IN THE MATTER OF THE CIVIL COMMITMENT OF R.X.W., SVP-349-03

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4078-08T24078-08T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

R.X.W., SVP-349-03.

_________________________________________________

 

Argued October 28, 2009 - Decided

Before Judges Payne and Miniman.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Docket No.

SVP-349-03.

Brian Patrick Hughes, Assistant Deputy

Public Advocate, argued the cause for

appellant (Ronald K. Chen, Public Advocate,

attorney).

David L. DaCosta, Deputy Attorney General,

argued the cause for respondent State of

New Jersey (Anne Milgram, Attorney General, attorney).

PER CURIAM

R.X.W., adjudged a sexually violent predator pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.32, and civilly committed to a State special treatment unit (STU), appeals from an April 6, 2009 order continuing his involuntary commitment. By agreement of the parties and permission of the court, the appeal was argued without briefs. However, in oral argument before us, counsel for R.X.W. argued that (1) the court's decision was improperly based on hearsay, consisting of prior records of R.X.W.'s offenses, evaluations and treatment; (2) the court should have drawn a negative inference pursuant to State v. Clawans, 38 N.J. 162 (1962), from the failure of the State to call as witnesses the authors of the documents upon which the testifying experts relied; (3) the testimony of psychiatrist Pogos Voskanian should have been barred because his attempted interview with R.X.W. was conducted more than five days prior to the hearing, in violation of N.J.S.A. 30:4-27.30(b); (4) actuarial evidence of R.X.W.'s risk of reoffense was improperly admitted; and (5) R.X.W.'s right of confrontation under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) and State v. Buda, 195 N.J. 278 (2008) was violated. We affirm.

In deciding this appeal, we recognize the following bedrock principles: A person who has committed a sexually violent offense may be civilly committed only if "suffer[ing] 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. 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." 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). The 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.

Once a person has been initially committed, a court must conduct an annual review hearing to determine whether the individual will be released or remain in treatment. N.J.S.A. 30:4-27.35. Both an order of commitment and an order of continued commitment must be based on clear and convincing evidence that an individual who has been convicted of a sexually violent offense suffers from a mental abnormality or personality disorder, and presently has serious difficulty controlling harmful sexually violent behavior such that it is highly likely the individual will re-offend if not committed to the STU. In re Commitment of W.Z., supra, 173 N.J. at 132-33; In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32; N.J.S.A. 30:40-27.35. The State maintains the burden of proof and must demonstrate by clear and convincing evidence that the individual needs continued involuntary commitment as a sexually violent predator. N.J.S.A. 30:4-27.32(a). "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." In re Commitment of W.Z., supra, 173 N.J. at 130; see also In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-57 (App. Div. 2002).

In a case such as this, our scope of review is extremely narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)). "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, 38-39 (1996).

In this matter, an order committing R.X.W. to the STU pursuant to the SVPA was entered on July 13, 2004. The order was appealed, and we affirmed in an unreported opinion. In the Matter of the Civil Commitment of R.X.W., No. A-0648-04T2 (App. Div. October 25, 2006).

The record reflects that R.X.W.'s index offense occurred in 1994. It is alleged that he brutally raped a retarded woman after forcing her into an alley. On June 30, 1994, R.X.W. pled guilty to third-degree terroristic threats to kill, N.J.S.A. 2C:12-3b, and fourth-degree sexual contact, N.J.S.A. 2C:14-3b. He was sentenced to five years in custody on the terroristic threats charge, and to a concurrent eighteen-month sentence for the criminal sexual contact. R.X.W. has not denied his conduct. However, he has denied that this crime was sexually motivated, contending instead that it was motivated by anger and substance abuse.

