June 26, 2012
IN THE MATTER OF THE CIVIL COMMITMENT OF C.E.G., SVP-452-07.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-452-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 16, 2012
Before Judges Waugh and St. John.
Appellant C.E.G. appeals from the Law Division's October 20, 2011 order continuing his 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. We affirm.
C.E.G. was civilly committed under the SVPA by a final order entered on September 7, 2007. We affirmed that order. In re the Civil Commitment of C.E.G., No. A-0823-07 (App. Div. Nov. 12, 2009) (slip op. at 1). We described the factual background of C.E.G.'s commitment as follows:
To summarize his history of criminal convictions, from the time he was eighteen to the time he was forty-two, C.E.G. attempted to anally penetrate a three-year old girl in Virginia in 1980; tried to rape a twenty-seven year old female neighbor in 1995; and molested a thirteen-year old boy in 2004. He was also involved in at least two non-sexual offenses in which he was armed with a gun. C.E.G. spent his prison sentence for the 2004 offense in the New Jersey State facility for sex offenders at Avenel (ADTC). While at ADTC, he made little progress in treatment, "did not acknowledge his sexually inappropriate behavior, and he continued to minimize or deny the offenses." [Id. at 2-3.]
While at the STU, C.E.G. has declined to participate in treatment. He also declined to be interviewed for the psychological report prepared for his review hearing and declined to attend the hearing itself, which was held on October 20, 2011. The State presented the testimony of Roger Harris, M.D., who was qualified as a psychiatrist. Harris's report was also marked as an exhibit at the hearing.
Harris testified that he found it significant that C.E.G. had "sexually offended on multiple occasions" against individuals who were "prepubescent, peripubescent, and . . . adult." He also noted that C.E.G. had convictions for non-sexual violent crimes, including armed robbery and abduction at gunpoint. He diagnosed C.E.G. with pedophilia (boys and girls) and paraphilia NOS (hebephilia), as well as antisocial personality disorder. According to Harris, C.E.G.'s "volitional control is very poor," as evidenced by his pattern of continuing to offend following release from prison. Harris characterized the number of times C.E.G. was released and then reoffended as "sobering."
Based upon C.E.G.'s strong antisocial disorder, his "deviant arousals," and his high score on the test for antisocial disorder, Harris testified to his opinion that C.E.G. was "highly likely to sexually re-offend." Harris acknowledged that C.E.G.'s score of five on the Static-99R test put him in the category of those with a less than fifty-percent likelihood of conviction for a sexual offense committed within ten years after release, but testified that C.E.G. was actually at a higher risk of reoffending than suggested by the Static-99R test result. He based that opinion on C.E.G.'s "dynamic risk factors," which his report listed as "deviant arousal, antisocial attitudes and behavior, psychopathy, lifestyle impulsivity, never married, and general poor self regulation."
Based upon the evidence presented at the hearing, the judge found that the State had demonstrated by "clear and convincing evidence" that C.E.G. was in need of continued confinement for "control, care, and treatment." This appeal followed.
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 [a] 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, by clear and convincing evidence, "that it is highly likely that" the offender will reoffend. Id. at 132-34; see also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (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) (quoting State v. Fields, 77 N.J. 282, 311 (1978)); see also In re Civil 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 [trial] 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 "sufficient credible evidence." State v. Locurto, 157 N.J. 463, 470-71 (1999) (citations and internal quotation marks omitted). C.E.G. argues that the judge should have given more weight to the Static-99R score. The weighing of evidence, however, was for the judge, not us. Harris gave cogent testimony that the Static-99R score underestimated C.E.G.'s likelihood of recidivism based upon the factors he specifically identified. The report of the STU's Treatment Progress Review Committee, which was admitted into evidence at the hearing, also concluded that C.E.G. was "at high risk to sexually recidivate," despite the Static-99R score. Once we conclude that there is sufficient support for the judge's decision in the record, our appellate function has been completed.
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