August 9, 2012
IN THE MATTER OF THE CIVIL COMMITMENT OF R.O., SVP-550-09.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-550-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 15, 2012
Before Judges Payne and Hayden.
R.O., a sixty-five-year-old man who was imprisoned from 1977 to 2009 for sexually-related crimes, appeals from a June 22, 2010 final order of civil commitment, pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. On appeal, he raises the following issues for our consideration:
THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE, THAT R.O. WOULD BE "HIGHLY LIKELY" TO COMMIT FUTURE ACTS OF SEXUAL VIOLENCE IF NOT CONFINED; A NECESSARY ELEMENT FOR COMMITMENT UNDER THE SEXUALLY VIOLENT PREDATOR ACT.
THE STATE FAILED TO ESTABLISH BY CLEAR AND COVINCING EVIDENCE THAT R.O.'S MENTAL ABNORMALITIES PRESENTLY PREDISPOSE HIM TO SEXUALLY REOFFEND IF RELEASED FROM THE STU.
DR. CANATARO'S RELIANCE ON AN ACTUARIAL INSTRUMENT THAT IS NO LONGER USED BY THE STU BECAUSE IT IS AN INACCURATE PREDICTOR OF SEXUAL RECIDIVISM, RENDERS HER OPINION UNRELIABLE, UNCLEAR, AND UNCONVINCING.
THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT R.O. IS HIGHLY LIKELY TO RECIDIVATE BECAUSE THE STATE'S EXPERTS' OPINIONS WERE BASED LARGELY ON UNGUIDED CLINICAL JUDGMENT.
The record reflects a lengthy history of sexual deviance on the part of R.O. At the age of twelve, R.O. sent three obscene letters to a female neighbor and, several days later when the neighbor's house was empty, he entered the dwelling, placed the woman's clothes on her bed and set fire to them. He was charged with arson, sending obscene literature, and malicious mischief, but released to his parents' custody with a recommendation that he receive psychiatric treatment. His parents did not comply with the recommendation then, or when a similar recommendation had been made after R.O. set a fire in his family's basement at the age of nine.*fn1
When R.O. was thirteen years of age, he lured a neighbor's sixteen-year-old daughter into the basement of his home and hit her on the head with an iron frying pan, knocking her unconscious. Although R.O. then ran, rather than assaulting the girl further, he stated that the offense was sexually motivated. He was admitted to Friend's Hospital for psychiatric treatment in September 1960, and was discharged with improvement in March 1961. In August 1961, R.O. was arrested on charges of malicious use of the telephone on evidence that he would call random women whose names he learned from their wedding announcements and threaten to kill them if they did not do what he wanted. R.O. masturbated while making the calls. Following his detection, R.O. was again psychiatrically treated.
At age fifteen, R.O. was once more charged with making obscene and threatening telephone calls and was placed in the Youth Study Center from September to December 1962, after which time he was transferred to the Philadelphia State Hospital and later discharged with improvement. Six months after his discharge, R.O. was again charged with malicious use of the telephone and placed in the Philadelphia State Hospital, where he was diagnosed as suffering from a "sociopathic personality disturbance, sexual deviation."
Upon his release, R.O. was placed at Horizon House, but was given a long-term leave in January 1969. Within one month, he was again making obscene and threatening telephone calls, and he was placed on probation for one year.
In 1972, R.O. was arrested on charges of attempted assault with a dangerous weapon and threats to kill. It appears that, at the time, R.O. was working at an auto repair shop. When he was sent to pick up a female customer whose car was being repaired, R.O. threatened the woman and her five-year-old child with a knife and told the woman he would kill her if she did not do what he wanted. Although R.O. eventually released the woman and her child unharmed, he admitted that he had planned to rape her. R.O. was acquitted of the charges stemming from the incident in July 1973 by reason of insanity as the result of his statements that he had acted in response to auditory command hallucinations - statements that R.O. later admitted were untrue and had been uttered to avoid prison. R.O. was confined to Trenton State Hospital.
R.O. committed the predicate offense on June 2, 1976 when he was thirty years of age. In the early morning hours of that day, he entered a Dunkin' Donuts shop brandishing a starter pistol. He then tied up a male baker and a female waitress, and he kidnapped another waitress, took her to a state forest, and raped her. R.O. was convicted and sentenced to thirty years in custody on charges of kidnapping, armed kidnapping, rape, armed rape, assault with intent to rape, and armed assault. After evaluation, he was found to have "displayed [a] repetitive and compulsive pattern of behavior that reflects intense sexual preoccupation." It was therefore recommended that he be treated at the Adult Diagnostic and Treatment Center (ADTC), which he entered in 1977.