Previously, in 1985, R.X.W. was charged with second-degree sexual assault, N.J.S.A. 2C:14-2c, third-degree terroristic threats to kill, N.J.S.A. 2C:12-3b, and third-degree criminal restraint, N.J.S.A. 2C:13-2, upon evidence that he had repeatedly thrown to the ground, raped, digitally penetrated, committed cunnilingus upon, and attempted to sodomize an eighteen-year-old woman while restraining her and uttering threats to kill. He was found guilty after a trial by jury and was sentenced to nine years in custody for the sexual assault and to four-year concurrent sentences on the other charges. Additionally, in 1986, R.X.W. was tried and found guilty of committing statutory rape, N.J.S.A. 2C:14-2a, receiving a seven-year sentence for the crime.

Just prior to his civil commitment, R.X.W. was serving a three-year sentence for second-degree aggravated assault, N.J.S.A. 2C:12-1b(2), arising out of a domestic violence incident occurring on September 29, 2001. The record also indicates the commission by R.X.W. of multiple additional crimes of a non-sexual nature, both as a juvenile and as an adult, including two alcohol-related and four drug-related crimes.

While committed, R.X.W. progressed to Phase-2, the introductory level of treatment. Defendant was interviewed by a Treatment Progress Review Committee (TPRC) comprised of non-treating psychological experts on July 20, 2005, and in a report issued on August 1, 2005, he was found in need of further treatment. Commencing in May 2006, defendant refused treatment, and in October 2006, he was placed in treatment refusal status, where he remains. R.X.W. refused to participate in psychiatric interviews with Dr. Voskanian in connection with yearly reviews in 2007 and 2008. He also refused to participate in such an interview on March 11, 2009. Additionally, R.X.W. refused to meet with defense counsel in connection with the 2009 review hearing, and he refused to attend that hearing, conducted on April 3, 2009.

At the hearing, testimony was provided by a member of the TPRC reviewing R.X.W.'s case, psychologist Shawn McCall, and by psychiatrist Dr. Voskanian. Dr. McCall explained at the hearing that the TPRC consisted of a panel of doctoral-level psychologists who met to assess the progress of residents in treatment at the STU and to make recommendations for the direction of future treatment and placement in certain phases of treatment. The doctor testified that the TPRC was constituted, in part, to counteract the possibility of treater bias in favor of a resident. A report regarding R.X.W. had been issued by the TPRC on November 5, 2008. However, R.X.W. had refused to be interviewed in connection with the formulation of that report.

Significantly, Dr. McCall confirmed through a review of the notes concerning R.X.W.'s treatment up to one week before the hearing that he continued to refuse treatment. As a consequence, the doctor was of the opinion that, if R.X.W. were to decide to again undergo treatment, he would need to be placed in Phase-1 of the treatment module, consisting of treatment orientation. Although R.X.W. had commenced Phase-2 prior to his refusal, the doctor was unsure that he had internalized any of its teachings. As the doctor described it, Phase-1 is provided for "someone who's not even at the doorstep of becoming engaged in treatment." Instead, it is simply a rapport-building phase before actual treatment is initiated. "[W]hen we look at, you know, Phase-1, we've got someone who's not really . . . in the ballpark, they're more in the parking lot. Phase-2 would be starting to get into the game." As the result of R.X.W.'s treatment refusal, Dr. McCall testified he was "not even in the parking lot."

On the basis of prior records, including R.X.W.'s judgments of conviction, Dr. McCall diagnosed him as suffering from paraphilia not otherwise specified with two qualifications of nonconsent and/or hebephilia (an attraction to post-pubescent young people). According to the doctor, R.X.W.'s criminal history suggested that he was aroused by having dominion over women through physical force or age. Dr. McCall also made a provisional diagnosis of sexual sadism, noting R.X.W.'s use of force in excess of that required to subdue his victims. As the result of R.X.W.'s admissions, as contained in the record, and his criminal history of drug offenses, Dr. McCall also diagnosed polysubstance dependence in remission as the result of the controlled environment. He noted that R.X.W. had not attended treatment for his dependence while at the STU. Additionally, Dr. McCall found that R.X.W. had a long-standing antisocial personality disorder, manifested by his failure to respect the rights of others, his disregard of social norms and the law, and his lack of empathy. The doctor stated that R.X.W.'s mental abnormalities were not of a type that would spontaneously remit.

