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In re Civil Commitment of J.X.M.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 24, 2010

IN THE MATTER OF THE CIVIL COMMITMENT OF J.X.M. SVP 492-08

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP 492-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 23, 2010

Before Judges Grall and LeWinn.

J.X.M. appeals from the September 18, 2008 judgment of the trial court committing him to the Special Treatment Unit, a facility designed for the custody, care and treatment of sexually violent predators, pursuant to the New Jersey Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 (SVPA). We affirm.

In 1988, J.X.M. was arrested for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3); first-degree armed robbery, N.J.S.A. 2C:15-1; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). The charges stemmed from an incident on January 21, 1988, when defendant followed a woman walking on the street, then physically assaulted her, threatened her with a screwdriver, took her pocketbook and put his hand up under her dress, ripping her pantyhose and feeling her thighs. Members of the victim's family intervened and apprehended defendant.

Upon his arrest for this incident, police discovered that J.X.M. was also wanted for an incident on December 4, 1987. On that date, while under the influence of cocaine, beer and whiskey, J.X.M. abducted a young woman at knifepoint as she was walking on the street, took her to an isolated area and engaged in numerous sexual acts, including forcing the victim to perform fellatio, attempted anal intercourse and rape.

Defendant was indicted separately for these two incidents and ultimately entered plea agreements whereby he pled guilty to first-degree aggravated sexual assault, for the 1987 incident, and to first-degree armed robbery and second-degree aggravated assault for the 1988 incident. On April 29, 1988, he was sentenced to an aggregate term of forty years with a fifteen-year period of parole ineligibility.

On May 28, 2008, the Attorney General filed a petition for the civil commitment of J.X.M. under the SVPA, based upon his aggravated sexual assault conviction. The hearing on that petition was held on September 10, 2008.

The State presented the testimony of Dr. Brian Friedman, a psychologist, and Dr. Pogos Voskanian, a psychiatrist. J.X.M. refused to appear at the hearing; counsel appeared on his behalf, but presented no witnesses.

Dr. Friedman reviewed J.X.M.'s criminal history which, in addition to the 1987 and 1988 incidents, included an incident in 1978 in California, when J.X.M. was arrested on sexual assault charges stemming from what he described as an "orgy" involving two females, one of whom was a minor. Both victims reported that J.X.M. had used force and threatened the use of a knife in committing the sexual assaults. J.X.M. was charged with forcible rape, forcible oral copulation, assault with intent to rape, assault with a deadly weapon and theft. Pursuant to a plea agreement, he pled guilty to assault with a deadly weapon and was sentenced to a prison term of two years.

Dr. Friedman stated that J.X.M. refused to meet with him; therefore, he was not able to conduct psychological testing.

Based upon his review of documents regarding J.X.M.'s criminal and social history, however, Dr. Friedman determined that he had a long history of polysubstance abuse, an extensive criminal history since the age of fourteen, and an inability to control impulsive behavior when not incarcerated.

Dr. Friedman was unable to diagnose J.X.M. with paraphilia, which is defined as: "recurrent, intense sexually arousing fantasies, sexual urges, or behaviors generally involving 1) nonhuman objects, 2) the suffering or humiliation of oneself or one's partner, or 3) children or other nonconsenting persons that occur over a period of at least 6 months." American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 522-23 (4th ed. 1994) (DSM-IV). Dr. Friedman diagnosed J.X.M. with "antisocial personality disorder" and "polysubstance dependence[,]" adding:

[T]here's clear evidence of conduct disorder symptoms prior to age 15. [J.X.M.] has a lengthy criminal record, he has been involved with the legal system since age 14,... [and] continued engaging in criminal activities as an adult, he has not responded to the... deterrent effects of incarceration supervision that has been granted to him,... he has shown very little, if any, genuine remorse from my reviews of others' information for his sexual offending or his general violence, he seems to be a very impulsive individual whose impulses are further weakened when he's under the influence of the myriad of substances that he has used in his lifetime, heroin, PCP, cocaine, hallucinogens, amphetamines, alcohol, so a pretty extensive history there of drug use that dates back to an early age, prior to adolescence even, childhood it seems likely.

