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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3508-03T23508-03T2

IN THE MATTER OF

THE CIVIL COMMITMENT

OF R.X.V. SVP 265-02

___________________________

 

Submitted January 7, 2009 - Decided

Before Judges Stern, Lyons and Newman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-265-02.

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

Anne Milgram, Attorney General, attorney for respondent State of New Jersey (Melissa H. Raska, Assistant Attorney General, of counsel; Lisa Marie Albano, Deputy Attorney General, on the brief).

PER CURIAM

R.X.V. appeals from his involuntary civil commitment to the Special Treatment Unit ("STU") pursuant to N.J.S.A. 30:4-27.24 to -27.38, the Sexually Violent Predator Act ("SVPA"). We affirm.

On July 27, 1999, R.X.V. pled guilty to second degree sexual assault of J.H., a nine-year-old boy and R.X.V.'s former neighbor, and was sentenced on January 7, 2000, as if for a third degree offense to four years in prison, to be served at the Adult Diagnostic and Treatment Center ("ADTC"), with community supervision for life thereafter. R.X.V., who had been clinically evaluated and identified as a sexually violent predator, had a sentence scheduled to "max out" on or about August 20, 2002.

On August 7, 2002, the State petitioned for the civil commitment of R.X.V. under the SVPA. Following an October 28, 2003, hearing before Judge Perretti, on November 6, 2003, R.X.V. was "committed to the State of New Jersey [STU], the secure facility designed for the custody, care and treatment of sexually violent predators" with a one-year review date. R.X.V. filed a notice of appeal on March 3, 2004.

In October, 2004, R.X.V. retained a private attorney to represent him on the appeal filed on his behalf by the Office of the Public Defender. The appeal was dismissed by this court on February 7, 2007, for the failure to file a timely brief. After a motion was filed on August 28, 2008, on behalf of R.X.V., this court on September 11, 2008, entered an order vacating the dismissal of the appeal, reinstating the appeal, accelerating the appeal and directing a scheduling order to issue forthwith. The Department of the Public Advocate, Division of Mental Health Advocacy, Alternative Commitment Unit, by Designated Counsel filed R.X.V.'s brief and appendix on October 22, 2008. The State filed its answering brief on November 17, 2008. The appeal was calendared for disposition on January 7, 2009.

At the civil commitment hearing on October 28, 2003, three witnesses testified. The State presented two expert witnesses during the hearing: Dr. Luis Zeiguer, M.D. ("Dr. Zeiguer") and Dr. Natalie Barone, Psy.D. ("Dr. Barone"). Dr. Paul Fulford, Ph.D. ("Dr. Fulford") testified on behalf of R.X.V. A summary of their relevant testimony follows.

Dr. Zeiguer testified that in preparing his report he relied on his interviews of R.X.V., which were recorded and occurred on October 26 and 28, 2002, "detective investigation reports, the victim's statements and presentence reports," as well as the transcript of one of R.X.V.'s phone calls. Dr. Zeiguer also briefly interviewed R.X.V. the morning of the hearing. Dr. Zeiguer explained the importance of reviewing and relying on this type of information, which is generally relied on by experts in his field, because for pedophiliac offenses, self-report is unreliable given their investment in maintaining secrecy and thus, external reports serve as a more reliable source of information.

Dr. Zeiguer diagnosed R.X.V. with "pedophilia, male, non-exclusive", personality disorder, not otherwise specified ("NOS") and acknowledged R.X.V.'s prior diagnosis of bipolar disorder NOS with a history of depression.

Dr. Zeiguer based his pedophilia diagnosis on R.X.V.'s admitted molestation of two young boys and admitting arousal by it. Dr. Zeiguer testified that R.X.V. admitted to molesting his nephew for many years, even though never prosecuted for the offense in the State of Virginia. Dr. Zeiguer determined the affair with the nephew ended because of the nephew, not because R.X.V. lost interest. Dr. Zeiguer also testified that R.X.V. molested his neighbor, a hyperactive and developmentally disabled child, after volunteering to baby-sit him. Further, R.X.V. told Dr. Zeiguer he liked "hairless, pre-pubescent children who do not ejaculate." R.X.V. knew his sexually offending behavior was illegal.

