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In the Matter of the Civil Commitment of G.S. Svp 531-09.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 15, 2012

IN THE MATTER OF THE CIVIL COMMITMENT OF G.S. SVP 531-09.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP 531-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 24, 2012

Before Judges Fisher and Nugent.

G.S. appeals from the February 19, 2010 judgment ordering his involuntary commitment to the Special Treatment Unit (STU) as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We 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). An involuntary civil commitment can follow service of a sentence when a defendant "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. As the Supreme Court observed in In re Civil Commitment of J.M.B., 197 N.J. 563, 570-71, cert. denied, __ U.S. __, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009), "[t]he Legislature enacted the SVPA to protect other members of society from the danger posed by sexually violent predators."

To involuntarily commit a sexually violent predator, the State must prove "the individual poses 'a threat to the health and safety of others'" because of his or her likelihood to engage 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. Id. 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.'" Ibid. (first alteration in original) (quoting State v. Bellamy, 178 N.J. 127, 136 (2003)).

G.S., now age forty-six, has a sexual criminal history that began in May 1991 when he kidnapped a woman at gunpoint, forced her into a parked vehicle, drove her to an apartment, and repeatedly raped her. For those offenses, he pled guilty on April 16, 1992, to fourth-degree sexual contact and was sentenced to four years probation with psychological counseling. Thereafter, he violated his probation, pled guilty to the violation, and was sentenced to continued probation. He subsequently violated his probation again and was sentenced to a prison term of nine months.

Meanwhile, at midnight on July 2, 1994, G.S. was walking with an acquaintance when he grabbed her arm, pulled her into the walkway of a school, and raped her. For that offense he pled guilty to aggravated criminal sexual assault on June 9, 1995, and was subsequently sentenced to serve five years at the Adult Diagnostic and Treatment Center (ADTC) at Avenel.

On June 30, 2003, G.S. committed the predicate offense that resulted in his involuntary commitment. While working as a painter and custodian at an apartment building, G.S. broke into the apartment of a twenty-seven-year-old woman, held a knife to her throat, and threatened to kill her. He "told her to '[l]ay on the floor and open [her] legs[.]'" As G.S. began to remove his pants, the victim fled. On October 8, 2003, G.S. pled guilty to attempted aggravated sexual assault and burglary. He was sentenced on February 26, 2004, to an aggregate term of seven years at the ADTC, subject to an eighty-five percent period of parole ineligibility.

On May 29, 2009, the State filed a petition seeking G.S.'s civil commitment under the SVPA. Judge James F. Mulvihill conducted a final commitment hearing. During the hearing, the State presented the testimony of Dr. Sean McCall, a psychologist, and Dr. Pogos Voskanian, a psychiatrist. The State also presented thirty-five exhibits. G.S. declined to appear for the hearing, so his attorney was unable to present his testimony.

McCall testified first. He had met with G.S. on February 9, 2010, and reviewed various court documents, civil commitment petitions and orders, presentence reports, ADTC reports and evaluations, and other materials. He tried "to examine these sources in order to see if there are themes that emerge or [to] look for generalizations about [G.S.'s] functioning that [he] can then compare with the interview . . . ." McCall also reviewed G.S.'s sexual offense history and non-sexual criminal offense history. Regarding the 1991 offense, McCall pointed out that G.S. had offended while on probation for an aggravated assault and a disorderly persons offense, and he stated that research indicates "that failure under supervision is a robust predictor of recidivism." G.S. committed numerous assaults during the one crime, which McCall said was due to the fact that G.S. had never before been more aroused than during this non-consensual act.

As for the 1994 offense, McCall pointed out that the act was not spontaneous, but intentional. In addition, the fact that it was committed while on probation indicated that G.S. had not learned his lesson, or that perhaps his drive was so strong that he was unable to control himself.

McCall said G.S.'s 2003 offense clarified that "there's some strong sexual pathology where he's unable to control himself, despite legal consequences." G.S. told McCall that he had planned the attack. Most concerning to McCall was that G.S. "knew that he was heading towards reoffense and he did not do anything . . . to stop himself." G.S. did not see the victim "as a person and only viewed her as a sex object."

At that time, G.S. was in a consensual sexual relationship, but he told McCall that "consensual sex was not sufficiently arousing for him to be satisf[ied], and that he needed the additional arousal of non-consensual sexual activity that he sought out." G.S. also told McCall about a "strong arousal to stalking behaviors."

McCall noted that although G.S. refused psychological testing at the STU, he had undergone testing in the past.