In his report, Dr. Friedman noted that antisocial personality disorder "qualifies as a mental abnormality as defined by New Jersey's SVPA."

Dr. Friedman stated that polysubstance dependence "can lower inhibitions" and noted that J.X.M.'s "history, including his own self-report, make [sic] it clear that he's much more likely to engage in sexually aggressive behavior... when he's using. He was under the influence during at least two of his three crimes that have sexual elements to them." He opined that J.X.M.'s polysubstance dependence "would elevate his risk of sexually acting out again in the future."

Dr. Friedman found that J.X.M. presented a "[h]igh risk" to re-offend sexually. In reaching that conclusion, the doctor took into account J.X.M.'s score on the Static-99.*fn1 The "risk factors contributing to" J.X.M.'s score "include index non-sexual violence, prior history of non-sexual violence, prior sex offense charges..., multiple prior sentencing dates, and having unrelated, stranger victims."

In his report, Dr. Friedman summarized his risk assessment of J.X.M. as follows:

[T]he most concerning factor is [J.X.M.'s] personality makeup and severely impaired impulse control. These factors are somewhat accounted for the by the Static-99, as [he] receives many points that relate to an antisocial and violent lifestyle. However, violent tendencies and the utilization of potentially lethal weapons is [sic] not only related to likelihood of sexual recidivism (accounted for by the Static-99 estimates), but also to likely level of victim impact. It is unlikely that [J.X.M.] will commit a non-contact, minimally invasive sexual crime, should he choose to reoffend. Instead, it is much more likely that, should he reoffend, he will commit an aggressive, violent, and significantly impactful sexual crime. Level of likely victim impact is a relevant consideration when assessing risk.

Dr. Friedman noted that during his twenty-year period of incarceration, J.X.M. did not "accrue significant institutional infractions...." The doctor did not regard this as significant, however, because he opined that J.X.M. "seems to do reasonably well in strictly controlled environments, and thus his behavior in prison is not viewed as directly predictive of his likely behavior as an unsupervised individual in the community...."

Dr. Voskanian interviewed J.X.M. in June 2008 for about one and a quarter hours. When he returned in September to administer testing, however, J.X.M. refused to meet with him.

He reviewed the same documents as Dr. Friedman, and testified based upon both his interview and document review.

Dr. Voskanian opined that the close proximity in time of J.X.M.'s 1987 and 1988 offenses constituted a "pattern." He believed the offenses were very similar in nature, as they both involved following a woman, grabbing her, threatening her with a weapon and, in one case actually raping her and in the other sexually accosting her before others intervened. He noted that J.X.M. admitted raping the woman in the 1987 incident, but that he "justified these two offenses in a very primitive manner...."

Dr. Voskanian also opined that J.X.M. presented a "high risk" of sexually reoffending, as measured by the Static-99, and as evidenced by his "[h]istory of violence, history of sexual violence, no treatment, denial, minimization, no insight, poor judgment,... persistent character traits, and he... neither had treatment for substance dependence, nor... sex offender treatment."

The doctor diagnosed J.X.M. with paraphilia based upon the three episodes; even discounting the 1978 episode as remote in time, he opined that the two latter incidents sufficed to warrant the diagnosis. Even though those incidents did not span the six-month timeframe referenced in the definition of paraphilia, Dr. Voskanian stated that he had "never seen any sex offender... straightforwardly, honestly come forward and put his whole story on the table." The doctor also opined that the six-month timeframe in DSM-IV was a "guideline" and not dispositive of the diagnosis.

In her decision rendered from the bench on September 18, 2008, the trial judge concluded that the State had proved by clear and convincing evidence that J.X.M. "continues to be a sexually violent predator[,]" thereby warranting commitment under the SVPA. In support of that conclusion, the judge reviewed the evidence, including the expert opinions which, she noted, were "uncontroverted." Particularly in adopting Dr. Voskanian's diagnosis of paraphilia, the judge noted that the doctor's opinion that the six-month element served as a guideline "was not contradicted or controverted by any person qualified to do so," and that the doctor's opinion "provides enough clinical material for the diagnosis." In sum, the judge stated:

The entire record clearly establishes that [J.X.M.] has serious difficulty controlling his sexually violent behavior, as he demonstrated, in the community. It is clear that [he] is highly likely to commit additional sexually violent offenses in the foreseeable future if not continued in custody for care and for the protection of the public.