In arriving at a personality disorder diagnosis, Dr. Zeiguer described R.X.V.'s "self-involved" behavior, his need to be the center of attention, appear successful and his "dramatical theatrical representations." Dr. Zeiguer described R.X.V.'s presentation of himself like "a butterfly"; a man who has evolved to discover his homosexuality, where pedophilia "was just his initial tempting footsteps," thus leading him to the path of happiness and bliss and precluding further pedophilia, therefore it was all worth it. Dr. Zeiguer indicated that R.X.V.'s self involvement results in his insensitivity "to other people's needs," as evidenced by R.X.V.'s sexual relationship with another inmate while in treatment.

Dr. Zeiguer acknowledged R.X.V.'s bipolar disorder based on information in R.X.V.'s records, but Dr. Zeiguer saw no symptoms of this disorder. Dr. Zeiguer also indicated that bipolar disorder does not always affect the libido, but if it does, it can increase or decrease one's libido.

Dr. Zeiguer testified that R.X.V.'s treatment at ADTC was considered a failure because R.X.V. "spent most of his time fighting the system." Dr. Zeiguer discounted reports that indicated R.X.V. made improvement while attending therapy pre-trial with Catholic Charities in 1999 and was a good candidate for outpatient therapy, because R.X.V. had never even admitted to the abuse at that time.

Dr. Zeiguer testified that he did not think R.X.V. would be able to control his sexually deviant impulses if released and indicated that pedophilia does not automatically correct itself. Dr. Zeiguer agreed that R.X.V. has "a mental abnormality or personality disorder that makes him likely to engage in acts of sexual violence if not confined in a secure facility for controlled care and treatment."

Dr. Barone, an expert clinical psychologist, testified concerning her evaluation of R.X.V. In preparing her report, Dr. Barone relied on her October 24 and 25, 2002, interview of R.X.V., as well as archival documents identical to those used by Dr. Zeiguer. Additionally, Dr. Barone interviewed Dr. Main, who authored a March 2002 termination report but was no longer with ADTC after becoming the head of STU.

Dr. Barone performed a Static-99 actuarials test on R.X.V., and testified that this Static-99 score predicted a medium-low risk of re-offense. However, Dr. Barone found this risk level an "underestimation," because R.X.V.'s long term sexual molestation of his nephew in Virginia was not considered, which would have increased R.X.V.'s Static-99 score by several points. Dr. Barone also indicated that "the coding criteria for the Static" test precluded a showing that "the offender continue[d] to offend even after being previously sanctioned," referring to R.X.V.'s continued molestation of his neighbor while being investigated for sexually abusing his nephew in Virginia.

As such, Dr. Barone clinically adjusted her actuarial risk assessment based on R.X.V.'s dynamic risk factors which increased R.X.V.'s risk. R.X.V.'s risk factors, according to Dr. Barone, included: (1) "extremely deviant" pedophilia based on R.X.V.'s multiple young victims and "well ingrained" pedophilia based on the "forethought and energy" R.X.V. placed into offending; (2) bipolar disorder which could inhibit R.X.V.'s cognitive facilities that would otherwise control sexual acting out, incomplete and lack of motivation for treatment; and (3) compulsiveness, evidenced in part by R.X.V.'s blackmail and stalking of another inmate at ADTC who resembled R.X.V.'s victim profile.

Regarding R.X.V.'s treatment potential, Dr. Barone testified that there was no reason why R.X.V. could not benefit from treatment given his average intelligence. Additional intellectual and sexual testing on R.X.V. revealed such characteristics as narcissism, attention seeking, lack of insight, lack of responsibility and tendency to minimize sexual deviancy.

Dr. Barone diagnosed R.X.V. with "personality disorder NOS with narcissistic features," which is defined as "an inflated sense of self, a sense of entitlement, certain grandiosity" because R.X.V. has trouble looking past his own desires. R.X.V. was also diagnosed with pedophilia, defined as sexually deviant behavior upon children; however, Dr. Barone noted that R.X.V. goes beyond the definition by also having the urges that drive the behavior, based on his admitted "sexual attraction to pre-pubescent boys."

Based on Dr. Barone's conversation with Dr. Main, R.X.V.'s former therapist at ADTC, and ADTC reports, she found R.X.V.'s progress at ADTC "nonexistent."

