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In the Matter of the

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 13, 2012

IN THE MATTER OF THE CIVIL COMMITMENT OF G.X.R., SVP-377-04.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-377-04.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued August 6, 2012

Before Judges Sapp-Peterson and St. John.

Appellant G.X.R. appeals from a judgment entered on February 15, 2012, continuing his civil commitment to the Special Treatment Unit (STU), a facility for the custody, care, and treatment of sexually violent predators under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. Following our careful review of the record on appeal, we affirm.

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)).

The record reveals that fifty-two-year-old G.X.R. has committed numerous offenses, which qualify as "sexually violent offenses." N.J.S.A. 30:4-27.26. G.X.R. has an extensive history of sexual offenses against pubescent and prepubescent girls that started in the late 1980s and continued until 2000, resulting in his 2002 guilty plea to the predicate offense of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), stemming from an incident where he forcibly touched the stomach and thigh of a twelve-year-old girl, after which time he became sexually aroused and masturbated in her family's bathroom. Following his guilty plea, the judge sentenced G.X.R. to a five-year term at the Adult Diagnostic and Treatment Center at Avenel.

In August 2004, shortly before G.X.R. was due to be released from prison, the State filed a petition for his involuntary commitment to the STU on grounds that he was a sexually violent predator. In support of its petition, the State relied on G.X.R.'s 2002 child endangerment conviction as well as three prior convictions for sexual assaults on children committed between 1981 and 1989.

In 1981, G.X.R. was arrested in Florida for licking the vagina of two nine-year old girls and digitally penetrating each. One of the girls also stated that G.X.R. inserted his penis into her vagina. G.X.R.'s next predatory act occurred in 1987 when, during three separate 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. G.X.R.'s next crime occurred in 1988, when two female students, ages eleven and twelve, reported to school officials that while walking to school, a male stopped in his vehicle and showed them a pornographic magazine. Using his license plate number, police were able to apprehend G.X.R. He pled guilty to endangering the welfare of a child. During his subsequent psychiatric evaluation, G.X.R. admitted that during 1988 and 1989, he "was driving around looking for girls and exposing [him]self and masturbating . . . once or twice every two weeks."

Since his initial commitment, G.X.R. has been subject to multiple review hearings and, after each hearing, the trial court found he satisfied the requirements for continued commitment. We affirmed each decision. See In re Civil Commitment of G.X.R., No. A-4655-04 (App. Div. Nov. 1, 2006); In re Civil Commitment of G.X.R., No. A-5849-06 (App. Div. Jan. 25, 2008); In re Civil Commitment of G.X.R., No. A-2624-09 (App. Div. Aug. 2, 2010); In re Civil Commitment of G.X.R., No. A-4422-10 (App. Div. Nov. 1, 2011).

The present appeal arises out of G.X.R.'s most recent review hearing, which occurred on February 15, 2012, and at the conclusion of which the trial judge continued G.X.R.'s involuntary civil commitment. On appeal, G.X.R. argues that the State failed to prove by clear and convincing evidence that he met the criteria for civil commitment under the SVPA. He also contends the trial court erred in determining he posed a high risk to reoffend in light of his progress in treatment.

At G.X.R.'s annual hearing, the State presented the testimony of Dr. Pogos H. Voskanian, a psychiatrist. Dr. Voskanian testified that he interviewed G.X.R. on January 23, 2012. He noted that when defendant discusses his victims, "there is still some animation, apparently, in the [a]ffect, but there is no sense of any remorse or empathy," which Dr. Voskanian described as relating to G.X.R.'s continued "great interest and arousal" in prepubescent girls. When asked his opinion regarding how G.X.R. is performing in therapy, Dr. Voskanian replied that "[G.X.R.'s] arousal to children got worse, stronger," based on his recent risk assessment report.

Dr. Voskanian testified that he diagnosed G.X.R. with pedophilia and paraphilia not otherwise specified, which are both mental abnormalities or personality disorders predisposing G.X.R. to sexually reoffend. He described these disorders as "magnifying" G.X.R.'s risk of reoffense especially because "he reacts on his anger and sexualizes his anger . . . [and] [w]hen he feels angry . . . he acts out sexually against children."

Dr. Voskanian concluded that G.X.R.'s risk of reoffense has not diminished because he "completely minimizes his sexual pathology" and does "not have much insight into his offending." Further, with regard to whether G.X.R.'s age of fifty-two reduces his risk of reoffending, Dr. Voskanian noted that considering G.X.R.'s pathology, pedophilia in his case is not as amenable to age as other types of paraphilia.

The State also called Dr. Christine Zavalis, a psychologist, who testified that she drafted a psychiatric evaluation report for G.X.R. on January 27, 2012. Dr. Zavalis acknowledged that G.X.R. has become more compliant and less resistant in his therapy, however, he still maintains some "defensiveness" and "difficulty maintaining positive progress." Dr. Zavalis also opined that G.X.R. overestimates his progress in treatment even though he had admitted that he has "laziness in treatment, that he at times will withdraw, and he isn't quite as active as he should be." Nevertheless, Dr. Zavalis agreed that G.X.R. should be focusing on "preparing for the future" as an eventual viable discharge candidate.

The defense called Dr. Christopher Lorah, a psychologist, to testify on behalf of G.X.R. Dr. Lorah testified that he disagreed with the diagnosis of Dr. Voskanian, and concluded that he did not find any evidence that G.X.R. suffered from a personality disorder. He testified that there is "every indication that over the last three or four years . . . [G.X.R.] really started to turn it around and engage in treatment at an appropriate level." Dr. Lorah recommended that G.X.R. be placed in Phase IV of treatment and on a "conditional discharge track."

After hearing the witnesses' testimony and arguments of counsel, Judge Pursel rendered an oral decision. In his decision, the judge found:

All experts testified that pedophilia does not spontaneously remit, and, as a matter of fact, never goes away.

The personality disorder, if it is established, clearly diminishes with age. However, the offense history, some of which occurred when [G.X.R.] was in his forties, somewhat contradicts the automatic declination of the risk of violent offenses.

Having said all that[,] this court is convinced by clear and convincing evidence that [G.X.R.] has been convicted of a sexually violent offense, that he suffers from a mental abnormality or personality disorder which is specifically pedophilia, attraction to prepubescent girls; exhibitionism; substance abuse, marijuana, cocaine, alcohol; and paraphilia NOS because of the . . . "violent nature of his contact with the minor victim in this case."

And based upon that this court is clearly convinced that [G.X.R.] is highly likely to engage in further acts of sexually violent behavior if not confined in a secured facility for control, care, and treatment because of those personality disorder[s] that would still need some development.

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). Here, the judge found by clear and convincing evidence that the State proved G.X.R. posed a high risk of reoffense if not confined to the STU because he has not made sufficient progress in his treatment and continues to suffer from pedophilia, the effects of which apparently remain prevalent according to the State's experts.

We find no abuse of discretion in the judge's conclusion, or any error in his affording the State's witnesses credibility in their examination of G.X.R. Accordingly, we affirm substantially for the reasons set forth by Judge Pursel in his oral decision of February 15, 2012.

Affirmed.

20120813

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