November 1, 2011
IN THE MATTER OF THE CIVIL COMMITMENT OF G.X.R., SVP-377-04.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-377-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 25, 2011
Before Judges Fisher and Baxter.
G.X.R. appeals from a judgment entered on February 24, 2011 that continued his involuntary 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 G.X.R.'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.
G.X.R. is a fifty-one year old man with a long history of sexual offenses against pubescent and prepubescent girls that spans more than two decades. We begin with his most recent offense, which was the predicate for his involuntary commitment to the STU. In 2000, while employed by the Federal Emergency Management Agency (FEMA), G.X.R. was assessing storm damage at a home in Sussex County. He entered the home and encountered R.C., a girl less than thirteen years of age, whose mother was not home. G.X.R. placed his hands on R.C.'s knee and shoulder. When R.C.'s mother arrived, she spoke briefly with G.X.R., and then went back to work. Returning to the home, G.X.R. forced R.C. onto his lap, touched her stomach and thigh, became sexually aroused, and masturbated in the bathroom. After G.X.R. left, R.C. reported the incident to her mother, who called the police.
G.X.R. was arrested, and on March 8, 2002, pled guilty to the third-degree crime of endangering the welfare of a child, N.J.S.A. 2C:24-4a. The judge sentenced him to a five-year term at the Adult Diagnostic and Treatment Center at Avenel (ADTC).
In August 2004, shortly before G.X.R. was due to be released, the State filed a petition for his involuntary commitment to the STU on grounds that he was a sexually violent predator. The State relied on G.X.R.'s March 8, 2002 child endangerment conviction as well as his three prior convictions for sexual assaults on children committed between 1981 and 1989. G.X.R.'s earliest conviction began with his November 19, 1981 arrest in Tampa, Florida for licking the vagina of two nine-year old girls and digitally penetrating each. One of the two girls also stated that G.X.R. inserted his penis in her vagina. When being interviewed about the sexual assault on the two girls, G.X.R. stated that he was angry after being sexually rebuffed by his girlfriend; and when he saw the girls, he "took out" his "anger and frustration" on them. G.X.R. was found guilty of sexual battery and sentenced to ten years in prison.
G.X.R.'s next predatory acts occurred in the latter part of 1987 when, during three different incidents with three different girls between the ages of twelve and fifteen, he exposed himself while masturbating. He pled guilty to two counts of sexual assault, and one count each of endangering the welfare of a child and criminal sexual contact. He was released from custody pending an Avenel evaluation, but was not sentenced on these offenses until he was arrested years later and a records check revealed that the earlier sentence was never imposed.
G.X.R.'s next crime occurred on March 24, 1988, when two female students, ages eleven and twelve, reported to school officials that while walking to school, a male, who was following them in his vehicle, stopped and showed them a pornographic magazine. When they began to walk away, he threw the magazine at them. Using the license plate number, the police were able to apprehend G.X.R. and charge him with criminal sexual contact and endangering the welfare of a child. He pled guilty on April 10, 1989 to the latter offense. During the Avenel evaluation, G.X.R. admitted to the evaluator that during 1988 and 1989, he "was driving around looking for girls and exposing [him]self and masturbating . . . once or twice every two weeks."
After reviewing the State's September 2004 SVPA petition, the judge issued a temporary order of commitment authorizing G.X.R.'s transfer to the STU pending a final hearing. At the final hearing on February 2, 2005, the judge found that the State's proofs satisfied the standard for G.X.R.'s involuntary commitment as a sexually violent predator. That order was affirmed on appeal. In re Civil Commitment of G.X.R., No. A-4655-04 (App. Div. November 1, 2006). At the next periodic review hearing on June 25, 2007, the judge again continued G.X.R.'s commitment to the STU, and we again affirmed. In re Civil Commitment of G.X.R., No. A-5849-06 (App. Div. January 25, 2008). The next review hearing, on October 15, 2008, resulted in G.X.R.'s continued commitment, as did the next hearing on May 8, 2009. Neither was appealed. The January 20, 2010 order, which again continued G.X.R.'s commitment to the STU, was affirmed on August 2, 2010. In re Civil Commitment of G.X.R., No. A-2624-09 (App. Div. August 2, 2010).
