June 15, 2012
IN THE MATTER OF THE CIVIL COMMITMENT OF T.W., SVP-131-00.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-131-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 16, 2012
Before Judges Lihotz and St. John.
Appellant T.W. appeals from a judgment entered on October 7, 2011, ordering his continued civil commitment to receive treatment at the Special Treatment Unit (STU) under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. The judgment under review was entered after T.W.'s tenth annual review hearing. On appeal, T.W. argues that the State presented insufficient evidence to support his continued civil commitment. After a careful review of the record, we affirm.
The record reveals that in 1974, T.W. committed a series of "cluster" crimes, including violent sexual assaults and attempted sexual assaults, on different female victims in rapid succession, for which he was sentenced to a thirty-year prison term and released on parole in 1983. That same year, while receiving outpatient therapy at the Adult Diagnostic and Treatment Center (ADTC), T.W. was accused of committing another series of sexually violent attacks on women. In 1984, he was convicted of robbery, stemming from charges that he attacked a woman in a parking lot and unsuccessfully tried to wrestle her into a stairwell. The victim escaped, at which point T.W. stole her purse. He was sentenced to a twenty-year prison term. T.W. continues to deny that there was any sexual element to the robbery. He is now fifty-six years old and confined to the STU.
The State petitioned for and obtained T.W.'s civil commitment in 2000. Subsequent review hearings have resulted in continued commitment. T.W. has appealed ten of these orders, and we have affirmed all of them. See In re Civil Commitment of T.Q.W., No. A-3904-04 (App. Div. Nov. 4, 2005); In re Civil Commitment of T.Q.W., No. A-3360-03 (App. Div. Oct. 13, 2004).
The most recent hearing was conducted on September 20, 2011, which resulted in the order continuing commitment before us.
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). Thus, the SVPA provides for the involuntary commitment of any person deemed by the court to be a sexually violent predator within the meaning of the statute. N.J.S.A. 30:4-27.32(a). A sexually violent predator is defined as: a person who has been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent offense . . . and 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 phrase 'likely to engage in acts of sexual violence' is defined further to mean that 'the propensity of a person to commit acts of sexual violence is of such a degree as to pose a threat to the health and safety of others.'" In re Commitment of W.Z., 173 N.J. 109, 120 (2002) (quoting N.J.S.A. 30:4-27.26).
Involuntary commitment requires the State to prove by "clear and convincing evidence that the individual poses a threat to the health and safety of others," J.M.B., supra, 197 N.J. at 571 (internal citation and quotation marks omitted), because of a "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 the reasonably foreseeable future, W.Z., supra, 173 N.J. at 132. See also In re Civil Commitment of W.X.C., 407 N.J. Super. 619, 631 (App. Div. 2009), aff'd, 204 N.J. 179 (2010), cert. denied, U.S. , 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011). Furthermore, "the individual's danger to self and others [must be] because of his or her present serious difficulty with control over dangerous sexual behavior." W.Z., supra, 173 N.J. at 132-33.
"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)). See also In re Commitment of G.G.N., 372 N.J. Super. 42, 59 (App. Div. 2004) (explaining that finding that a person is a sexually violent predator requires "[p]roof of past sexually violent conduct," as well as "proof of [a] present mental abnormality or personality disorder" (citing W.Z., supra, 173 N.J. at 127)).
Appellate review of a commitment under the SVPA, is "exceedingly narrow." W.X.C., supra, 407 N.J. Super. at 630; see also In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We have recognized that "'committing judges under the SVPA are specialists in the area,'" whose "'expertise in the subject [is entitled to] special deference.'" In re Civil Commitment of R.Z.B., 392 N.J. Super. 22, 36 (App. Div.) (quoting In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007)), certif. denied, 192 N.J. 296 (2007). Furthermore, "[a]n appellate court should give the 'utmost deference' to the commitment judge's determination of the appropriate balancing of societal interests and individual liberty." Id. at 36 (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). Thus, the Law Division's determination 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. A reviewing court must "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)).
At T.W.'s annual review hearing, the State presented testimony of Dr. Maryanne DeSantis, a psychiatrist, who conducted a psychiatric evaluation of T.W. on September 15, 2011. She testified that while T.W. has "had some progress in treatment," he has not "been able to deal with his anger yet, [or] what motivates his anger." She also expressed concern regarding T.W.'s "understanding of his crimes," which possibly stems from a "cognitive distortion or . . . a denial that runs so deep that it's become his reality." DeSantis concluded that the likelihood of T.W. reoffending was "[a]t this time highly likely."
The State also presented Dr. Debra Roquet, a psychologist, who examined T.W. on September 6, 2011. She testified that
[T.W.] is angry with women, in general. He has a lot of anger, he has a lot [of] resentment. I use the word misogynistic and I don't think that that's a stretch, I think that that applies. And as far as -- the potential for committing any act of violence towards women, sexual violence or -- or any other kind of violence, but I believe [T.W.]'s history the -- any findings or aggression towards women has been sexual violence.
So as far as . . . concerns about risks for committing future acts of violence against women, he needs to be putting these things out at treatment, he needs to be talking about it. It would be an error, in my opinion for him to talk about these as things that existed in the past rather than addressing them as things that he still carries with him today. He needs to be talking about these things.
