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In re Civil Commitment of A.X.H.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 7, 2009

IN THE MATTER OF THE CIVIL COMMITMENT OF A.X.H., SVP-470-07

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-470-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 22, 2009

Before Judges Yannotti and Lyons.

A.X.H. appeals from a judgment committing him 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.

The following factual and procedural history is relevant to our consideration of the issues presented on appeal. A.X.H. is a thirty-nine year old male, with a long history of sexually violating young pre-pubescent boys dating back to 1987. On August 31, 1987, A.X.H. was arrested and charged as a juvenile with two counts of sexual assault. Both victims were eight-year old males. The first victim was a child whom A.X.H.'s mother was baby-sitting. A.X.H. admitted that he performed fellatio on this child on two occasions. Further, he admitted that between the first and second occasions, he masturbated to sexual fantasies of the child. Despite knowing his behavior was wrong, A.X.H. admitted that he was unable to prevent himself from offending.

The second victim was a child A.X.H. admitted he had been wrestling with. A.X.H. grabbed the child's genital area and then performed fellatio on the child. He later sexually assaulted this victim a second time, admitting that he was unable to stop himself.

A.X.H. was adjudicated delinquent and sentenced to probation and assigned to the Devreaux Program for treatment. He failed to complete that program. After violating his probation, A.X.H. was sent to the Jamesburg Training School for Boys. After leaving Jamesburg, he was placed at St. Joseph's Residential Group Center after a brief stay at Trenton Psychiatric Hospital.

On August 13, 1988, three weeks after being released from confinement, police were notified of a sexual assault that took place in an alley behind a building. A seven-year old male victim, R.K., was lured by A.X.H. into the alleyway under the pretense that he was sick and in distress and needed help in the dark. When the child went into the alley, A.X.H. put his hand down the child's pants. R.K.'s sister witnessed the sexual assault. The assault stopped when R.K.'s aunt entered the alley. A.X.H. pled guilty in April 1989 to sexual assault and was sentenced to seven years to be served at the Adult Diagnostic and Treatment Center (ADTC).

On March 15, 1995, A.X.H. was arrested for committing an aggravated sexual assault against a five-year old male child, D.T. A.X.H. grabbed the victim and performed fellatio on him while the victim entered the bathroom at a McDonald's restaurant. The child's grandmother saw A.X.H. exit the bathroom when she went to check on D.T. D.T. told his grandmother that A.X.H. had just "bitten" his penis. A.X.H. pled guilty to aggravated sexual assault and was sentenced to twenty years at the ADTC.

As A.X.H. was approaching the termination of his sentence, his ADTC therapist recommended that he be screened for sexually violent predator commitment.

On August 21, 2007, the State filed a petition to civilly commit A.X.H. under the SVPA. The petition was accompanied by two required clinical certificates. On the return date of the hearing, the court found probable cause to believe that A.X.H. was a sexually violent predator in need of commitment. He was, therefore, temporarily committed to the STU pending a final hearing.

A final hearing was held on January 9, 2008, before Judge Philip M. Freedman. The court entered an order on January 15, 2008, after placing its decision on the record. The court order committed A.X.H. to the STU for the care, custody, and treatment of sexually violent predators and ordered a further review hearing to be held on January 6, 2009.

At the hearing, Drs. Friedman and Voskanian testified on behalf of the State. A.X.H. presented no evidence. Dr. Friedman, a psychologist, reviewed numerous reports and records in preparation for drafting his report. The doctor, however, was not able to interview A.X.H. in conjunction with his evaluation. The doctor attempted to interview A.X.H. on January 7, 2008. However, when A.X.H. was brought into the room, he stated that he recently had a death in the family and could not be interviewed at the time. Therefore, he did not remain in the interview room and left. Dr. Friedman later ascertained that A.X.H.'s great-aunt had recently died.

The doctor's report is twenty pages and reviewed A.X.H.'s history, as well as the testing that had been administered to him over the years. Based on all of the information available to Dr. Friedman, he diagnosed A.X.H. with pedophilia, sexually attracted to males, not limited to incest, non-exclusive type. He noted in his report that on the Static-99 test, A.X.H. scored in the high risk category to re-offend. The doctor noted that A.X.H.'s actuarial determined level of risk places him in a high risk category, but, in addition, his case presents numerous factors which increase the risk. He noted:

A.X.H. is a member of a group of sexual offenders with the highest rate of sexual re-offense. He has offended against unrelated, male children, and has victimized both related and unrelated victims, creating a large pool of potential victims. Of particular concern is that [A.X.H.] escalated from molesting known victims to lying in wait in a public place for a stranger victim. [A.X.H.] is also an impulsive individual who has extreme difficulty anticipating consequences to his behavior... combined with his strong Pedophilia arousal pattern, these cognitive limitations further put him at risk for future sexual offending.

