IN THE MATTER OF THE CIVIL COMMITMENT OF K.X.J.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1791-05T21791-05T2

IN THE MATTER OF

THE CIVIL COMMITMENT

OF K.X.J., SVP-260-02

________________________

 

Argued: March 28, 2006 - Decided May 2, 2006

Before Judges Axelrad and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-260-02.

Joan Van Pelt, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney).

Lisa Marie Albano, Deputy Attorney General, argued the cause for respondent (Zulima V. Farber, Attorney General, attorney).

PER CURIAM

Appellant, K.X.J., who is now fifty-nine years of age, appeals from a judgment entered on October 24, 2005, ordering his continued commitment at the Special Treatment Unit (STU) under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. Appellant was initially committed to the STU in 2002. The judgment now under appeal was entered after a review hearing. On appeal, appellant argues that the State presented insufficient evidence to support his continued commitment. As part of his argument, appellant contends there was insufficient basis for the court to credit the State's psychiatrist's testimony and assessment of him as a high risk to commit sexually violent offenses as opposed to exhibitionism. Appellant further contends the court was biased against him and unfairly interjected itself into the proceedings. We have thoroughly reviewed the record and find appellant's arguments lacking in merit. We are satisfied the trial judge's findings are amply supported by competent evidence. Accordingly, we affirm.

Appellant pled guilty to the predicate SVPA offense on July 22, 1998, consisting of one count of second-degree sexual assault, N.J.S.A. 2C:14-2b. He was sentenced to six years imprisonment at the Adult Diagnostic and Treatment Center at Avenel (ADTC).

The SVPA took effect on August 12, 1999, see L. 1998, c. 71, 18, and on July 2, 2002, shortly before K.X.J.'s scheduled release date, the State applied for SVPA commitment. Following an initial hearing, Judge Freedman ordered commitment to the STU on October 25, 2002. The annual review hearing was conducted on October 15, 2003 and a judgment of continued commitment was entered by Judge Perretti. K.X.J. appealed both orders and, in an unpublished opinion, we affirmed. (In Re Commitment of K.X.J., No. A-1894-02T2, A-1189-03T2 (App Div. June 10, 2005)). After our affirmance, a subsequent review hearing was held on October 24, 2005 before Judge Perretti and a judgment of continued commitment was entered. It is the most recent judgment that is the subject of this appeal.

Appellant does not dispute that he committed the predicate offense, aggravated sexual assault, nor that the offense qualifies as a "sexually violent offense" under the SVPA. N.J.S.A. 30:4-27.26. In our earlier opinion in the case, we described K.X.J.'s history of sex offenses, which we now repeat:

[K.X.J.] acknowledges a history of sexual offenses. On June 22, 1978, he was found guilty of committing public indecency by exposing himself and engaging himself in an act of masturbation in the men's room of a movie theatre. Similarly, on March 9, 1981, he pleaded guilty to public indecency by exposing himself and masturbating before a group of children in public. On July 22, 1998, K.X.J. pleaded guilty to second-degree sexual assault after the nine-year-old victim, A.L., disclosed that she had been sexually abused by K.X.J., a close family friend, for several years.

Prior to sentencing K.X.J., was evaluated by the . . . (ADTC) pursuant to N.J.S.A. 2C:47-1. During that evaluation, K.X.J. acknowledged a history of exhibitionism and a pattern of repetitive and compulsive sexual behaviors. The ADTC evaluation noted that K.X.J. continued to sexually abuse the prepubescent victim "over an extended period of time, despite awareness that what he was doing was wrong and despite feeling extremely guilty and ashamed about his actions. He was unable to stop himself despite specific attempts to stop, which is definitive of repetitive and compulsive sexual behaviors for statutory purposes."

Appellant was initially committed based on a diagnosis of exhibitionism and pedophilia. At the review hearing on October 15, 2003, the only two witnesses were Dr. Luis Zeiguer, a psychiatrist, and Dr. Gregory Gambone, a psychologist and member of the Treatment Progress Review Committee (TPRC). For purposes of completeness in this opinion, we repeat Judge Perretti's findings and conclusions contained in our earlier opinion:

Dr. Zeiguer gave the reasons for his diagnosis. Pedophilia, he says, is based on the record of the offenses and self-reports. He says that the picture is one of a highly specific need. In the predicate offense, the conduct was marked by daily molestation of a young female from the age of 4 to the age of 9. This molestation continued even after strong warnings to stop. He was actually discovered. He was able to dissuade the family or make the family believe that what the witness had seen was mistaken or misconstrued. And in spite of that, he went on and continued the daily molestation of the child until he was again apparently caught in the act. This leads the psychiatrist to conclude that this is a very deeply ingrained perversion and demonstrates a lack of ability of [K.X.J.] to control himself.

