IN THE MATTER CIVIL COMMITMENT OF R.X.H.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3522-03T23522-03T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF R.X.H.

________________________________________________________________

 

Submitted October 17, 2006 - Decided December 1, 2006

Before Judges Lisa and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-332-03.

Ronald K. Chen, Public Advocate, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Amye R. Steinberg, Deputy Attorney General and Beth Leigh Mitchell, Deputy Attorney General, on the brief).

PER CURIAM

Appellant, R.X.H., appeals from Judge Freedman's February 9, 2003 order committing him to the Special Treatment Unit (STU), the secure facility designated for the custody, care and treatment of sexually violent predators, pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. R.X.H. argues on appeal:

POINT ONE

THE ORDER OF COMMITMENT MUST BE REVERSED BECAUSE IT IS BASED ON ALLEGATIONS OF PAST CRIMINAL SEXUAL CONDUCT THAT WERE NEVER PROVEN AND WERE NEVER ADMITTED TO BY R.X.H.

POINT TWO

THE COURT ERRED IN RELYING ON THE OPINIONS OF DRS. BARONE AND ZEIGUER BECAUSE THESE OPINIONS WERE BASED IN PART ON THE OPINIONS OF NON-TESTIFYING EXPERTS (Not Raised Below).

POINT THREE

THE EVALUATIONS PREPARED BY NON-TESTIFYING EXPERTS CONSTITUTE HEARSAY, DO NOT COMPLY WITH N.J.R.E. 703, AND SHOULD NOT HAVE BEEN ADMITTED AS EXHIBITS AT TRIAL.

We reject these arguments and affirm.

R.X.H., now fifty-four years old, has a long juvenile and adult record. As an adult, he has been arrested approximately twenty-five times. At least six of those arrests have resulted in indictable convictions. His most recent conviction was for offenses committed on February 20, 1992. R.X.H. approached a twenty-four-year-old woman, a stranger, as she was entering the vestibule of her apartment. R.X.H. pushed the victim from behind. As she was trying to get through the second door of the vestibule and attempting to insert her key, R.X.H. snatched the key from her. He then pushed her into the corner, hit her in the face and told her to stand there and be quiet. He unbuttoned and pulled down her jeans, removed her right sneaker and pulled that pant leg off. He then grabbed her by her hair, pushed her to her knees and forced her to perform fellatio on him, demanding that she "get him hard." After one or two minutes, R.X.H. pushed the victim on her stomach, face down, and attempted to penetrate her anus with his penis. He penetrated slightly, but then became flaccid. R.X.H. then pushed the victim back to her knees and again forced her to perform fellatio, demanding that she "get him hard again." He then pushed her on her back and again attempted to penetrate her anus with his penis. He again penetrated slightly. R.X.H. then stood the victim up and talked to her in a rambling fashion, helping her pull her pants up. She ran upstairs. He fled.

R.X.H. was charged with two counts of second-degree sexual assault and third-degree terroristic threats. The jury found him guilty of one of the sexual assault counts and of terroristic threats, as well as lesser included fourth-degree criminal sexual contact. On May 28, 1993, R.X.H. was sentenced to fifteen years imprisonment with a seven-and-one-half year parole disqualifier. The convictions for these sexual offenses constituted the predicate offense rendering R.X.H. eligible for commitment under the SVPA. See N.J.S.A. 30:4-27.26.

During his period of incarceration, R.X.H. incurred numerous disciplinary infractions, including three incidents of a sexual nature. Those involved indecent exposure to female correction officers and masturbating in their presence.

Prior to R.X.H.'s release from prison, on August 12, 2003, the State filed a petition seeking his commitment under the SVPA. The petition was supported by two clinical certifications. Dr. Herbert Kaldany certified that R.X.H. has

a pattern of denial of all criminal behavior . . . . [H]e remains adamant that no sex offenses had occurred . . . . [He] suffers from an episodic mental illness of bipolar disorder as well as pervasive personality disorder. . . . [He] has serious difficulty controlling his harmful behavior such that . . . he will not be able to control his sexual behavior and re-offend.

Dr. Susan E. Uhrich found that R.X.H.

has a long history of criminal behavior, violence and sex offenses for which his personality disorder will not allow him to accept responsibility. His personality disorder also impairs his ability to control his behavior, and in particular, his sexual behavior. As such, it is highly likely that he will not be able to control his behavior in the future and that he will re-offend.

