July 8, 2011
IN THE MATTER OF THE CIVIL COMMITMENT OF R.J. SVP-395-05.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-395-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 14, 2011
Before Judges Carchman and Parrillo.
R.J. appeals from the December 17, 2010 order of the Law Division, continuing his involuntary civil commitment to the Special Treatment Unit (STU) as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He argues that the State presented insufficient evidence to support his continued commitment. We have thoroughly reviewed the record and we find appellant's argument lacks merit. We are satisfied the judge's findings are amply supported by the record. Accordingly, we affirm.
R.J. is a twenty-six-year-old male. The predicate offense involves an adjudication of delinquency in 2002 for conduct which, if committed by an adult, would constitute first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(4). This charge stemmed from his performing fellatio on a sixteen-year-old boy while armed with a knife. At the time, R.J. was also sixteen years old. R.J. gave a statement to the police in the presence of Eric Messer, whom he falsely described as his "father." He admitted the allegations and stated that, while staying in a motel room with Mr. Messer:
[R.J.] did in fact invite a young white male to his hotel room. [R.J.] stated that [Messer] left the room early in the morning to go to church. [R.J.] stated that as soon as the victim entered his room he grabbed him by the throat and pushed him into the rear of the main door. [R.J.] advised that once the male's pants were removed he did in fact perform fellatio on him. [R.J.] stated that the male suspect tried to get away and he had to physically restrain him by using a headlock on him. [R.J.] advised that he threw the subject to the floor of [sic] once again performed fellatio on him. . . . [R.J.] advised that he let the white male subject leave. [R.J.] noted that before this subject departed from his motel room, he did show him a knife, and told him that he would kill him if he told anybody of what had happened.
R.J. was committed to the Juvenile Medium Security Facility for four years. As he approached his release date, in May 2005, the State filed a petition for R.J.'s commitment pursuant to the SVPA. R.J. was committed on November 10, 2005. On July 6, 2006, following a review hearing, the commitment was continued. We affirmed that decision on appeal. In re Commitment of R.J., No. A-5769-05 (App. Div. July 21, 2009) (slip op. at 16).
The instant proceeding, which is the subject of this appeal, occurred on October 20 and December 1, 2010. The State presented the testimony Dr. Jamie Canataro and Dr. Pogos Voskanian. R.J. produced the testimony of Dr. Uri Amit and Dr. Christopher Lorah.
Dr. Canataro diagnosed R.J. with the following psychiatric conditions: polysubstance dependence in a controlled setting; attention-deficit hyperactivity disorder; and antisocial personality disorder. R.J. was tested on Static-99, which is a measure of relative risk for sexual recidivism. On this test, R.J. scored a 6, which places him in the high risk category for sexual reoffending. R.J. was also subject to a sexual history polygraph, which indicated deception.
In his meeting with Dr. Canataro, R.J. admitted that he still struggles with deviant arousal and that he had last masturbated to a deviant fantasy approximately eight months before their meeting. Specifically, R.J. said that he masturbated to thoughts of holding someone down on the beach, and that he currently experiences pop-up thoughts of deviant fantasies. According to Dr. Canataro, these deviant thoughts, specifically those during masturbation, are indicative of the fact that the relapse prevention is not yet working. Although R.J. denied allegations of intimacy with a younger STU resident, he did admit to being in a previous sexual relationship with another individual in the facility about nine months ago.
Dr. Canataro noted that, more recently, R.J. has shown an increase in motivation for treatment, and encouraged him to continue on his positive treatment trajectory. In this regard, Dr. Canataro noted that R.J. was maintaining investment in treatment by going to groups, participating in floors, and being supportive to his other group members, along with participating in self-help groups. However, R.J. does not often talk about himself, which, according to Dr. Canataro, is an important part of his treatment.
Dr. Canataro also noted that R.J. needed to refrain from any behaviors that could be misinterpreted as sexual with other residents, and that he needed to identify other possible victims of his behavior as well as his own deviant arousal. Dr. Canataro also recommended that defendant join the Therapeutic Community, a more advanced "therapeutic milieu."
Ultimately, Dr. Canataro recommended that R.J. continue in Phase-3 of treatment, which the expert defined as "indicat[ing] that the resident is becoming aware of [his] core treatment issues and [is] actively engaged in treatment to work on [those] issues." Dr. Canataro opined that R.J. was not yet ready for Phase-4 because that phase "indicates that [R.J.] would have successfully explored all of his treatment goals and would be ready to be considered for discharge planning. [R.J.] is not at that level yet. [R.J. is] still exploring his core treatment issues."