McCall also testified about G.S.'s progress at ADTC. He pointed out that G.S. only became engaged in treatment near the end, once the "threat of potential commitment was introduced[.]" McCall emphasized that staff members did not believe his participation to be genuine. McCall attempted to gauge G.S.'s understanding of his treatment. McCall said that G.S. "demonstrated a fair degree of sophistication with treatment knowledge[,]" but did not have a solid discharge plan.

McCall diagnosed G.S. with paraphilia NOS (non-consent), alcohol and cocaine dependence, and severe anti-social personality disorder with narcissistic features. The paraphilia diagnosis was based on G.S.'s "arousal to non-consensual sexual activity." This includes a behavioral component, the actual committing of the offenses, and "a mental component of his describing . . . being excited to humiliat[e] and degrad[e] women." Such a disorder, McCall testified, would not just disappear. Indeed, the "arousal remains fairly consistent throughout the life span."

The anti-social personality disorder, McCall said, "is a long-term, enduring, personality structure, kind of way of interacting, seeing . . . the world and interacting with other people." McCall pointed to G.S.'s focus on his own gratification at the expense of others. "He doesn't abide by societal norms and laws. He's willing to be manipulative, coercive, and . . . will do whatever he feels like . . . at the moment or whatever is going to serve his ends, even if it hurts other people or is against the law." McCall's diagnosis of narcissistic features was due to G.S.'s self-centeredness. In addition to G.S.'s arousal by non-consensual sex, McCall said that "anti-social personality can provide an additional pathway towards additional reoffending, because one just doesn't really care. One is gonna do as . . . he pleases."

As for the cocaine and alcohol dependence, McCall said they contribute towards G.S.'s risk of reoffending in that "it's easier for people to act on impulses when . . . intoxicated."

McCall opined that it was "highly likely" that G.S. would sexually reoffend. He based this on an actuarial method of risk assessment. The risk factors he relied upon were G.S.'s "failure under supervision in the community[,]" "the observed level of psychopathy[,] . . . sexual preoccupation[,] his history of violence against the mother of his children, and his misogynistic attitudes towards women." McCall found that G.S.'s treatment had not worked very well and did not constitute a mitigating factor. McCall also pointed out two "idiosyncratic factors." First, G.S.'s "efforts in image management and . . . presentation." For example, in the interview, G.S. tried to minimize inconsistencies, and also had tried to fool several doctors regarding his desire for treatment. Second, McCall reiterated that G.S. lacked a discharge plan.

Voskanian testified next. Voskanian attempted to interview G.S. on January 27, 2010, but G.S. refused. On June 24, 2009, however, G.S. had spoken with Voskanian for three hours. Voskanian utilized that interview, as well as several other evaluations, certifications, and reports, to compile his forensic psychiatric evaluation, completed February 1, 2010. Voskanian testified that he did not expect that G.S.'s risk level or diagnosis would have changed in six months.

According to Voskanian, "the offenses are characterized by violence. By forcing . . . humiliation of the victim." Voskanian also said that G.S. "can not refrain from his offenses. He thinks about them . . . [H]e could not refrain from thinking, masturbating to the victim prior to [2003] offense . . . ." Voskanian opined that G.S.'s pathology was very strong, and pervasive throughout his life.

Voskanian also thought that G.S.'s propensity to reoffend while on probation or parole spoke "about the intensity of the urge to commit sexual offense." G.S. indicated to Voskanian that he was aroused by rape and force. In addition, Voskanian said that many psychological factors were involved in G.S. committing rape. G.S. described rape as a response to emotional pain.

Voskanian agreed that G.S. had not done enough work in treatment and had only recently focused on impressing ADTC staff in order to avoid civil commitment. G.S. had indicated to Voskanian that he believed his own risk of reoffending was "50/50."

Voskanian diagnosed G.S. with paraphilia NOS, cocaine and alcohol dependence, personality disorder NOS with anti-social traits, and rule out anti-social personality disorder. Voskanian testified that "both of the substances . . . carry very high associated risk in terms of impairing judgment and impairing impulse control. So, they magnify the risk." Voskanian opined that G.S. had a lifelong history of paraphilia NOS, which was not something that would just go away. The personality disorder diagnosis was based on G.S.'s extensive criminal history, lack of remorse and empathy, and feelings of entitlement. The disorder would cause G.S. to have difficulty controlling his sexually reoffending behavior.

Voskanian concluded that G.S. was at a high risk of reoffending. The opinion was based on G.S.'s lengthy history of sexual offenses; reoffending while on supervision; recent offense in 2003; lack of genuine engagement into treatment; persistent anger issues; substance dependence; and relapse on drugs and alcohol, despite previously associating it with sexual offenses.