At the February 24, 2011 hearing that is the subject of this appeal, the State presented the testimony of Roger Harris, M.D., who prepared a forensic psychiatric assessment of G.X.R. based on a clinical interview conducted on January 20, 2011. Dr. Harris testified that G.X.R. currently suffers from several mental abnormalities or personality disorders that predispose him to sexually reoffend: pedophilia, girls, not exclusive; paraphelia NOS (hebephilia), girls, not exclusive; exhibitionism; and antisocial personality disorder with borderline traits. Dr. Harris emphasized that individuals such as G.X.R. who suffer from "two separate paraphilias," are at increased risk of sexually reoffending. Dr. Harris reported that during his interview of G.X.R., G.X.R. acknowledged a continuing arousal to girls between the ages of eight and thirteen years of age. That admission by G.X.R., and G.X.R.'s criminal history, led to the diagnoses of pedophilia and hebephilia, an attraction to children in the early stages of puberty.
When asked to explain the diagnosis of antisocial personality disorder with borderline traits, Dr. Harris responded as follows:
[G.X.R.] has demonstrated . . . the failure to conform to social norms, deceitfulness and conning others for personal profit, impulsivity, failure to plan ahead . . . aggressiveness [and] reckless disregard for the rights of others.
Dr. Harris opined that because G.X.R. suffers from an antisocial personality disorder and from two forms of sexual pathology, the combination of the disorders creates a very high risk of sexually reoffending. He explained that the conditions from which G.X.R. suffers do not "spontaneously remit," and sex offender treatment "does not cure individuals." Instead, treatment provides "skills" to assist the offender in "manag[ing] [his] sexual arousal," but deviant sexual arousal "is an enduring characteristic."
Dr. Harris described the results of the Static-99R test that had been administered to G.X.R., explaining that G.X.R.'s score of 5 placed him in the moderate to high-risk category. Dr. Harris emphasized that G.X.R. had actually achieved an even higher score of 6, but one point had been deducted because G.X.R. is more than fifty years of age, thereby bringing his score to a 5.
When asked to describe G.X.R.'s progress in treatment, Dr. Harris responded that G.X.R. "is doing fairly well" and "is Level 3," noting that G.X.R. "has a pretty good understanding of his sex offense cycle" and had been "doing a great deal of what [his treatment providers] asked of him." Nonetheless, G.X.R. had been unable to address and resolve "his emotional volatility" and his response to frustration, which are central to his deviant arousal pattern. Dr. Harris explained:
The problem that [G.X.R.] faces is . . . his emotional volatility, his reactivity to . . . disappointment, to frustration, and that emotional reactivity [causes him to] become angry . . . and arrogant
Those are the [very traits] that led him to sexually re-offend in the . . . first offense . . . when he felt belittled and felt like his girlfriend had castrated him. . . . [H]e felt belittled and angry. And as he said he sexualizes his anger, which leads him then to act out sexually.
So the . . . very things that are kind of tripping him up right now are the very things that need to be better resolved for him to be able to be safe in the community.
[A]s he said when he entered the . . . 12-year-old's house and he saw her -- her butt, he said he instantly became aroused to her. And I think it was . . . his arousal plus his feeling belittled[.] [It] just became this malignant pathway that he could not stop that led him to sexually offend. . . . And that kind of victim stance is something that he is dealing with while he is here.
Dr. Harris opined that G.X.R. "still has serious difficulty controlling his sexual offending behaviors" and requires continued confinement and treatment at the STU.
