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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4707-03T24707-03T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF M.X.C. SVP-212-01.

_______________________________________

 
Telephonically argued

October 25, 2006 - Decided

Before Judges Weissbard and Graves.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

Docket No. SVP-212-01.

Lewis P. Sengstacke, Assistant Deputy Public Advocate, argued the cause for appellant M.X.C. (Ronald K. Chen, Public Advocate, attorney; Elise C. Landry, Assistant Deputy

Public Defender, on the brief).

Mary Beth Wood, Deputy Attorney General, argued the cause for respondent State of New Jersey (Stuart Rabner, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Ms. Wood, on the brief).

PER CURIAM

M.X.C. (M.C.) appeals from an order of March 11, 2004, finding him subject to 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. This matter originally appeared on our special SVPA calendar without the benefit of briefing and on an abbreviated record. After argument on July 11, 2005, we issued an opinion reversing the order of commitment and directing that M.C. be released from SVPA confinement. On the State's motion for reconsideration, we vacated our opinion and ordered that the appeal be relisted on a regular calendar with full briefing. Having now had the benefit of more information and having thoroughly reconsidered the matter, we affirm the order under review.

M.C. was temporarily committed to the STU by order of November 16, 2001, based on an SVPA petition filed on November 9, 2001. This case was unusual in that at the time the petition was filed, M.C. was already civilly committed to the Ann Klein Forensic Center (AKFC) pursuant to N.J.S.A. 30:4-27.1 to -27.23, the general civil commitment statute. See also R. 4:74-7. Prior to his AKFC commitment, M.C. had served about five and one-half years of a six-year sentence imposed on October 11, 1996 following his May 24, 1995 plea to aggravated assault with a weapon. The offense leading to his conviction took place on March 22, 1995, when M.C. came up behind his victim and attempted to rob her backpack, inflicting a substantial laceration on her neck with a knife. M.C. fled but was arrested the same day.

On October 25, 2000, as the end of his jail term approached, an Assistant Administrator of the Department of Human Services, Division of Mental Health and Hospitals, filed an Application For Temporary Commitment supported by certifications of two psychiatrists. The first examined M.C. for one-half hour on October 23, at State Prison. It was noted that M.C. had been administratively transferred from AKFC to State Prison due to recently voiced and still continuing homicidal/violent threats toward a nurse at the Prison, his step-father, and an unidentified fifteen-year-old male who had apparently pushed his mother. It was noted that his insight and judgment were poor: "He plans to resume drinking, plans to hurt people." The psychiatrist opined that M.C. presented a high risk of danger to himself and others. Based on a history of sexually inappropriate behavior, the doctor recommended SVPA evaluation once his condition stabilized.

The second psychiatrist examined M.C. for one-half hour immediately after the first. The second doctor's opinion essentially tracked that of the first. Diagnoses of impulse control disorder and anti-social personality disorder were made by both doctors. The second doctor also recommended SVPA evaluation, noting M.C.'s risk for dangerous/violent behavior if he were outside a highly structured setting. The certificate referred to an SVPA screening which showed a MnSOST score of eight, a Static 99 score of five, and an RRASOR score of three. A history of more than twenty suicide attempts was noted, including a recent superficial wrist laceration, as well as an incident where M.C. tied up and tortured a cellmate. Both doctors referred to a history of "sexual confusion."

The order of involuntary commitment was entered by a judge on October 25, 2000, and M.C. was apparently released to AKFC on November 13, 2000.

The SVPA petition set out the following prior offense history: (1) a February 19, 1993 juvenile probation for receiving stolen property and a violation of that probation one month later for not complying with a required curfew; (2) a June 29, 1993 probation term for burglary with a condition that he attend Ranch Hope, from which M.C. was subsequently discharged on November 15, 1993, due to behavioral problems; (3) an April 12, 1995 arrest for stalking, which we will describe in more detail later, resulting in a May 24, 1995 guilty plea and an October 11, 1996 sentence of eighteen months concurrent with the aggravated assault sentence imposed that same day.