R.X.H. was temporarily committed on August 14, 2003. His commitment hearing began on December 18, 2003, when the State presented its first witness, Dr. Lewis Zeiguer, a psychiatrist. On the next hearing date, January 13, 2004, the State presented the testimony of Dr. Natalie Barone, a psychologist. R.X.H. presented no witnesses. The attorneys presented their closing arguments on February 5, 2004, and Judge Freedman rendered a comprehensive oral decision on February 9, 2004.

The State presented in evidence numerous documents, including, for example, transcripts of grand jury testimony, a sentencing transcript, presentence investigation reports, victim statements, hospital records, and reports of prior mental health evaluations. The State also introduced evidence documenting R.X.H.'s prior arrests and convictions.

Judge Freedman made clear at the commencement of the hearing that the documents were not being admitted into evidence to prove the truth of their contents, unless they were admissible under some exception to the hearsay rule. They were admitted because they were relied upon by the State's experts in forming their opinions, and the judge made them part of the record for "the benefit of the [trial] court and the benefit of any reviewing court to examine the basis for the opinions in determining their credibility."

Zeiguer and Barone also prepared reports in advance of the hearing. These reports, previously furnished to R.X.H.'s attorney, were also admitted in evidence as a matter of convenience and for purposes of judicial economy. Zeiguer and Barone testified in a manner consistent with the contents of their reports and, of course, were subject to extensive cross-examination.

Zeiguer interviewed R.X.H. on August 27, 2003. He formed his opinions based upon that interview and his review of many documents, such as those we earlier mentioned. R.X.H. refused to be interviewed by Barone. She formed her opinions based upon her review and analysis of the documents. In the case of each of the experts, the opinions they rendered were their own. They did not merely adopt and restate opinions rendered by prior mental health evaluators.

Other than the predicate offense, R.X.H. has not been convicted for a sexual offense. He has been charged with sexual offenses on a number of occasions. Some of the charges were dismissed. Others resulted in acquittals. Others resulted in conviction of non-sexual offenses, with the sexual offenses being dismissed by the court as part of the plea bargaining process, or being rejected by a jury.

Zeiguer and Barone considered several of the incidents sexual-type or sexually-motivated offenses, notwithstanding that R.X.H. was not convicted in those incidents of a sex crime. Zeiguer and Barone explained that professionals in their field, when conducting a risk analysis in cases such as these, consider downgraded or dismissed offenses as sexual in nature when the circumstances of the offense, based upon reliable information, support such a conclusion. In such cases, less weight is given than if there was a conviction for a sex crime, but the incidents are nevertheless relevant. Referring to a 1986 incident, which we will discuss shortly, that resulted in conviction of R.X.H. of non-sexual offenses, but acquittal of a sexual offense, Judge Freedman asked Barone whether it was proper to consider that incident and conviction a "sexual offense." She responded:

I have to. I have to because according -- because the research is relatively clear. And particularly when scoring actuarial. The way risk is measured in terms of actuarial instruments, if a person is charged, even if its eventually downgraded or changed, if they're charged with a sex offense, it counts in the -- in the assessments as a whole, of course not -- it doesn't weigh as heavily as a conviction would, but it still has to be clinically considered, especially in light of the fact that he has four other arrests dating back to 1971. I mean, not even -- not even counting the 1986 arrest, I would still feel comfortable saying that he has a -- a well established pattern.

Barone then referred to five offenses predating the predicate offense, which in her view were actuarially significant, involving a sexual or sexually motivated component in the offense circumstances, even though they did not result in conviction of a sexual crime. Zeiguer made a similar analysis. These incidents demonstrated a common modus operandi and contributed to establishing a pattern of conduct by R.X.H. Of course, in cases where the charges were dismissed or resulted in acquittal, much less weight was given. However, if the incidents were supported by reliable information, such as victim's statements recorded in police reports or hospital records, it was appropriate, in the opinion of the experts, to give them some consideration in the overall analysis.