In 1987, while still confined at the ADTC and after fantasizing and planning the crime for a month, R.O. hid in a stall of the female staff bathroom and confronted a corrections officer with a pair of nine-inch scissors. Although the officer screamed and was able to flee, unharmed, R.O. admitted that he planned to commit a sexual assault. R.O. pled guilty to charges of criminal restraint, possession of a weapon for an unlawful purpose and aggravated assault, receiving a five-year consecutive sentence as a consequence. At another point during R.O.'s confinement, he was charged with stalking one of the female therapists after a group therapy session.
In approximately 1992, R.O., who was diagnosed as being bi-polar, commenced treatment with Lithium.
In January 2006, while his consecutive sentence was still pending, R.O. was evaluated by Richard Stiga, PhD. and Anna Rossi, D.O., clinicians at the ADTC, for purposes of determining whether he should be considered for referral to the Sexual Treatment Unit (STU) for further evaluation and treatment upon completion of his sentence. Following clinical examination and testing Dr. Rossi diagnosed R.O. as suffering from, on Axis I, sexual sadism, frotteurism, cyclothymic disorder, and conduct disorder (by history), and on Axis II, personality disorder with antisocial traits. Borderline IQ and Antisocial personality disorder were to be ruled out.
Although Dr. Rossi found that R.O. had made significant gains in his sex offender therapy, which had continued from his admission to prison in 1977 to the date of the doctor's examination, she found that the clinical evidence in R.O.'s case pointed to a high risk of sexual reoffense. In that regard, the doctor found that R.O. "still had significant emotional and personality traits that might leave him vulnerable to reoffend sexually; his score on the Static-99 placed him in the high-risk group; even in a strictly controlled setting, R.O. had reoffended; and he continued to have sadistic fantasies against stranger victims. As a consequence, she "highly recommend[ed] reevaluation for commitment at the completion of his upcoming sentence."
Dr. Stiga, similarly, found that R.O. had made gains in treatment, but that he continued to experience an arousal to violent and sadistic acts. Dr. Stiga, like Dr. Rossi, concluded that R.O. remained at high risk to sexually reoffend, notwithstanding his treatment progress and his age.
R.O. was scheduled for release from prison on December 31, 2009. On December 15, 2009, prior to that scheduled release, the State moved to have R.O. civilly committed pursuant to the New Jersey SVPA, supporting its petition with clinical certificates prepared by psychiatrists Marina Moshkovich, M.D. and Anasuya Salem, M.D. Both doctors diagnosed R.O. on Axis I with sexual sadism, frotteurism, paraphilia NOS (aroused to rape), history of conduct disorder, and bipolar disorder not otherwise specified (NOS). On Axis II, Dr. Moshkovich diagnosed antisocial personality disorder, whereas Dr. Salem diagnosed personality disorder NOS with antisocial and borderline personality traits.
On December 28, 2009, Judge Hely found probable cause to believe R.O. was a sexually violent predator in need of commitment to the STU. A final hearing was held before Judge Freedman on June 4 and June 15, 2010, and on June 21, 2010, the judge ordered R.O.'s involuntary commitment, supporting that order with a lengthy oral decision.
At the final hearing, testimony was offered for the State by psychologist Jamie Canataro, Psy.D., and psychiatrist Pogos Voskanian, M.D. Testimony was offered for R.O. by psychologist Timothy P. Foley, Ph.D.
Dr. Canataro concluded that R.O. was a sexual sadist at high risk of reoffending without confinement. Dr. Canataro based this conclusion on the fact that R.O.'s sex offending history began at an early age, which portended a poor prognosis, and he reinforced his sadistic sexual drive over a lengthy period of time, transforming it into an ingrained pattern of arousal. In that regard, Dr. Canataro noted R.O.'s statement that, while masturbating, he would switch from fantasies of consensual sex to fantasies of burning his victim's vaginas and breasts, whipping them, and torturing them, in order to speed along an ejaculation. The doctor also noted R.O.'s reoffense while under the maximum security restrictions of the ADTC. She was additionally concerned that R.O. had never had a consensual relationship with a female and lacked the social skills to start one, and he also lacked any support in the community, since all of his immediate relatives were deceased.
The doctor found that R.O. experienced arousal to non-consensual sex (paraphilia), that he was sexually aroused by touching and rubbing against non-consenting females (frotteurism), and that he was also aroused by making obscene telephone calls (telephonic scatologia). With respect to the telephone calls, the doctor observed that such non-contact conduct had one of the highest rates of recidivism.
