IN THE MATTER CIVIL COMMITMENT OF D.C.R.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3270-02T23270-02T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF D.C.R.

_________________________________

 

Submitted January 10, 2006 - Decided February 6, 2006

Before Judges Skillman and Axelrad.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-274-02.

Yvonne Smith Segars, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Mary Beth Wood and Toral M. Joshi, Deputy Attorneys General, on the brief).

PER CURIAM

Appellant D.C.R. appeals from a final order of commitment to the New Jersey Special Treatment Unit (STU) entered on January 23, 2003, based on the trial court's finding that he is a sexually violent predator in need of involuntary civil commitment pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38.

To be classified as a "sexually violent predator," a person must have been

convicted, adjudicated delinquent or found not guilty by reasons of insanity for commission of a sexually violent offense, or . . . been charged with a sexually violent offense but found to be incompetent to stand trial, and suffer[] 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.]

To commit a person as a sexually violent predator, the State must show, by clear and convincing evidence, that the person has "serious difficulty in controlling his or her harmful behavior such that it is highly likely that the individual will not control his or her sexually violent behavior and will reoffend." In re Commitment of W.Z., 173 N.J. 109, 130 (2002).

The sexually violent offenses that were the predicate of D.C.R.'s commitment were a sexual assault committed in 1996 and an aggravated sexual assault committed in 1997. Before his convictions for these sexually violent offenses, D.C.R. had been charged with three other serious sexual offenses.

D.C.R. was first arrested and charged with sexual assault in 1992 in Houston, Texas. He allegedly raped an 18-year-old female who was a friend of his girlfriend. According to the victim, D.C.R. forced her down and vaginally penetrated her with his penis. On April 27, 1994, this charge was dismissed by a Texas district court.

On June 10, 1993, D.C.R. was charged with a burglary in Houston. While delivering beverages, D.C.R. allegedly forced his way into a customer's apartment. After subduing her, D.C.R. allegedly unzipped his pants, pulled out his penis, ejaculated on the victim, and ran out of the apartment. On April 27, 1994, this charge was dismissed by a Texas district court.

On October 7, 1996, D.C.R. was again charged with sexual assault in Houston. D.C.R. allegedly fondled his girlfriend's 10-year-old daughter and three of her friends. Because the child recanted her accusation, this charge was no billed. However, when D.C.R. was later arrested on an unrelated charge, the police allegedly found photographs of the victim posing in a sexually provocative manner in his possession.

D.C.R.'s sexual assault conviction was based on a series of sexual assaults alleged committed between approximately May 6, 1996, and December 31, 1996, when the victim was thirteen years old. During this period, D.C.R. forced the victim to engage in a number of sexual behaviors, such as "rubbing his penis against the victim's buttocks and ejaculating on her, forcing her to fellate him approximately ten times, and vaginally penetrating her with his penis on one occasion."

D.C.R.'s aggravated sexual assault conviction was based on an incident that occurred on October 4, 1997. The twenty-one-year old victim had been sleeping in a car parked in a lot adjoining a restaurant she had just exited. D.C.R. entered the car while she was sleeping and fondled her breasts; he fled when she awoke. He returned a second time when the victim fell back asleep. He again fondled her breasts and digitally penetrated her vagina, fleeing when the victim awoke a second time. D.C.R. subsequently pled guilty to aggravated sexual assault for this offense.

At the commitment hearing, Dr. Natalie Barone, a psychologist, testified for the State that there would be a "significant" risk of D.C.R. reoffending if he were released from confinement, and Dr. Charles Gnassi, a psychiatrist, testified for the State that D.C.R.'s risk of reoffense was "high." Both Dr. Barone and Dr. Gnassi diagnosed D.C.R. as having "paraphilia" and "personality disorder with antisocial and narcissistic features." Dr. Robert W. Harris, a psychiatrist who testified for D.C.R., expressed the opinion that the risk of D.C.R. reoffending would be low if he were placed on an "antiandrogen" to lower his sexual drive. In reaching their conclusions, these experts all interviewed D.C.R. and also reviewed prior psychological evaluations and the records relating to his incarceration for the two sexually violent offenses.

After hearing this testimony, the trial judge found that the opinions of Drs. Barone and Gnassi were more persuasive than Dr. Harris' opinion that there was a low risk D.C.R. would commit additional sexually violent offenses if he was released and concluded that D.C.R. was a sexually violent predator who requires commitment under the SVPA.

On appeal from the order of commitment, D.C.R. presents the following arguments:

I. D.C.R.'S INVOLUNTARY COMMITMENT UNDER THE SVPA VIOLATES THE UNITED STATES CONSTITUTION, ARTICLE I, SECTION 10, CLAUSE 1 AND NEW JERSEY CONSTITUTION ARTICLE IV, SECTION 7, PARAGRAPH 3 (EX POST FACTO CLAUSES) (Not raised below).

II. THE COURT ERRED IN RELYING ON HEARSAY CONTAINED IN EXHIBITS AND THE TESTIMONY OF EXPERT WITNESSES TO MAKE FINDINGS OF FACT AND IN REACHING ITS DECISION TO INVOLUNTARILY COMMIT D.C.R. (Partially raised below).