The most significant of these events was the incident that occurred in Montclair on July 8, 1986. The victim was a twenty-year-old woman, a stranger to R.X.H. The record contains a transcript of the victim's grand jury testimony, emergency room records, her statement to the police, and the police arrest reports. In her statements and testimony, the victim described the incident consistently. Although she did not know R.X.H., she had seen him on the street, and on one occasion about two weeks before the incident, he knocked at her door, but she ignored him and he eventually left. On July 8, 1986, while she was sitting in her apartment with the door open because of the heat, R.X.H. walked in. He said he came to say hi and to see how she was doing. She told him to leave. He told her to "just let it happen, just let nature happen." She kept telling him to leave. He grabbed her by the neck and threw her against the wall. He then said, "Let me tell you something." He then grabbed her by the shirt and attempted to pull her into the bedroom. She freed herself and ran out of the apartment. R.X.H. fled, but was apprehended by the victim's landlord.

The victim reported the incident at the hospital as an attempted rape, during the course of which she was thrown against the wall, injuring her shoulder.

R.X.H. was indicted for second-degree burglary, second-degree aggravated assault, second-degree attempted aggravated sexual assault, and third-degree criminal restraint. He was convicted of the criminal restraint count and of simple assault as a lesser-included offense of aggravated assault. The jury acquitted him of burglary and aggravated sexual assault.

The offense circumstances were well established by reliable evidence. R.X.H. had apparently stalked the victim prior to the time of the offense. Upon entering her apartment, he used force, attempting to intimidate her and drag her into the bedroom, telling her to just let it happen. Although the jury did not convict R.X.H. of attempted aggravated sexual assault, Zeiguer and Barone considered this a sex offense for purposes of their analysis. Judge Freedman agreed. So do we.

The other incidents were less compelling and were given much less weight by the evaluators and the judge. In 1971, R.X.H. was charged with contributing to the delinquency of a minor. That charge was dismissed after being amended to soliciting an unlawful and indecent act. It was ultimately dismissed. In 1976, R.X.H. was charged with molesting a child and possession of a dangerous weapon. He pled guilty to the weapons offense, and the molesting charge was dismissed. In 1981, R.X.H. was charged with second-degree attempted sexual assault, but it was dismissed in 1985 on a motion of the prosecutor. In 1985, R.X.H. was charged with burglary, second-degree aggravated sexual assault, possession of a knife for an unlawful purpose, and drug offenses. He was acquitted of those charges.

Zeiguer, in his testimony and report, explained that, based upon his interview and review of records, R.X.H. persistently denied that he had ever committed any offenses. He denied exposing himself while in prison. He contended that he was constantly being falsely accused by the police, prison officials, and victims, for various reasons. Zeiguer found R.X.H. to be grandiose, cocky, optimistic, and unflappable. He described a common modus operandi exhibited by R.X.H. over the years, in which he targeted women in their early twenties who were strangers. He approached them by offering help, giving advice, or suggesting they purchase merchandise from his so-called peddling business.

Zeiguer diagnosed R.X.H. as having paraphilia, NOS, non-consent females, because R.X.H. displayed a "persistent pattern of a cohering sex, either using strong arm, or strong arm plus the help of a weapon. And this goes on through the years." Zeiguer also diagnosed an antisocial personality disorder, very severe, with associated psychopathic features. This diagnosis was based on R.X.H.'s long criminal history and his persistent denial of responsibility for his criminal conduct. In Zeiguer's opinion, these mental disorders cause R.X.H. to act out sexually. Zeiguer noted that R.X.H. never received any sex offender treatment. In his opinion, R.X.H.'s risk of committing another sexually violent offense is "[s]ubstantial, extreme."

Barone diagnosed paraphilia, NOS, non-consent, bipolar disorder by history, and personality disorder NOS with antisocial and paranoid features. Her diagnosis of bipolar disorder was based upon review of records and prior evaluations, noting that the diagnosis had been made by other mental health professionals. Barone explained that she could not render an independent diagnosis of bipolar disorder without the opportunity to interview R.X.H., which he declined. She did note, however, that the transcript of R.X.H.'s allocution at the sentencing on the predicate offense presented a classic example of an individual with bipolar disorder. She gave considerable weight to R.X.H.'s sexual infractions while in prison, which demonstrated an inability on his part to control his sexual impulses even in a secure structured environment. She also noted the lack of sex offender treatment and that "paraphilia does not dissipate on its own. It's something that requires treatment." In her opinion, R.X.H. presents a significant risk of engaging in future acts of deviant sexual behavior.

