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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2626-06T22626-06T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF R.X.G., SVP-83-00.

______________________________________________________________

 

Argued May 15, 2007 - Decided June 11, 2007

Before Judges Axelrad and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-83-00.

Heather Ellis Cucolo, Assistant Deputy Public Advocate, argued the cause for appellant R.X.G. (Ronald K. Chen, Public Advocate, attorney).

Mark H. Singer, Senior Deputy Attorney General, argued the cause for respondent State of New Jersey (Stuart Rabner, Attorney General, attorney).

PER CURIAM

R.X.G. appeals from judgment entered on January 16, 2007, finding that he is a sexually violent predator in need of involuntary civil commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. The judgment ordered that R.X.G. be committed to the Special Treatment Unit (STU) for care, custody and treatment of sexually violent predators and that a review hearing be conducted on January 4, 2008. We affirm.

R.X.G., a twenty-seven year old man, has a history of sexually violent crimes, which includes aggravated sexual assault involving three minors: T.T., a five-year old boy; J.G., a seven-year old girl; and S.H., a four-year old girl. On January 29, 1997, pursuant to a plea agreement, R.X.G. pled guilty as a juvenile to three counts of aggravated sexual assault and was sentenced to probation conditioned on completion of treatment at the Pinelands Residential Group Center. Following R.X.G.'s violation of probation, he was committed on August 6, 1998, to the Juvenile Justice Commission, New Jersey Training School for a term of four years.

On or about June 1, 2000, the State filed a petition seeking R.X.G.'s civil commitment pursuant to the SVPA. After reviewing the State's petition, the court found probable cause to believe that R.X.G. was a sexually violent predator and issued a temporary commitment order authorizing his transfer to the STU pending a final hearing. Following a final hearing on November 2, 2000, the court ordered that R.X.G. be remanded to the STU. Subsequent review hearings were held in April 2001, October 2001, May 2002, August 2003, December 2005, and the review in January 2007, that is the subject of this appeal.

On this appeal, R.X.G. argues the State failed to meet its burden of proof because the expert's opinion was a net opinion. At oral argument, counsel for R.X.G. contended that Dr. Pogos Voskanian, the State's psychiatric expert witness, relied on the petition for commitment, rather than any other documents in the record. Based upon our careful review of the record, we are convinced the trial judge, Judge Philip M. Freedman, duly considered and weighed not only the testimony and opinion of Dr. Voskanian but also the testimony of Dr. Robert Carlson, a psychologist, who testified as a member of the Treatment Progress Review Committee (TPRC), the treatment records and TPRC reports. As Judge Freedman made clear prior to the commitment hearing, he reviewed the record relied upon and referenced by the experts and treaters "to be aware of what took place in the past" in order to better determine whether the State has proven by clear and convincing evidence that the committee will have "serious difficulty controlling his or her harmful sexual behavior such that it is highly likely that the person will not control his or her sexually violent behavior and will reoffend." In re Commitment of W.Z., 173 N.J. 109, 133-34 (2002). Judge Freedman recognized in his oral decision that "the final determination with regard to dangers lies with the court[,] not the expertise of psychiatrists and psychologists."

In reviewing a judgment for commitment under the SVPA, "[t]he scope of appellate review . . . [is] extremely narrow," and the trial court's decision should be "accorded 'utmost deference' and modified only where the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (quoting State v. Fields, 77 N.J. 282, 311 (1978)); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower court['s] findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996) (citing Fields, supra, 77 N.J. at 311).

At the January 12, 2007 hearing, R.X.G. refused to attend. He was represented by an Assistant Deputy Public Advocate. As noted, the State presented the testimony of Dr. Carlson, who is a psychologist and a member of the TPRC, and Dr. Voskanian, a psychiatrist who had examined R.X.G. Dr. Carlson testified that R.X.G. lacked any interest in participating in any modules and had poor attendance records for his treatment orientation group. At the time of R.X.G.'s evaluation, he was on treatment refusal status, thus indicating a lack of interest in participating in the treatment program.

Dr. Voskanian testified that he examined R.X.G. on December 27, 2006. Dr. Voskanian explained that R.X.G. was difficult to interview because he was vague in his answers and very slow in responding. Dr. Voskanian testified that R.X.G. denied significant parts of his history that are readily available in the record. He noted that R.X.G. attended treatment at times, but has not really participated and has gained no insight at all into his offending. Dr. Voskanian diagnosed R.X.G. with pedophilia, sexually attracted to males and females, non- exclusive. Dr. Voskanian also opined that R.X.G. suffers from antisocial personality disorder manifested by a long standing history of juvenile issues. Based on these diagnoses, he testified that he found that R.X.G. was predisposed to engage in acts of sexual violence. Explaining why he felt that R.X.G. was a high risk to sexually offend in the future unless confined or secured for treatment, Dr. Voskanian said:

Because there are multiple factors . . . he continued with defiant behaviors here at STU, he does not have insight into his behaviors, he has no remorse, and there is no reason to believe that his sexual interests or preferences have resolved. There is also no expression of empathy that would indicate that even though his sexual preferences did not resolve, empathy or remorse would keep him away.