Dr. Canataro testified that she would not "expect R.O. to ever be totally free from some kind of sexual fantasy" because sexual sadism and his paraphilias do not remit with time, but instead need to be controlled through treatment. The doctor found that R.O.'s treatment progress was not sufficient if, as he reported, he was still experiencing arousal to violent and sadistic sex. Additionally, she found that he had not progressed beyond basic relapse prevention techniques to deal with high risk situations.
In finding R.O.'s risk of reoffense to be high, Dr. Canataro employed two actuarial tests, the Static-99R, upon which R.O. was rated as a five, or moderate-high risk, and the MnSOST-R, on which R.O. was rated as a nine, or high risk.
However, as defense counsel noted during cross-examination, use of the MnSOST-R instrument had ceased at the STU. Judge Freedman explained: the research had come down that showed the MnSOST-R is not as predictive of sexual recidivism as previously thought and that while it predicted general recidivism it didn't predict sexual recidivism.
Now, in a case such as this one, where there really was no other kinds of criminal activity, other than a minor - a very minor one, we might have validity. Since he doesn't have any other kind of - and I don't know.
On redirect examination, Dr. Canataro stated that her opinion of R.O.'s risk of reoffending would remain the same if she disregarded the MnSOST-R risk assessment.
However, Dr. Canataro conceded that R.O. was said to have made "significant" treatment gains in his ADTC termination report and that he displayed appropriate emotions over his brother's death. She also conceded that he had shown no recent anger toward women at the ADTC, although he had previously tried to attack a corrections officer and had acted toward a female therapist in a manner that caused her alarm. Additionally, Dr. Canataro conceded that R.O.'s mood had been stabilized with Lithium, and that he had expressed a desire to keep taking it.
Dr. Voskanian, a psychiatrist, also testified for the State. When asked to summarize R.O.'s history, the doctor testified:
[R.O.'s] case actually is [a] very striking case, based on intensity and age of onset and persistence of pathological behaviors.
[R.O.] starts at a young age. His sexual fantasies include extreme violence such as cutting a - a female['s] sexual organs, causing significant pain. He has no history of relationships, none at all.
The doctor continued by stating that to R.O., "sex, rape there is no boundary between those two words."
Dr. Voskanian testified additionally that R.O. had never matured as the result of his counseling at the ADTC.
He's still as immature, as adolescent, in his presentation. As superficial. Even though on a cognitive level he can say things, but [his] overall sense of inadequacy and immaturity has not change[d]. So, if we factor in everything there is one positive thing for [R.O.] is his age.
However he is in very good shape. He masturbates frequently, and he still looks quite young and he feels good physically.
The doctor opined that, given the nature and intensity of R.O.'s disease, his treatment progress had not been sufficient to diminish the risk of reoffense. While R.O.'s age was in his favor, it had to be recognized that he remained in "pretty good shape." Like Dr. Canataro, Dr. Voskanian diagnosed R.O. as suffering from sexual sadism that persisted, although with less frequent manifestations, and that remained resistant to treatment. He additionally diagnosed R.O. as suffering from paraphilia NOS, telephone scatalogia, frotteurism, a bi-polar disorder by history, and a social personality disorder that included a lack of empathy. These diagnoses, the doctor found, affected R.O. in such a manner as to cause him to have serious difficulty in controlling his sexually offending behavior.
Dr. Voskanian testified that R.O. remained at high risk for reoffense. In support of this conclusion, the doctor testified:
What is normal for [R.O.] and what has been normal for [R.O.] is pathology to [the] rest [of us].
[R.O.] has not been ever able to engage into whatever we defined as normal interaction with [the] opposite sex, normal relationship.
[R.O.] has [an] extensive history of sexual violence starting at [a] young age. He has reported [a] long history of sexual sadistic fantasies. He started to act on his fantasies. All his sexual acts are accompanied by having some sort of weapon in his hands, be that [a] frying pan, scissors, starter pistol.
[R.O.] is a very high risk taking individual. [H]is urges or impulses can be so strong that in the fac[e] of almost certain - almost certainly being caught he would still go - go ahead and commit the act. And this behavior persisted.
The doctor additionally found that R.O. exercised poor judgment and continued to have a strong sense of inadequacy.
Because R.O. did not know how to interact with people, the doctor found, if he were released, he would be likely to act on impulse in an unacceptable fashion. In Dr. Voskanian's view, R.O. needed "considerable work in order to slowly, step-by-step to adjust to society." However, the doctor testified "[a]t this point, he's not ready to start that."
