IN THE MATTER CIVIL COMMITMENT OF G.X.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5774-02T25774-02T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

G.X.C.

________________________________________

 

Submitted September 14, 2005 - Decided

Before Judges Wefing and Graves.

On appeal from Superior Court of New Jersey, Law

Division, Essex County, SVP-273-02.

Yvonne Smith Segars, Public Defender, attorney for

appellant (Michele C. Buckley, Designated Counsel,

on the brief).

Peter C. Harvey, Attorney General, attorney for

respondent (Patrick DeAlmeida, Assistant Attorney

General, of counsel; Mary Beth Wood and Benil

Abraham, Deputy Attorney Generals, on the brief).

PER CURIAM

G.X.C. appeals from a judgment of June 16, 2003, committing him to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

The SVPA's definition of "sexually violent predator" includes an individual "who has been convicted . . . 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. Courts are authorized to order the involuntary civil commitment of an individual under the SVPA when the State has proven "by clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator." N.J.S.A. 30:4-27.32(a). The Court has explained the standard for involuntary commitment under the SVPA as follows:

To be committed under the SVPA an individual must be proven to be a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts. . . . [T]he State must prove that threat 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.

Those findings . . . require an assessment of the reasonably foreseeable future. No more specific finding concerning precisely when an individual will recidivate need be made by the trial court. Commitment is based on the individual's danger to self and others because of his or her present serious difficulty with control over dangerous sexual behavior.

[In re Commitment of W.Z., 173 N.J. 109, 132-33 (2002).]

The scope of appellate review of a trial court's decision in a commitment proceeding has been described as "extremely narrow, with the utmost deference accorded the reviewing 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). The trial court's determination may only be modified "where the record reveals a clear abuse of discretion." In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003) (citation omitted). A reviewing court must be mindful that the legislative intent in adopting the Act was "to afford protection to society from those sexually violent predators who pose a danger as a result of a mental abnormality or personality disorder which makes them likely to engage in repeated acts of predatory sexual violence." In re Civil Commitment of E.D., 353 N.J. Super. 450, 456 (App. Div. 2002).

G.X.C. is now fifty-eight years old. His mother abused him sexually as a child. When G.X.C. was thirty-three years old, he was voluntarily admitted to the Carrier Foundation after he was charged with sexually abusing his own children. A psychological report from Carrier Foundation dated February 15, 1981, indicates that during his youth, G.X.C. "had experienced a lot of sexual stimulation and touching and [he] translated that into his own behavior." G.X.C. is reported to have stated: "It felt good to me and I don't know this for sure but I guess I must have felt that if it felt good to me why shouldn't it feel good to my children, and when it was done to me I could do the same thing." The charges against G.X.C. were subsequently dismissed after his wife reportedly decided not to press charges. When he was discharged from Carrier Foundation on February 27, 1981, his condition on discharge was described as "much improved."

On February 23, 1994, G.X.C. pled guilty to first-degree aggravated sexual assault. The ten-year-old victim was the son of his live-in girlfriend. On the same date, G.X.C. also pled guilty to second-degree sexual assault. This charge involved his girlfriend's nine-year-old niece. Pursuant to N.J.S.A. 2C:47-1, G.X.C. was referred to the Adult Diagnostic and Treatment Center (ADTC) for a psychological evaluation. It was determined that G.X.C.'s conduct was characterized by a pattern of repetitive, compulsive behavior, and on August 5, 1994, he was sentenced to concurrent terms of ten years and seven years, to be served at the ADTC.

ADTC's termination report, dated September 19, 2000, states that G.X.C. "has been an active participant in his treatment throughout his incarceration resolving many of his issues." But is also states:

An area with which [G.X.C.] still struggles is Victim Empathy. It is noteworthy that this was a module that [G.X.C.] was requested to repeat due to his inability to fully grasp the concepts portrayed. Specifically, [G.X.C.] has a tendency to want to forgive himself, particularly for his transgressions against his children. He has had difficulty understanding why some of his victims or siblings are not inclined to have an active relationship with him. He presently maintains a relationship with two of his four children. [G.X.C.'s] own history of personal victimization by his mother, from an early age, and participation in sexual [activity] with many family members (cousins) has left [G.X.C. with] a confused picture of appropriate sexual behavior.

