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

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0054-08T20054-08T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

E.X.C., SVP-14-99

__________________________________

 

Argued October 27, 2008 - Decided

Before Judges R. B. Coleman and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP 14-99.

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

Cindi Collins, Deputy Attorney General, argued the cause for respondent State of New Jersey (Anne Milgram, Attorney General, attorney).

PER CURIAM

E.X.C. is a resident of the Special Treatment Unit ("STU"), the secure custodial facility designated for the treatment of persons in need of commitment pursuant to the Sexually Violent Predator Act ("SVPA"), N.J.S.A. 30:4-27.24 to -27.38. See N.J.S.A. 30:4-27.34(a). He appeals from an order entered on February 20, 2008, which continues his civil commitment. We affirm substantially for the reasons set forth by Judge Freedman in his oral decision of that same date.

E.X.C. was initially committed in 1998, just before the expiration of his prison term for endangering the welfare of a fifteen-year-old minor. E.X.C. had induced the minor, the daughter of a former girlfriend, to send him nude photographs of herself. Apart from that most recent offense, E.X.C. has a long history of sexually violent crimes, which were described at length in our November 2001 opinion affirming his initial commitment and its continuation. See In re Civil Commitment of E.C., Nos. A-5785-99 & A-3111-00 (App. Div. Nov. 13, 2001) (slip op. at 2-14), certif. granted and summarily remanded for a review hearing, 174 N.J. 187 (2002).

Among other things, E.X.C. has been found guilty of raping an eighteen-year-old woman at knifepoint in August 1974; committing lewd acts and carnal indecency under violent conditions with a female telephone installer in December 1974; raping and tying up a mother of two children in her home in January 1975; sexually assaulting in October 1980 a woman that he had lured into his home while he was on parole; escaping in June 1981 from the Adult Diagnostic and Treatment Center ("ADTC"); and sexually assaulting the wife of an ADTC employee while he was a fugitive during that escape.

Since the time of his initial commitment, E.X.C. has been the subject of multiple review hearings. In each of those hearings, the court has found E.X.C. satisfies the requirements for continued commitment.

The present appeal arises out of E.X.C.'s most recent review hearing, which took place over the course of two days in November and December 2007. The State presented live expert testimony from two mental health professionals who evaluated E.X.C.: Dr. Louis Zeiger, a psychiatrist, and Dr. Robert Carlson, a psychologist who is a member of E.X.C.'s treatment team (the Treatment Progress Review Committee, or "TPRC") at the STU. The State also submitted the May 2006 transcribed testimony of another psychiatrist, Dr. Jason Cohen. Defendant testified in his own behalf, and also presented a written expert report from Dr. Rashmi Skadegaard, Ed.D.

Dr. Carlson last evaluated E.X.C. on April 18, 2007. He diagnosed E.X.C. with (1) paraphilia NOS ("Not otherwise Specified"), non-consent; (2) polysubstance dependence in possible remission; and (3) antisocial personality disorder with psychopathic traits. The doctor reported that E.X.C. is in Phase Three, which is the active phase of the STU treatment sequence. E.X.C. scored 30 on the Hair PCLR test, a result which is within the threshold of a psychopathic level. Dr. Carlson noted that the psychopathic characteristic "contributes to a finding that a person would be at substantial risk for criminal re-offense and if part of the criminal repertoire was sex offenses, also add[s] a high risk for sexual re-offense." Dr. Carlson acknowledged that E.X.C.'s behavior has been stable within the institutional setting of the STU. However, E.X.C.'s long experience within an institutional setting has allowed him to learn how to get along there. According to Dr. Carlson, E.X.C.'s success within the STU is not dispositive because such an institutional setting does not permit opportunities to test actual remission. Dr. Carlson further opined that E.X.C. could benefit from additional treatment modules.

Dr. Zeiger's last interview with E.X.C. was in November 2007. He similarly diagnosed E.X.C. with paraphilia NOS, polysubstance abuse in institutional remission and antisocial personality disorder. In his testimony Dr. Zeiger particularly focused upon E.X.C.'s capacity to be deceitful and manipulative. As one illustration, Dr. Zeiger cited an incident in which E.X.C. refused medical treatment for his liver, and when later confronted with authorization forms that he had signed, E.X.C. falsely accused the medical staff of fraud. Dr. Zeiger stated that this scenario demonstrates the need to "corroborate whatever [E.X.C.] says." According to Dr. Zeiger, E.X.C.'s capacity to be deceitful and manipulative can at times mislead his treaters. He opined that the apparent progress of E.X.C. in his treatment modules is not proof of true success but instead is evidence of "learned success within the modules."

Dr. Zeiger also stressed E.X.C.'s impulsiveness, as was exhibited in his unplanned sexual attack upon the telephone installer. The doctor also noted that E.X.C.'s past sexual and emotional relationship with a girlfriend did not prevent him from sexually offending.

Dr. Zeiger did acknowledge that E.X.C.'s sex offender treatment for over a decade is formidable. Even so, he opined that E.X.C. is of a "high, very high" risk to re-offend sexually in the foreseeable future because of his aberrational personality traits and his extensive track record of sexual wrongs.

In his testimony from 2006, Dr. Cohen addressed a variety of issues. He likewise found E.X.C. to be suffering from paraphilia, NOS, non consent, polysubstance abuse and antisocial personality disorder with psychopathic features. Dr. Cohen also commented that E.X.C., consistent with his psychopathy, can be charming and manipulating; and that his institutionalization has taught him the skills to learn how to present himself favorably. These skills, according to Dr. Cohen, can lead to difficulties in evaluating him.

