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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5883-04T25883-04T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

R.X.L., SVP-42-00

__________________________________

 

Argued March 28, 2006 - Decided May 1, 2006

Before Judges Axelrad and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-42-00.

Patrick Madden, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney).

Amy Duff, Deputy Attorney General, argued the cause for respondent (Zulima V. Farber, Attorney General, attorney).

PER CURIAM

R.X.L. appeals from an order entered on May 25, 2005, continuing his civil commitment under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to - 27.38 ("SVPA"). After reviewing the record in light of the contentions advanced on appeal, we affirm.

Appellant is a sixty-two-year-old male with an extensive criminal and juvenile history. We briefly summarize pertinent portions of that history.

As an adolescent in 1960 and 1961, R.X.L. had juvenile adjudications of delinquency for breaking and entering and larceny. Between 1962 and 1971, R.X.L. was arrested several times, resulting in one conviction for possession of a stolen automobile, three convictions for larceny of a person and larceny, a robbery conviction and one conviction for escape. The robbery conviction led to R.X.L. being sentenced in 1965 to the Bordentown facility for a term up to a maximum of eleven years. He was paroled in November 1967. In April 1969, R.X.L. was returned to Bordentown as a parole violator. He was again paroled in January 1970. In May 1971 R.X.L. once again returned to Bordentown as a parole violator. He was again paroled in October 1971.

In March 1972, R.X.L. was arrested and charged with three counts of rape, six counts of armed robbery, one count of robbery, one count of private lewdness and one count of abduction. These charges led to R.X.L.'s conviction in February 1973 on two counts of rape, one count of robbery and one count of armed robbery. He was sentenced to a term of fifteen to twenty years at New Jersey State Prison.

After being paroled again, R.X.L. was arrested in January 1978 and charged with two counts of abduction, two counts of threatening life, one count of sexual assault, one count of sexual assault while armed and one count of possession of a pistol. This incident involved R.X.L. pointing a handgun at two victims on the sidewalk and taking them into his car. R.X.L. threatened both victims, eventually releasing one on a street corner. R.X.L. then threatened to kill the other victim with a gun and raped her vaginally in the back seat of the car. In April 1979, R.X.L. was convicted on all of these charges and was sentenced to another eleven-year term of incarceration. Given the sexual aspects of these crimes, R.X.L. was admitted to the Adult Diagnostic Treatment Center (ADTC) in May 1979. In October 1989, he was once again paroled.

The predicate offense that prompted R.X.L.'s commitment under the SVPA occurred on or about April 7, 1991. On that day, R.X.L. telephoned a co-worker and then visited her apartment for approximately thirty minutes. The co-worker then asked R.X.L. to leave. As she was walking him to her door, R.X.L. grabbed her by the arm, turned her around and struck her on the face with an open hand. R.X.L. then forced her to a nearby bed and showed her a knife. After threatening to hurt the victim's two sleeping children, R.X.L. forced her to submit to oral sex and vaginal rape. R.X.L. was arrested the following month and charged with various offenses arising out of this attack.

On April 6, 1992, R.X.L. was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(4), and fourth- degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. That same day, R.X.L. pled guilty to escape, based on a separate allegations following his arrest on the sexual assault charges. He was sentenced to a concurrent ten-year prison terms with a five-year mandatory minimum. R.X.L. was scheduled to reach the maximum period of confinement for these sentences on or about February 18, 2000.

Prior to R.X.L.'s scheduled release from prison in February 2000, the State had him examined by two psychiatrists. The psychiatrists diagnosed him with paraphilia, not otherwise specified ("NOS") and with antisocial personality disorder. They also noted that R.X.L. had used cocaine and alcohol during the commission of his predicate offense in April 1991. They further expressed concern that R.X.L. had received treatment for a decade during his pre-April 1991 incarceration, but nonetheless had reoffended after parole and community supervision.

On February 10, 2000, the State filed a petition for civil commitment of R.X.L. under the SVPA. He was temporarily committed that day to the Northern Regional Unit, now known as the STU. After a full commitment hearing with psychiatric testimony before Judge Burrell Ives Humphreys, an initial judgment of commitment under the SVPA was entered against R.X.L. on March 23, 2000.

R.X.L.'s commitment was extended on multiple occasions, specifically by stipulation in March 2001, after two successive review hearings before Judge Serena Perretti in August 2001 and in February 2002, and again by stipulation in May 2003. R.X.L. did not seek appellate review of any of these orders extending his commitment.

The review hearing that is the subject of R.X.L.'s present appeal took place on May 6, 2005 before Judge Phillip Freedman. Only the State presented witnesses.

