June 18, 2013
IN THE MATTER OF THE CIVIL COMMITMENT OF B.N., SVP-564-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 30, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-564-10.
Joan D. Van Pelt, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Van Pelt, on the brief).
David L. DaCosta, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. DaCosta, on the brief).
Before Judges Axelrad, Sapp-Peterson and Haas.
B.N. appeals from the July 23, 2010 order of the Law Division that committed him to the Special Treatment Unit (STU), a secure custodial facility for the treatment of persons in need of involuntary civil commitment, as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He contends the court erred by improperly allowing testimony on hebephilia, his trial counsel was ineffective because counsel did not request a pretrial hearing on the admissibility of evidence of hebephilia and the State failed to sustain its burden of proof. We affirm.
B.N. is a forty-five-year-old convicted sexual molester of pubescent girls. He has an extensive criminal record, dating back to when he was a juvenile. His prior court history shows six juvenile offenses, including escaping twice from Jamesburg. As an adult, his non-sexual convictions included damaging property, resisting arrest, assault, and possession of marijuana. In 1992, he was convicted of armed robbery and arson, and sentenced to concurrent seven-year terms, and was re-incarcerated after violating parole. He also had two domestic violence incidents against his wife.
In February 2000, B.N. was arrested and charged in a twenty-count indictment for sexual offenses involving six victims (four girls and two boys) for conduct beginning in 1998. The charges primarily related to his sexual assaults against his daughter M.N. and her best friend C.P. starting when the girls were around thirteen years old and continuing numerous times per week over a two-year period. B.N. admitted the sexual contact, which included fellatio, cunnilingus and vaginal intercourse, as well as supplying the young girls with alcohol, marijuana, cocaine and heroin.
C.P. described B.N. initiating sexual contact with her when she was having a sleepover with his daughter; C.P. was sleeping and B.N. started rubbing her buttocks and between her thighs. She reported that at another sleepover, B.N. digitally penetrated her. Sexual assaults then became a regular occurrence. C.P. also reported that during one occasion when B.N. had been kicked out of his house and was residing with his mother, she walked in on him and C.P. "sleeping together, " called him a child molester, and he punched his mother in the face. C.P. further reported that B.N. also threatened to kill her and once he kicked and punched her in the face. On another occasion, he choked her to the point of unconsciousness because he thought she had been with another man.
B.N. took pornographic pictures of C.P. and had his daughter take pictures of him having sex with C.P. He also made a sex video of himself and C.P. During this time, B.N. was also sexually assaulting M.N. On occasion, he had sex with both girls at the same time. According to the police investigation, K.R., also thirteen at the time of the assaults, reported B.N. twice performed cunnilingus on her and digitally penetrated her in the presence of C.P. and M.N. He also forced K.R. to masturbate him. B.N. threatened to kill K.R. if she told anyone.
B.N. pretended to be the parent of another friend of his daughter's, T.P., also around thirteen years old, by calling her school in order for her to leave early. He supplied her with marijuana and alcohol, and had sex with C.P. in her presence. He asked T.P. to fellate him but she refused.
The fifth and sixth victims were two young boys. During this time, B.N. watched pornographic movies with his ten-year-old son and the son's friend and ordered K.R., M.N. and C.P. to dance naked for them, directing his son to touch their breasts.
Following B.N.'s arrest for the above crimes, he was released on bail in October 2000 and sexually assaulted M.N. on two separate occasions by forcing her to perform fellatio and engage in vaginal intercourse. She reported that B.N. threated to kill her and she was frightened of him.
B.N.'s predicate convictions under the SVPA consisted of guilty pleas he entered to three counts of the indictment – first-degree aggravated sexual assault against M.N., N.J.S.A. 2C:14-2(a); second-degree sexual assault against C.P., N.J.S.A. 2C:14-2(c); and second-degree endangering the welfare of a child (C.P.), N.J.S.A. 2C:24-4(b)(2), for which he was sentenced on August 13, 2001 to ten years in prison. Charges relating to K.R., T.P., his son and his son's friend were dismissed as part of the plea bargain. At the same time, he simultaneously pled guilty to first-degree aggravated sexual assault against M.N. for the 2000 incident under an accusation and was sentenced to a concurrent fifteen-year custodial term. Although he was not separately charged, B.N. later reported that he had also sexually assaulted M.N. in the back seat of the car while he was being driven home following his release on bail. While incarcerated, B.N. sent a letter to his daughter requesting she send him pictures of herself in her bra and panties.