Dr. Cohen took into account several possible mitigating factors. First, he addressed the possibility of E.X.C. "aging out" of his violent proclivities. In considering this possibility, Dr. Cohen noted that not just physical debilitation and breakdown must be considered; they are just factors to be weighed with decreased libido, decreased impulsiveness and emotional maturity. Here, given the particular context of E.X.C.'s psychopathy, Dr. Cohen opined that there has been no indicated reduction of risk resulting from his aging process. Even if there has been such a risk reduction, it has not fallen below the "highly likely" to re-offend level.

Dr. Cohen further recognized that E.X.C. has completed several treatment modules within the STU, and that some modules such as "anger management" were completed twice. He noted that E.X.C. voluntarily participates in AA and NA. Nevertheless, even though these modules may have had some useful effect, they have not appreciably reduced E.X.C.'s risk level.

In his own testimony, E.X.C. favorably described his treatment module participation. He explained his arrangement for outside sponsors and counselors, as well as the family resources he expects to depend upon if released. However, particularly during cross-examination, E.X.C. was notably inconsistent in his testimony. For example, he inconsistently reported how many times he "forced sex with adults" and how many times he "ti[ed] someone up." E.X.C. was also inconsistent in his descriptions of his victims. For instance, he variously characterized the woman that he raped at knifepoint as someone he had talked into sex on prior occasions, as a prostitute, and as a person who sold Avon products in the neighborhood.

The record indicates that E.X.C. withheld from his treatment team written questionnaire responses describing his past sexual offenses. These personal accounts would have been useful to his treatment team in assessing E.X.C.'s honesty and accuracy in self-reporting. E.X.C. did belatedly furnish his written accounts, but they contained a number of significant inaccuracies and disturbing facts. For example, E.X.C. denied causing pain to or hurting any of his victims. These discrepancies led Judge Freedman to conclude that E.X.C. "makes up stories to explain events." This tendency "makes it very difficult for him to do what he needs to do to lessen his risk or treatment. . . . [T]he building block of treatment is admitting to what you've done."

In his oral opinion, Judge Freedman underscored Dr. Zeiger's testimony that E.X.C. does not accurately self-report. The judge noted that E.X.C.'s outward appearance of apparent harmlessness is suspect because he had violated people while on parole and while in regular relationships. Moreover, the court noted Dr. Carlson's testimony that there is the potential of manipulation with psychopathy, and that E.X.C.'s abnormal score on the Hair PCLR test meets the psychopathic threshold.

Judge Freedman also found significant certain observations made by Dr. Skadegaard, the defense expert:

While [E.X.C.] expressed remorse for his behavior [,] [h]e also minimized his responsibility [,] often blaming the victim or the surround[ing] circumstances. He has lengthy explanations for his behavior. He becomes increasingly convoluted and contradictory. . . . He needs to gain a better understanding of and insight into the dynamics of his sexual acting out behavior and take full responsibility for his actions.

The judge found these particular opinions of the defense expert supportive of the findings by the State's experts. The judge recognized that E.X.C. has developed a discharge plan, has family support and a place to live, but he also noted that E.X.C.'s testimony and self-reports are riddled with troublesome inconsistencies.

Sifting through all of the proofs, Judge Freedman concluded that there is clear and convincing evidence that E.X.C. suffers from mental abnormalities: specifically, paraphalia, anti-personality disorder with psychopathic traits, and polysubstance dependence. The judge further concluded that E.X.C. remains "clearly predisposed" to re-offend and that his risk has not been reduced to the level where a conditional discharge would be justified.

On appeal, E.X.C. argues that the State presented insufficient evidence to support his continued commitment. He stresses his positive contributions to treatment sessions and his completion of several treatment modules. He contends the State's experts have not sufficiently credited his progress within the institution.

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 Civil 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.]

The State must establish, by clear and convincing evidence, that it is highly likely that the individual will reoffend. 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. At each periodic review hearing, 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. 30:4-27.32(a).

Bearing in mind these well-settled legal standards, we are satisfied that E.X.C. continues to meet the criteria for civil commitment, substantially for the reasons identified and analyzed in Judge Freedman's oral decision.

We also bear in mind that the scope of appellate review of judgments of civil commitment is exceedingly narrow. We only "reverse a commitment for an abuse of discretion or lack of evidence to support it." In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 225-26 (App. Div. 2007). See also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We have also recognized that "committing judges under the SVPA are specialists in the area, and [that] we must give their expertise in the subject special deference." T.J.N., supra, 390 N.J. Super. at 226. 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.

We discern no such misapplication of discretion here. Although E.X.C. has exhibited, at least on the surface, a degree of progress in his treatment path, the expert witnesses have cautioned that those apparent gains are offset by E.X.C.'s failures to self-report accurately, his continued diagnoses of mental abnormalities and psychosis and his manipulative tendencies. E.X.C.'s own expert expresses clear reservations about his lack of insight and recognizes his need for more treatment. There is ample evidence in the record to support the State experts' findings, which were adopted by the trial judge, that he remains a danger and is likely to re-offend if released.

 
Affirmed.

We have inserted a fictitious middle initial for appellant to distinguish him from another STU-committed appellant with the initials "E.C." whose appeal was argued before us the same day.

The completion of appellant's review hearing was delayed until 2007 as the result of adjournments.

By agreement of the parties with the court's permission, this appeal was argued orally without briefs. We have summarized the parties' contentions.

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2

A-0054-08T2

RECORD IMPOUNDED

November 19, 2008