The State's next witness was Dr. Christine Zavalis, a psychologist who had prepared the treatment team's annual evaluation of G.X.R. She explained that the treatment team had made the same diagnoses of G.X.R. as had Dr. Harris. She also agreed with Dr. Harris's opinion that G.X.R. had been "doing well" in treatment, as he was both "motivated" and "expressing a desire to progress in treatment." Nonetheless, G.X.R. "still has arousal to underage females," and has been unable to resolve his tendency to become angry or frustrated when unable to attain a goal he set for himself. The frustration, in turn, results in acting "aggressively" toward others. Dr. Zavalis opined that G.X.R. should remain in phase 3 of treatment, as he had not made sufficient progress to justify advancing to phase 4. She further opined that G.X.R.'s risk of sexually offending was sufficiently high to require his continued confinement at the STU.
G.X.R. did not testify or present any witnesses. At the conclusion of the hearing, Judge Mulvihill credited the testimony of the State's two witnesses, and concluded that the State had established by clear and convincing evidence that G.X.R. continues to suffer from a mental abnormality or personality disorder that renders him highly likely to engage in further acts of sexual violence if not confined at the STU. Notably, the judge found that because G.X.R. suffers from two different paraphilies, he presents a greater risk of sexually reoffending. The judge also found that G.X.R.'s risk was exacerbated by his tendency to become emotionally volatile, angry and frustrated when his demands are not met, at which time he "sexualize[s] his anger, acts out sexually." He ordered G.X.R.'s continued commitment and scheduled a review hearing for February 10, 2012.
The scope of appellate review of a trial court's decision in a commitment proceeding is "extremely narrow." In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div. 2003). We accord the "utmost deference" to the trial judge's "determination as to the appropriate accommodation of the competing interests of individual liberty and societal safety in the particular case." State v. Fields, 77 N.J. 282, 311 (1978). A trial court's determination will not be modified unless it reveals a clear mistake in the exercise of the trial judge's broad discretion. V.A., supra, 357 N.J. Super. at 63.
New Jersey's SVPA provides for the involuntary commitment of any person who requires "continued involuntary commitment as a sexually violent predator." N.J.S.A. 30:4-27.32(a). As the Court recently observed in In re Civil Commitment of J.M.B., 197 N.J. 563, 570-71 (2009), "[t]he Legislature enacted the SVPA to protect other members of society from the danger posed by sexually violent predators."
In commitment proceedings initiated pursuant to the SVPA, the State must demonstrate that the individual "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. The State must prove the individual poses a "threat to the health and safety of others" because of his or her likelihood of engaging in sexually violent acts due to a "serious difficulty in controlling his or her harmful behavior such that it is highly likely" that he or she will reoffend. J.M.B., supra, 197 N.J. at 571 (quoting In re Commitment of W.Z., 173 N.J. 109, 130 (2002)).
"Put succinctly, '[c]ommitment under the Act is contingent on proof of past sexually violent behavior, a current mental condition, and a demonstrated inability to adequately control one's sexually harmful conduct.'" Ibid. (alteration in original) (quoting State v. Bellamy, 178 N.J. 127, 136 (2003)). The trial court must address "present serious difficulty with control," and the State must establish its case by clear and convincing evidence. W.Z., supra, 173 N.J. at 132-33 (emphasis in original).
Having carefully reviewed the record and considered G.X.R.'s arguments on appeal, we are satisfied that the order of February 24, 2011 should be affirmed. Judge Mulvihill properly evaluated the actuarial and clinical evidence before him, and his findings fully comply with the requirements of J.M.B., supra. The record amply supports the judge's conclusion that: G.X.R. suffers from a pattern of deviant arousal marked by attraction to pubescent and prepubescent girls; and although G.X.R. has made considerable progress in treatment, his risk of reoffending remains very high. The record further supports Judge Mulvihill's conclusion that the State's proofs satisfied its heavy burden of establishing by clear and convincing evidence that G.X.R. continues to qualify as a sexually violent predator and remains subject to involuntary commitment.
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