a stipulation by the DAG and [R.J.'s] defender. The current plan, as I read it is premature, not based on clinical reality, it disregards the risks factors and encourages [R.J.'s] denial of the problem.

This plan if implemented, because of legal requirements, is made more dangerous because it could foster the false impression that [R.J.] did not have a clinical problem to start with beyond being kidnapped and traumatized, that he is cooperative and that his verbal communications are of value and reliable as opposed to deceptive and manipulative. Also that the false impression that the family is now a valuable resource for actual community placement, risk monitoring and modulation, and outpatient follow up while the history by records shows how and why it failed in the past.

Dr. Zeiguer concluded by stating that "[i]t is my opinion that with a reasonable degree of medical certainty that [R.J.] suffers from a mental abnormality that affects his cognitive, emotional, and volitional capacity in a manner that predisposes him to commit future acts of sexual violence. I do not believe he meets the standards for conditional release under the SVPA."

Dr. Friedman's Testimony

Dr. Friedman, a clinical psychologist and a member of the Treatment Progress Review Committee (TPRC), testified for the State regarding R.J.'s therapy. Dr. Friedman testified that the TPRC made a unanimous decision to move R.J. to Stage Two of treatment. According to Dr. Friedman, R.J.'s denial of prior statements to evaluators and general attempts to minimize his prior behavior was "noteworthy." The TPRC report diagnosed paraphilianos because R.J. experienced recurrent and intense fantasies, urges, and/or behaviors involving sexual arousal to non-consenting sexual encounters. Dr. Friedman also indicated the importance of R.J.'s self-reports to Ms. Gallagher about fantasizing regarding non-consent sexual acts and the performance of such acts in the past. Dr. Friedman noted that during the index offense [R.J.] got his victim into the room and instantly:

[G]rabbed him by the throat; he had a weapon; he forced the individual into sexual behavior - - suggest[ing] at a minimum mental rehearsal prior to that offense. And also it's - - it's likely that there was behavior rehearsal, meaning he has done this before. Therefore, he knew what to do, how to do it.

Nonetheless, R.J. denied to the TPRC that he ever made the statements regarding non-consent sexual fantasies and other behavior as included in the Gallagher report.

Dr. Friedman testified that the TPRC only moved R.J. to Phase Two (and not Phase Three as recommended by the treatment team) because of R.J.'s short time in treatment. R.J. needed to begin to take more responsibility for his past actions as part of his treatment.

Kate Gallagher's Testimony

Gallagher testified for the State regarding the Darmaan Report, which had been requested by DYFS. According to her, during her interview with R.J., when he was talking about "having thoughts about forcing people to have sex with him," she recalled that R.J. stated he "liked having these thoughts." Gallagher noted that:

[M]any kids that come to see me are very conflicted and have deep shame and guilt based on their confusing sexual behavior. What stood out about [R.J.] was that he did not have concern about it; that he seemed to get pleasure from it and had no concern about that. Most kids can get pleasure out of it but also be very confused and concerned. [R.J.] didn't seem to have that concern . . . [a]bout those fantasies.

Gallagher indicated that she had been working with juvenile sex offenders since 1993, and that R.J.'s case was "startling," an opinion she put into her report.

Gallagher indicated she could not remember what her impressions were as to R.J.'s credibility during the interview. She conceded that he could have been engaged in some puffery, such as the number of prior sexual partners, when he indicated to her that he had sexual relations with over one hundred partners, mostly male.

Dr. Kennedy's Testimony

Dr. Kennedy testified on behalf of R.J. She was qualified as an expert on the subject of maturation, brain development, and risk assessment. She admitted when questioned by the court that she had no experience with preparing a risk assessment of a person that is civilly committed. Dr. Kennedy interviewed R.J. on October 27, 2005, for six-and-a-half hours; and on May 8, 2006, for another five-and-a-half hours. Dr. Kennedy discussed how she reviewed the prior reports on R.J. and looked for inconsistencies in the record for which she asked R.J. for clarification. She indicated that many of the prior reports, such as Gallagher's report, were done when he was much younger and possibly bragging or showing off. However, Dr. Kennedy admitted that R.J.'s current statements denying some of the self-reporting in those old reports could be due to him changing the story as he knows the old information "puts him in a very bad light."