Dr. Barone discussed R.X.V.'s description of his sexual offenses, including how he anticipated visiting the boys and what he would do with them, masturbating in advance, manipulating the boys so he could "carry out the deviant act," and then attempting to convince the boys he cared for them and his actions were not harmful. R.X.V. indicated he would have been "turned on" by other children if he knew he could have touched them and gotten away with it. According to R.X.V., he victimized these boys only because "he discovered he was homosexual." However, Dr. Barone disagreed with R.X.V.'s contention that he just woke up one day and began molesting children after discovering he was homosexual and had no "pre-existing arousal pattern," noting that "human behavior simply does not work that way."

Dr. Barone was also concerned about R.X.V.'s plans upon release, which included becoming involved in the community and volunteering, but did not include any type of sex offender therapy. Dr. Barone testified that this exemplified R.X.V.'s lack of motivation for treatment and his belief that he did not even need treatment.

Dr. Barone agreed that R.X.V. has "a mental abnormality or personality disorder that makes him likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." Dr. Barone indicated that "the best predictor of future behavior is past behavior" and R.X.V.'s "past behavior presents a worrisome picture." Dr. Barone believed R.X.V. would have difficulty controlling his urges were he out in the community, particularly when he was unable to do so while in a controlled setting, speaking of his relationship while at ADTC. However, Dr. Barone believed that even ignoring the ADTC relationship, R.X.V. would sexually re-offend if released because of his character, psychopathology, incomplete treatment and compulsive pedophilia.

R.X.V. called his only witness, Dr. Fulford, a psychologist, to testify concerning his evaluation of R.X.V. and the psychological report he prepared. Dr. Fulford testified that in preparing this report he relied on his June 10, 2003 interview of R.X.V., as well as archival records identical to those described as being relied upon by both Drs. Barone and Zeiguer.

Dr. Fulford diagnosed R.X.V. with bipolar disorder, also known as manic depression, noting that R.X.V. was considered totally and permanently disabled by the Social Security Administration. Dr. Fulford had not seen the actual records or details of this diagnosis.

Dr. Fulford testified that R.X.V.'s bipolar disorder played a role in his struggle with treatment and might possibly explain Dr. Main's determination that R.X.V. made no progress during treatment. Dr. Fulford reviewed both Drs. Zeiguer and Barone's actuarial assessments, psychological evaluations and intellectual testing and did not re-do these tests. Dr. Fulford used "supplemental clinical judgment" in his diagnosis when reviewing the actuarial assessment, because the creator of the Static-99 test told Dr. Fulford that when a person exhibits factors like a psychiatric disorder, it is acceptable to "step aside from the scales." As such, given R.X.V.'s history of bipolar disorder, Dr. Fulford felt that "clinical judgment," including consideration of the record, reports and the actuarials, was appropriate.

After diagnosing R.X.V. with pedophilia, Dr. Fulford testified that R.X.V.'s pedophilia "does not contribute to the likelihood of a violent sexual act," even though pedophilia is not a condition that is "cured" or that spontaneously remits. Dr. Fulford testified that "in no way does bipolar disorder cause or in any way induce a person to pedophiliac acts." But, Dr. Fulford also indicated that as long as R.X.V. received treatment and medication for his bipolar disorder, he was not a high risk to sexually re-offend "within a reasonably foreseeable future."

Dr. Fulford believed appropriate supervision over R.X.V. can be accomplished through Community Supervision for Life because a parole officer could verify R.X.V.'s compliance with treatment on a weekly basis. Further, Dr. Fulford opined that R.X.V. could live with his father and R.X.V. stated his father "has been in touch with local resources."

On November 6, 2003, Judge Perretti rendered an oral decision, committing R.X.V. to STU with a one-year review date on October 6, 2004. The court found by clear and convincing evidence that R.X.V. was convicted of a sexually violent offense on January 7, 2000, for which he was sentenced to four years at ADTC, based on R.X.V.'s plea. Next, the court found by clear and convincing evidence that R.X.V. victimized his nephew, given that R.X.V. did not contest that he molested his nephew during his initial sentencing and moreover, R.X.V. admitted as much to Dr. Barone.