On March 19, 2010, the State filed a petition for civil commitment pursuant to the SVPA, supported by clinical certificates. Psychiatrist Marina Moshkovich, M.D. diagnosed him with Pedophilia NOS (adolescent girls, non-exclusive), Depressive Disorder NOS, Polysubstance Dependence (in institutional remission), and Antisocial Personality Disorder. During a two-day trial, the State presented the testimony of psychologist Doreen Stanzione, Ed.D. and psychiatrist Roger Harris, M.D. while B.N. presented the testimony of psychologist Christopher Lorah, Ph.D. All of the experts interviewed B.N. and reviewed the type of documents relied on by professionals in their fields, ultimately formulating independent opinions. At the conclusion of the trial on July 22, 2010, Judge James Mulvihill rendered an oral decision committing B.N. to the STU as a sexually violent predator, memorialized in an order of July 23, 2010, and scheduling a review hearing for July 13, 2011.
Dr. Stanzione opined that B.N. demonstrated a limited understanding of his deviant behavior that occurred weekly for two years. He admitted assaulting his victims, but viewed himself as the victim, blaming his wife's promiscuity, his anger, and his drinking. He also did not view himself as the instigator though he supplied drugs and alcohol to groom and ply the young victims. B.N. further downplayed his significant substance abuse history, which abuse Dr. Stanzione opined enabled him to offend sexually and non-sexually.
Based on her review of a transcript of a phone conversation between B.N. and C.P. that transpired prior to his arrest, Dr. Stanzione found it significant that he admitted to an ongoing sexual relationship with C.P., threatened her, got nervous, recanted, insulted her, and demeaned her. She related that B.N. told her all the victims initiated the sexual contact with him. He reported that on the drive home from jail with his mother in the front seat and M.N. in the back seat with him, she "came onto him sexually." Dr. Stanzione opined that the fact that B.N. "couldn't even make it through one car ride home before offending again" highlighted his inability to restrain himself. His committing of the additional offenses against his daughter while out on bail further demonstrated "little regard for the consequences of [his] behavior[, ]" "the strength of his arousal, " and "little regard for supervision [and] rules[.]" Moreover, B.N.'s salacious letter to his daughter from jail showed the strength and endurance of his arousal and disregard for her well-being.
Dr. Stanzione conducted various assessments of B.N., including the MMPI and Bumby Cognitive Distortion Scales. She testified that his Psychopathic Deviant Scale was elevated, which indicates he "may have trouble taking responsibility, may blame others for [his] problems, may be impulsive, [have] low frustration tolerance, and may also have difficulty with treatment, and adhering to treatment, and engaging in treatment." B.N. also scored in the moderately high range of the Static-99 with a total score of five, and in the high range on the MnSOST-R test.
Dr. Stanzione diagnosed defendant with Paraphilia NOS hebephilia based on his ongoing attraction to underage pubescent females that endured for more than two years despite legal consequences. She acknowledged that while Paraphilia NOS is listed in the DSM-4, the subset of hebephilia is not; however, she opined that hebephilia is generally accepted in the field of psychology, but not without controversy. She explained that a thirteen-year-old would not have the maturity to consent, especially when supplied with drugs and alcohol, so B.N.'s attraction was properly diagnosed as Paraphilia NOS. Based on her analysis of B.N.'s records, she found his attraction and behavior towards the pubescent females to be pervasive and deviant. She also diagnosed B.N. with polysubstance dependence, depressive disorder, and severe antisocial personality disorder with borderline traits.
Dr. Stanzione opined that B.N. would be difficult to supervise because of his disregard for rules, his manipulativeness, his aggressiveness and blackmailing behavior with C.P., and his evasiveness. She was also concerned about his violent tendencies, detailing specific instances of assaultive conduct towards his wife, several residents in the youth facility, C.P., and his daughter. She concluded that B.N. would have serious difficulty controlling his sexually violent behavior if not confined, and he lacks volitional control as demonstrated by repeating the deviant acts despite the consequences.