Dr. Friedman's report concluded by stating that A.X.H. "is highly likely to engage in future acts of deviant sexual behavior as defined by the SVPA statute if released to the community at this time. [A.X.H.] presents an extremely high level of risk for future sexual re-offense."

During his testimony at the hearing, Dr. Friedman reiterated his findings. In addition, he pointed out that while he was not able to interview A.X.H., he did have available to him other expert reports. He stated he reviewed these reports and made note of them, but he specifically stated he did not rely on the diagnoses of others as far as substantiating his own diagnoses.

Dr. Pogos Voskanian, a psychiatrist, also testified at the hearing. Dr. Voskanian, in addition to reviewing extensive background material, also interviewed A.X.H. for one-and-a-half hours in preparation for his report. Dr. Voskanian's report is a detailed twenty-one page assessment of A.X.H. He notes, as did Dr. Friedman, that the Static-99 test indicates a high risk for re-offense. He diagnosed A.X.H. with "Pedophilia (sexually attracted to pre-pubescent boys), polysubstance dependency, in a controlled environment." He concluded by saying that A.X.H. has a "mental abnormality and a personality disorder which places him at high risk to engage in acts of sexual violence if he is not confined in a secure facility for control, care, and treatment."

During his testimony, it was noted that his report was prepared twenty days prior to the hearing. The SVPA, in particular N.J.S.A. 30:4-27.13(b), requires that a personal examination of the patient shall take place no more than five calendar days prior to the court hearing. In fact, Judge Freedman noted this and asked A.X.H.'s counsel specifically whether there was any objection to the fact that the personal examination of A.X.H. occurred more than five days before the hearing. Counsel for A.X.H. specifically responded "not at all, Your Honor." Dr. Voskanian, like Dr. Friedman, noted that he utilized other reports in A.X.H.'s records, but arrived at his own opinion.

During his testimony, Dr. Voskanian repeated his conclusions as set forth in his report. In addition, he reviewed A.X.H.'s history and opined "he is attracted to prepubescent boys. He acts on his attraction. He acts on his attraction in public places. If he wants something, there is nothing to stop him." The doctor pointed out that A.X.H. "is treatment resistant so far [and] an individual who has deviant sexual pathology. I believe his pedophilia persists. He is highly impulsive. He currently suffers from compulsive behavior. He is at high risk to commit sexual offenses."

Following the presentation of testimony, and after reviewing the evidence submitted to the court, Judge Freedman found that the State proved by clear and convincing evidence that A.X.H. had been convicted of multiple sexually violent offenses as defined by the SVPA. The trial judge reviewed the experts' testimony and their reports and found that they relied upon appropriate materials. He noted that Dr. Friedman was unable to obtain an interview, but that Dr. Friedman's report was based on items that would normally be relied upon by a psychologist in formulating his or her opinion. Based upon the reports, testimony, and the other evidence introduced, Dr. Friedman found that A.X.H. is attracted to pre-pubescent males and will not be stopped by internal or external controls. The trial judge found that A.X.H. suffers from pedophilia and that he was highly likely to sexually re-offend. Accordingly, the trial judge found that A.X.H. needed to be committed for the protection of society. This appeal ensued.

On appeal, A.X.H. presents the following argument for our consideration.

POINT I

THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT A.H. IS HIGHLY LIKELY TO RECIDIVATE SEXUALLY BECAUSE THE EXPERT PSYCHOLOGICAL/PSYCHIATRIC OPINIONS WERE RENDERED WITHOUT PROPER CLINICAL INTERVIEWS.

Our scope of review of civil commitment judgments is exceedingly narrow. In re Civil Commitment of J.M.B., 395 N.J. Super. 69, 89 (App. Div. 2007), aff'd, 197 N.J. 563 (2009); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We must give the "utmost deference" to the reviewing judge's determination of the appropriate balancing of societal interest and individual liberty. In re Civil Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)). That determination will be subject to modification on appeal only where the record reveals a clear abuse of discretion. J.M.B., supra, 395 N.J. Super. at 90. Accordingly, it is our responsibility to canvass the record, inclusive of the expert testimony, to determine whether the findings made by the trial judge were clearly erroneous. In re D.C., 146 N.J. 31, 58-59 (1996).

