October 6, 2011
IN THE MATTER OF THE CIVIL COMMITMENT OF K.A.H. SVP-496-08
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-496-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 29, 2011
Before Judges Alvarez and Nugent.
K.A.H. appeals from a December 9, 2008 judgment committing him 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. After reviewing the record in light of the contentions advanced on appeal, we affirm.
K.A.H. asserts that the commitment judge erred because the State's proofs did not amount to clear and convincing evidence that he is a sexually violent predator within the meaning of the statute. He also asserts that the judgment violates the ex-post facto clause of the United States Constitution because he spent years in prison without being afforded sex offender treatment "while the State now apparently contends his purported condition is treatable." K.A.H. reasons that the Department of Corrections' (DOC) failure to provide him with treatment while he was imprisoned means he must be discharged from commitment.
The scope of appellate review of a judgment of civil commitment is exceedingly narrow. In re J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)). We "only reverse a commitment for an abuse of discretion or lack of evidence to support it." In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 225 (App. Div. 2007). See also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We have also recognized that "committing judges under the SVPA are specialists in the area, and [that] we must give their expertise in the subject special deference." In re Civil Commitment of T.J.N., supra, 390 N.J. Super. at 226. An appellate court should give the "'utmost deference'" to the reviewing judge's determination of the appropriate balancing of societal interests and individual liberty. In re J.P., supra, 339 N.J. Super. at 459 (App. Div. 2001) (quoting Fields, supra, 77 N.J. at 311). That determination will be subject to modification only where the record reveals a clear abuse of discretion. Ibid. (citing Fields, supra, 77 N.J. at 311). "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996) (citing Fields, supra, 77 N.J. at 311).
To summarize the proofs, on July 17, 2003, K.A.H., who is now fifty-two years old, was sentenced to seven years in state prison, subject to eighty-five percent parole ineligibility in accordance with the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. That sentence was imposed pursuant to his guilty pleas to four counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b).*fn1 The offenses arose from K.A.H.'s ongoing sexual molestation of his girlfriend's daughter from the time the child was six until she was eleven, including forcible vaginal intercourse. The offending behavior stopped only after the child's mother and K.A.H. ended their relationship subsequent to a domestic violence incident.
When assessed at the Adult Diagnostic Treatment Center (ADTC) prior to his sentence, K.A.H. completed the written portion of the evaluation but refused to participate in the interview portion of the process. Hence no determination could be made as to whether his conduct was repetitive and compulsive. See N.J.S.A. 2C:47-1 and -2. At sentencing, the trial judge told K.A.H. that he had the right, "on a biennial basis," to request a transfer to ADTC after a "psychological examination." See N.J.S.A. 2C:47-3(f). This option was clearly explained and K.A.H. confirmed that he was not interested in completing his sentence at Avenel but preferred to serve it at state prison.*fn2
K.A.H. never requested a transfer. K.A.H. completed the seven-year sentence imposed in 2003 immediately prior to commitment.
On May 18, 1992, K.A.H. had been sentenced to ten years in prison after pleading guilty to second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1). K.A.H. did cooperate with that ADTC evaluation and, when interviewed, acknowledged a long history of criminal behavior, and alcohol and drug abuse, commencing when he was thirteen years of age. He reported being placed in a residential facility at age fourteen for being "social[ly] maladjusted." K.A.H. also disclosed that he had attempted to open the safe in the residential facility with a sledge hammer. He claimed he purchased his first gun at age fifteen, and was subsequently involved in a shooting. K.A.H. also disclosed that he shot someone in the leg as retaliation for the person striking his daughter. No charges resulted from either incident. Additionally, he claimed to have been actively involved in the drug trade, from which he made "good money, lots of money."