In a comprehensive and well-reasoned oral decision, Judge Freedman found, without any hesitation, by more than clear and convincing evidence, that R.X.H. suffers from a mental abnormality in the form of paraphilia, bipolar disorder, and a personality disorder, which predispose him to engage in acts of sexual violence, that R.X.H. has a very serious inability in controlling his behaviors, and that he would be, without question, highly likely in the reasonably foreseeable future if released to engage in acts of sexual violence. He therefore ordered R.X.H. committed to the STU.

In the course of his decision, the judge reviewed and analyzed in detail the testimony and documentary evidence presented. Because R.X.H.'s appeal arguments focus on the use by the State's experts and the judge of documents in reaching their opinions and conclusions, we set forth some portions of Judge Freedman's decision on that subject. As to the general purpose of allowing the documents in evidence, he explained:

In this particular case, counsel had raised issues concerning certain of the documents that were marked into evidence and as the court indicated then and I'll repeat now, a lot of these hearsay documents are not admitted for the purpose of proving their contents, but rather they are documents which were relied by the experts in formulating their opinions, and the court has to evaluate the opinions. They are placed in the record for the benefit of the court and the benefit of the reviewing court to examine the basis for the opinions in determining their credibility.

The -- every expert who has testified in these matters who has been asked whether regardless of whether they appear for the State or for respondent have agreed that in doing these types of forensic evaluations with regard to future dangerousness, the type of documents which are examined and relied on are these types of documents.

That is, presentence reports, Grand Jury transcripts, plea sentence transcripts, statements given by victims and respondents, police reports, prior psychiatric evaluations, Avenel (phonetic) evaluations, Avenel reports, treatment records and things of the kind. And that's what these documents are.

They were, in fact, relied on by the doctors according to their testimony and their reports, and that's why those documents were put into the record.

Reports of the doctors are also included. They all testified -- they both testified that they would testify in accordance with the report if they testified to it at length, placing it in the record is here for it to be cross examined, placing it in the record allows the court to have the entire report for it's review and also has any reviewing court to have the entire report for it's review and not -- and not putting them in would necessitate a great -- much longer testimony from the witnesses as their party presenting the expert would go over every single line in the report to get to all on the record or not in the record itself.

The judge relied principally on the predicate offense and the 1986 offense, which we have described in some detail, and which is clearly substantiated by reliable information in the record as a sexual offense. The judge explained the purpose of utilizing records in this regard:

So, in evaluating these records this psychiatrist as did the psychologists -- the other psychologists really assume facts that were never proved in a court of law but obviously, our -- over a long period of time establishes a pattern and an MO which was recognized by these examiners. And clearly, the two cases for which he was convicted, the one where no sex offense took place because the victim got away, and the one where he did commit a sex offense, clearly establish an MO for the manner in which he operated and it's consistent with his other charges including the one he was found not guilty of. I don't know why he was found not guilty. Maybe he didn't do it. According to the jury, he didn't do it. But the pattern is clear in his record, and the two offenses for which he was convicted, as far as this court is concerned, are sufficient to establish his MO and his sexual offending without regard to whether or not he was actually did any of the other charges.

Before addressing the specific arguments raised by R.X.H., we set forth some general principles. Under the SVPA, an involuntary civil commitment can follow 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.

As defined by the statute, 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., 173 N.J. 109, 127 (2002). A 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.

At the commitment hearing, the State must prove 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." Id. at 132; see also N.J.S.A. 30:4-27.32; In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

The scope of appellate review of judgments of civil commitment is exceedingly narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). An appellate court should give the "utmost deference" to the reviewing judge's determination. 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)). That determination will be subject to modification only where the record reveals a clear abuse of discretion. Ibid. "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).

Based upon our review of the record, we are satisfied that Judge Freedman's finding that R.X.H. is subject to commitment under the SVPA is amply supported by the evidence.