There are two other areas of specific concern as [G.X.C.] prepares to leave the A.D.T.C.: first, the issue of [G.X.C.'s] sexual orientation which will require further attention as he rejects his bi-sexual or homosexual nature. He acknowledges having had relationships with at least three other inmates while incarcerated with some of these relationships lasting a considerable length of time. [G.X.C.] prefers to present himself and sees himself, as a masculine figure. As a result he rejects his homosexuality. [G.X.C.] becomes defensive and has difficulty accepting input as regarding his sexuality. In another apparent contradiction, he acknowledges having had sexual relationships with transvestites while in the community which apparently allows [G.X.C.] to have sex with a man dressed as a woman, thus avoiding the label of homosexual behavior. [G.X.C.'s] issues of sexual orientation are compounded by his lack of trust in women, most likely due to his early abuse by his mother and the fact that he remains sexually attracted to children. Attempts to resolve this dilemma are compounded by his "black and white" thinking which makes it necessary for him to see himself as either totally heterosexual or homosexual. As indicated earlier, he rejects his non-masculine view of homosexuality. Another area of concern is [G.X.C.'s] substantial history of substance abuse including alcohol, marijuana, cocaine, as well as other assorted drugs. [G.X.C.] acknowledges that his use of substances greatly increases the likelihood of reoffense and he indicates a fear of returning to drugs and alcohol upon leaving the institution. He has had a lifelong history of difficulty maintaining sobriety although he has been an active participant in the substance abuse treatment aspects of the program as well as the AA program.

Following his termination from the ADTC, defendant was required to serve a five-year prison term with two years of parole ineligibility. This sentence had been imposed on July 25, 1997, in connection with G.X.C.'s conviction for third-degree criminal restraint. On October 3, 2002, prior to completing this sentence, G.X.C. was temporarily committed to the State of New Jersey Special Treatment Unit as a sexually violent predator.

At G.X.C.'s commitment hearing on June 9, 2003, the trial judge heard from two psychologists who testified on behalf of G.X.C., Dr. Joseph F. Perzel and Dr. Timothy Foley. The State presented the testimony of Dr. Pogos H. Voskanian, a psychiatrist, and Dr. Robert Carlson, a psychologist. The trial judge's findings and conclusions included the following:

I am clearly convinced that the respondent continues to be a sexually violent predator as defined in the statute. He has been convicted of sexually violent offenses. He has been diagnosed really without exception or contradiction with serious mental defect and personality disorders.

There is the testimony that I relied upon that these diagnoses impact his volitional, cognitive and emotional capacities, that he is predisposed to commit sexually violent offenses as a result thereof.

I further find that the respondent has serious difficulty controlling his sexual behavior. This is established to my satisfaction by clear and convincing evidence of the repetitive nature of his sex offending.

It is inescapable that the respondent has been found to be a repetitive and compulsive sex offender, and in addition, there are these numerous acts of sex offending and the hyper-sexualization of the respondent from a very, very early age.

I find that the respondent is highly likely to reoffend if not confined to the STU for care, and I will sign a one-year order.

On appeal, G.X.C. presents the following arguments for our consideration:

POINT I

THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT G.[X.]C. WAS SUBJECT TO CONTINUED COMMITMENT AS A SEXUALLY VIOLENT PREDATOR.

POINT II

THE TRIAL COURT ERRONEOUSLY RELIED UPON HEARSAY DOCUMENTS AND THE TESTIMONY OF A NON-TREATING PSYCHOLOLGIST AND PSYCHIATRIST IN FINDING G.[X.]C. A SEXUALLY VIOLENT PREDATOR.

We conclude that the record fully supports the trial court's determination that the State satisfied its burden of showing by clear and convincing evidence that G.X.C. has serious difficulty controlling his harmful sexual behavior, and that it is highly likely that G.X.C. will reoffend if he is not involuntarily committed to a facility designated for the care, custody, and treatment of sexually violent predators. We affirm substantially for the reasons set forth by Judge Perretti in her comprehensive oral decision on June 13, 2003.

 
Affirmed.

(continued)

(continued)

8

A-5774-02T2

RECORD IMPOUNDED

September 30, 2005