. . . .

The diagnosis of personality disorder rests on again the record . . . . [T]he psychiatrist finds [K.X.J.'s] conduct to be self-centered. He was, according to the psychiatrist, keen on maintaining his own well being by keeping himself satisfied as demonstrated by the daily molestation of the child.

The personality disorder is further based on [K.X.J.'s] callous disregard for others. The callous disregard for others is inferred from a consideration of [K.X.J.] as a very intelligent person. He knew that he was damaging the development of the little victim but continued that behavior.

It was the psychiatrist's opinion that [K.X.J.] has difficulty controlling his sex behavior. He has a long pattern of his "life spinning around" his molestation of the victim.

The difficulty in control is further indicated by his continuing after his discovery. [K.X.J.'s] personality indicates that he is a risk taker. He is grandiose. He -- he feels himself omnipotent. He is fearless. All demonstrated by his own actions. He's considered a very high risk.

At the October 24, 2005 review hearing the State presented the testimony of Dr. Howard Gilman, a psychiatrist who testified in accordance with his report of October 10, 2005. Dr. Gilman explained that K.X.J. declined to be interviewed on that date; he did not request a taped interview or provide an explanation for his refusal to speak with the psychiatrist. Accordingly, Dr. Gilman had no choice but to perform the risk assessment with the information he had available, including appellant's criminal history, forensic and clinical psychiatric evaluations from the ADTC and STU, treatment chart and weekly group participation notes from the STU, and annual review reports by the TPRC.

Dr. Gilman diagnosed appellant as having pedophilia, with sexual attraction to both boys and girls, based on the 1998 second-degree sexual assault, which involved five years of sexual abuse on a minor during the time she was age four to nine, and K.X.J.'s admission to therapists of having sexual contact with two teenage boys where he performed fellatio on one boy three to four times and then fellatio on the boy's cousin when they were ages thirteen and sixteen. Dr. Gilman testified that although pedophilia itself does not translate into a risk of recidivism, "those [pedophiles] that have offended . . . and who have pedophilic sexual arousal are at a higher risk for sexually offending again."

The psychiatrist also made a diagnosis of exhibitionism based on appellant's two arrests from 1978 and 1981, and reports and other evaluations that appellant's exhibiting himself may have occurred on numerous other occasions. The psychiatrist testified that those diagnosed with exhibitionism and voyeurism are most likely to re-offend. He found a further diagnosis of "personality disorder not otherwise specified [N.O.S.] with psychopathic features by history" noting that appellant's HARE score of twenty-five indicated a moderate degree of psychopathy.

Dr. Gilman discussed the TPRC report which recommended that appellant provide a written sexual history and that he take a polygraph test regarding that history because of the discrepant reports by appellant about the extent of his sexual abusing history. The expert explained that there were several reports that indicated that appellant reported having been sexually involved with "literally dozens of children" while in others he denied any involvement with children beyond the most recent crime and the two teenage boys. Dr. Gilman opined that appellant was not fit for release as he remained at a high risk to sexually re-offend, explaining:

Well, [K.X.J.] has a number of factors that predict a high risk, and I believe that those are some of the factors that were taken into consideration when he was initially committed under the [SVPA.] In the years between . . . 2002 to the current time, there has not been a significant change in those factors to reduce the risk.

There continues to be all of the static issues at play; that is, the fact that he has the sexual disorders of pedophilia and exhibitionism, the fact that he has the personality disorder that we mentioned, the fact of his criminal history, sexual criminal history, that's not going to change.

So we look to see what's going to change in treatment. And as I look at the treatment, although [K.X.J.] attends, and that's good, and is compliant with the basic structure of the treatment, and that's good, there hasn't been a lot of treatment progress in terms of changing his dynamics, becoming more honest and open, dealing with the discrepancies in his history, dealing with his own sexual history by writing down and going over that sexual history with the groups.

So that things have not changed significantly to lower the overall risk.

. . . .

Dr. Gilman recognized as mitigating factors, K.X.J.'s progress and treatment and that as he became older the general risk of recidivism for sexual offending would reduce. However, he felt that appellant could not adequately address his sexual assault cycle or prepare a relapse prevention program until he fully discussed all victims.