The court found that, based on the reports of R.X.V.'s treatment history, R.X.V. was being psychologically treated for bipolar disorder during both the Virginia and New Jersey offenses. The court also noted that there were no medical records corroborating R.X.V.'s bipolar diagnosis history. The court concluded by clear and convincing evidence "that treatment for bipolar disorder had nothing to do with [R.X.V.'s] pedophilic urges." R.X.V. was being treated for bipolar disorder, according to his own statements, while he was committing his crimes. The court remained skeptical of whether R.X.V.'s bipolar disorder even existed, neither accepting nor rejecting it. As such, the court was not persuaded by Dr. Fulford's testimony that if R.X.V.'s bipolar disorder was controlled by medication then R.X.V. would not present a high risk. Dr. Fulford did not explain why R.X.V. would no longer present a high risk when he was an untreated pedophile with a long history of acting out with two pre-pubescent victims over a long period of time.

The court determined that whether R.X.V. had an affair at the ADTC unit with a victim similar in profile to R.X.V.'s other victims was not of much weight. The court found important the fact that R.X.V. "continued compulsive carryings-on," which he knew was against the rules and was repeatedly counseled against, a demonstrated "lack of control of sex offending behavior."

Regarding the actuarial scores that placed R.X.V. in a low/moderate risk category, the court determined it proper to dismiss these low scores based both on Dr. Barone's testimony that the scores were deceptive and Dr. Fulford's testimony that when a psychiatric problem is present, you should not rely on the scores.

The court was persuaded by Dr. Barone's testimony, and agreed with the majority of Dr. Zeiguer's testimony. Based on their testimony, the court found R.X.V. to be a sexually violent predator with "no general control of his sex offending behavior, even in a controlled environment and even while medicated." The court acknowledged that R.X.V. progressed to level three in treatment, but also noted that the progress stopped there and "the reports are there is no progress." Finally, the court concluded that anyone with the belief "that homosexuality is a cure for pedophilia obviously has not profited one iota from sex offender treatment."

On appeal, R.X.V. raises the following issues for our consideration:

POINT ONE: THE STATE FAILED TO PROVE BY COMPETENT, CLEAR AND CONVINCING EVIDENCE THAT R.X.V. WAS SUBJECT TO SVP COMMITMENT.

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.

POINT FOUR: THE TRIAL COURT'S UNWARRANTED RESTRICTION ON R.X.V.'S RIGHT TO CROSS EXAMINATION DEPRIVED R.X.V. OF A FAIR COMMITMENT PROCEEDING.

We address the arguments in the order raised.

I

R.X.V. argues in Point I that the State did not meet its burden of proving each element of civil commitment under the SVPA by clear and convincing evidence, largely because the State's experts based their opinions upon other non-treating examiners' written reports, R.X.V.'s prior offenses and R.X.V.'s lack of progress in treatment.

Under our standard of review, we accord "utmost deference to [civil] commitment finding[s] and reverse only for a clear abuse of discretion." In re Commitment of A.E.F., 377 N.J. Super. 473, 493 (App. Div.), certif. denied, 185 N.J. 393 (2005) (citing In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003)). Indeed, we recently held that "the committing judges under the SVPA are specialists in the area, and we must give their expertise in the subject special deference." In re Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007).

SVPA allows for the involuntary commitment of sexually violent predators, and a "sexually violent predator" is defined as:

[A] person who has been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent offense, or has been charged with a sexually violent offense but found to be incompetent to stand trial, and 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 stated in In re Commitment of W.Z., 173 N.J. 109, 120 (2002) (quoting N.J.S.A. 30:4-27.26), to find one a "sexually violent predator," a person must have been convicted of a "sexually violent offense" and suffer "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." The SVPA defines a "mental abnormality" as "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" and defines "likely to engage in acts of sexual violence" as "the propensity of a person to commit acts of sexual violence is of such a degree as to pose a threat to the health and safety of others." Ibid.

It is undisputed that R.X.V. has been convicted of a sexually violent offense as required pursuant to the definition of "sexually violent predator" under N.J.S.A. 30:4-27.26. R.X.V. was convicted of second degree sexual assault for molesting his prepubescent neighbor, J.H.