On appeal, J.X.M. raises the following contentions for our consideration:

POINT I

THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT J.X.M. WAS SUBJECT TO COMMITMENT AS A SEXUALLY VIOLENT PREDATOR

POINT II

APPELLANT'S INVOLUNTARY COMMITMENT VIOLATE[S] THE EX POST FACTO CLAUSE OF THE UNITED STATES CONSTITUTION IN THAT IT IS PUNITIVE IN LIGHT OF THE FACT THAT J.X.M. SPENT 20 YEARS IN PRISON WITHOUT SEX OFFENDER TREATMENT BEING OFFERED TO HIM, WHILE THE STATE NOW APPARENTLY CONTENDS HIS PURPORTED CONDITION IS TREATABLE, AS SUCH J.X.M. SHOULD BE DISCHARGED FROM COMMITMENT

We have thoroughly reviewed the record in light of these contentions. We are satisfied that neither argument warrants reversal of the judgment. We add the following comments.

The scope of our review of a final order of commitment under the SVPA is "exceedingly narrow." In re Commitment of J.M.B., 395 N.J. Super. 69, 89 (App. Div. 2007), aff'd, 197 N.J. 563 (2009). See also In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). The trial judge must find "by clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator," in order to "authoriz[e] the involuntary commitment of the person to a facility designed for the custody, care and treatment of" such predators. N.J.S.A. 30:4-27.32. We will reverse such a determination only when the commitment reflects a "clear abuse of discretion." J.M.B., supra, 395 N.J. Super. at 89 (citing In re Commitment of J.P., 339 N.J. Super 443, 459 (App. Div. 2001)).

As noted, Judge Perretti found that the State had proven by clear and convincing evidence that J.X.M. suffers from a mental abnormality or personality disorder that presently causes him serious difficulty in controlling sexually aggressive behavior to a degree that he is highly likely to re-offend. See In re Commitment of W.Z., 173 N.J. 109, 132 (2002). The judge's determination is supported by sufficient credible evidence. R. 2:11-3(e)(1)(A). We therefore find no "clear abuse of discretion" in ordering J.X.M.'s civil commitment pursuant to the SVPA. J.P., supra,, 339 N.J. Super. at 459.

J.X.M. also contends that his involuntary commitment violates the constitutional prohibition against ex post facto laws. U.S. Const. art. I, § 10, cl. 1; N.J. Const. art. 4, § 7, ¶ 3. The gravamen of his argument is that, because he "was denied treatment for 20 years and now the State is seeking to civilly commit him because he is an untreated sex offender[,]" the "sentencing court's denial of treatment necessarily extended [his] term beyond the criminal sentence required under the criminal code."

In In re Civil Commitment of W.X.C., 407 N.J. Super. 619 (App. Div.), certif. granted, 200 N.J. 475 (2009), we considered the identical argument asserted here, namely "that because the State did not offer [the appellant] sex offender treatment during his incarceration, and instead waited until he had served his sentence before committing him to a treatment facility, his commitment [wa]s further punishment for his offenses and therefore prohibited by the ex post facto clause." Id. at 632. We rejected W.X.C.'s contentions that "his civil commitment is a 'more burdensome' punishment for his crimes[,]" id. at 633, noting that the "SVPA is not a criminal statute but rather a civil commitment statute with one of its primary objectives being the treatment of the sex offender." Ibid. See Kansas v. Hendricks, 521 U.S. 346, 370-71, 117 S.Ct. 2072, 2086, 138 L.Ed. 2d 501, 520-21 (1997) (holding that the Kansas sexually violent predator statute is not punitive and does not violate the ex post facto clause of the United States Constitution).

Thus, the SVPA does not impose punishment, and commitment under the Act does not constitute unconstitutional ex post facto lawmaking. J.X.M. presents no argument as to how his service of a penal sentence without receiving treatment renders his civil commitment under the SVPA "punishment" within the purview of the ex post facto clause. We discern no basis to deviate from those decisions in which "[w]e have previously considered and rejected the same argument." J.M.B., supra, 395 N.J. Super. at 97.

Affirmed.


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