The judge found that R.X.G.'s tendency to deny parts of his history indicated that R.X.G. minimized the crimes involved here. He noted that Dr. Voskanian testified that when R.X.G. first came to STU, he admitted his crimes, but has subsequently backtracked. The judge stated, "[I]t is essential that if [R.X.G.] is to make any progress of any kind that he needs to come clean . . . with regard to his history so that he can understand and know the nature of his offending."

We are satisfied from our review of the record that the judge's decision to continue R.X.G.'s commitment is supported by substantial credible evidence. State v. Locurto, 157 N.J. 463, 471 (1999). R.X.G. has pled guilty to three sexual offenses, arising from the abuse of three young children. Dr. Voskanian found that R.X.G. suffers from pedophilia and that he has a predisposition to engage in acts of sexual violence. Dr. Voskanian's testimony provided clear and convincing evidence that R.X.G. suffers from a mental condition that predisposes him to commit acts of sexual violence. Furthermore, Dr. Voskanian's opinion, accepted by the court, was that R.X.G. is at a high risk for re-offending if he is not committed.

We do not agree that Dr. Voskanian relied solely on the petition for commitment, as argued by R.X.G.'s counsel. Moreover, we are satisfied that Judge Freedman properly permitted the State's testifying witnesses to utilize and to rely upon TPRC reports, treatment notes, Juvenile Pre-Sentence Reports, and the clinical certificates supporting the petition. In re Commitment of A.E.F., 377 N.J. Super. 473, 489 (App. Div. 2005); In re Commitment of G.G.N., 372 N.J. Super. 42, 55 (App. Div. 2004); In re Commitment of A.X.D., 370 N.J. Super. 198, 201-02 (App. Div. 2004). Generally, "[t]he reports of the STU treatment teams were business records, admissible under N.J.R.E. 803(c)(6), which could be considered for their truth." A.X.D., supra, 370 N.J. Super. at 202.

An expert, who relies in part or even substantially "on hearsay evidence for his or her opinion, may testify at trial as long as the hearsay information 'was of a type reasonably relied on by experts in the particular field in forming opinions . . . on the subject.'" In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 612 (App. Div.) (quoting N.J.R.E. 703), certif. denied, 179 N.J. 312 (2004); State v. Vandeweaghe, 351 N.J. Super. 467, 480 (App. Div.), aff'd, 177 N.J. 229 (2003). Here, the State's expert offered his opinions based on a detailed examination of R.X.G.'s TPRC reports, treatment notes, Juvenile Pre-Sentence Reports, the clinical certificates supporting the petition, and interviews with R.X.G.

In sum, we find no error in the court's evidentiary rulings. Those rulings "are entitled to deference absent a showing of an abuse of discretion." State v. Marrero, 148 N.J. 469, 484 (1997). We perceive no abuse of discretion and are satisfied that the substantial competent credible evidence supports the court's findings.

Affirmed.

 

The caption in this matter identifies the appellant by the initials R.G. In the opinions we issued concerning prior appeals from orders of continued commitment, appellant was identified as R.X.G. For consistency, we shall refer to him in this opinion by his three initials.

Although the order is dated January 16, 2007, and the Notice of Appeal recites that as the date of the order, the transcript of the court's decision shows January 16, 2006 as the date of the decision. Similarly, the transcript of the testimony of the State's two witnesses indicates on the cover that it took place on January 12, 2006. We are satisfied the dates reflected on the cover of the two transcripts are clerical mistakes and that the proceedings actually took place in January 2007. Indeed, in an unpublished opinion issued June 13, 2006, No. A-2472-05T2, this court affirmed an order for continued commitment dated January 3, 2006.

On October 20, 2004, and on June 13, 2006, we affirmed in unpublished opinions orders entered on August 4, 2003 and on January 3, 2006, respectively, under A-2587-03T2 and A-2472-05T2. R.X.G.'s petition for certification from the judgment of October 20, 2004 was denied on May 13, 2005.

(continued)

(continued)

8

A-2626-06T2

RECORD IMPOUNDED

June 11, 2007