On cross-examination, she explained that what she believed was "driving" B.N. and what "concern[ed] [her] the most" was B.N.'s antisocial personality disorder, elaborating that "[y]ou can take [Paraphilia NOS, hebephilia] off the map and he would still be highly likely [to reoffend]" and the antisocial personality disorder "makes him likely to act out in a sexual way." She elaborated that "two of the most robust predictors of recidivism are antisocial behavior as well as arousal" and "[i]t is also a predictor of sexual recidivism if that criminal behavior is acted on sexually, which for [B.N.] it is."
Dr. Harris reiterated B.N.'s comments that his sexual relationship with the girls was consensual and C.P. was sexually aggressive towards him and he was a victim. The psychiatrist emphasized that B.N.'s assessments were inconsistent with the record, which demonstrated he was forceful and both physically and sexually aggressive towards his victims. Dr. Harris was particularly concerned by B.N.'s statement that he "did not need sex offender treatment, that he was perfectly fine, that he's worked out all his problems."
Dr. Harris scored B.N. one point higher than did Dr. Stanzione on the Static-99 test, and categorized him as high risk. He thought this was appropriate because of B.N.'s "compulsive sexual offending[, ]" aggressiveness, use of drugs and alcohol to facilitate his offending, problematic emotional attachment, which all demonstrated his ineffective volitional control. Dr. Harris concluded that B.N. "has a serious difficulty controlling his sexually violent behavior such that he needs to be confined[.]"
The psychiatrist diagnosed B.N. with severe antisocial personality disorder as an "an enduring characteristic[, ]" which he opined would "continue for quite some time" based on B.N.'s inability to inhibit his sexual drive, "remarkable disregard for others, " and the severity of his behavior. Similar to Dr. Stanzione, although he also diagnosed B.N. with Paraphilia NOS with hebephilia, Dr. Harris found even without that diagnosis, the combination of B.N.'s "antisocial personality disorder and his sexual drive" sufficient to meet the SVP criteria for commitment.
Dr. Lorah did not diagnose defendant with paraphilia NOS hebephilia but rather with sexual abuse of a minor. He testified that although hebephelia described B.N.'s behavior, it did not identify an underlying pathology and therefore any risk was speculative but noted that competent psychologists disagree about the diagnosis of hebephilia. The defense expert, acknowledged, however, that B.N. "undeniably has characteristics similar to antisocial personality disorder" and confirmed that diagnosis, but did not find it "inordinately severe or deep." Nevertheless, he limited that disorder to predisposing B.N. to commit nonsexual crimes, opining that in the absence of a specific paraphilic disorder, a person is not predisposed to commit sexual crimes. On cross-examination, however, Dr. Lorah conceded that if the record supported sexual deviance, the antisocial personality disorder "would significantly increase the likelihood of sexually violent behavior."
Dr. Lorah agreed that a thirteen-year-old is not capable of giving consent, and characterized B.N.'s supplying drugs and alcohol as grooming the victims to comply. He found B.N.'s "behavior deviant in the sense that most men, thankfully, don't sexually assault . . . 13 year olds." He also agreed that at the time, B.N. had serious difficulty controlling his sexually violent behavior, but opined that his "lack of identifiable sexual pathology, the passage of ten years, the lack of substance abuse, you know, consuming substances" suggest that B.N. has reduced his risk of reoffending. Dr. Lorah recommended substance abuse treatment and sex offender specific treatment in an outpatient setting.
In a comprehensive oral decision, Judge Mulvihill credited the testimony of both of the State's experts, and noted Dr. Lorah's similar diagnosis of antisocial personality disorder. Although the judge noted that the diagnosis of hebephilia was not universally accepted by the mental health community, he found Dr. Harris' diagnosis of hebephilia to be very "persuasive." He found that contrary to Dr. Lorah's assessment, B.N. presented a "great risk" to the pubescent teenagers, as "these two victims were just 13, that  he sexually abused them on an ongoing frequent basis individually, and together for at least two years."
The judge concluded:
it's clear to me that the clear and convincing evidence, number one, that [B.N.] has been convicted of sexually violent offenses. That's not disputed.
That he continues to suffer from a mental abnormality or personality disorder. Everybody agrees it's antisocial personality disorder. I find that to be severe.