K.X.J. presented the testimony of Dr. Paul Fulford, a clinical psychologist, who evaluated him on October 20, 2005, and relied on similar materials as were relied on by Dr. Gilman. Dr. Fulford agreed that K.X.J. had a pedophilic diagnosis in the past, but based on his current denial of pedophilic fantasies and professed fantasies about adult women, specifically his deceased wife, Dr. Fulford concluded that such diagnosis was in remission in an institutional setting. Dr. Gilman additionally did not believe that appellant's HARE score rose to the level of psychopathy and placed great weight on his age as a mitigating factor of re-offense.

Most critically, Dr. Fulford testified that during the interview appellant admitted to about twenty direct contact victims of sexual abuse and twenty to twenty-five indirect or exhibitionist related victims over a forty-year period. The psychologist testified that the only information K.X.J. provided about the direct contact victim was that they were a generic group of mainly female minors. The psychologist acknowledged that more detailed information would assist in K.X.J.'s treatment. He recommended K.X.J.'s release, although acknowledged that it would be risky for him to be released without any conditions.

In rendering her decision, Judge Perretti noted that K.X.J. was in Phase Three of treatment, having been approved for that promotion on February l7, 2005, and that he had thereafter been moved from Kearney to the therapeutic community, as it appeared from a treatment plan status review of August 12, 2005. She discussed the TPRC report generated from the treatment team's meeting with appellant on September 29, 2004, as to admissions by K.X.J. of sexual history:

The report recites and quotes statements by [K.X.J.]. In particular when asked to provide the total number of his sex offense victims he responded, "I don't know, I choose not to estimate."

When asked to provide the total number of non-contact sex offense victims, he responded, "that's not a figure I would give off the top of my head. I would have to think about it. I'd want it to be accurate because I know it will be used against me."

[K.X.J.] did tell the TPRC that his first sex offense occurred when he was about 19, when he exposed himself in public, and his last sex offense occurred at the age of 50. This was the predicate offense.

The predicate offense involves a young girl. The molestation had persisted for approximately five years from the time the child was four until she was nine. [K.X.J.] entered a guilty plea to second degree aggravated sexual assault.

[K.X.J.] did not detail to the TPRC any additional sex offenses. The TPRC made a number of recommendations . . . [including] that he complete a written sex offense history and a written autobiography. These are the same recommendations which were made in a previous TPRC report . . . [which] were not followed by [K.X.J.].

In the earlier report [K.X.J.] indicated that he had had approximately 25 non-contact exposure victims between the ages of seven to ten. He acknowledged the predicate offense and coercing two boys, 13 and 16, to have oral sex with him. When asked to describe his sex offense victims, he stated, "four year old female, 13 and 16 year old male."

He also indicated that the indecent exposure had occurred in front of both children and young females up to approximately the age of 20.

The court was quite concerned that the statements to the TPRC on both occasions where he acknowledged only a very restricted number of victims were at "substantial variance" from the statements he made to Dr. Fulford, where he acknowledged about twenty contact victims and exposing himself about twenty times over a forty-year period. The court continued:

The importance of this was made clear by Dr. Gilman's testimony.

A review of the treatment notes . . . which include the notes from September 29, 2003 down to a summary for the month of September 2005, reveal that [K.X.J.] has not disclosed in therapy his various victims and has detailed only the predicate offense. He has taken the floor on numerous occasions and has detailed his feelings of being victimized by the system as well as detailing various incidents in his early life when he was sexually abused by members of his immediate and extended family.

He told the group on February 27, 2004 that he no longer had urges or fantasies regarding sex offending behavior because he had gained control and power over himself as a result of having "disclosed all his crimes."

However, to that time he had indeed not, nor has he in therapy disclosed any incidents of deviant behavior aside from his exhibitionism and the predicate offense. During the times that he has taken the floor, he has spent much time complaining about misinterpretations of the statements made by the TPRC.

It is noteworthy that the TPRC reports quote him directly.

. . . .

A plan review for February 7th of 2005 indicates that [K.X.J.] was continuing to make progress. However, there had been no further discussion of his sex offending behavior. A six-month report to the TPRC dated February 24th of '05 indicates that the resident has not completed any new treatment components since the last TPRC meeting.

On March the 11th, the facilitator of the relapse prevention group remarked that [K.X.J.] shows no investment in the work of relapse prevention. His floor in May of 2005 dwells at length on his having been abused himself as a child.