According to Dr. Kennedy, R.J. tends to brag during interviews. It is only after several hours with him that "he allows that façade to be broken and you see somewhat of a little different person that has fears and that is concerned and is emotional." When she discussed R.J.'s description of the index crime, Dr. Kennedy noted that the sexual assault occurred between two age peers. She indicated that in R.J.'s version, regarding when he first showed the victim the knife, he changed it from before the sexual assault until after. She thought this was significant because "if it was afterwards instead of before, then somebody could maintain an erection instead of afterwards. If you pulled a knife out before, it would be harder to - - no pun intended - - to sustain an erection for sex than afterwards . . . ."

Dr. Kennedy thought that R.J. had matured since the index offense, but that he still had a tendency to try to impress professionals when he first met them. R.J. further told her that he was afraid of being "taken out in a body bag" from the STU because he believed that's what the statistics showed.

Dr. Kennedy testified regarding the use of the STATIC-99 on R.J. She opined that it was inappropriate, as it was given to him at such a young age. Regarding R.J.'s treatment plan, Dr. Kennedy noted that many experts cited to his "lack of insight into sex offense cycle[s]," and stated that "I don't think [R.J.] himself sees it as a sex offense cycle."

Dr. Kennedy concluded that starting R.J. with furloughs home, and not immediate release, was a more realistic plan. She testified that R.J. became aware of what his sex offense cycle was, which she based on his admittance of 10 prior sexual partners, as opposed to the exaggerated 100 from Gallagher's report.

Dr. Foley's Testimony

Dr. Foley, a licensed psychologist, testified for R.J. He described R.J.'s index offense and uncharged offenses, which had been reported to Gallagher, but also noted that R.J. denied any of those offenses as well as engaging in any sexual behavior while at the STU.

Dr. Foley testified that, when he interviewed R.J., R.J.'s version of the index offense was similar to that set out by the State's witnesses. The only difference was that he denied having used his knife to commit the offense. R.J. claimed that he only showed the knife to the victim after the assault. Dr. Foley admitted that R.J. was very inconsistent in his statements. R.J.'s self-reports to Gallagher about other incidents prior to the index offense created a problem. Dr. Foley stated that:

I think there are three bins that I have to put his statements into. One is that he's telling the truth. One is that he's lying. And the other one is that he can't remember. The difficulty that I have, though, is no matter what he says, I have no idea which bin to put it into.

Dr. Foley testified that the STATIC-99 could be used on an adolescent sex offender, but that one also had to consider that adolescent sex offenders were much less likely to re-offend as adults. Dr. Foley admitted that what Gallagher put in her report was what R.J. told her, but he did not know why R.J. said those things. He opined that it seemed pretty clear that R.J. was a pathological liar. Dr. Foley allowed that if he relied upon R.J.'s self-reporting, then he would diagnose R.J. with paraphilia non-consent and frotteurism. On cross, Dr. Foley testified that R.J. had trouble identifying his triggers and had expressed an opinion that his reoffense risk was "zero." R.J. also indicated that he was at no risk for returning to substance abuse.

Ms. Hillman's Testimony

R.J.'s mother testified on his behalf. Ms. Hillman testified that she did not agree with some of the allegations that had been set forth in several of the reports entered into evidence. She also testified that she felt the best option for R.J. was for him to ultimately come home and get the treatment that he needs.