The State's other expert, Dr. Voskanian, diagnosed R.J. with polysubstance dependence in a controlled environment; paraphilia NOS; and anti-social personality disorder. The expert's anti-social personality disorder diagnosis was based on R.J.'s conduct problems, which began at a young age and persisted into adulthood. According to Dr. Voskanian, the disorder leads to a tendency to deceive others, have disregard for other people's rights, and result in little or no empathy. The combination of these factors, according to Dr. Voskanian, contributes to his risk of sexually re-offending. Dr. Voskanian's diagnosis of paraphilia NOS was based on R.J.'s clear arousal to non-consensual sexual activity. On the basis of these diagnoses, Dr. Voskanian concluded that R.J. remains at high risk:
[R.J.] is immature, and by his own admission, impulsive[. R.J. has a] history of not sufficiently address[ing] substance dependence issues, [a] history of quite violent sexual offense[s], persistent fantasies, disregard for rules and regulations, continuous violation of rules and regulations, . . . multiple unaddressed issues related to his sexual offenses and sexual pathology, as well as emotional dis-control, irritability, and continuous cooptive behaviors.
Dr. Voskanian had spoken to R.J. about his sexual experiences with other individuals in treatment. This was significant to Dr. Voskanian because it indicates that R.J. remains sexually preoccupied and is violating the rules of the institution. Dr. Voskanian noted that "[R.J.] has [a] propensity of violating the . . . rules of the institution and rules that are imposed. And if someone violates the rules . . . while they are in a restricted environment, they are more likely to violate rules when they are not in restricted environment[s], rules or conditions." In fact, at the time of his interview with Dr. Voskanian, R.J. had been recently put on a modified activities program [MAP] placement because he was "somewhat provocative and pushy."
Dr. Voskanian also testified that [R.J.] had described an unusual pattern in his fantasies:
[R.J.] has some sort of sado-masochistic fantasy, which he keeps in the back of his head as [an] aversive type of fantasy. [R.J.] masturbates to what he calls consensual fantasy. [R.J.] says that the aversive thing, being beat up and being soaked with urine and being . . . in the back of the car, and [a] variety of fully aversive events, [R.J.] keeps it in the back of his mind, but he calls it subconscious, and he masturbates to consensual fantasy.
According to Dr. Voskanian, R.J. also minimizes his substance dependence issues. This is significant because it is likely to impair R.J.'s judgment and impulse control, which substantially increases the chances of him sexually acting out. Also significant was R.J.'s deception during the polygraph test because this behavior correlates with his other issues related to sexual offending and his own poor judgment in recognizing sexual misconduct.
Dr. Voskanian concluded that R.J. belongs in early Phase-3, where he is addressing some of his issues while trying to engage in treatment:
[T]he central pathology, [the] characterologic tendency of splitting identity issues, persistent violation of rules of the institution, co-optive behaviors, consistent or with the flavor of sadomasochistic traits, correlated with his overall make-up, unaddressed issues of his own molestation and abuse, unexplored aggression which has a strong correlation with [R.J.'s] sexual perceptions and . . . all the perceptions of himself as a sexual being, unaddressed and unclarified discrepancies in substance dependence history.
Dr. Amit, who testified on R.J.'s behalf and who had counseled him in group therapy until R.J. went into MAP, agreed with the State's experts that R.J. should remain in Phase-3 of treatment. As for R.J.'s progress in group therapy, Dr. Amit noted:
[I]nitially, he had difficulties, but [where] we stand [R.J.] has changed, and went to remain seated, . . . not leave the group, managed to contain himself, control his anger. After that, [R.J.] moved on to not only controlling his anger, but also expressing why he was getting angry.
Certainly [R.J.] has . . . always been on time for group, his attendance has been near perfect.
Lastly, Dr. Lorah also testified on R.J.'s behalf. Dr. Lorah did not diagnose R.J. with either paraphilia NOS or with a personality disorder. The expert further explained that the link between antisocial personality disorder and sexual misconduct in the absence of a paraphilia disorder is slight.
Dr. Lorah opined that R.J.'s risk level would be described clinically as low to moderate in terms of potential for future sexual aggression or sexually inappropriate/illegal behaviors. Further, Dr. Lorah noted that R.J.'s "current treatment needs can be adequately and effectively met in the community," and noted the effectiveness of Global Positioning Systems in cases such as R.J.'s.
At the close of evidence, the trial court found "by clear and convincing evidence that [R.J.] does, in fact, suffer from a mental abnormality in the form of a paraphilia, and a substance [dependence], and a personality disorder that predispose him to engage in acts of sexual violence." Finding that R.J. had not progressed far enough to consider conditional discharge, the court continued defendant's civil commitment and set the matter for review in one year.
This appeal follows in which, in addition to contesting the sufficiency of the evidence, R.J. challenges for the first time on oral argument the reliability of the Static-99 test results and the State's failure to call witnesses to testify about his MAP status.
