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In the Matter of the Civil Commitment of H.E. Svp-518-08.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 8, 2012

IN THE MATTER OF THE CIVIL COMMITMENT OF H.E. SVP-518-08.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-518-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 25, 2012

Before Judges Harris and Koblitz.

Hank Evers (a pseudonym) appeals from the June 11, 2009 judgment that ordered his involuntary commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. Evers contends that the State failed to prove by clear and convincing evidence that he requires involuntary commitment as a sexually violent predator. He also asserts that the evidence supporting his SVPA commitment was comprised of unproven allegations, which rendered the trial court's reliance upon such evidence as "significantly misplaced" and unworthy of SVPA commitment. We reject Evers's contentions and affirm.

The 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). The Legislature's purpose in enacting the SVPA was "to protect other members of society from the danger posed by sexually violent predators." In re Civil Commitment of J.M.B., 197 N.J. 563, 570-71 (2009) (citing N.J.S.A. 30:4-27.25(c)). 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). The State must prove by clear and convincing evidence "that 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 [SVPA] 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.'" J.M.B., supra, 197 N.J. at 571 (quoting State v. Bellamy, 178 N.J. 127, 136 (2003)).

The predicate offenses that resulted in Evers's convictions and, ultimately, his SVPA commitment transpired in August and September 1998. On August 4, 1999, Evers pled guilty to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), in connection with the sexual assault upon a fifteen-year-old on August 5, 1998. Evers also pled guilty to third-degree criminal restraint (as amended from kidnapping), N.J.S.A. 2C:13-2, and aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a), in connection with an effort to accost and sexually assault a twenty-four-year-old in her car on September 6, 1998.

In April 2000, Evers was sentenced to an aggregate term of twelve years incarceration, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On December 31, 2008, the State filed a Petition for Civil Commitment under the SVPA. According to the petition, Evers had a history of sexual and other offenses dating back to 1991, including a juvenile adjudication for sexual assault.

In June 2009, the Law Division conducted a commitment hearing. The State presented the expert testimony of psychiatrist Roger M. Harris, M.D. Although Dr. Harris was unable to interview Evers because Evers reportedly refused to cooperate, the expert reviewed wide-ranging records provided by the State, including, among other items, Evers's Adult Presentence Report prepared in late 1999, a Result of Examination issued by the Adult Diagnostic and Treatment Center in February 2000, two Clinical Certificates prepared by State-employed psychiatrists in December 2008, and a Brief Forensic Psychiatric Evaluation (20-Day Commitment Hearing) issued in January 2009. From these and other data, Dr. Harris issued a Forensic Psychiatric Assessment dated May 12, 2009, opining "with reasonable medical certainty" that Evers suffers from antisocial personality disorder and is at "high risk to sexually re[-]offend when released from a prison." Consequently, Dr. Harris concluded that Evers "[met] the criteria for [c]ivil [c]ommitment under [the SVPA]." Dr. Harris confirmed his opinions at the hearing where he was confronted with the alternative determination offered by Evers's expert.

Evers presented the testimony of psychologist Rosemarie Vala Stewart, Ph.D. Dr. Stewart also conducted an extensive document review in addition to interviewing Evers for almost two hours on May 21, 2009, before issuing her Confidential Forensic Evaluation on June 3, 2009. Dr. Stewart echoed Dr. Harris's finding that Evers suffered from antisocial personality disorder, but differed with Dr. Harris about Evers's "risk of engaging in future acts of deviant sexual behavior," which she characterized as moderate, compared to Dr. Harris's high risk assessment.

The Law Division considered all of the testimonial and documentary evidence presented by the parties. In its oral decision, the court found the following:

I find Dr. Harris to be very credible, very forthright in terms of his review of all the documentation, and he did not have the benefit of . . . interviewing [Evers], but that was [Evers's] decision. So I find him to be very credible.

[I]n summing up, [Dr. Stewart]'s saying that [Evers] has a violent sex offending history, high actuarial scores, lack of exposure to sex offender treatment, propensity to offend while under legal scrutiny, untreated substance abuse problem, antisocial personality structure indeed suggest[ing] continued concern regarding his high risk for future sexual offense.

However, and the conclusion is that he's not at high risk, he is at moderate risk. It doesn't make any sense. And she's credible except her conclusion is at all -- total variance with her report. Everything else in the report with -- and common sense, and at variance with Dr. Harris, so I find her credible to the extent of her report, except the bottom line I don't find credible at all. It's not logical. It doesn't make any common sense and I find there's clear and convincing evidence that Mr. [Evers] is highly likely to engage in further acts of sexual violence if [not] confined to a secure facility for control, care, and treatment. I find he must be kept in the STU, confined here. Otherwise, the public is at great risk and I find that the State has met its burden of clear and convincing evidence for [in]voluntary commitment.

This appeal followed.

In reviewing a commitment under the SVPA, our appellate review is "exceedingly narrow." In re Civil Commitment of W.X.C., 407 N.J. Super. 619, 630 (App. Div. 2009), aff'd, 204 N.J. 179 (2010), cert. denied, ___ U.S. ___, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011); see also In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). The Law Division's decision should be given the utmost deference and will be subject to modification "only where the record reveals a clear abuse of discretion." W.X.C., supra, 407 N.J. Super. at 630. "[I]t is our responsibility to canvass the record, inclusive of the expert testimony, to determine whether the findings made by the trial judge were clearly erroneous." Ibid. (citing In re D.C., 146 N.J. 31, 58-59 (1996)).

We are satisfied from our review of the record that the Law Division's findings are amply supported by substantial credible evidence, proven by a clear and convincing degree of certainty as required by the SVPA. J.M.B., supra, 197 N.J. at 597; see also State v. Locurto, 157 N.J. 463, 470-71 (1999).

Given the substantial similarity in the forensic methodologies employed by the experts, and the near-mirroring of their opinions except for each expert's final conclusion, we find nothing in the methodology of Dr. Harris or in the findings of the court that was violative of established principles of law. The State's evidence was powerfully convincing, even to Dr. Stewart. We affirm substantially for the reasons stated by Judge James F. Mulvihill in his oral opinion of June 11, 2009.

Affirmed.

20120208

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