I find also that there is the paraphilia attraction to young adolescent females, 13, 14 year olds who are at severe risk of [B.N.]. And either way, with or without the [hebephilia], he has a very strong enduring attraction to pubescent females, 13, 14 year old range.
And clear and convincing evidence that he's highly likely, at this time, to engage in further acts of sexual violence if not confined in a secure facility. And I find clear and convincing evidence in all respects.
With — with the single diagnosis of antisocial personality disorder or combined with [hebephilia], which I find [hebephilia], and I find that the State has proven by clear and convincing evidence that the health and safety of others are at risk and there's a likelihood of [B.N.] engaging in sexually violent acts against young teenage girls, 13 and 14. And the State has demonstrated that [B.N.] has serious difficulty controlling sexually harmful behavior, highly likely he will not control his sexually violent behavior, highly likely he will re-offend, this is a present serious difficulty with control. And I find this all by clear and convincing evidence.
This appeal ensued.
On appeal, B.N. asserts the following arguments:
THE COURT ERRED IN PERMITTING EXPERT OPINION REGARDING THE PURPORTED DIAGNOSIS OF HEBEPHILIA WITHOUT FIRST DETERMINING ITS RELIABILITY AND ACCEPTANCE IN THE SCIENTIFIC COMMUNITY (PARTIALLY RAISED BELOW).
COUNSEL PROVIDED INEFFECTIVE ASSISTANCE BY FAILING TO FILE A PRETRIAL MOTION TO EXCLUDE EVIDENCE RELATING TO HEBEPHILIA AS UNRELIABLE UNDER EVIDENCE RULE 702 (NOT RAISED BELOW).
THE STATE FAILED TO PRODUCE CLEAR AND CONVINCING EVIDENCE THAT B.N. SHOULD BE COMMITTED UNDER THE SVPA.
The Supreme Court has repeatedly emphasized that the Legislature's goal for the SVPA was to create a civil, not penal, regulatory scheme. See In re Civil Commitment of W.X.C., 204 N.J. 179, 188 (2010), cert. Denied, __ U.S. __, 131 S.Ct. 1702, 179 L.Ed.2d 635 (2011); In re Civil Commitment of J.M.B., 197 N.J. 563, 599, cert. denied, 558 U.S. 999, 130 S.Ct. 509, 175 L.Ed.2d 361 (2009); State v. Bellamy, 178 N.J. 127, 137-38 (2003). Its purposes are regulatory, because "the statute is designed to protect the public from dangerous predators and to treat sex offenders who are, by definition, suffering from a mental abnormality." See W.X.C., supra, 204 N.J. at 188. Those are legitimate legislative goals, which protect the community and also provide care to its citizens who are in need of treatment and who are unable to secure it for themselves. See In re Commitment of W.Z., 173 N.J. 109, 125 (2002).
Under the SVPA, an involuntary civil commitment can be ordered following an offender's service of a sentence, or other criminal disposition, when he or she "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.
At the commitment hearing, the State must prove by clear and convincing evidence that the individual poses:
a threat to the health and safety of others because of the likelihood of his or her 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.
[W.Z., supra, 173 N.J. at 132.]
See also In re Civil Commitment of J.H.M., 367 N.J.Super. 599, 608 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004); N.J.S.A. 30:4-27.32(a).
The range of appellate review of judgments of civil commitment is particularly narrow. In re Civil Commitment of V.A., 357 N.J.Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). In light of the trial court's expertise in handling these cases, its "determination should be accorded '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 A.E.F., 377 N.J.Super. 473, 493 (App. Div.), certif. denied, 185 N.J. 393 (2005). "The appropriate inquiry is to canvass 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).
B.N. argues that the court improperly relied on the testimony of the State's witnesses because Paraphilia NOS, hebephilia is not recognized in the DSM-4, and although federal decisions have split in accepting or rejecting it as a generally recognized mental disorder, it is not commonly accepted in the judicial community. B.N. supplemented his brief with the DSM-5 that was recently released, which neither lists hebephilia as recognized diagnosis nor a diagnosis for further study, as further persuasive authority for the argument that this disorder has not been commonly accepted in the scientific community.
