IN THE MATTER OF THE CIVIL COMMITMENT OF R.M.T.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0024-10T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

R.M.T. SVP-375-04.

______________________

December 29, 2010

Argued December 13, 2010 Decided

Before Judges Lisa and Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-375-04.

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

Cindi Seider Collins, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney).

PER CURIAM

R.M.T. appeals from a May 21, 2010 judgment continuing his civil commitment to the Special Treatment Unit (STU), pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38. We affirm, substantially for the reasons set forth in Judge Freedman's comprehensive sixty-four page oral opinion placed on the record on May 21, 2010.

I

In 2002, when he was seventeen years old, R.M.T. was adjudicated delinquent for committing acts which, if committed by an adult, would have constituted sexual assault. To summarize, R.M.T. had been sexually molesting his two sisters over a period of many years. However, he has since admitted to sexually assaulting twenty-nine other children, both boys and girls, as well as committing sexual acts with family pets.

R.M.T. was initially committed to the Special Treatment Unit (STU) in 2004, after serving his sentence for delinquency. Orders were entered continuing his commitment on the following dates: June 28, 2005, June 12, 2006, May 26, 2009, and May 21, 2010. R.M.T. appealed the June 12, 2006 judgment, which we affirmed. In re Civil Commitment of R.M.T., No. A-5768-05 (App. Div. Feb. 5, 2007).

The following evidence was presented at the May 19, 2010 hearing which gave rise to this appeal. Dr. Pogos H. Dr. Voskanian, a psychiatrist who evaluated R.M.T, concluded that he suffers from a mental abnormality which predisposes him to commit another sexual offense. Dr. Voskanian testified that R.M.T. simply "cannot refrain from sexually acting out behaviors." Dr. Voskanian diagnosed R.M.T. with pedophilia, paraphilia [not otherwise specified], zoophilia, rule-out transvestic fetishism, exhibitionism, voyeurism and frotterism. Regarding the transvestic fetishism and voyeurism diagnoses, Dr. Voskanian testified that, normally, they would not concern him. In R.M.T.'s case however, Dr. Voskanian believed that, "in conjunction with more extreme pathology of arousal to children, animals, multiple victims, it points to a more severe degree of sexual disturbance and more paraphilias."

Dr. Voskanian testified that he doubted the sincerity of R.M.T.'s treatment efforts. Dr. Voskanian asserted that R.M.T. "tends to admit to things that are not necessarily sexual offense[s]," which Dr. Voskanian believed "raises issues regarding [the] sincerity of [R.M.T.] engaging into treatment and presenting himself." By overstating the number of offenses and victims, Dr. Voskanian testified that R.M.T. is acting "hyper-moral" and "presenting himself as too good." Dr. Voskanian also discussed R.M.T.'s manipulative and secretive behavior during therapy sessions, which "go hand-in-hand with [his] assessment of [R.M.T.] being superficially engage[d] into treatment and not being sincere."

Dr. Voskanian raised several other concerns regarding the progress of R.M.T.'s treatment. Dr. Voskanian opined that there were "some inconsistencies" in the reports R.M.T. provided regarding the progress of his treatment. Dr. Voskanian described the results of one of R.M.T.'s polygraph examinations1 as concerning, and asserted that they suggest a "good capacity to present himself in a very, very believable manner." Dr. Voskanian also testified that R.M.T. "over-intellectualizes, over-rationalizes, but there is a sense of not caring, not having any empathy, and he was just talking, basically." Dr. Voskanian concluded that he did not believe R.M.T. has made "actual progress."

Dr. Voskanian opined that the combination of R.M.T.'s sexual pathology, borderline personality disorder and history of alcohol abuse "elevates the risk" that R.M.T. will commit another sexual offense. Dr. Voskanian did not believe that R.M.T. has undergone sufficient treatment to keep from "acting out," because "he's still described as manipulative, as wearing [a] mask, continues to have inappropriate sexual contact at the S.T.U., rationalizes his behaviors, [and] is not considered as [a] reliable or sincere person who is engaged in treatment."

The State also presented testimony from Dr. Christine E. Zavalis, a psychologist who authored the report of the Treatment Progress Review Committee (TPRC). Dr. Zavalis testified that R.M.T. has received positive feedback from his treatment team and "is actively participating in treatment." Dr. Zavalis, however, raised several concerns regarding R.M.T.'s rehabilitation. Dr. Zavalis discussed R.M.T.'s relationship with another resident at S.T.U. and remarked that the partner may "potentially" be another victim. Dr. Zavalis stated that, "if this person is cognitively limited, then there's . . . the possibility of victimizing that person . . . [and] reinforcing his offending dynamics." Dr. Zavalis also echoed Dr. Voskanian's concern that R.M.T.'s intelligence makes it "difficult to distinguish between . . . a sincer[e], genuine engagement in treatment, as opposed to him perhaps being able to present very well, but not really internalizing it."

Dr. Zavalis also testified that R.M.T. displays "some psychopathic traits," which may cause someone "to manipulate their treatment providers to appear like they're doing the work without really . . . internalizing what they're learning or what they're saying. They can kind of talk a good game, but it doesn't always go deeper than that."