We begin by addressing A.X.H.'s contention that the State failed to prove by clear and convincing evidence that he is a sexually violent predator. To be deemed a sexually violent predator under the SVPA, the individual must have been convicted, adjudicated delinquent, or found not guilty by reason of insanity, of a "sexually violent offense" or declared incompetent to stand trial for such an offense. N.J.S.A. 30:4-27.26. The statutory definition of a "sexually violent offense" is contained in N.J.S.A. 30:4-27.26(a) and (b). Subsection (a) lists the following offenses: aggravated sexual assault; sexual assault; aggravated criminal sexual contact; sexual contact; certain forms of kidnapping and felony murders; attempts to commit those enumerated acts; and all criminal offenses with substantially the same elements as those offenses. N.J.S.A. 30:4-27.26(a). It does not matter when the offense was committed as long as it qualifies as a predicate offense under the SVPA. J.M.B., supra, 395 N.J. Super. at 75.

In addition to the determination that a person committed a sexually violent offense, the State must prove that the person is a threat to the health and safety of others because he or she "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. Our Supreme Court has interpreted the statute to require the State to establish by clear and convincing evidence that it is "highly likely" the person will re-offend in the reasonably foreseeable future. In re Commitment of W.Z., 173 N.J. 109, 120 (2002).

In this case, the State put forth proof as to several incidents leading to convictions that are sexually violent offenses under N.J.S.A. 30:4-27.26(a). A.X.H. sexually assaulted two young boys. He pled guilty to those offenses and was recently convicted of first-degree aggravated sexual assault. This offense is specifically enumerated under N.J.S.A. 30:4-27.26(a) as a "sexually violent offense." The trial judge therefore clearly did not err in finding that the first prong of N.J.S.A. 30:4-27.26 had been satisfied.

The trial judge also found that A.X.H. is a threat to the safety of others because he suffers from a mental abnormality or personality disorder that makes him likely to engage in acts of sexual violence. N.J.S.A. 30:4-27-26. Both Drs. Friedman and Voskanian opined that A.X.H. suffers from pedophilia. Both the doctors noted that A.X.H. is at a high risk to re-offend. Based on the doctors' thorough testimony and reports, the trial judge found that A.X.H. did, in fact, suffer from a personality disorder that made him highly likely to engage in future acts of sexual violence. Because this finding is amply supported by the record, Judge Freedman did not abuse his discretion in determining that A.X.H. is a sexually violent predator.

We turn then to A.X.H.'s argument that the State failed to meet its burden because the testimony and reports of the two doctors were not admissible. A.X.H. argues that Dr. Voskanian's report and testimony should not have been admitted because his report was based on an examination that was held twenty days prior to the court hearing, rather than the five calendar days set forth in N.J.S.A. 30:4-27.15(b).

We note at the outset that this issue was not presented to the trial court. Therefore, as we said in In re Civil Commitment of A.H.B., 386 N.J. Super. 16, 28 (App. Div.), certif. denied, 188 N.J. 492 (2006), we could reject the argument on this basis alone, relying on Nieder v. Royal Indem. Ins. Co., 52 N.J. 229, 234 (1973). Moreover, we could reject the argument on its face because A.X.H.'s counsel specifically waived any objection to the five day time frame having been violated on the record. State v. Macon, 57 N.J. 325, 333 (1971). However, as in A.H.B., because of the personal liberty interest at stake, we elect to consider the allegation of error under the plain error standard of review. R. 2:10-2. Therefore, the alleged untimeliness of the State's evidence must be reviewed to determine whether it is clearly capable of producing an unjust result. See R. 1:7-5; Fitzgerald v. Roberts, Inc., 186 N.J. 286, 318 (2006).

We fail to see how the time delay in this matter was clearly capable of producing an unjust result. This alleged error is not one of sufficient magnitude to raise a reasonable doubt as to whether it led the fact-finder to a result it would not otherwise have reached. Macon, supra, 57 N.J. at 336. The record reflects that Dr. Voskanian did conduct an hour-and-a-half interview with A.X.H. twenty days prior to the hearing. There is no indication in the record that in that twenty-day passage of time there was any change in A.X.H. In A.H.B., after reviewing the entire record, we concluded that the untimely examination by the State's psychiatrist could not have led to an unjust result in conjunction with the entire record. A.H.B., supra, 386 N.J. Super. at 31. We find that here as well.