The trial court was provided with evidence that R.X.V. suffers "from a mental abnormality or personality disorder," as required pursuant to the definition of "sexually violent predator" under N.J.S.A. 30:4-27.26. According to the Court in In re W.Z., supra, 173 N.J. at 127, "the nomenclature of 'mental abnormality' or 'personality disorder' is not dispositive. What is important is that . . . the mental condition must affect an individual's ability to control his or her sexually harmful conduct." However, "the statute does not impose a requirement of complete loss of control, nor [does the Court] require one." Id. at 128. Indeed, an individual need not be diagnosed with sexual compulsion, nor are there limits to any other "class [of] those with identified psychiatric diagnoses." Id. at 129. Rather, "the adjectives 'volitional,' 'emotional,' or 'cognitive' when describing the reasons for an individual's serious difficulty with control over his or her behavior indicates that the Legislature intended to insure that every individual who has a substantial inability to exercise control over sexually violent behavior would be within the Act's reach." Ibid. As previously stated, under the SVPA, 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." Id. at 120 (quoting N.J.S.A. 30:4-27.26).

After all three experts testified to diagnosing R.X.V. with pedophilia based on R.X.V.'s admitted pattern of offending against male children for prolonged periods of time, the trial court found R.X.V. had a "history of repetitive, compulsive pedophilic behavior." Pedophilia is defined as sexually deviant behaviors upon children, and R.X.V.'s own expert testified that pedophilia is not a condition that is "cured" or that spontaneously remits.

The trial court also found R.X.V. to suffer from personality disorder NOS based on testimony from both of the State's experts, which results in R.X.V.'s self involvement and insensitivity to the needs of others. The trial court found, based on the experts' testimony, that R.X.V.'s self involvement is evidenced by R.X.V.'s lack of understanding that abstinence is necessary for therapy and his belief that homosexuality is a cure for pedophilia. The court concluded that R.X.V.'s abnormal mental conditions/personality disorders, specifically, pedophilia and personality disorder, "adversely impact his cognitive, volitional and emotional capacities" because R.X.V. has no control over his compulsive and offending sexual behavior, "even in a controlled environment and even while medicated," specifically noting that R.X.V. committed offenses against both boys while medicated.

Based on the State's experts' testimony, derived largely from their own interviews with R.X.V., the record contains clear and convincing evidence that R.X.V. suffers "from a mental abnormality or personality disorder." See N.J.S.A. 30:4-27.26 (defining mental abnormality); see also In re W.Z., supra, 173 N.J. at 128 (noting "the mental condition must affect an individual's ability to control his or her sexually harmful conduct").

The trial court found that R.X.V. is predisposed "to commit sexually violent acts," has no control over his offending behavior, and is highly likely to "recidivate if not confined for further care and treatment." Both Drs. Zeiguer and Barone testified that R.X.V. has "a mental abnormality or personality disorder that makes him likely to engage in acts of sexual violence if not confined in a secure facility" for controlled and treatment. The trial court was persuaded by the State's experts' testimony and evidence of R.X.V.'s history of involving himself in sexually offending situations. The court emphasized the fact that R.X.V. "continued compulsive carryings-on" with another inmate at ADTC, which he knew was against the rules and was repeatedly counseled against, showing "lack of control of sex offending behavior."

The record supports the trial court's finding by clear and convincing evidence that R.X.V. "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." See N.J.S.A. 30:4-27.26 (definition); see also In re W.Z., supra, 173 N.J. at 132 (noting that the State must show "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").

II

R.X.V. argues in Point II that the State's experts, Drs. Zeiguer and Barone, relied upon evaluations prepared by non-testifying experts, thus their testimony was "based in part on hearsay in the form of prior expert opinions [and] the court erred in ordering commitment based on the opinions of Drs. Barone and Zeiguer." This issue was not raised during the commitment hearing and is before us on a plain error basis.

N.J.R.E. 703 provides:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

R.X.V. does not specifically identify the reports that Drs. Barone and Zeiguer relied upon that he objects to, other than to describe these reports as "numerous evaluations." R.X.V. does specifically mention "an ADTC presentence evaluation and an ADTC psychiatric termination report."