The defense called as a witness Dr. Timothy Foley, a psychologist. He, likewise, diagnosed R.O. as suffering from sexual sadism, frotteurism, telephone scatalogia, and bi-polar affective disorder. He scored R.O. as a 5 on the Static-99R test. The doctor testified that R.O. still had deviant sexual fantasies and probably always would. However, he did not believe that R.O. was reinforcing them through masturbation. Rather, Dr. Foley accepted R.O.'s statement that, when deviant fantasies arose, he switched to one that was more benign - a recognized therapeutic technique.
According to Dr. Foley, R.O. had experienced a breakthrough in his therapy after being prescribed Lithium and after meeting with the corrections officer that he had planned to rape. While Dr. Canataro, in particular, was concerned that R.O. reported recently watching an episode of Law and Order on television that focused on sexual violence, Dr. Foley did not regard the experience as one that would negatively affect R.O. because the content of the program was P.G.
Dr. Foley testified that he believed that R.O. was at less than a high risk to reoffend, given his age and treatment history. However, because of his grave, though remote, offense history and because of his long time in an institutional setting, if released into the community, he required strict community supervision, including a supervised living arrangement, with lessening restraints over time.
Despite the fact that he advocated release, Dr. Foley conceded that R.O. had told him that, if he again engaged in frotteurism or telephone scatalogia, he would be at high risk to commit more serious offenses. Nonetheless, the doctor testified that he could not offer an opinion about the likelihood that R.O. would engage in those two behaviors, given the length of time during which R.O. had refrained from such conduct. The doctor conceded that the risk of commission of those offenses did not decline over the age of sixty, as did the risk of rape.
Dr. Foley testified that R.O. was very likely to comply with discharge conditions and medications, since he had been compliant with treatment in the past. He disputed Dr. Canataro's and Dr. Voskanian's contention that R.O.'s risk of recidivism after he turned sixty may not have decreased as much as that of other men because he remained healthy and robust.
In an oral opinion given by Judge Freedman following the hearing, the judge recognized that all three experts, who had relied on clinical evaluations, offense reports, transcripts, ADTC evaluations, the State's petition, clinical certificates, and the opinions of other experts, had concluded that R.O. suffered from a mental abnormality or personality disorder that predisposed him to engage in acts of sexual violence. What remained for consideration was the degree of risk posed by R.O. at the present time.
In resolving that issue, the judge noted inconsistencies in R.O.'s statements to Dr. Canataro and Dr. Foley concerning the last time that he had reinforced a sexual sadistic fantasy with masturbation, finding those inconsistencies to be significant. The judge also found R.O.'s testimony about use of a switching technique suggested that "he has masturbated to sadistic fantasies probably up until the present time."
Additionally, Judge Freedman pointed out that studies showing a decreased rate of sexual recidivism over the age of sixty included very few people with sadistic arousal, "[w]hich raises serious questions about their applicability to [R.O.]."
The judge's concerns were not alleviated by the fact that R.O. never followed through on the "whipping [and] burning" aspects of his sadistic fantasies, given the fact that he had still committed violent sexual crimes.
As a result, the judge concluded that R.O. was likely not ready for conditional discharge, which mooted the complicating factor that he had not presented a discharge plan and that facilities adequate for his care and supervision were unavailable. Accepting the testimony of the State's experts, and particularly that of Dr. Canataro, the judge stated that he was satisfied by clear and convincing evidence that the State had met its burden of proving that R.O. still had a mental abnormality that created a high potential that he would engage in sexually violent behavior in the foreseeable future if released. As a consequence, the judge ordered R.O.'s commitment.
On appeal, R.O. does not contest the fact that he suffers from a
mental abnormality that may in the past have predisposed him to commit
sexually violent acts. However, R.O. argues that the evidence produced
by the State did not meet its burden of demonstrating by clear and
convincing evidence that his mental abnormalities presently predispose
him to commit sexually violent acts such that there is a high likelihood that he would
sexually reoffend if released. R.O. argues that, in ordering
commitment, the judge improperly gave too much weight to R.O.'s past
history, and failed to acknowledge that, but for his attack on the
corrections officer in 1987,*fn2 he had not been
involved in any serious infractions while imprisoned.*fn3
Further, R.O. argues that it was improper for the State's
experts to rely on evidence of his current sexually sadistic
fantasies, which were unlikely to totally dissipate, because what was
important was his ability to control his urges through techniques
learned at the ADTC. And although Dr. Voskanian found significant
R.O.'s inability to form relationships with females, R.O. emphasized
that Dr. Canataro had testified that nothing indicated that he could
not do so at the present time, and that his current behavior
demonstrated no inappropriate conduct with female staff.
