November 25, 2013
IN THE MATTER OF THE CIVIL COMMITMENT OF R.E.B., SVP-367-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 12, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-367-04.
Joan D. Van Pelt, Designated Counsel, argued the cause for appellant R.E.B. (Joseph E. Krakora, Public Defender, attorney).
Amy Beth Cohn, Deputy Attorney General, argued the cause for respondent State of New Jersey (John J. Hoffman, Acting Attorney General, attorney).
Before Judges Parrillo and Kennedy.
Appellant R.E.B. appeals from a February 22, 2013 order, continuing his involuntary commitment to the New Jersey Special Treatment Unit (STU), pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
In April 2007, we considered R.E.B.'s appeal from an order confining him to the STU and affirmed the order. In re Civil Commitment of R.Z.B., 392 N.J.Super. 22 (App. Div.), certif. denied 192 N.J. 296 (2007). We incorporate here our prior recitation of R.E.B.'s criminal history set forth in our 2007 opinion affirming R.E.B.'s initial civil commitment. Therefore, we set forth only these additional facts pertinent to this appeal.
R.E.B. was born on October 13, 1948, and is currently sixty-five years of age. On April 6, 1995, following a jury trial, R.E.B. was convicted in the United States District Court for the District of New Jersey, of the following offenses: (1) conspiracy, 18 U.S.C. § 371; (2) sexual exploitation of children, 18 U.S.C. § 2251(a); (3) interstate transportation of child pornography, 18 U.S.C. § 2252(a)(1); (4) receipt, distribution and reproduction of child pornography, 18 U.S.C. § 2252(a)(2); and (5) possession of child pornography, 18 U.S.C. § 2252(a)(4)(B). He was sentenced to 120 months in federal prison and was released from prison in 2002. Shortly after his release, in 2003, R.E.B. violated the terms of his parole, and was again sentenced to federal prison.
Prior to his release in April 2004, the State petitioned for R.E.B.'s civil commitment. In February 2005, the trial court concluded that R.E.B. was a sexually violent predator, and committed him to the STU. As noted, we affirmed that order.
At R.E.B.'s most recent civil commitment hearing on February 22, 2013, the State presented the testimony of Dr. Pogos Voskanian, a psychiatrist, and Dr. Debra Roquet, a psychologist and member of the Treatment Progress Review Committee (TPRC) at the STU. R.E.B. testified and presented the testimony of Dr. Christopher Lorah, a psychiatrist. In addition, the trial court received into evidence various treatment notes and other records.
Dr. Voskanian interviewed R.E.B. on November 14, 2012, and reviewed his criminal and treatment records. He had evaluated R.E.B. in 2009, as well. He characterized R.E.B. as intelligent, and "very verbose, " and noted that R.E.B. has a degree in psychology. Dr. Voskanian opined that R.E.B.'s sexual offending history indicated that R.E.B.'s "sexual pathology is his primary identity[, ]" and that his primary sexual orientation was pedophilia, "not only as a pleasure and primary orientation, but it was also his job." "He was making videotapes, " even though he denied that he ever profited from them, "it's his lifestyle, his livelihood[.]" Therefore, he believed that R.E.B. exhibited a "full spectrum of sexual offending pathology."
Although Dr. Voskanian found that R.E.B. "did demonstrate some highly proactive behaviors" in treatment, he determined that R.E.B. had not sincerely participated in the STU's treatment plan. Dr. Voskanian stated also that R.E.B. is always in "some sort of friction with other residents[, ]" cannot explain how his pedophilic arousal suddenly started and stopped, dissembles, and manipulates others. Dr. Voskanian further noted that R.E.B. continued to deny his offenses, though he did admit that he was aroused by adolescents.
Dr. Voskanian diagnosed R.E.B. with the following mental conditions: (1) Paraphilia, NOS; (2) Pedophilia, pre and prepubescent boys, non-exclusive; (3) Marijuana abuse by history; and (4) Personality Disorder NOS, with antisocial traits. He further opined that R.E.B. was a high risk to sexually reoffend in the foreseeable future unless confined, based on his "strong arousal to children, [his lack of] meaningful adult relationships, strong antisocial traits, lack of any remorse or empathy,  resistance to  treatment, failure to make meaningful progress, and utilizing his intelligence to" avoid detection.