At oral argument, B.N.'s counsel conceded that in New Jersey antisocial personality disorder alone may be sufficient for civil commitment under the SVPA, and might support a finding of the statutory prongs in this instance. Counsel urges, however, that the testimony by the State's experts and the court's reliance on the hebephilia diagnosis so taints the record warranting a remand on the diagnosis of hebephilia or, alternatively, a reversal and remand for a full initial hearing.
We disagree. To sustain a commitment under the SVPA, the State must prove the person is a threat to the health and safety of others because he or she "suffers from a mental abnormality or personality disorder" that makes the him or her "highly likely" to "reoffend" and "engage in acts of sexual violence in the reasonably foreseeable future" "if not confined in a secure facility" such as the STU. See W.Z., supra, 173 N.J. at 129-32; N.J.S.A. 30:4-27.26. "Mental abnormality" is defined as "a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." N.J.S.A. 30:4-27.26.
The phrase "likely to engage in acts of sexual violence" is defined further to mean "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." N.J.S.A. 30:4-27.26. In W.Z., the committed individual was diagnosed with antisocial personality disorder, alcohol abuse and intermittent explosive disorder. Supra, 173 N.J. at 116-17. The Supreme Court affirmed the rejection of W.Z.'s argument that the SVPA did not apply to him because he was not diagnosed with an Axis I sexual compulsion or paraphilia. Id. at 116.
It is clear the SVPA does not require the diagnosis of paraphilia or a DSM diagnosis but merely a "mental abnormality." Moreover, contrary to B.N.'s assertions, neither the opinions of the State's experts nor the conclusion of Judge Mulvihill rested solely or even primarily on the specific diagnosis of hebephilia. All the experts agreed that B.N. suffered from a significant antisocial personality disorder, not only reflecting significant risks in objective tests but manifesting itself in both violent non-sexual and sexual offenses throughout most of B.N.'s life. As clearly reflected in the record, B.N. had a longstanding strong attraction to pubescent females that he consistently acted upon without regard to the legal consequences, even when out on bail. He violated the trust of his daughter and her friends, groomed and plied them with drugs and alcohol, and victimized them with threats, physical violence, and continually raped and violated them. Moreover, B.N. further refused to accept responsibility for his acts and continued to view young girls as the sexual aggressors and himself as a victim. Thus, "with or without" the diagnosis of hebephilia, B.N. overwhelmingly met the criteria for civil commitment.
As B.N.'s commitment is independently supported by the undisputed antisocial personality disorder diagnosis, it is of no moment that his counsel did not file a pretrial motion to exclude evidence challenging the unreliability of the hebephilia diagnosis. Accordingly, B.N. fails to satisfy either prong to establish ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674, 693, 698 (1984) (holding that to prevail on a claim of ineffective assistance of counsel, he or she must satisfy a two-prong test, the first prong being that counsel's performance was deficient, i.e., counsel's acts or omissions fell outside the wide range of professional competent assistance considering all of the case's circumstances, and the second prong being that the defect in performance prejudiced the litigant's right to a fair trial such that there existed a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"); State v. Fritz, 105 N.J. 42, 58 (l987) (adopting the Strickland test in New Jersey).
Lastly, although B.N. does not challenge that he met the first prong of the test for civil commitment, namely, that he committed a sexually violent offense, he urges that the diagnosis of antisocial personality disorder is not sufficient to show he is highly likely to reoffend sexually. He argues there was not clear and convincing evidence that at the time of the hearing he was likely to reoffend.
This argument is without merit. We give utmost deference to the trial court's determinations and reverse only for a clear abuse of discretion. V.A., supra, 357 N.J.Super. at 63. Judge Mulvihill's findings are well-documented and supported by the record as to all the statutory prongs by clear and convincing evidence. W.Z., supra, 173 N.J. at 130. The record is replete with evidence of B.N.'s antisocial behavior, myriad of non-sexual and sexual offenses, physically and sexually violent conduct, lack of respect for his own daughter or concern for her well-being, and inability to control his sexual impulses even when out on bail or incarcerated, as well his continuing lack of remorse, understanding of his aberrant behavior and unwillingness to participate in appropriate treatment programs. The record overwhelming demonstrates that B.N. is highly unlikely to control his sexually violent behavior and will reoffend if released from the STU.