A. The trial court improperly relied on hearsay documents to support involuntary commitment.

B. The trial court improperly relied on hearsay provided through the expert witnesses to support involuntary commitment.

C. The trial court allowed inadmissible hearsay evidence into testimony through Dr. Barone and used it against D.C.R.

III. THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT D.C.R. SHOULD HAVE BEEN INVOLUNTARILY COMMITTED.

A. Standard of review.

B. The State failed to prove the lack of control requirement of W.Z.

C. The trial court failed to consider conditional discharge.

We reject these arguments and affirm the order of commitment substantially for the reasons set forth in Judge Freedman's oral opinion of January 23, 2003. We add the following supplemental comments.

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)).

Commitment pursuant to the SVPA "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." W.Z., supra, 173 N.J. at 132-33. Thus, a court's findings must focus on whether a prospective committee is "likely to engage in acts of sexual violence in the reasonably foreseeable future." Id. at 131.

It is not necessary that the individual exhibit a "complete loss of control." Id. at 128. Instead, the State must show a substantial inability to control conduct, which is "tied to a finding of mental abnormality or illness." Id. at 129.

In this case, it is undisputed that D.C.R. committed two predicate sexually violent offenses. A psychologist and psychiatrist both diagnosed D.C.R. as suffering from paraphelia and personality disorders with anti-social and narcissistic personality features. Both of these experts testified that there is a high risk D.C.R. would reoffend if he were released from confinement. Even D.C.R.'s own expert, Dr. Harris, recognized D.C.R.'s difficulty in controlling sexually violent behavior, recommending that he receive outpatient substance abuse and sex offender treatment and that he be placed on an antiandrogen to lower his sexual drive. Therefore, the record adequately supports Judge Freedman's findings that D.C.R. has mental and personality disorders that create a serious inability to control his sexual behavior and as a result he would be highly likely to engage in acts of sexual violence if released.

Moreover, because Judge Freedman properly found D.C.R. to be a sexually violent predator, there was no basis for his conditional discharge, as recommended by Dr. Harris:

[I]f the person is a sexually violent predator, conditional discharge is not an option. Only if the person is no longer likely a sexually violent predator may the judge consider conditional discharge under E.D.

[In re Commitment of J.J.F., 365 N.J. Super. 486, 498 (App. Div.), certif. denied, 179 N.J. 373 (2004).]

See also In re Commitment of E.D., 353 N.J. Super. 450, 453-58 (App. Div. 2002).

However, at future commitment review hearings, the court should consider whether there are conditions that could be imposed upon D.C.R.'s release from confinement that "would substantially reduce the likelihood of future acts of sexual violence." J.J.F., supra, 365 N.J. Super. at 501. "If such conditions substantially reduce the likelihood to a degree that prevents the State from proving by clear and convincing evidence that the individual is highly likely to engage in acts of sexual violence, then the individual is entitled to a conditional discharge." Id. at 502.

We also reject D.C.R.'s argument that the trial court improperly relied upon hearsay statements contained in documents admitted into evidence and reflected in the testimony of the State's experts in concluding that the conditions for commitment under the SVPA had been established.

N.J.R.E. 703 provides:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

[Emphasis added.]

We have previously recognized that documents containing inadmissible hearsay that expert witnesses have relied upon in forming their opinions may be admitted into evidence at a commitment hearing under the SVPA for the limited purpose of allowing the court to consider the factual materials considered by those witnesses. See, e.g., In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 484-89 (App. Div.), certif. denied, 185 N.J. 393 (2005); In re Civil Commitment of E.S.T., 371 N.J. Super. 562, 572-75 (App. Div. 2004); In re Commitment of A.X.D., 370 N.J. Super. 198, 201-02 (App. Div. 2004); In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 611-614 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). One category of document that may be admitted for this limited purpose is a presentence report, which an expert witness may use "to obtain a history of what happened through the years, to see how the people involved in the offenses viewed the offenses, and to get a sense of the way [the committee] responded to these situations over time." Id. at 613. Other categories of documents that may be admitted include the reports of other experts, E.S.T., supra, 371 N.J. Super. at 572-74, and STU treatment reports, A.X.D., supra, 370 N.J. Super. at 201-02. Evidentiary rulings regarding the admissibility of evidence for this limited purpose are reviewed under an abuse of discretion standard. J.H.M., supra, 367 N.J. Super. at 612.

Both of the State's experts testified that they considered D.C.R.'s presentence reports and the evaluations of other experts in reaching their own conclusions that D.C.R. qualified for commitment under the SVPA. Both experts also clearly indicated that they did not simply rely on the opinions of other experts in reaching their conclusions. Indeed, the State's experts disagreed with the conclusions reached by three of the five experts whose reports they considered, who had expressed opinions that D.C.R. did not qualify for commitment under the SVPA. In addition to reviewing the extensive documentation relating to his history of sexual offenses and the evaluations of other experts, both experts conducted two interviews of D.C.R. Therefore, there is no basis for concluding that "the opinions of the non-testifying experts [were] bootstrapped into evidence [by the State] through the testimony of the testifying experts. E.S.T., supra, 371 N.J. Super. at 575; see A.E.F., supra, 377 N.J. Super. at 489.

Finally, we reject D.C.R.'s argument that his commitment under the SVPA violated the Ex Poste Facto Clauses of the United States and New Jersey Constitutions substantially for the reasons set forth in J.H.M., supra, 367 N.J. Super. at 608-11.

 
Affirmed.

(continued)

(continued)

11

A-3270-02T2

RECORD IMPOUNDED

February 6, 2006