We are further satisfied that the opinions rendered by Zeiguer and Barone were founded upon competent information of a type ordinarily relied upon by experts in the field in making assessments of the type involved in this case, and that the information was sufficiently reliable to be used in this regard. A presentence investigation report is a court document, prepared by the probation department. See N.J.S.A. 2C:44-6. Prior to sentencing, a defendant has the opportunity to object to any factual inaccuracies in a presentence report. State v. Newman, 132 N.J. 159, 171 (1993). The information in such reports is deemed accurate. State v. Kunz, 55 N.J. 128, 141 (1969). Such information has been found reliable in civil commitment proceedings. In re Commitment of J.M.H., supra, 367 N.J. Super. at 612. Likewise, reports of police officers, and medical personnel are deemed reliable, as they are presumed to accurately relate information provided by a victim to a police officer or medical provider. In re C.A., 146 N.J. 71, 98 (1996). Further, sworn testimony of a victim presented in a grand jury proceeding is reliable. Experts may rely upon such out-of-court statements when typically relied upon by experts in the field. State v. Vandeweaghe, 351 N.J. Super. 467, 480 (App. Div. 2002), aff'd, 177 N.J. 229 (2003); State v. Burris, 298 N.J. Super. 505, 511 (App. Div.), certif. denied, 152 N.J. 187 (1997).

We note further that in an analogous context, dealing with Megan's Law registration, past offenses that include a "sexual component" are deemed relevant in assessing the risk of sexual re-offense. In re Registrant J.M., 167 N.J. 490, 505-06 (2001). And, in that context, a prior non-conviction may be considered so long as it is based on "reliable documentary hearsay evidence." In re C.A., supra, 146 N.J. at 109-10. The experts here used such information to a limited extent, tempered by the amount and reliability of information available, according each incident lower or higher weight depending upon the level and reliability of such information. And, such information was used as part of an overall comprehensive analysis, and was not relied upon exclusively or given undue weight.

We also find no impropriety in reliance by the experts, as part of the basis in forming their opinions, on the reports of prior evaluators. As we have stated, experts commonly rely upon information of a type reasonably relied upon by experts in their field in forming opinions upon the subject. Evaluators in cases such as these commonly rely upon prior evaluation reports as part of their assessment.

R.X.H. relies on our decision in In re the Commitment of E.S.T., 371 N.J. Super. 562 (App. Div. 2004). We determined there that testifying experts who do not treat the patient cannot rely primarily on clinical certificates in forming their opinions. Id. at 567-70. That is not what happened in this case. Zeiguer and Barone did not rely on the clinical certificates of Kaldany and Uhrich in forming their opinions. Zeiguer and Barone formulated their own opinions, based upon multiple sources of information. In Zeiguer's case, his opinion included his interview with R.X.H. Any consideration these experts gave to the clinical certificates were merely part of an overall analysis. They did not simply adopt and agree with opinions rendered by other non-testifying examiners. See In re Commitment of A.E.F., 377 N.J. Super. 473, 489 (App. Div. 2005). We clarified in A.E.F. that

[o]ur opinion in E.S.T. should not . . . be read to preclude reliance, in part, on prior evaluations conducted for other purposes, such as ADTC and other psychiatric evaluations conducted in connection with sentencing or for parole consideration, as long as the opinion ultimately rendered at the initial commitment hearing is that of the witness based on his or her own evaluation of the committee, prior offenses, and objective test data.

[Id. at 492 (internal citation and footnote omitted).]

We are satisfied from our review of the record that the opinions rendered by Zeiguer and Barone were their own. They did not merely adopt opinions rendered by prior evaluators, nor did they give undue weight to prior evaluation reports in formulating their own opinions.

 
Affirmed.

There was one incident in which defendant was not charged at all. One John Dixon pled guilty to a rape more than ten years earlier. His effort to withdraw the plea was denied. He was sentenced to a long prison term. When DNA testing became available, through Project Innocence, it was determined that the DNA in the rape kit taken from the victim did not match Dixon, and he was exonerated. By that time, R.X.H.'s DNA was entered in the data base, and there was an indication that the DNA in the rape kit matched R.X.H. However, more than ten years had elapsed, and any potential prosecution against R.X.H. was time-barred. Zeiguer considered this incident but stated his opinion would be the same without it. Barone did not consider it in forming her opinion. Judge Freedman expressly did not consider the incident in his analysis.

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A-3522-03T2

RECORD IMPOUNDED

December 1, 2006