N.J.R.E. 703 allows an expert to base an inference or opinion on facts or data which the expert "perceived or which were 'made known to him at or before the hearing,' and they need not be admissible in evidence if they are 'of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.'" Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 703 (2008). This is so when the inadmissible hearsay is "of a type reasonably relied upon by mental experts in formulating their evaluations of an individual's mental condition." In re Commitment of J.H.M., 367 N.J. Super. 599, 612 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). In addition, "an expert can legitimately use hearsay evidence to confirm an opinion which he reached by independent means." Biunno, supra, comment 7 on N.J.R.E. 703 (citing Blanks v. Murphy, 268 N.J. Super. 152, 163-64 (App. Div. 1993)).

Both of the State's experts indicate that, in addition to interviewing R.X.V., they relied on investigation reports, termination reports and presentence reports, among other documents. Both Drs. Zeiguer and Barone testified that these types of documents are typically relied on by experts in conducting an evaluation. Indeed, Dr. Zeiguer testified to the importance of reviewing and relying on this type of information in preparing an evaluation because self-report is unreliable when dealing with pedophiliac offenses given an individual's investment in maintaining secrecy, thus, external reports are "the most reliable source of information."

Interestingly, R.X.V.'s own expert, Dr. Fulford, testified that in preparing his report, he relied on records and reports identical to those described as being relied upon by both Drs. Barone and Zeiguer. Dr. Fulford even reviewed both Drs. Zeiguer and Barone's assessments, psychological evaluations and intellectual testing and did not re-do these tests. Yet, R.X.V. does not find fault with his own expert's testimony as based on hearsay.

While the State's experts used information like presentence reports and terminations reports to help formulate their diagnosis of R.X.V., they did not rely solely on other reports for the basis of their opinions. The doctors also performed in-person evaluations of R.X.V., elicited answers from him and conducted their own psychological tests. As previously noted, much of Drs. Zeiguer and Barone's testimony regarding their diagnosis consisted of what R.X.V. told them during interviews, not what they read in other reports. Therefore, the doctors had other reliable reasons for formulating their diagnoses and opinions, as is the standard expressed in N.J.R.E. 703. See also In re A.E.F., supra, 377 N.J. Super. at 485 (finding no fundamental unfairness when two testifying psychiatrists relied on prior forensic evaluations of A.E.F. in addition to "their own opinions based on a detailed examination of A.E.F.'s criminal history and prior mental health evaluations, as well as their brief interviews with him"); In re J.H.M., supra, 367 N.J. Super. at 612-13 (citing In re W.Z., supra, 173 N.J. at 127) (noting that the W.Z. Court "stress[ed] the importance of an expert's evaluation of a defendant's mental condition for purposes of civil commitment under the SVPA such that a mental expert should be permitted to rely on hearsay information").

R.X.V.'s reliance on In re Commitment of E.S.T., 371 N.J. Super. 562 (App. Div. 2004), is misplaced. In E.S.T., the State presented two expert witnesses. Id. at 567. The first expert interviewed E.S.T. for approximately twenty minutes the day of the hearing and relied primarily on the clinical certificates from non-testifying experts. Id. at 568. The second expert interviewed E.S.T. for about an hour and relied on two actuarial tests performed a year prior by non-testifying experts. Id. at 568-69. This court found the State's experts' opinions "were based substantially on the opinions of" non-testifying experts who had authored previous evaluations and that the non-testifying evaluations relied upon were flawed because they were forensic evaluations performed by non-treating physicians. Id. at 571-72.

Unlike in E.S.T., the State's experts' opinions were not "based substantially on the opinions of" non-testifying experts. See id. at 571. Further, Dr. Zeiguer interviewed R.X.V. on three separate dates and Dr. Barone interviewed R.X.V. on two separate dates.

Even more significant than the factual distinctions between this case and In re E.S.T., supra, this court has since "further refine[d] the standards [previously set out in E.S.T.] for the use of hearsay in SVPA Commitment hearings." In re A.E.F., supra, 377 N.J. Super at 471. In A.E.F., we had this to say:

Our opinion in E.S.T. should not, however, 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 491 (citing In re Commitment of J.S.W., 371 N.J. Super. 217, 225 (App. Div. 2004), cert. denied, 183 N.J. 586 (2005).]

We are persuaded that the State's experts' opinions were "based on his or her own evaluation of the committee, prior offenses, and objective test data," see Ibid., and there is no error, much less plain error. See R. 2:10-2.