[On June 16, K.X.J.] took the floor and stated that he had had three male victims. The first two being on the record and the third was a new revelation, said to have been [K.X.J.'s] cousin. [K.X.J.] also acknowledged the predicate offense.

There is no discussion by [K.X.J.] of the offenses against any of the three males.

. . . .

The group notes establish clearly that [K.X.J.] has not discussed any of his sex offenses other than the predicate offense and his experience as an exhibitionist.

According to Dr. Gilman, this lack results in [K.X.J.] being unable to construct an adequate relapse prevention plan.

Judge Perretti noted that both experts diagnosed pedophilia and exhibitionism, and except for their final conclusions, found that the report of Dr. Fulford did "not differ markedly from that of Dr. Gilman." After considering all of the testimony and exhibits, she found the State's witness and exhibits to be clear and convincing. Judge Perretti credited Dr. Gilman's diagnosis of personality disorder N.O.S. based on characteristics other than the HARE score, although she made no finding as to the psychopathic features based on the evidence presented. She explained how the personality disorder affected K.X.J.'s risk to sexually re-offend:

The personality disorder which [Dr. Gilman] diagnoses influences the risk to re-offend sexually because the personality disorder is a poor influence on treatment progress. The treatment records show that although [K.X.J.] was not disruptive in group, he is "stuck" in treatment because of his manipulativeness and defensiveness.

The therapist and the psychiatrist have a poor sense of how [K.X.J.'s] acts and attitudes reflect on others. [K.X.J.] also has a poor sense of how his acts and attitudes reflect on others.

It was made very clear by Dr. Gilman that sex offender specific therapy must be based on truth. It is important for [K.X.J.] to recognize the truth and deal with it. [K.X.J.] must be clear in his own mind about the extent of his criminal acts. In this case, it is perfectly clear that [K.X.J.] has not recognized the truth or is deliberately hiding it up to the time when he made his statements to his examining psychologist.

According to Dr. Gilman, [K.X.J.] cannot deal with relapse prevention without addressing all of his victims. And the only way to avoid recidivism is to develop a series of methods which will act as interventions. In order to do this, [K.X.J.] must demonstrate openness about his problems. There can be no realistic plan "if one is masquerading" according to the psychiatrist.

It is the opinion of Dr. Gilman that [K.X.J.'s] current risk to re-offend is high. He bases this opinion on his observation that from the time [K.X.J.] was committed to the STU in 2002 down to date, there has been no significant change in him.

The static features including the diagnosis and criminal history of course remain. However, the degree of risk could be altered through treatment. In this case, there has been no progress sufficient to change [K.X.J's] dynamics. Most particularly this is the result of [K.X.J's] failure to deal with his own past sexual history, his history of his own sex involvement and his history of his own violations of others.

Dr. Gilman is of the opinion that [K.X.J.] has serious difficulty controlling his sex offending behavior. He reasons that [K.X.J.] has a history of repeated sexual offending with arrests followed by re-offenses.

He also notes that the drives of pedophilia and exhibitionism themselves impact [K.X.J.'s] ability to control his sex offending behavior. While agreeing that age generally reduces the risk of recidivism, this does not appear to be appropriate when applied to [K.X.J.]. It's noteworthy that the . . . predicate offense was only curtailed when he was discovered at the age of 50 after having persisted for five years with the one victim of the predicate offense.

The court concluded the following with regard to K.X.J.'s participation in therapy:

It is clear that [K.X.J.] has not engaged in therapy in an open and honest manner and has over the course of years here at the STU concealed the full extent of his sex offending history. It is further clear that without his open and honest exposure of his sex offending history, he is unable to construct a relapse prevention program which depends upon his understanding the nature of his criminal behavior.

It is also clear that [K.X.J.] is not engaging sincerely in sex offending therapy. He has been periodically recommended to complete certain aspects of therapy, his sex offense history, his autobiography, and he has failed to complete either of those aspects.

It is further clear that his taking the floor while frequent involves mainly with very minor exceptions, his perception of his victimization by the authorities as a result of his commitment here and his victimization by others when he was himself a child. [K.X.J.] has not addressed himself to his own history as a sex offender.

He has only recently been promoted from level two to level three of treatment and it was in August that he was transferred to the therapeutic community.

His recent revelation to Dr. Fulford could be a beginning for [K.X.J.] to engage in sex offender treatment. To date he has not and thus there is no mitigating effect result from sex offender specific treatment. There is further no mitigating effect from his age. [K.X.J.] quite clearly committed pedophilic acts until he was stopped at the age of 50.

