On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP No. 472-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Coburn.
D.B. appeals from a judgment entered on May 21, 2008 that continued his involuntary psychiatric 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 reject D.B.'s claim that the State's proofs fell short of establishing by clear and convincing evidence that he is highly likely to engage in acts of sexual violence if not involuntarily confined. We affirm.
D.B. is a sixty-three year old man with a lifelong history of psychiatric hospitalizations. When he was three years old, he became hyperactive and uncontrollable, repeatedly biting his arms while banging his head on the floor. This conduct, along with performing fellatio on his younger brother, caused D.B.'s family to commit him to various psychiatric institutions from the time he was eleven years old until he was twenty-three, which was in 1970.
In 1975, five years after his release from that psychiatric hospitalization, D.B. committed his first violent sexual offense by raping a fifteen-year-old girl at knife point. After initially denying that the victim ever entered his car, D.B. later admitted she did, but insisted that she, not he, was the sexual aggressor. In July 1975, D.B. pled guilty to that crime, which was then known as statutory rape. He was sentenced to an indeterminate term not to exceed fifteen years at the Adult Diagnostic and Treatment Center at Avenel (ADTC or Avenel). D.B. served the entire sentence at the ADTC and maxed out on March 26, 1990.
D.B. was next arrested in October 2002, twelve years after his release from the ADTC, when he was charged with paying his godson, R.E.K., the sum of forty dollars so that D.B. could perform oral sex on him. D.B. tried to entice another boy, N.B., but N.B. refused. At the time of his arrest, D.B. admitted that his sexual contact with R.E.K. had begun in 1998, when he started fondling R.E.K.'s penis. As a result of his victimization of R.E.K., D.B. was convicted of two counts of second-degree sexual assault. His attempted sexual conduct with N.B. resulted in a conviction for one count of second-degree endangering the welfare of a child. The aggregate sentence imposed on September 22, 2003 for the three offenses was a five-year term of imprisonment to be served at Avenel.
In preparation for the September 2003 sentencing, D.B. was evaluated by Dr. Donna LoBiondo on July 17, 2003. LoBiondo administered a psychological profile known as the Bumby Scale, in which D.B. agreed with nineteen of the thirty-six items on the Rape Scale and twenty-nine of the thirty-seven items on the Molest Scale. Among the statements with which D.B. agreed are "Kids who get molested by more than one person probably are doing something to attract adults," and "It is better to have sex with one's child than to cheat on one's wife."
D.B. admitted to LoBiondo that the 2002 incident with R.E.K. in which he had paid the child $40 for sex was the culmination of "four years" of "having fantasies about him." When LoBiondo asked D.B. whether he believed his fifteen years of treatment at the ADTC from 1975 to 1990 had been helpful, D.B. stated that he participated only partially because he did not "take it to heart." D.B. reported that he viewed his 1975 rape of the fifteen-year old girl "as a one time thing" that he "didn't take . . . very seriously." He did, however, acknowledge to LoBiondo that he needed treatment and was willing to return to Avenel to develop better insight into his deviant sexual conduct.
When D.B.'s commitment to the ADTC for the crimes involving R.E.K. and N.B. was nearing an end, D.B.'s treatment team prepared a Termination Report discussing his progress in treatment. The report noted that D.B.'s progress was hindered by "his fears of failing, oppositional behaviors and refusal to ask for help, or accept help from others when offered." The treatment team remarked that although D.B.'s intelligence was "estimated to be within the average range," D.B. repeatedly refused to complete written assignments in the following psychoeducational modules to which he was assigned: sex education, relapse ...