On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-349-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Miniman.
R.X.W., adjudged a sexually violent predator pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.32, and civilly committed to a State special treatment unit (STU), appeals from an April 6, 2009 order continuing his involuntary commitment. By agreement of the parties and permission of the court, the appeal was argued without briefs. However, in oral argument before us, counsel for R.X.W. argued that (1) the court's decision was improperly based on hearsay, consisting of prior records of R.X.W.'s offenses, evaluations and treatment; (2) the court should have drawn a negative inference pursuant to State v. Clawans, 38 N.J. 162 (1962), from the failure of the State to call as witnesses the authors of the documents upon which the testifying experts relied; (3) the testimony of psychiatrist Pogos Voskanian should have been barred because his attempted interview with R.X.W. was conducted more than five days prior to the hearing, in violation of N.J.S.A. 30:4-27.30(b); (4) actuarial evidence of R.X.W.'s risk of reoffense was improperly admitted; and (5) R.X.W.'s right of confrontation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004) and State v. Buda, 195 N.J. 278 (2008) was violated. We affirm.
In deciding this appeal, we recognize the following bedrock principles: 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 an 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 (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. 30:40-27.35. 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. 30:4-27.32(a). "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).
In a case such as this, our scope of review 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) (citing State v. Fields, 77 N.J. 282, 311 (1978)). "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, 38-39 (1996).
In this matter, an order committing R.X.W. to the STU pursuant to the SVPA was entered on July 13, 2004. The order was appealed, and we affirmed in an unreported opinion. In the Matter of the Civil Commitment of R.X.W., No. A-0648-04T2 (App. Div. October 25, 2006).
The record reflects that R.X.W.'s index offense occurred in 1994. It is alleged that he brutally raped a retarded woman after forcing her into an alley. On June 30, 1994, R.X.W. pled guilty to third-degree terroristic threats to kill, N.J.S.A. 2C:12-3b, and fourth-degree sexual contact, N.J.S.A. 2C:14-3b. He was sentenced to five years in custody on the terroristic threats charge, and to a concurrent eighteen-month sentence for the criminal sexual contact. R.X.W. has not denied his conduct. However, he has denied that this crime was sexually motivated, contending instead that it was motivated by anger and substance abuse.
Previously, in 1985, R.X.W. was charged with second-degree sexual assault, N.J.S.A. 2C:14-2c, third-degree terroristic threats to kill, N.J.S.A. 2C:12-3b, and third-degree criminal restraint, N.J.S.A. 2C:13-2, upon evidence that he had repeatedly thrown to the ground, raped, digitally penetrated, committed cunnilingus upon, and attempted to sodomize an eighteen-year-old woman while restraining her and uttering threats to kill. He was found guilty after a trial by jury and was sentenced to nine years in custody for the sexual assault and to four-year concurrent sentences on the other charges. Additionally, in 1986, R.X.W. was tried and found guilty of committing statutory rape, N.J.S.A. 2C:14-2a, receiving a seven-year sentence for the crime.
Just prior to his civil commitment, R.X.W. was serving a three-year sentence for second-degree aggravated assault, N.J.S.A. 2C:12-1b(2), arising out of a domestic violence incident occurring on September 29, 2001. The record also indicates the commission by R.X.W. of multiple additional crimes of a non-sexual nature, both as a ...