III

During the civil commitment hearing, R.X.V.'s counsel objected to many of the State's exhibits, claiming that those documents contained impermissible hearsay or were unauthenticated. Specifically, R.X.V. objected to the admittance of two ADTC termination reports and an October 1999 ADTC presentence evaluation as hearsay and for lack of authentication. This authenticity issue is not raised on appeal. The court admitted the exhibits, ruling that there was no hearsay when the document falls within the business records hearsay exception and is also being used for the limited purpose of making a credibility determination of the experts who "referred to these documents and relied upon them in the course of their professions."

R.X.V. in Point III argues that the trial court erred by admitting these three ADTC reports because they are hearsay since they are "evaluations of non-testifying experts [and] do not fall within the ambit of N.J.R.E. 703."

The ADTC termination reports were based on two doctors' evaluations of R.X.V. Specifically, on March 4, 2002, Dr. Main authored a termination report and on March 25, 2002, Dr. Gilman also authored a termination report. The presentence report was conducted in October 1999.

R.X.V.'s argument here is similar to his argument under Point II. R.X.V. argues that the State's experts based their opinion largely upon conclusions of non-testifying experts, which is inadmissible under N.J.R.E. 703, and "it logically follows, therefore, that reports prepared by non-testifying experts are . . . not admissible under N.J.R.E. 703." Once again, R.X.V. relies on In re E.S.T., supra.

We have previously addressed R.X.V.'s argument regarding the State's experts' reliance on other reports, as well as R.X.V.'s misapplication of In re E.S.T., supra. As pointed out in In re A.E.F., supra, 377 N.J. Super at 491, E.T.S. "should not, however, 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 . . . ."

The trial court found that the reports were admissible as business records and "for [a] limited purpose [as] the documents upon which [the experts] rely". The trial court weighed all of the evidence for credibility. Additionally, the trial court noted that "any inadmissible hearsay within the admissible hearsay [] should be called to [the court's] attention." R.X.V. never challenged the information contained in any of the objected to reports. Nor does R.X.V. challenge the admission of any document as a business record. Cf. In re Commitment of G.G.N., 372 N.J. Super. 42, 56 (App. Div. 2004) (noting that evidence admissible as a business record "must be carefully scrutinized for inadmissible included hearsay and other potentially unreliable information").

No further discussion is necessary when R.X.V. provides no other argument for why the trial court erred in admitting the reports by non-testifying experts, other than his "it logically follows" argument based on In re E.S.T., supra, which we have rejected.

IV

R.X.V. argues in Point IV that "the trial court drastically circumscribed [R.X.V.'s] right to cross-examination by prohibiting the defense from fully questioning Dr. Zeiguer" about "how actuarials are used to predict risk of reoffense." R.X.V. sought to question Dr. Zeiguer about whether the predictability of actuarials are similar "to the predictability that one might find in life insurance actuarial analysis" and further question him about the "dispute within the psychiatric community" regarding the use of clinical judgment in actuarial analysis resulting in a poorer prediction.

The trial judge properly precluded R.X.V.'s line of questioning, especially in light of the fact that Dr. Zeiguer testified that he did not make his overall determination regarding R.X.V. "on the basis of [the actuarial] scales." Rather, Dr. Zeiguer used the actuarial scales "as a background" and used his "clinical judgment" in this case to determine predictability.

Moreover, R.X.V.'s own expert, Dr. Fulford, testified that he felt "supplemental clinical judgment," versus reliance on the actuarials, was appropriate. Indeed, Dr. Fulford testified that the creator of the Static-99 test personally told him that when a person exhibits factors like a psychiatric disorder, it is acceptable to "step aside from the [actuarial] scales."

While we recognize the importance of the right to cross-examination, we discern no abuse of discretion in limiting the cross-examination of Dr. Zeiguer as the trial judge did when all of the experts did not place reliance on actuarial scales. See State v. Murray, 240 N.J. Super. 378, 394 (App. Div.) certif. denied, 122 N.J. 334 (1990).

V

The judgment of November 6, 2003, committing R.X.V. to the STU for the custody, care and treatment of sexually violent predators is affirmed.

This phone call, not included in the record, is described in Dr. Zeiguer's report as a "controlled" call on November 17, 1997, between R.X.V. and his sister, the mother of J.H.

(continued)

(continued)

28

A-3508-03T2

RECORD IMPOUNDED

January 29, 2009