First, Dr. Michael R. McAllister, D.O., a psychiatrist, testified concerning his May 5, 2005 evaluation of R.X.L. Based on that interview and the treatment notes reviewed as part of his professional assessment, Dr. McAllister described R.X.L.'s progress as "mixed." Past records reflect that R.X.L. merely had acknowledged his past offenses without indicating regret or shame about his behavior. By contrast, Dr. McAllister reported that during his May 2005 interview, R.X.L. appeared to demonstrate remorse, but the doctor was unsure whether this was genuine or not. Dr. McAllister further expressed ambivalence, from his review of the progress notes, as to whether R.X.L. was experiencing positive results from treatment, or if he was just "mouthing" insincere statements indicative of true progress. Dr. McAllister opined that R.X.L.'s wayward conduct within the institution in the last six to eight months, being involved in various marijuana incidents, an incident with a pornographic DVD and getting into a fisticuffs with another resident during group, continue to indicate that both his judgment and impulse control are poor. He concluded that poor judgment and poor impulse control would themselves lead to a greater risk of acting on deviant sexual urges.

Dr. McAllister continued to diagnose R.X.L. with paraphilia based on his admissions and lengthy sexual criminal history. He further concluded that this diagnosis, along with appellant's continued substance abuse issues and his antisocial personality disorder, would lead appellant to commit another sexually violent act in the reasonably foreseeable future if released into society.

The State further offered the testimony of a psychologist, Alicia A. Caputo, Ph.D., regarding the most recent evaluation of R.X.L. by the Treatment Progress Review Committee (TPRC). Dr. Caputo opined that the problem that the Committee had with referring R.X.L. for so-called "Phase III" status within the institution had been his institutional infractions since his last review. She indicated that the offenses of "getting mailed the marijuana, having a visitor come with marijuana to a visit" directly related to R.X.L.'s sex offense cycle. Dr. Caputo noted that R.X.L. had previously admitted to the TPRC that "he used drugs to make his victims more vulnerable and that he was intoxicated at the time of the offenses." Dr. Caputo opined that the fact that R.X.L. was still engaging in behaviors directly related to the cycle prevented him from moving forward.

Moreover, with specific reference to R.X.L.'s deviant sexual urges, Dr. Caputo testified:

In terms of the sex offense cycle, [R.X.L.] was able to cite feelings of abandonment, feelings of anger at his mother and translating that into generalized distrust of all women. So, he was able to get that far. He was not able to discuss or unwilling to discuss the deviant arousal in terms of wanting to see women suffer. So, the humiliation factor was markedly absent from the sex offense cycle.

And in terms of relapse prevention strategies, they were -- really were very minimal. You know, "I have to avoid drugs and alcohol". . . not a whole lot else.

[Emphasis added.]

Dr. Caputo acknowledged that R.X.L. had completed a few modules of substance abuse and relapse prevention therapy, and that he continued to participate in group sessions. Conversely, she noted that R.X.L. lacked internalization of learned concepts, as manifested by his repeated violation of institutional rules. Given these deficiencies, Dr. Caputo noted that the TPRC concluded that R.X.L. was not yet ready for the development of an outpatient plan.

After hearing the expert testimony and considering the oral arguments of counsel, Judge Freedman issued an oral opinion on May 24, 2005, finding R.X.L. to be a sexually violent predator in continued need of involuntary civil commitment pursuant to N.J.S.A. 30:4-27.24, et. seq. In the course of his ruling, Judge Freedman stated:

I think a review of these records, the reports of doctors' findings, his positive things, his negative things, this man has a long history of violent crime and ingrained deviant arousal which doesn't go away without substantial treatment. So, I'm satisfied to find by clear and convincing evidence, base[d] on the testimony of these two experts which I credit and accept, that [R.X.L.] still presently suffers from a mental abnormality in the form of a paraphilia and substance abuse problem as well . . . as an antisocial personality disorder which individually and in combination predisposes him to engage in acts of sexual violence that affect all three aspects of his personality -- cognitive, volitional and emotional -- and that if he were to be released, he would have a devious inability to control that behavior and would be highly likely within the reasonably foreseeable future to engage in this conduct.

The . . . nature of what he tends to do is very serious . . . the weapons that were used in some of these crimes have the potential for . . . serious injury and death beyond the sex offenses . . . and given his high level of -- potential level of -- of likelihood to combine the two, he can -- he still remains an extremely dangerous person and he needs to focus more on his treatment so that he can get to the point.

[Emphasis added.]