What the petition describes as M.C.'s predicate offense - the one most directly tied to the SVPA - took place on August 4, 1993, while M.C. was at Ranch Hope as part of his June 29, 1993 probation sentence. An investigation began on August 18, 1993, concerning a superficial cut on the penis of three-year-old P.R.V., Jr., the son of a supervisor/house parent at Ranch Hope. After determining that M.C. was probably the individual who inflicted the cut, M.C. was questioned. According to the petition,

[M.C.] advised that he was sitting on his bed in his room drawing pictures when P.R.V., Jr. walked in. He further advised that he often hears voices, and the voices tell him to do bad things. He advised that the reason that he is at Ranch Hope is because he always gets in trouble for doing what the voices tell him. He further advised that the voices told him to pull down P.R.V. Jr.'s pants and touch his penis. He advised that he was drawing with a pencil and he scratched P.R.V., Jr.'s penis with the sharpened end of the pencil. Lastly, he advised that he did not get any sexual gratification from this.

The petition also described a number of evaluations of M.C. while he was in prison, as follows:

(1) "[O]n January 26, 1996, M.C. reported that he was unsure if he would continue to stalk women and reported that if he thinks of this, he will not be able to exert control over himself/behaviors and thoughts."

(2) "[O]n January 29, 1996, M.C. reported that he lost interest in Satanism and spontaneously proceeded to request the examiner to write 1999 and then turn the page upside-down. He explained 666 to indicate Satan and the number 1 to indicate Christ before Satan, and that Satan will soon come out of the ground in 1999 and search for his army in Christ. He further detailed that the world would end in 1999, if not before, and everyone must get ready."

(3) "[O]n February 26, 1996, M.C. stated that he is: 'in the closet' and would like to undergo a sex change to become a woman. As a child, he reported that he dressed in women's clothing. As an adult, he stated that he was attracted to women's high heel shoes. Further, he reported that he would like to have his penis and testicles removed and that he would like to have a vagina so that he could experience 'what it feels like to be a woman with a penis inside.'"

In addition, "he reported that he was experiencing auditory and visual hallucinations."

(4) "[O]n May 1, 1998, [M.C.] reported that he 'wished to forgo parole because he had been having increasingly frequent dreams about killing his step-father,' a man he claims physically abused him as a young child. He further claimed that if forced to live with this man on parole, he feared that they may argue and that his step-father 'might get hurt.'"

In addition, M.C. "expressed his interest to move to Idaho upon his release from prison, where he planned to become a 'National Socialist.' He described this group as a political group whose mission is to 'get the white race back.' He added that he wants to marry a National Socialist so he can help raise the ranks of this group by having children and bringing them up according to their Doctrine."

(5) "In an evaluation conducted on October 11, 2000, [M.C.] justified his violent proclivities on the basis of multiple experiences of abuse at the hands of his step-father during adolescence, but also takes considerable pleasure in describing episodes of gay-bashing as a teenager (it was cool) as well as an episode at another facility of torturing his cellmate over a period of several hours whose hygiene and other behaviors he found intolerable."

Further, "[M.C.] showed the evaluator a number of fairly crude, stereotyped drawings that demonstrated a mixture of sexual and violent themes (skulls with morbid captions, nude women posed rather rigidly)."

(6) "On or about October 23, 2000, [M.C.] was administratively transferred to the New Jersey State Prison for homicidal/violent thoughts toward a nurse. In this incident, on October 9, 2000, he became enraged at a female nurse on the unit whom he claimed falsely accused him of whistling at her. He subsequently disclosed having had violent fantasies toward her (smashing her head against a pole)."

(7) "In an evaluation conducted on January 3, 2001, [M.C.] reported sexual interest in voyeurism, cross-dressing, frottage, adult heterosexual contact and adult sadomasochistic behaviors. He further reported that his main sexual interest was with bondage and sadomasochistic practices."

At the time of this evaluation, Jennifer Kelly, Ph.D., opined that "[M.C.] has demonstrated difficulty maintaining appropriate interpersonal boundaries with a variety of female staff at AKFC that further increases his risk for future offending."

In addition, "[M.C.] reported that he identifies himself as a National Socialist (Nazi) and does not feel that he has to follow all of society's rules."