In her report, dated September 13, 2011, Roquet diagnosed T.W. with paraphilia, voyeurism, and personality disorder. Roquet's testimony also indicated the additional therapy T.W. requires:
He should talk about his present relationship or any present significant relationships with women in group. He should particularly focus on anger towards women, a desire to dominate women and how these came together in his sexual arousal and sexual behavior. We want [T.W.] to have a very solid understanding of that.
Ultimately, she concluded that "there were a number of rapes and that suggests . . . a kind of compulsive, even a ballistic sort of quality to this, [and] I think it's reasonable to conclude that he stopped because he was stopped."
T.W. called Dr. Timothy Foley, a psychologist, who interviewed T.W. and authored a report on September 18, 2011. Foley disagreed with the opinions of the State's experts. He testified that T.W. should be released from the STU because he has been more "meaningfully engaged" in treatment over the past two years, and given that the sexual offense convictions at issue are thirty-seven years old, his risk of reoffending is minimal. He opined that T.W.'s older age, then fifty-five, reduces his risk of reoffending because after he turned forty-five, there was a "very steep decline" in the likelihood of him committing rape, as testosterone levels in males decrease significantly. According to Foley, based on T.W.'s age and history of compliance with the programs at the STU, he should be a candidate for release so long as he is monitored and provided with outpatient therapy.
During her summation, T.W.'s counsel argued that there was no sexual component to the 1984 robbery conviction in that he was not charged with an attempted sexual assault. Counsel argued that defendant should not be required to provide details related to the sexual nature of his motivation for that offense, because no sexual motivation existed. She argued that Foley's testimony provided the court with an extensive basis for reaching a conclusion that T.W. had enough treatment at the STU and that he is ready to be discharged without the accompanying risk of him reoffending.
The Deputy Attorney General argued that in 2010, Foley diagnosed T.W. with personality disorder and paraphilia, and that he still suffers from those conditions. He also argued that the testimony of DeSantis and Roquet demonstrated T.W. has not resolved his issues regarding his feelings toward women and that treatment is still required.
In his oral decision, the judge acknowledged that
[T.W. is] in Phase III for the past year or two. His treaters say he is helpful in group, sees other people's problems more clearly than his own. He's married. He talks to his wife on the phone, then he got divorced and [is] not part of the therapeutic community.
Upon reviewing the testimony of the experts, the judge found that with regard to the 1984 robbery conviction, "[t]here's clearly sexual overtones to the robbery. I found [DeSantis's] testimony to be credible in terms of interest, her demeanor. She was knowledgeable about the case." He also found Roquet's testimony that, "[T.W.] has anger towards women, towards his mother . . . [that he is] angry with women in general[,]" to be "within a reasonable degree of psychological certainty."
The judge determined that "Foley is very forthright and interested in things in his report and . . . highly credible in terms of his opinions." However, the judge "disagree[d] with his reasoning." Based on the collective testimony, the judge found by "clear and convincing evidence that [T.W.] has been convicted of a sexual act[,] . . . that [he] continues [to suffer] from a mental abnormality[,] personality disorder," and that all experts agree he has paraphilia. The judge found that "[T.W.'s] condition . . . affects him emotionally, predispose[s] him to sexual violence . . . and the only way this can be mitigated [is] by his role in treatment." He also concluded that T.W. is highly likely to commit acts of sexual violence if not confined in a secure facility to ensure further treatment.
A person who has committed a sexually violent offense may be confined pursuant to the SPVA if he "suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined to a secure facility for control, care and treatment." N.J.S.A. 30:4-27.26(b). In order to establish commitment, the individual must pose "a threat to the health and safety of others" because it is likely he will engage in sexually violent acts. W.Z., supra, 173 N.J. at 132.
An order of continued commitment under the SVPA, like an initial order of commitment, must be based on "clear and convincing evidence that an individual who has been convicted of a sexually violent offense, suffers from a mental abnormality or personality disorder, and presently has serious difficulty controlling harmful sexually violent behavior such that it is highly likely the individual will reoffend" if not committed to the STU. G.G.N., supra, 372 N.J. Super. at 46-47.
Because our standard of review is narrow, we defer to the judge's findings when they are supported by evidence in the record, and we "give utmost deference to the commitment finding and reverse only for a clear abuse of discretion." In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 493 (App. Div.), certif. denied, 185 N.J. 393 (2005).
We are satisfied from our review of the record that the judge's findings are amply supported by substantial credible evidence. See State v. Locurto, 157 N.J. 463, 470--71 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). The testimony of the experts demonstrates T.W. suffers from a personality disorder as well as paraphilia. We afford the utmost deference to the judge's credibility findings with regard to the testimony of DeSantis and Roquet, especially in accepting their opinions of defendant's mental abnormality, his anger towards women, and the sexual component of the 1984 robbery conviction.
Although defendant has demonstrated his ability to make strides in treatment since his commitment, the record demonstrates his anger towards women is still pervasive, which when considered in light of his diagnosed mental condition supports the judge's conclusion that he presents a high risk of reoffense if not committed to a secure facility for further treatment.
Accordingly, we affirm the October 7, 2011 order continuing T.W.'s involuntary civil commitment to the STU.
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