The incident which resulted in K.A.H.'s 1992 sentence occurred in 1990 when he was employed as a janitor at a Ramada Renaissance Hotel. The victim, twenty-seven-year-old E.E., reported that as she entered a public bathroom, she noticed K.A.H. standing in the doorway with a cleaning cart. He pushed her into a bathroom stall, kissing her and fondling her, while pulling her dress up around her waist. K.A.H. vaginally raped E.E. and forced her to fellate him. After he left, the victim immediately reported the assault. When questioned, K.A.H. claimed that E.E. had sexually assaulted him, or alternatively, that she consented. Although when evaluated K.A.H. was found to be a repetitive sexual offender, since his responses indicated an overall pattern of poor impulse control, exploitation, and violence towards women, he was not found to be compulsive and was not recommended for sentencing to Avenel.
K.A.H.'s first adult criminal offense occurred in 1985 when his former girlfriend charged that while the two were in a wooded area, he raped her and forced her to fellate him. At the time, they had been drinking, arguing, and were in the course of ending their relationship. K.A.H. eventually pled guilty on December 4, 1985, to an amended second-degree aggravated assault. He was sentenced to seven years imprisonment, and was actually on parole on the date of the Ramada hotel assault, resulting in a violation of parole.
K.A.H.'s convictions for sexual assault in 2003 and 1992 are predicate offenses enumerated in the statute making defendant eligible for commitment under the SVPA. N.J.S.A. 30:4-27.26. "The Act defines 'sexually violent predator' in terms of the type of crime the person has committed, and does not limit the definition in relation to when the person committed the crime." In re Civil Commitment of P.Z.H., 377 N.J. Super. 458, 463 (App. Div. 2005).
At the commitment hearing, the State must also prove the individual poses:
a 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 Civil Commitment of W.Z., 173 N.J. 109, 132 (2002).]
An involuntary civil commitment can follow an offender's completion of a sentence, or other criminal disposition, if he or she "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; N.J.S.A. 30:4-27.25(c).
During the commitment hearing, in order to prove K.A.H. was such a person, the State presented the testimony of two experts, Rosemarie Stewart, Ph.D., a psychologist, and Pogos Voskanian, M.D., a psychiatrist. They agreed that K.A.H. suffers from polysubstance abuse and antisocial personality disorder, although they differed to a limited extent as to K.A.H.'s diagnoses.
Dr. Stewart testified that in her opinion K.A.H. suffered from "pedophilia and possible paraphilia NOS[*fn3 ] in combination with anti-social personality disorder" and "mood disorder NOS." In her view, the combination of pedophilia and anti-social personality disorder increases the likelihood that K.A.H. will commit sexual crimes in the future. K.A.H.'s lack of restraint means that he would find it easier to act upon urges predisposing him to sexually reoffend. Dr. Stewart said these impulses and conditions do not spontaneously extinguish and that only through treatment can one learn to control these urges.
In Dr. Stewart's view, K.A.H., as established through testing, falls into that category of offenders who are likely to recidivate at a high rate. Although she opined that it was unclear whether K.A.H. was driven more by his antisocial tendencies or by sexual compulsion, there was some sexual deviance involved in his criminal conduct.
Furthermore, as Dr. Stewart explained, K.A.H.'s substance abuse problems elevate his risk for sexual reoffense. Substance abuse alone does not make it more likely that an individual will sexually offend, but in conjunction with sexually deviant urges, it acts as a disinhibitor. In K.A.H.'s case, by self-report, he had ingested substances during all of his criminal episodes.
Dr. Stewart also opined that K.A.H.'s pedophilia and antisocial personality disorder predispose him to sexual violence. Furthermore, since his victims ranged from a female child to adult women, he is at higher risk to reoffend because he must learn to control his behavior in the face of the greater number of opportunities presented by a larger victim pool. She therefore concluded that K.A.H. was highly likely to sexually reoffend.
Dr. Voskanian opined that K.A.H. suffered from a bipolar disorder, NOS. He noted that K.A.H. has a history of psychotic episodes and psychiatric hospitalizations. He also stated that K.A.H.'s antisocial personality disorder manifested itself in his inconsistent accounts of past events and attempts to present himself in a favorable light by distortions of the past. Dr. Voskanian believed that K.A.H.'s unique combination of antisocial personality disorder, with "a rule-out of paraphilia NOS," magnified his risk for sexual reoffense. Like Dr. Stewart, he testified that K.A.H.'s polysubstance abuse lessened his inhibitions, resulting in a greater likelihood that he would act on sexually deviant impulses. Dr. Voskanian believed the impulses can be controlled only through treatment.