(8) "In an evaluation conducted by Christine Joseph, Ph.D., on July 18, 2001, she opined that [M.C.] 'lives from moment to moment without forethought or plans and acts impulsively seeking immediate gratification of his needs.' In addition, she opined that 'in his relationships, he may experience a lack of attention to his needs as rejection and react with narcissistic rage. His impulsive behavior and venting of emotions causes difficulties in all areas of his life and prognosis for adaptive functioning is poor.'"

Finally, the petition asserted that:

The institutional record sets forth that [M.C.] received at least forty-one institutional charges while incarcerated/ committed, including but not limited to failure to comply with written rules, assaulting any person, destroy/alter/damage government property, threat with bodily harm, refusing to obey, abusive/obscene language to staff, refusing work, threatening to hurt Medical Security Supervisor.

Based upon the petition, an order for temporary SVPA commitment was entered on November 16, 2001, with a final hearing set for December 5, 2001. That final hearing did not take place until April 11, 2002, at which time M.C. stipulated to his commitment. On September 23, 2003, M.C. stipulated to his continued commitment. Thus, the present review hearing was the first time M.C. contested his commitment.

At the March 11, 2004 hearing, the State presented testimony from Dr. Pamala Plastock, a psychologist, and Dr. Stanley Kern, a psychiatrist. Dr. Plastock was a member of the Treatment Progress Review Committee (TPRC) that reviewed M.C.'s treatment progress on September 10, 2003, at a meeting at which members of his treatment team were present. The TPRC report indicated that "[M.C.] repeatedly and consistently denies his index offense" and further states that "the only documented sexual offense is his predicate offense." The report noted that M.C., while at the STU, "has attended neither modules nor treatment groups, besides his Process Group," nor, according to the files, had he "attended any modules during his previous incarcerations." At the TPRC interview, M.C. stated that "he had no idea which offense got him here" and indicated no awareness of the basic concepts of a "sexual offense cycle" or a "trigger." Under a section headed "Sexual History," the TPRC report quoted the following from a "Confidential Forensic Psychiatric Evaluation" of October 29, 2001, by Dr. Rusty Reeves:

[M.C.] says he first had sexual intercourse when he was 12. He says his partner was female. He also has never had a boyfriend or a girlfriend. He was a homosexual male prostitute from ages 15 to 17. He says he performed fellatio. He denies that he ever performed or received anal sex. In his psychological evaluation, however, he says men performed anal sex upon him. In that evaluation, [M.C.] expressed shyness over what he claimed was his small penis size. He said that he was "in the closet" and wanted to undergo a sex change operation. He said that when he was a child he dressed in women's clothing, but denied that he cross-dressed as an adult. He stated that he was attracted to high heels.

In addition, the same section of the report quoted Dr. Donna LoBiondo, from her evaluation of April 9, 2002:

[M.C.] reported his primary sexual interest in adult females. He described his first and only heterosexual experience in a relationship context as a single episode of intercourse at age 12.

After reviewing M.C.'s lack of participation in treatment, the TPRC report stated:

[M.C.] has spent the majority of his life functioning within the Social Services and Department Of Corrections systems. He has spent little time outside of Institutions and has little, if any, knowledge of what a life free from abuse and/or incarceration consists of.

[M.C.] is not a reliable reporter of his own life history. He has, on more than one occasion, stated that he has heard voices. Additionally, he has infrequently engaged in self-injurious behaviors only to state at a later time that he never heard voices and committed the self-injurious acts only as ploys to gain attention or be placed in institutions that he found more to his liking than the one he was in at the time of these statements and actions. [M.C.] historically either over reports his crimes or denies them emphatically.

What is undeniable is that [M.C.] has low cognitive abilities, suffers from gigantism (due to the XYY chromosome pattern) and has virtually spent his life in institutions. There is little, if any, doubt that [M.C.] has been the object of abuse of many kinds from many people. He has suffered physical abuse at the hands of his mother and stepfather and has undoubtedly been and continues to be ridiculed due to his size and cognitive limitations (which are especially apparent in his lack of verbal skills). His life history to date, has led to a series of actions and reactions that have ultimately led to psychological disorders and criminal behaviors.