Dr. Zavalis further testified that R.M.T. is in the early stages of treatment, having only in the past year indicated that he wants to reduce his sexual deviance. Dr. Zavalis asserted that "there are some issues that would be ongoing" and that would "need to be addressed to a certain degree . . . before [R.M.T.] would be . . . able to go, be released and be safe."

Dr. Zavalis diagnosed R.M.T. with pedophilia, paraphilia, alcohol abuse and borderline personality disorder, which "overlap[s]" with bipolar-2 disorder. Dr. Zavalis explained that borderline personality is "much more . . . difficult to manage" than bipolar disorder, because "it's much more ingrained and plays out in all aspects of life."

R.M.T. presented testimony from Dr. Christopher P. Lorah, a psychologist. Dr. Lorah opined that "[R.M.T.] has sufficiently ameliorated his risk . . . and he's currently below a highly likely level" of committing another sexual offense. Dr. Lorah noted the positive feedback R.M.T. received from his treatment team, which Dr. Lorah described as "very, very glowing and very positive." Dr. Lorah diagnosed R.M.T. with pedophilia and bipolar-2 disorder, but "believe[d] the treatment that [R.M.T.] has received has significantly reduced his risk below the highly likely threshold." Disagreeing with the diagnoses of Dr. Voskanian and Dr. Zavalis, Dr. Lorah did not diagnose R.M.T. with personality disorder.

Regarding the sincerity of R.M.T.'s treatment efforts, Dr. Lorah testified that he believed R.M.T. has fully integrated treatment and "believe[d] it would be very, very hard if not impossible to put on a front for seven [or] five years." Relying on his experience working with sex offenders in out-patient treatment, Dr. Lorah testified that "people can't fake it long."

Dr. Lorah recommended that R.M.T. be placed into a "community re-integration" program as soon as possible and "participate in sex offender specific treatment." Furthermore, Dr. Lorah testified that R.M.T. would "be under Community Supervision for Life," which he testified has "demonstrated remarkable . . . ability to reduce recidivism."

In his lengthy opinion, Judge Freedman credited the testimony of Dr. Voskanian and Dr. Zavalis, but relied primarily on Dr. Zavalis's assessment of R.M.T.2 Agreeing with Dr. Voskanian's and Dr. Zavalis's diagnoses, the judge found that R.M.T. "suffers from a personality disorder." The judge rejected Dr. Lorah's conclusion that R.M.T. did not suffer from a personality disorder. The judge believed R.M.T. was "trying to downplay his deviant arousal . . . so that he can get into the position of saying that the medication is controlling it and, therefore, he should be released."

Relying primarily on Dr. Zavalis's assessment, the judge found that R.M.T. has progressed in his treatment, but found that "it's a first step, an early step." The judge concluded that "both [R.M.T.] and his expert overestimated [R.M.T's] treatment progress" and found that "there are still substantial problems." The judge reasoned that R.M.T. "has not progressed far enough in treatment to say with confidence that he has control over his arousal." The judge also expressed his concern "that this whole thing has been one big manipulation, which is certainly possible. [R.M.T.] is intelligent and manipulative." Before R.M.T. can be a candidate for potential release, the judge stated that "he's going to have to show that his progress is real."

Based on the facts as he found them, Judge Freedman concluded that R.M.T. remained highly likely to commit another sexually violent offense if released and therefore ordered that R.M.T. remain civilly committed.

II

A criminal offender may be involuntarily committed 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. The State bears the burden to prove a threat to the health and safety of others because of the likelihood the offender will engage in sexually violent behavior "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." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address the offender's "present serious difficulty with control," and the State must establish that it is highly likely the offender will reoffend by clear and convincing evidence. Id. at 132-34. See also In the Matter of the Civil Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

Our review of Judge Freedman's decision 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). We "canvass the record inclusive of the expert testimony to determine whether the findings of the trial judge were clearly erroneous." In re Civil Commitment of J.M.B., 395 N.J. Super. 69, 90 (App. Div. 2007), aff d, 197 N.J. 563 (2009). We must give the "'utmost deference' to the trial judge's determination of the appropriate balancing of societal interest and individual liberty." Id. at 89 90. We will modify a civil commitment judgment only upon a finding that the trial court clearly abused its discretion. In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001).

Having reviewed the record, we conclude that Judge Freedman's findings are supported by the expert testimony he found credible. And we owe particular deference to his credibility determinations. See State v. Locurto, 157 N.J. 463, 474 (1999). Both Dr. Voskanian and Dr. Zavalis testified that R.M.T. continued to suffer from mental abnormalities and personality disorders that placed him at a high risk to commit acts of sexual violence. Moreover, the record does not support R.M.T.'s contention that he could be conditionally discharged without presenting a high risk of reoffending. See In re Commitment of JJF, 365 N.J. Super. 486, 500 (App. Div.), certif. denied, 179 N.J. 373 (2004). We find no abuse of Judge Freedman's discretion in ordering R.M.T.'s continued commitment under the SVPA.

A

1 R.M.T. passed a polygraph examination by claiming he abused twenty-one victims, but then later reported additional victims. Dr. Voskanian explained that this pattern was unusual.

2 Regarding the documentary evidence in the record, the judge noted that, in reaching his decision, he did not rely on previous reports by experts who evaluated R.M.T. and only referred to them in his opinion to support his credibility assessment of the experts who testified at the hearing.