Dr. Voskanian also said that K.A.H.'s diagnoses predisposed him to sexual violence. In his view, K.A.H. would not be able to control his sexual impulses if released into the community and his risk to sexually reoffend was high. Dr. Voskanian reached this conclusion based upon K.A.H.'s personality disorder, extensive substance abuse history, psychiatric history, complete denial of his sexual offending history, complete denial of any sexual deviance, history of noncompliance with psychotropic medication, and lack of sex offender or substance abuse treatment.
Both Dr. Stewart and Dr. Voskanian interviewed K.A.H., administered standard personality tests, and reviewed relevant documents including reports from Avenel, the petition for civil commitment, psychological evaluations completed within the prison system, DOC and police records, as well as presentence reports. Dr. Voskanian also relied upon various clinical records, psychological evaluations, criminal discovery, and treatment records.
As defined by the statute, 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." N.J.S.A. 30:4-27.26. A mental abnormality or personality disorder "must affect an individual's ability to control his or her sexually harmful conduct." In re Civil Commitment of W.Z., supra, 173 N.J. at 127. A 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. Ibid. (citing Kansas v. Crane, 534 U.S. 407, 409, 122 S. Ct. 867, 869, 151 L. Ed. 2d 856, 861 (2002)).
After considering the experts' testimony, Judge Perretti concluded that the State had established the requisite impaired ability to control sexually dangerous behavior. The uncontradicted and credible testimony constituted clear and convincing evidence that K.A.H. required civil commitment.
As we have outlined, Judge Perretti had ample proofs in the record from which she could find that K.A.H. suffers from: abnormal mental conditions and personality disorder that predispose him to commit sexually violent acts . . . . The respondent . . . has committed sexually violent acts while on parole and after incarceration. He does not appear to have been deterred by legal interventions.
Judge Perretti went on to state:
It is clear that this respondent is highly likely to reoffend by committing additional sexually violent acts within the foreseeable future if not committed to a secure facility for treatment and the protection of the public.
We therefore conclude that K.A.H.'s first contention lacks merit. The testimony the State proffered proved by clear and convincing evidence that K.A.H. is a sexually violent predator.
We turn to K.A.H.'s second claim, that the judgment must be reversed because the failure to provide him with sexual offender treatment results in the commitment becoming punitive in nature and an ex post facto law as applied to him. K.A.H. did not raise this issue during the course of the hearing. See Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). We choose nonetheless to comment on it briefly.
K.A.H.'s lack of treatment was attributable at least in part to K.A.H.'s refusal to submit to an Avenel interview during the presentence process. He cannot now assert that the decision should benefit him in some fashion by distinguishing him from other committees more cooperative with the presentence evaluation process. The lack of necessary treatment prior to commitment does not make the Act as applied to K.A.H. unconstitutional in any fashion.
In any event, the SVPA is not an ex post facto law because it is not a direct and penal consequence of a conviction. See State v. Bellamy, 178 N.J. 127 (2003). Indeed, challenges such as the one being made in this case have been previously rejected. In re Civil Commitment of J.M.B., 197 N.J. 563, 600-01 (2007), cert. denied, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009). The impact of the SVPA is considered civil rather than penal. Id. at 599; Bellamy, supra, 178 N.J. at 138. It is a civil rather than penal statute, and its incidental effects do not alter its essential character. In re Civil Commitment of W.X.C., 204 N.J. 179, 188-95 (2010), cert. denied, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011). Therefore, K.A.H.'s failure to participate in the treatment does not make his commitment the application of an ex post facto law.
Judge Perretti's findings are firmly supported by substantial and credible evidence in the record. The legal conclusions she reached are consistent with controlling legal principles. We affirm substantially for the reasons stated in her decision of September 9, 2008. There cannot be any doubt that K.A.H. "has serious difficulty controlling his . . . harmful sexual behavior such that it is highly likely that [he] . . . will reoffend." W.Z., supra, 173 N.J. at 133-34.