July 6, 2011
IN THE MATTER OF THE CIVIL COMMITMENT OF P.H., SVP-437-06.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-437-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 14, 2011
Before Judges Carchman and Parrillo.
P.H., a forty-four-year old male, appeals from a December 15, 2010 order of the Law Division, continuing his involuntary civil commitment to the Special Treatment Unit as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
The issue before us is limited. An involuntary civil commitment can follow service of a sentence, or other criminal disposition, 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(b).
[T]he State must prove that 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. [In re Commitment of W.Z., 173 N.J. 109, 132 (2002).]
The trial judge must address P.H.'s "present serious difficulty with control over dangerous sexual behavior," and the State must establish that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 132-34. See also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 607-08 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
These are the facts before the trial judge at the review hearing. On November 13, 2000, P.H. was arrested in Charleston, South Carolina for Criminal Sexual Conduct and Kidnapping.
B.N., the victim, was an escort sent to meet P.H. at his motel room. Following fifteen minutes of "friendly conversation," P.H. grabbed victim by the neck and hair, and covered her mouth when she began to cry. Although he initially agreed to the victim's pleas that he wear a condom, P.H. removed the condom shortly thereafter as he continued the assault. P.H. subjected the victim to anal and vaginal intercourse and restrained her when she attempted to get up. Although the victim defecated during the assault, P.H. would not permit her to leave until she had performed oral sex on him. Before letting her go, P.H. recorded the victim's name and address and threatened her to not report the assault. He also forced the victim to write a letter stating that she consented to intercourse with P.H. for no money.
At the time of B.N.'s assault, P.H. had been released on bail for similar charges arising from the assault of a nineteen year-old New Jersey woman, and had been reported by two other women (who had previously declined to file charges) in the prior fourteen months. In all four reported assaults, the victims were call girls or escorts, and all four assaults involved elements of choking, shoving, or other means of physical force.
P.H. was convicted in South Carolina for the November 2000 offense of second-degree criminal sexual conduct and was extradited to New Jersey, where he was convicted of fourth- degree attempted criminal sexual contact, N.J.S.A. 2C:14-3(b); and two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7). He was sentenced to a term of imprisonment for eleven and one-half years concurrent to the sentence imposed in South Carolina.
In August 2006, the State filed a petition in the Law Division seeking to have P.H. civilly committed to the New Jersey Special Treatment Unit (STU) as a sexually violent predator. N.J.S.A. 30:4-27.28. An order for temporary commitment was entered on August 10, 2006, and thereafter, on July 16, 2008, a judgment was entered civilly committing P.H. A subsequent review hearing followed and on December 15, 2010, Judge Freedman entered judgment continuing P.H. as an SVP.
The proofs revealed that upon evaluation by the Treatment Progress Review Committee (TPRC), P.H. was diagnosed with Paraphilia NOS (non-consent), provisional Sexual Sadism, Alcohol Dependence and Personality Disorder (NOS) with antisocial and borderline features. P.H. demonstrated difficulty controlling his anger, exemplified by his refusal to undergo an MRI for a shoulder injury because he believed that having to undergo a strip search upon his return would enrage him.
At STU, P.H. participated in a number of treatment groups. He completed Anger Management I and Drug and Alcohol Education, and is currently attending Process Group, Family of Origin, and Stages of Change I. He has withdrawn from Relapse Prevention I. His treatment evaluators describe him as "defensive, resistant to treatment, withdrawn . . . rigid, argumentative, and disrespectful toward staff." P.H.'s results on the "Static-99R," an actuarial tool to measure recidivism rates, show a score at which approximately twenty-five percent of offenders re-offend within five years and thirty-five percent re-offend within ten years. This places him within the Moderate-High Risk category of offenders.
According to the testimony of Dr. Roger Harris, the risk of a repeat offense is also especially high based upon the presence of two of the above psychiatric diagnoses -- Paraphilia, NOS and personality disorder. The diagnosis of Paraphilia, NOS indicates that P.H. "experiences recurrent and intense fantasies . . . or behaviors involving sexual arousal to nonconsensual sexual behavior." This is consistent with and explains why P.H. "force[d] [his victims] into sexual acts against their will" even though they were all prepared to engage in some level of consensual sexual activity with him. His personality disorder manifests with "a pervasive pattern of disregard for and violation of the rights of others" including "disregard for the well-being of others, impulsivity, lack of remorse [and] poor decision making." The combination of the two disorders "predispose[s] him to acts of sexual violence."
Although he has participated in treatment, he still "minimizes his offenses . . . has great cognitive distortions . . . a very negative view of women . . . and is unaware of his affect on others." In the view of Dr. Harris, "if [P.H.] were released, he would, in fact, have serious difficulty controlling his sexually violent behavior." The TPRC recommended that P.H. continue his treatment and encouraged him to reenroll in Relapse Prevention to "acquire a general understanding of a sexual assault cycle and relapse prevention techniques."
In his comprehensive oral opinion of December 21, 2010, Judge Freedman concluded that P.H. "has not progressed sufficiently in treatment to even consider a conditional discharge at this time. He's very dangerous. What he does is extremely dangerous . . . [h]e has a high propensity to do it." The judge continued P.H.'s commitment and fixed a new review date. This appeal followed.
On appeal, P.H. challenges his continued commitment.
On appeal, the scope of review of an order for commitment is limited and narrow. See In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We can modify the order "only where the record reveals a clear abuse of discretion." In re J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). We do not find such an abuse in this case as this record well supports continued commitment under the SVPA.
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