On appeal, R.X.L. argues that the State presented insufficient evidence to support his continued commitment. He contends that there is an insufficient basis for the court to credit the State experts' opinions that appellant remains unable to control his deviant sexual urges. His counsel further alleges that Judge Freedman dwelled too much in his analysis upon R.X.L.'s multiple institutional infractions within the STU. R.X.L. also contends that his present age of sixty-two was given insufficient weight as a mitigating factor in Judge Freedman's assessment of the risk of a sexual reoffense.

Aggravated sexual assault in violation of N.J.S.A. 2C:14-2a(4), a crime for which R.X.L. was convicted in 1992, is classified as a sexually violent offense under N.J.S.A. 30:4-27.26. "The Act defines 'sexually violent predator' in terms of the type of crime the person has committed, and does not limit the definition in relation to when the person committed the crime." In re Civil Commitment of P.Z.H., 377 N.J. Super. 458, 463 (App. Div. 2005).

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." W.Z., supra, 173 N.J. at 132. The court must address "his or her present serious difficulty with control over dangerous sexual behavior," and the State must establish, by clear and convincing evidence, that it is highly likely that the individual will re-offend. Id. at 132-34; see also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 607-08 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004); N.J.S.A. 30:4-27.32.

After an SVPA offender has been initially committed, a court must conduct an annual review hearing to determine whether the person will be released or remain in treatment. N.J.S.A. 30:4-27.35. The committed person 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 committed person "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." W.Z., supra, 173 N.J. at 130; see also In re Commitment of E.D., 183 N.J. 536, 540, 551 (2005)(reaffirming the "highly likely to reoffend" standard for SVPA commitment and re-commitment).

The feasible availability of treatment outside of the STU, if proven, is relevant to the offender's need for continued commitment under the SVPA. If the committed person presents through appropriate testimony a sound discharge plan that permits needed treatment under conditions that substantially reduce the risk of re-offense "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." In re Commitment of J.J.F., 365 N.J. Super. 486, 502 (App. Div.), certif. denied, 179 N.J. 373 (2004).

To protect civil liberties, "[t]he court must not confine an individual indefinitely when the individual with reasonable assurance could live safely in the community with support and supervision." Ibid. However, "if after a fair chance to produce evidence, a conditional discharge from SVPA confinement cannot be granted without undue risks to society," the commitment should be continued "until the prospects for release are more optimistic." Ibid.

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 of the appropriate balancing of societal interests and individual liberty. In re 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 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 conducted our own review of the record. The judge's conclusion that R.X.L. continues to suffer from a mental abnormality or personality disorder that presently causes him serious difficulty in controlling sexually harmful behavior such that he is highly likely to re-offend is supported by clear and convincing evidence. W.Z., supra, 173 N.J. at 132. We find no "clear abuse of discretion" in extending the commitment, J.P., supra, 339 N.J. Super. at 459, nor any manifest deviation from the controlling legal principles under the SVPA.

We are unpersuaded by appellant's claim that Judge Freedman and the testifying experts unduly considered R.X.L.'s infractions within the STU as a basis for continued commitment. The record indicates that R.X.L.'s continued diagnosis of paraphilia and his failure to fully address his deviant sexual urges were indeed part of the foundation for the experts' opinions that R.X.L. remains a high risk for reoffense, notwithstanding his age. In particular, Dr. McAllister noted that appellant has "not sufficiently lost interest in deviant sexual acts", that he has admitted to "current deviant sexual arousal," and continues to have "serious difficulty controlling his sexual violent behavior." In her own testimony, Dr. Caputo clearly indicated that R.X.L.'s failure to internalize learned concepts for sexual normalcy was a discrete and independent basis for her diagnosis, apart from R.X.L.'s institutional infractions.

We also are satisfied that the experts and Judge Freedman adequately tied the significance of R.X.L.'s institutional infractions to his likelihood to resume deviant sexual behavior if released at this time. The involvement of illicit drugs in those infractions, which appellant had used during his predicate sexual offense, raises quite logical concerns about his ability to control his behavior outside of the structured setting of the STU. Likewise, the fact that one infraction involved a DVD containing pornographic material accentuates the risk factors professionally identified by the testifying experts.

Finally, we are also satisfied that Judge Freedman gave sufficient consideration to appellant's age. Given his risk factors and long deviant history, appellant's advanced years alone do not warrant his release on the record before us.

Affirmed.

 

Phase III is one of four successive progressions of treatment within the STU, and represents the core period of active treatment.

By agreement of the parties and with the 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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15

A-5883-04T2

RECORD IMPOUNDED

May 1, 2006