Dr. Roquet diagnosed R.E.B. with the following mental abnormalities: (1) Paraphilia, NOS (hebephilia, sexually attracted to boys from the age of thirteen through seventeen); (2) Pedophilia, sexually attracted to boys, non-exclusive type, not limited to incest, provisional diagnosis; and (3) Personality Disorder, NOS (with antisocial and narcissistic traits).
Dr. Roquet's "overall impression [was] that [R.E.B.] is engaged in treatment, but not necessarily productively engaged. He still needs to focus on details." Dr. Roquet recommended that R.E.B. remain at the STU in Phase III of treatment, which is the "core phase" of treatment. Phase III is focused on treatments to mitigate the risk of sexual reoffending. Dr. Roquet opined that going forward, R.E.B. needs to show a willingness to comply with the rules, not engage in behavior to "beat the system, " complete a truthful sexual history questionnaire, and focus on reconciling his version of his criminal offense history, with the official record of his offenses.
Dr. Roquet also noted R.E.B.'s score of 29.5 on the HARE Psychopathy Checklist. She stated that his score indicates that R.E.B. "shows a high level of psychopathic personality traits, even though he isn't quite over that threshold for [a] diagnosis of psychopathy."
The defense called Dr. Lorah, who diagnosed R.E.B. as exhibiting pedophilia, sexually attracted to males, nonexclusive type. Dr. Lorah opined that R.E.B. was at a moderate to low risk to sexually reoffend, and that his denial of his 1995 offense did not increase the risk of recidivism.
He opined that while there are adverse factors in R.E.B.'s history, such factors can be adequately addressed in the community with safeguards, such as "[m]andated sex offender specific treatments, GPS monitoring, mandatory probation and parole compliance." His opinion was based on R.E.B.'s age of sixty-four, which usually equates with a "significant reduction in acting out on sexual proclivities[, ]" and his active engagement in treatment for many years.
R.E.B. stated that if he were discharged from the STU, he understood that he would not be allowed to be around children, and he stated that he would comply with any conditions "to the very best of his ability."
At the close of the evidence, Judge James F. Mulvihill, in an oral opinion on February 22, 2013, found that the State met its burden and that R.E.B.'s commitment should continue. Judge Mulvihill found the State's experts to be credible, knowledgeable, and forthright. The trial judge also found that while Dr. Lorah was credible, his opinion that R.E.B. could "mitigate his risk" by "conditional discharge with conditions, " is without adequate foundation. Judge Mulvihill further found R.E.B. not to be credible, "that [R.E.B.] has ready answers for all sorts of things he was confronted with in terms of the record."
The judge held that the State proved by clear and convincing evidence that R.E.B. has been convicted of sexually violent offenses, and that "he continues to suffer from a mental abnormality or personality disorder. . . . Pedophilia and Paraphilia NOS." Although the judge noted that R.E.B. "has had advances in treatment[, ]" he felt that it was "[n]ot sufficient treatment to mitigate [R.E.B.'s] risk, because these mental abnormalities predispose him to sexual violence."
Furthermore, the judge determined that R.E.B. was
highly likely to engage in future acts . . . of sexual violence if not confined in a secure facility for control, care and treatment. [R.E.B.] is a risk to the public. He has not confronted the whole series . . . of offenses that occurred in '81, '85, '93. . . . that [R.E.B.] has serious difficulty controlling [his] sexual behavior. . . . [and] he will not control his sexual behavior and will reoffend.
The trial judge issued an order of commitment on February 23, 2013.
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. "[T]he State must prove that 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." 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 "that it is highly likely that" the individual will reoffend "by clear and convincing evidence." Id. at 132-33 (emphasis added); 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 individual 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 individual continues to be a sexually violent predator, as defined in the SVPA and interpreted in In re Commitment of W.Z., supra, 173 N.J. at 126 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) (citing 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 significant amount of expert testimony in the record and determine whether the lower 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 trial judge's findings were supported by substantial credible evidence. State v. Locurto, 157 N.J. 463, 470-71 (1999). We affirm substantially for the reasons set forth by Judge Mulvihill in his oral opinion of February 22, 2013.