The decision to commit a defendant pursuant to the SVPA is discretionary, and appellate review of such a decision is extremely narrow. The decision is given "'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). "The appropriate inquiry is to canvas 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).
Under the SVPA, the State must prove that the person potentially subject to commitment is a threat to the health and safety of others because he is likely to engage in sexually violent behavior. The threat must be proven "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).
To civilly commit a person, the State must prove, by clear and convincing evidence, that the subject (1) has been convicted of a sexually violent predicate offense; and (2) suffers from "a mental abnormality or personality disorder that makes [him or her] likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." N.J.S.A. 27.26 (defining "sexually violent offence" and "sexually violent predator); N.J.S.A. 30:4-27.32a (establishing burden of proof and authorized commitment). A mental abnormality or personality disorder must "affect an individual's ability to control his or her sexually harmful conduct," W.Z., supra, 173 N.J. at 127, but it need not result in a total inability; rather, the person must be shown to have "serious difficulty" in controlling his or her behavior. Id. at 128.
It is of course difficult to forecast future behavior in circumstances like these where opportunities for manifestation of inappropriate behavior are severely lessened as the result of the restrictions of a prison environment. Nonetheless, we find sufficient evidential support for Judge Freedman's decision to exist. The record reflects that all three experts diagnosed R.O. as suffering from sexual sadism, frotteurism and telephone scatalogia. The State's experts concluded that all three conditions were ones that were extremely difficult to successfully treat, thereby suggesting that R.O.'s mental abnormalities remain, unabated, although not presently manifested. Further, the State's experts provided evidence that the risk of committing future acts of frotteurism and telephone scatalogia would not diminish with age, as might conduct requiring sexual contact. And R.O. himself admitted that if he were to commit those acts, it was likely that more serious sexually deviant conduct would follow. History suggests that R.O.'s previous sexual contacts were in large degree sexually ineffectual. Nonetheless, they were violent, and there was no evidence to suggest that R.O., a healthy male, could not commit such violence again in the future. While this prediction lacks absolute scientific precision, such has not been required by the Court. Id. at 132.
R.O. also argues that Dr. Canataro's reliance on R.O.'s MnSOST-R score as an aid in evaluation of his risk of recidivism rendered her opinion "unreliable, unclear and unconvincing" since that actuarial measure has been deemed by the STU not to provide an accurate forecast of sexual recidivism, but only of recidivism in general. However, as Judge Freedman acknowledged, its predictive accuracy could be increased in a case such as this in which R.O.'s crimes were almost entirely sexual in nature. Additionally, Dr. Canataro testified that her opinion would not change if she were to disregard R.O.'s MnSOST-R score, and the judge accepted that testimony.
As a final matter, R.O. argues that the State failed to meet its burden of proof because its expert's opinions "were based largely on unguided clinical judgment." In R.O.'s view, Dr. Canataro and Dr. Voskanian provided insufficient empirical support for their clinical findings. We disagree with R.O.'s position.
The Court has held that an expert, with "a fair degree of experience with sex offenders and their characteristics, along with adequate knowledge of the research in this area," is qualified to testify concerning a sex offender's risk of reoffense - in that case, in connection with a Megan's Law tier hearing. Doe v. Poritz, 142 N.J. 1, 35 (1995). In the present matter, it is unquestionable that both Dr. Canataro and Dr. Voskanian had the requisite knowledge and experience, and in reaching their conclusions, they relied on materials that have generally been accepted as reliable by members of their professions. N.J.R.E. 703. We know of no requirement that, while testifying and without prior notice of a request for substantiation, an expert must be prepared to offer specific evidence as to the scientific studies that underlie his or her opinion. Certainly In re Commitment of R.S., 173 N.J. 134 (2002), upon which R.O. relies, a decision approving the use of actuarial instruments as a predictive tool in forming an opinion regarding future dangerousness, offers no support to R.O.'s position.
Moreover, "[e]vidential support for an expert opinion is not limited to treatises or any type of documentary support, but may include what the witness has learned from personal experience." Rosenberg v. Tavorath, 352 N.J. Super. 385, 403 (App. Div. 2002) (citing Bellardini v. Krikorian, 222 N.J. Super. 457, 463 (App. Div. 1988)). Any lack of documentary support would only go to the weight of the testimony. Ibid.
Here, having considered the direct and cross-examination of the three experts, Judge Freedman concluded that the testimony of Dr. Canataro, in particular, compelled the conclusion that R.O. was a sexually violent predator meeting the statutory requirements for commitment. We find no error in that conclusion, finding inconsequential the aspects of testimony by Dr. Canataro and Dr. Voskanian upon which R.O. relies to claim an absence of evidential support.