The judge noted that Dr. Kennedy's treatment plan was based on her diagnosis of narcissistic personality disorder, which the judge found incorrect, based on the other testimony and evidence. The judge stated that R.J.'s claim that he was "just a victim of Mr. Messer . . . doesn't hold water," noting that R.J. "admitted to an offense remarkably similar to the one he was convicted of." The judge found that R.J. had a mental abnormality that makes R.J. likely to engage in acts of sexual violence.

On appeal, R.J. contends:

R.J.'S INVOLUNTARY COMMITMENT UNDER THE SVPA VIOLATES THE UNITED STATES CONSTITUTION, ARTICLE I, SECTION 10, CLAUSE 1 AND NEW JERSEY CONSTITUTION ARTICLE IV, SECTION 7, PARAGRAPH 3 (EX POST FACTO CLAUSES) BECAUSE R.J.'S TREATMENT IS A "SHAM" (Not Raised Below).

We reject this issue. In re Commitment of W.Z., 173 N.J. 109, 133-34 (2002) (holding that the SVPA is not unconstitutional so long as the State proves by clear and convincing evidence that there is difficulty in controlling harmful sexual behavior and that it is highly likely the person will reoffend). Moreover, our Supreme Court has consistently rejected ex post facto challenges to the SVPA. In re Commitment of J.M.B., 197 N.J. 563, 601 (2009).

R.J. also contends:

THE COURT ERRED IN RELYING ON HEARSAY CONTAINED IN EXHIBITS AND THE TESTIMONY OF EXPERT WITNESSES TO MAKE FINDINGS OF FACT AND IN REACHING ITS DECISION TO INVOLUNTARILY COMMIT R.J.

We reject this issue once again. As we said in In Re Commitment of T.J.N., 390 N.J. Super. 218, 224 (App. Div. 2007), "[t]he judge properly considered the included hearsay for purposes of evaluating the expert's credibility, because it is the type of record information that an expert can rely on in formulating an opinion." See N.J.R.E. 703. Moreover, judicial notice could be taken of the sexual offenses to which defendant pled guilty and was sentenced. T.J.N. supra, at 224. See N.J.R.E. 803(c)(22).

We also held that although "each case is fact sensitive, we have sustained the admissibility of hearsay as part of an expert witness' testimony at SVPA commitment hearings." T.N.J., supra, at 224.

R.J. also contends:

THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT R.J. SHOULD HAVE BEEN INVOLUNTARILY COMMITTED.

We disagree.

An appellate court's review of a civil commitment is very limited. In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "We must give 'utmost deference' to the reviewing judge's determination of the appropriate balancing of societal interest and individual liberty." In re Commitment of J.M.B., 395 N.J. Super. 69, 89-90 (App. Div. 2007), aff'd, 197 N.J. 563 (2009) (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). We may only modify a reviewing judge's determination where it finds a "clear abuse of discretion." In re Commitment of M.L.V., 388 N.J. Super. 454, 465 (App. Div. 2006), certif. denied, 190 N.J. 225 (2007) (quoting J.P., supra, 339 N.J. Super. at 459).

The standard for an involuntary civil commitment following service of a sentence requires commitment 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. The State bears the burden of proving "a 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." W.Z., supra, 173 N.J. at 132. The court must address "his or her present serious difficulty with control over dangerous sexual behavior," and the State must establish that it is highly likely that the person will reoffend by clear and convincing evidence. Id. at 132-34. See also In re Commitment of J.H.M., 367 N.J. Super. 599, 607 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

Here, from our thorough review of the record, we conclude that the judge's findings addressed these issues at the time of the July 6, 2006 commitment. All witnesses, except Dr. Kennedy, opined that R.J. continues to suffer from mental abnormalities that affect his ability to control his sexual behavior. Drs. Zeiguer and Friedman, whom the judge credited, also opined that R.J. is likely to reoffend. The record also supports the judge's findings that the proposed discharge plan is inadequate at this time.

Accordingly, the order continuing R.J.'s commitment to the STU is affirmed.

20090721

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