Given the historical information available and the report of [M.C.]'s Treatment Team, that he appears to be unmotivated and fairly uninterested in engaging in his Sex Offender Treatment, it is reasonable to hypothesize that [M.C.] has little motivation to do the work necessary to improve his life and behaviors due to the fact that he does not know any other way to live than within institutional settings and involvement in his treatment could lead to potential freedom and being socially accepted a concept foreign and most likely frightening to [M.C.].

[M.C.]'s actions speak volumes. His delinquent and criminal behaviors as well as his apparent inability to feel any genuine empathy or demonstrate little, if any, control over his impulses lead to the diagnostic profile that [M.C.] presents with; that of an immature, insecure, and socially underdeveloped individual who gains pleasure from immature acts of domination and humiliation of others.

The TPRC diagnosis was as follows:

Axis I: Sexual Sadism

Substance Abuse, in full remission in a controlled environment

Attention Deficit Hyperactivity Disorder

Impulse Control Disorder NOS (Not Otherwise Specified)

Axis II: Antisocial Personality Disorder

Axis III: XYY Syndrome

Asthma

The TPRC recommended that M.C. remain in the phase two treatment level.

At the hearing, Dr. Plastock conceded that M.C.'s "impulsivity can in part be accorded to congenital issues. His low average I.Q. can in part be attributed to his congenital issues."

Dr. Kern found it significant that M.C. had "sexually assaulted a three-year-old boy in a violent fashion, cutting the victim's penis and he had reported in an earlier interview that his main sexual interest was with bondage and sadomasochistic behaviour." He also concluded that M.C.'s 1995 stalking offense was a sexual offense because "he made lewd gestures toward the victim, and these gestures demonstrated that he had sexual thoughts on his mind." The lewd gesture involved M.C. sticking his tongue out and smiling at the victim. Dr. Kern also concluded that there was a "sexual element" to M.C.'s assault conviction. The treatment records described "a person that has an antisocial personality . . . no regard for other people or their rights or rules or regulations and they do what they want to do when they want to do it, without regard to anything else." At their interview, M.C. told Dr. Kern that he was "getting nowhere. . . . I try to stay awake, I don't talk, I don't take the floor." Dr. Kern diagnosed sexual sadism based on M.C.'s sexual interest in bondage and sadomasochistic behaviours "as well the offense on the three-year-old boy." He was not able to conclude that the offense against the child reflected pedophilia and could not render a diagnosis of paraphilia based on the single episode of stalking. Dr. Kern concluded that M.C. "has difficulty controlling his violent behaviour as evidenced by the charges against him, and the fact that he really hasn't been involved in treatment as he should be to diminish his propensity towards criminal charges." Thus, Dr. Kern opined that M.C. presented a significant risk to sexually re-offend.

On cross-examination, Dr. Kern agreed that the incident involving the three-year-old would not, by itself, suffice as a basis for a sexual sadism diagnosis, even when combined with M.C.'s preference for consensual sadomasochistic sex; however, when combined with his bondage fantasy, it would suffice. Indeed, Dr. Kern opined that the sadomasochism and bondage, even without the stated offense, would be sufficient. In his view, the fact that the sadomasochism and bondage were consensual was "immaterial."

In concluding that M.C. should remain committed, the judge generally accepted Dr. Kern's testimony as to the sexual nature of M.C.'s offenses. Indeed, the judge found that the sexual nature of the offenses was substantiated, if not conclusively established, by the prior two instances of M.C. having stipulated to SVPA commitment. In light of M.C.'s lack of treatment progress, the judge found that "he has very little if any control over his sex behaviour and . . . will re-offend if not confined for further treatment."

In our prior opinion, we expressed concern over what we then perceived as an unwarranted effort to cast M.C.'s offenses as sexual in nature in order to secure his commitment to the STU. We continued:

There is no doubt that M.C. is a troubled youth. He has been incarcerated for a substantial portion of his life and presents as a risk to himself and others, as was found by the doctors who evaluated him for civil commitment in October 2000. Even so, the SVPA should not be used as a basis to protect society from an individual who does not fit within its parameters. In making that determination, we are not bound by the opinion of a doctor which does not find support within the record. We should treat the doctor's opinion with respect but not obeisance. In the final analysis, the decision is "a legal one, not a medical one, even though it is guided by medical expert testimony." In re D.C., 146 N.J. 31, 59 (1996); State v. Fields, 77 N.J. 282, 307-08 (1978).