A.X.H. also contends that Dr. Friedman's report and testimony should not have been admitted because Dr. Friedman did not personally examine him. As stated earlier, Dr. Friedman attempted to examine A.X.H., but was advised that A.X.H. could not be interviewed on that date because he was distraught over his great-aunt's passing. We note that there is no requirement for Dr. Friedman to have interviewed A.X.H. in conjunction with the preparation of his report or his testimony in this case.

In reviewing the trial court's evidentiary ruling, an appellate court is limited to examining the decision for abuse of discretion. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). In addition to determining whether a proffered expert is qualified to testify as an expert, the trial court must also determine whether the expert's opinion is based on facts and evidence relevant to the issue at hand on which the expert may rely. Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002). In this case, there is no question that Dr. Friedman was qualified to testify. The parties stipulated to that. The question is whether the expert's opinion was based on facts and evidence relevant to the issue at hand upon which the expert may rely. Dr. Friedman reviewed extensive records which clearly were relevant to the issues at hand and were documents normally utilized by experts in forming such opinions. See N.J.R.E. 703.

In In re Commitment of E.S.T., 371 N.J. Super. 562, 575 (App. Div. 2004), we held that the experts at an SVPA hearing cannot simply parrot the findings of the doctors who author the clinical certificates in support of commitment but do not themselves testify at trial. In that case, the testifying experts based their opinions "substantially" on the opinions of the doctors who authored the defendant's clinical certificates. Those doctors never treated E.S.T., but only reviewed his records and conducted short interviews with him. Our primary concern in that case was that the trier of fact "may not be able to fairly evaluate the basis of the in-court opinions that rely upon out-of-court opinions effectively shielded not just from meaningful cross-examination, but from any cross-examination." Id. at 574.

However, we later elaborated that E.S.T. should not be read "to preclude reliance, in part, on prior evaluations conducted for other purposes, such as ADTC and other psychiatric evaluations conducted in connection with sentencing or for parole consideration." In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 492 (App. Div.), certif. denied, 185 N.J. 393 (2005); see also In re Commitment of J.S.W., 371 N.J. Super. 217, 225 (App. Div. 2004), certif. denied, 183 N.J. 586 (2005). As long as the opinion ultimately rendered at the initial commitment hearing is that of the witness based on his or her own evaluation of the committee, prior offenses, and objective test data, the testimony is admissible. A.E.F., supra, 377 N.J. Super. at 492.

In this case, Dr. Friedman did not simply "parrot" the findings of the psychologists who provided the State's certification in support of A.X.H.'s commitment or any of the other experts whose opinions were contained in the record. Dr. Friedman reviewed A.X.H.'s prior offenses and statements, his ADTC and other psychological evaluations, as well as objective test data, such as his score on the Static-99 test. Dr. Friedman testified that his opinion was his own and he did not rely on other professionals' diagnoses. Dr. Friedman was thoroughly cross-examined on his findings.

Because Dr. Friedman did not merely rely on the reports prepared by non-testifying evaluators for the express purpose of civilly committing A.X.H., and because A.X.H. had ample opportunity to cross-examine Dr. Friedman, the trial judge did not err in considering his opinion. As noted in Tavorath, supra, 352 N.J. Super. at 402, the failure of an expert to give weight to a factor thought important by an adverse party does not reduce his testimony to an inadmissible net opinion if he otherwise offers sufficient reasons which logically support his opinion. Rather, such an omission merely becomes the proper subject of exploration and cross-examination at a trial. Ibid. That is exactly what happened in this case. The failure of Dr. Friedman to have examined A.X.H. in person may give rise to an argument by A.X.H. that his testimony should not have been accorded great weight, but it did not reduce his testimony to an inadmissible net opinion because he had other sufficient bases upon which to support his opinion. Further, A.X.H. was given and took the opportunity to cross-examine the doctor thoroughly at trial.

Accordingly, we find there was no mistaken discretion by Judge Freedman in admitting the opinions and testimony of both of the State's witnesses. We also find that the judge's findings of fact are amply supported by the record and that his conclusions of law are correct. We, therefore, affirm.

Affirmed.

20090807

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