After considering the testimony, the exhibits, and the summations of counsel, Judge Mulvihill found that the State had proved by clear and convincing evidence that G.S. had been convicted of sexually violent offenses; continued to suffer from mental abnormalities or a personality disorder; and was highly likely to engage in criminal acts of sexual violence if not confined in a secure facility for control, care, and treatment. The judge emphasized that "there has to be involuntary civil commitment in this case because [G.S.] suffers from a mental abnormality, personality disorder[] [that] [m]akes him likely to engage in acts of sexual violence if not confined in a secure facility . . . ." The judge elaborated:

The State has proved, by clear and convincing evidence, that [G.S.] continues to be a threat to the health and safety of others, because of the high likelihood of his reengaging in sexually violent acts.

The State has demonstrated, by clear and convincing evidence, that [G.S.] has serious difficulty . . . controlling sexual[ly] . . harmful behavior. And it's highly likely that he will not control his sexually violent behavior if released and he will reoffend, all by clear and convincing evidence. I find [there] is a present, serious difficult[y] with control.

On February 19, 2010, the court issued a judgment ordering that G.S. be involuntarily committed. G.S. appeals from the February 19 order.

II.

G.S. presents the following points for our consideration:

THE STATE FAILED TO PROVE THAT G.S. HAD A MENTAL ABNORMALITY THAT PREDISPOSED HIM TO HAVE "SERIOUS DIFFICULTY" CONTROLLING HIS SEXUALLY HARMFUL BEHAVIOR.

THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT G.S. IS HIGHLY LIKELY TO SEXUALLY REOFFEND IF RELEASED.

The scope of appellate review of a trial court's decision in a commitment proceeding is "extremely narrow." In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.) certif. denied, 177 N.J. 490 (2003). We accord the "utmost deference" to the trial judge's "determination as to the appropriate accommodation of the competing interests of individual liberty and societal safety in the particular case." State v. Fields, 77 N.J. 282, 311 (1978). A trial court's determination will not be modified unless it reveals a clear mistake in the exercise of the trial judge's broad discretion. See V.A., supra, 357 N.J. Super. at 63.

G.S. first contends the State failed to prove he suffered from a mental abnormality that predisposed him to have serious difficulty controlling his sexually harmful behavior. He argues that McCall's diagnosis of anti-social personality disorder was not sufficiently supported by the facts, and was contradicted by Voskanian's "declination to diagnose ASPD because there was no 'hard data' to support the required Conduct Disorder." G.S.'s argument overlooks McCall's other diagnosis, namely, "Paraphilia, NOS (non-consent, i.e. Paraphilic Coercive Disorder)." The diagnosis of paraphilia was based on G.S.'s "arousal to non-consensual activity," which included both a behavioral component, namely, committing the offenses, and a mental component, namely, G.S.'s "being excited to humiliate and degrade women." McCall testified that such a disorder would not disappear, and that the "arousal remains fairly consistent throughout the lifespan."

Voskanian, too, diagnosed G.S. with Paraphilia NOS, as well as cocaine and alcohol dependence, and personality disorder NOS with anti-social traits. In explaining G.S.'s high risk of sexually reoffending, Voskanian stated that even without his alcohol dependence, G.S. "would be at high risk to reoffend, because with his Paraphilia I don't see much that would counteract his sexually deviant arousal."

Although there was ample evidence in the record to support McCall's diagnosis of anti-social personality disorder, even if the evidence were disregarded, there was other clear and convincing evidence that G.S. suffered from a mental abnormality that made it highly likely that he would again commit acts of sexual violence if not confined.

G.S. also argues that McCall and Voskanian testified that G.S. planned his offenses; and "[t]he fact that G.S. planned and premeditated his sex crimes is significant because it indicates he has an ability to control his behavior." G.S.'s argument is unpersuasive because it takes the testimony out of context and overlooks considerable testimony, including G.S.'s own admissions, that G.S. could not control himself.

In his second point, G.S. argues that the experts' opinions concerning the high likelihood that he would sexually reoffend were unreliable "because neither witness cited sufficient scholarly articles in their reports or during their testimony to support their clinical judgment of [G.S.'s] risk level." G.S. also argues that the experts failed to consider the effect of his use of Zoloft, a medication that reduces sex drive. G.S. did not seek to exclude the testimony of either expert based on the arguments he now makes. Consequently, the weight to be given to the testimony of each expert was a matter that rested solely within the province of the factfinder.

The State's proofs were sufficient to support Judge Mulvihill's conclusion that G.S. was a sexually violent predator who suffered from a mental abnormality or personality disorder making it highly likely he would engage in acts of sexual violence if not confined.

Affirmed.

20120815

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