Examining the testimony of Dr. Kern in light of the record before us, we originally disagreed with the doctor's conclusion that the 1993 assault was sexual in nature, so as to qualify as a predicate offense under the SVPA. While we maintain our authority to scrutinize the medical opinions offered at these commitment hearings and to reject them if they are unsupported, our further review of this matter leads us to conclude that there was an adequate basis for Dr. Kern's conclusion as to the 1993 assault. More importantly, sexual assault, as to which M.C. pled guilty, is one of the offenses which the Legislature has defined as a sexually violent offense. N.J.S.A. 30:4-27.26. It was that offense that qualified M.C. for SVPA commitment. Once M.C. was within the purview of the statute, the expert was permitted to consider other offenses which, in his opinion, fit the statute's alternate definition of a sexually violent offense as being "any offense for which the court makes a specific finding on the record that, based on the circumstances of the case, the person's offense should be considered a sexually violent offense."

Here, we likewise conclude that our earlier view that the stalking and aggravated assault offenses did not constitute sexual offenses was in error. A more careful examination of the facts of the stalking incident and M.C.'s "lewd" conduct persuades us that there was an adequate basis for Dr. Kern's opinion that the offense had the sexual overtones that he ascribed to it. We note that in interpreting M.C.'s gesture with his tongue there was also evidence that he had engaged in stalking type behavior toward female staff at the STU and that while at AKFC, he made a lewd gesture of a different nature toward a female staff member. In addition, in a September 13, 2002 evaluation by Dr. Gnassi at the STU, M.C. admitted that in both the stalking and aggravated assault incidents, "he really had intentions of killing the victim." Considering the evidence in its entirety, there was a basis for Dr. Kern's conclusion that the aggravated assault also had sexual content or, at the least, provided insight into M.C.'s dangerousness and thus his likelihood of committing sexual offenses in the future.

The evaluations of Dr. Kelly (January 3, 2001), Dr. Reeves (October 29, 2001), Dr. Gnassi (February 19, 2002, September 13, 2002 and September 5, 2003), and Dr. LoBiondo (April 9, 2002), which will not be quoted at length herein, all provide strong support for the conclusions expressed at the March 11, 2004 hearing. Dr. Kern specifically relied on these reports, and others, in formulating his ultimate opinion.

Finally, we address M.C.'s two prior stipulations to commitment prior to the hearing of March 11, 2004. At his first commitment hearing on April 11, 2002, M.C. "knowingly and voluntarily" stipulated that he was a sexually violent predator in need of involuntary commitment. There was an actual hearing on October 3, 2002, at which, after hearing from Dr. Gnassi, the court found that M.C. remained a sexually violent predator in need of commitment and ordered a one-year review. M.C. initially filed an appeal of that order but later voluntarily dismissed the appeal. On the next hearing date, September 2, 2003, M.C. again stipulated knowingly and voluntarily that he continued to be a sexually violent predator in need of commitment.

In our first opinion in this matter we expressed disagreement with the judge's use of these prior proceedings as support for Dr. Kern's opinion, concluding that they "did not constitute a binding concession that M.C. was in fact eligible for SVPA commitment." That conclusion was based on an incomplete record. Upon review of the complete record and on further consideration, we now conclude that the prior stipulations were apparently utilized by the judge as evidence that at those earlier times M.C. was, by his own admission, eligible for SVPA commitment. Of course, such prior stipulations cannot obviate the need for evidence that he continues to be eligible for commitment under the statutory criteria.

Recognizing our limited scope of review, In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003), we affirm M.C.'s commitment substantially for the reasons expressed by Judge Perretti on March 11, 2004.

 
Affirmed.

We read the statute as if it read "should be considered like a sexually violent offense." If not, the language would be redundant, stating, in effect, that a sexually violent offense is one that under the circumstances should be considered a sexually violent offense.

(continued)

(continued)

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A-4707-03T2

RECORD IMPOUNDED

December 19, 2006