I. 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 offender's likelihood of 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 court must address "his or her 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 132-133; see also In re Civil Commitment of J.H.M, 367 N.J. Super. 599, 610-611 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
Once an individual has been committed under the SVPA, a court must conduct an annual review hearing to determine whether the committee will be released or remain in treatment. N.J.S.A. 30:4-27.35. The burden remains upon the State to prove by clear and convincing evidence that the committee continues to be a sexually violent predator, as defined in the SVPA and interpreted in W.Z., supra, 173 N.J. at 131-32. "[A]n 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." Id. at 130.
In reviewing a judgment for commitment under the SVPA, the scope of appellate review is "extremely narrow", and the trial court's decision should be given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion." 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)); see also In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower court['s] findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996) (citing Fields, supra, 77 N.J. at 311).
We are satisfied from our review of the record that the judge's findings are amply supported by substantial credible evidence. State v. Locurto, 157 N.J. 463, 470-71 (1999). We affirm substantially for the reasons stated by Judge Freedman in his oral opinion of December 13, 2010.
II. In contesting the admissibility of his Static-99 test results, R.J. relies exclusively on J.P., however, his reliance is misplaced as that case is distinguishable. In J.P., supra, the committee, who was fourteen and fifteen years of age when he committed two sexual assaults, was committed as a sexually violent predator based in part on his score of seven on a Static-99 test,*fn1 placing him in the high range for future sexual offenses. 339 N.J. Super. at 445-47, 451. On appeal, the committee challenged the admission of actuarial risk assessment instruments, including the Static-99, which the State's expert admitted caused "significant concern" when applied to juveniles younger than eighteen-years-old. Id. at 455. We agreed, finding that certain Static-99 questions showed no value for J.P. as an adolescent, which cast doubt on whether the instrument could serve as a reliable predictor of his future dangerousness.*fn2 Id. at 456-457. Because the State presented no evidence that "actuarials could be properly admissible against subjects whose offenses were committed while under age eighteen," we remanded the matter for an evidentiary hearing concerning the admissibility of actuarial instruments. Id. at 457.
J.P. is clearly distinguishable from the present matter. Most important, Dr. Voskanian, the expert who conducted the risk evaluation of R.J., neither relied on the Static-99 test results nor incorporated them into his analysis. Moreover, R.J.'s expert, Dr. Lorah, only mentions the Static-99 test to discount its usefulness in this case. Although Dr. Canataro mentioned the Static-99 test as did the committee's doctor in J.P., here, unlike J.P., the State presented evidence that the actuarials were reliable and therefore properly admissible. Specifically, Dr. Canataro testified to the reasons the Static-99 was appropriate:
The Static-99 is an instrument that's used to measure sexual re-offense on individuals who have committed a sexual offense. [I]t is appropriate for [R.J.] as he has committed a sexual offense. I know there's concern that it was at such a young age, but according to the Static-99 manual, it is appropriate to use for [R.J.] . . .
[R.J.] has adult-like qualities in that offense. [I]t is often cautioned not to use this . . . with some offenders. But [R.J.], he utilized a weapon, he offended against a stranger. [T]here is adult-like elements to that offense. [S]o it does seem appropriate to use it on [R.J.]. And I say that with the caution that there are additional elements because of the young age that are considered when using risk assessment.
Similarly, even Dr. Lorah, who testified on behalf of R.J., noted the Static-99's applicability to committees who commit offenses appearing "adult" in nature. Dr. Lorah quoted the Static-99 scoring manual:
It should be noted that there were people in the original STATIC-99 samples who had committed sexual offense as juveniles (under the age of 18 years) and who were released as adults. In some cases an assessment of STATIC-99 risk potential may be useful on an offender of this nature. If the juvenile offenses occurred when the offender was 16 or 17 and the offenses appear "adult" in nature (preferential sexual assault of a child, preferential rape type activities) -- the STATIC-99 score is more likely of some utility in assessing overall risk.
Unlike J.P., there was expert testimony as to the appropriateness of the Static-99 despite the fact that R.J. was an adolescent when he committed the crime. Even more significant, Dr. Voskanian did not rely on those test results in evaluating R.J.'s risk of reoffending.
III. Lastly, R.J.'s contention at oral argument implicating the propriety of his MAP status is totally without merit. In fact, at the December 1, 2010 hearing, R.J. expressly withdrew his application for the court to consider his MAP status. Specifically, R.J.'s counsel stated, "[R.J.] indicated to me that he believes he's been taken off MAP in a week or two and would like me to withdraw his motion for the court to consider his MAP status." The court asked R.J. if he was sure, to which he responded, "since I've been on MAP for so long, I don't think calling in the witnesses is going to change the fact that I've already been on it for two weeks or months." Again, the trial court asked R.J. if he understood the nature of his withdrawal request and R.J. responded, "Yes, Your Honor." Having explicitly waived any objection thereto, R.J. may not raise a treatment challenge now for the first time at oral argument.