Judge Perretti based her decision on the testimony and evidence presented at the current hearing, as well as evidence presented at prior hearings. She found, by clear and convincing evidence, that K.X.J. "continue[d] to be a sexually violent predator suffering from abnormal mental conditions and personality disorders that adversely impact[ed] his cognitive, emotional and volitional capacities so as to predispose him to commit sexually violent acts." She further found he had serious difficulty controlling his sex offending behavior and as a result he was highly likely to commit sexually violent acts if not confined for further care. She concluded that, "[a]ccording to [Dr. Gilman] the psychiatrist, [K.X.J.] needs confinement because he currently has no tool to lower his risk of re-offending. This is crystal clear."

Both an order of commitment and order of continued commitment must be based on clear and convincing evidence that an individual who has been convicted of a sexually violent offense suffers from a mental abnormality or personality disorder, and presently has serious difficulty controlling harmful sexually violent behavior such that it is highly likely the individual will re-offend if not committed to the STU. In Re Commitment of W.Z., 173 N.J. 109, 132 (2002); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35.

Once initially committed, a court must conduct an annual review hearing to determine whether the committee will be released or remain in treatment. N.J.S.A. 30:4-27.35. A committee may petition for discharge at any time. N.J.S.A. 30:4-27.36d. The State maintains the burden of proof and must demonstrate by clear and convincing evidence that the committee "needs continued involuntary commitment as a sexually violent predator." N.J.S.A. 30:4-27.32a. "Once committed under the SVPA, an 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." In Re Commitment of W.Z., supra, 173 N.J. at 130.

To be found a sexually violent predator, a person must "suffer[] from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence" if not otherwise constrained. N.J.S.A. 30:4-27.26. Under the SVPA, a mental abnormality is "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." Ibid. A mental abnormality or personality disorder must "affect an individual's ability to control his or her sexually harmful conduct." In Re Commitment of W.Z., supra, 173 N.J. at 127. The finding of a total lack of control is not necessary. Id. at 126-27. Instead, a showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Id. at 127.

The scope of appellate review "of a trial court's decision in a commitment proceeding is extremely narrow." In Re Commitment of J.P., 339 N.J. Super. 443, 459 (2001). The trial court's "determination should be accorded 'utmost deference' and modified only where the record reveals a clear abuse of discretion." Ibid. (quoting State v. Fields, 77 N.J. 282, 311 (1978)). See also, In Re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "The appropriate inquiry is to canvas 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).

We have examined the record in light of the arguments advanced by K.X.J. and our standard of review. We are fully satisfied that Judge Perretti's finding that appellant continued to qualify for SVPA commitment by clear and convincing evidence is amply supported by the record. There is absolutely no merit to K.X.J.'s contention the trial judge was biased or unfairly interjected herself into the proceedings. Judge Perretti was even-handed in her treatment of K.X.J., even accommodating him to the extent of permitting his expert to testify, over the State's objection, after appellant refused to be interviewed by the State's expert and chose to speak solely with his own expert.

Additionally, the court properly permitted Dr. Gilman to testify under the circumstances even though he had not interviewed K.X.J., as K.X.J. had refused to speak with him until the eve of trial. Allowing such competing testimony from the State's expert to counter the anticipated opinions from the defense expert by no means reflects bias, but rather a balanced search for the truth within the adversarial process. Most critically, Dr. Gilman had based his report and testimony on documentation appropriate for an expert, N.J.R.E. 703, and the same information as was relied upon by Dr. Fulford. Nor did the trial judge misapply her discretion in declining appellant's request to adjourn trial for a few hours and require Dr. Gilman to interview K.X.J. on the trial date when appellant suddenly changed his mind and agreed to an interview, perhaps out of strategic concern that his expert might be barred from testifying. In declining that request for an ad hoc interview, the judge properly respected the needs of the professionals involved, both the experts and counsel, to present these matters in an orderly fashion.

The evidence presented at the review hearing on October 24, 2005 confirmed that K.X.J.'s continued commitment was warranted based on the predicate offense, history of sexual offenses, present diagnosis, and his failure to openly and honestly expose his sex offending history and construct a relapse prevention plan which depended upon his understanding of the nature of his criminal behavior.

Affirmed.

 

By agreement of the parties and permission of the court, the appeal was argued without briefs. We summarize the arguments raised by appellant based upon the presentation at oral argument.

(continued)

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A-1791-05T2

RECORD IMPOUNDED

May 2, 2006