When asked what treatment plan he would propose for R.X.W., the doctor responded that, given his history, he did not think that R.X.W. was "going to be likely to be able to genuinely just jump in and start with really actively working on a lot of relapse prevention concepts." Rather, a foundation would have to be laid to acclimate R.X.W. to the idea of treatment and a change in himself.

Dr. McCall testified that, utilizing R.X.W.'s history, he had performed the Static-99 actuarial test to determine his risk of recidivism. The test had revealed a score of seven, which placed R.X.W. in the high risk category.

Dr. Voskanian's testimony was similar to that of Dr. McCall. He testified that, because of R.X.W.'s refusal to be interviewed, he based his report on prior records. However, the doctor stated that in doing so, he looked at the factual data contained in those records and then reached his own conclusions.

Dr. Voskanian testified that R.X.W.'s record of sexual offenses was marked by extreme violence, disregard for others, a high degree of self-centeredness, and a lack of concern for human pain and suffering. The doctor was of the opinion that R.X.W. required a great deal of therapy, which he had refused for the preceding three years. Like Dr. McCall, Dr. Voskanian did not believe that prior therapy had materially affected R.X.W. He testified:

I do not believe it had a substantial effect on him since with treatment we expect the individuals, residents to become more compliant with the rules, to accept their wrongdoing, to work on their issues, to consider societal needs that they need to better themselves in order to be released into society, into [the] community.

And for a responsible person, it would be essential as one of the components of improvement, to continue to work on themselves. Refusal to work on self, despite numerous high-risk factors, indicates disregard for societal norms and values . . . and societal considerations of what is normal sexual conduct. [R.X.W.] apparently never cared, he reoffended despite being punished, he continued with similar behaviors. And he remains the same, practically.

The doctor found that R.X.W. suffers from a mental abnormality or personality disorder that predisposed him to engage in acts of sexual violence. He, like Dr. McCall, diagnosed R.X.W. with paraphilia not otherwise specified, observing that if he needs to rape someone, he does so. Dr. Voskanian found that sexual sadism was a condition that had not been ruled out. Additionally, he noted R.X.W.'s history of abuse of drugs and alcohol, including alcoholic blackouts. The doctor also diagnosed R.X.W. as having an antisocial personality disorder manifesting through his lack of regard for others, minimal empathy, and manipulative nature. He observed that R.X.W.'s paraphilia and antisocial personality disorder "markedly" elevated his risk of reoffense a risk that became even higher as the result of the disinhibiting effects of his substance abuse.

On April 6, 2009, the judge conducting the hearing placed his oral opinion on the record. In its course, the judge found that the State had proven by clear and convincing evidence that R.X.W. had committed a predicate sexually violent offense, that he suffered from a mental abnormality that caused him to have serious difficulty in controlling his sexual behavior, and that he was highly likely to engage in acts of sexual violence in the foreseeable future if not confined to a secure facility with control, care and treatment. Accordingly, the judge ordered that R.X.W.'s commitment be continued, and that the matter be reviewed further on March 19, 2010. This appeal followed.

As the result of our review of the record and applicable law, we conclude that the issues raised by R.X.W. are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We add only the following brief comments.

The record in this matter contains competent evidence that, at the time of his commitment, R.X.W. satisfied the criteria for involuntary civil commitment pursuant to the SVPA. The judge presiding at this commitment hearing found such to be the case, and we agreed on appeal, finding R.X.W.'s arguments to the contrary to be negligible. Although we do not have a record of the yearly reviews that followed, it appears that they took place. At least until R.X.W. refused treatment in May 2006, treatment records would have been available as a foundation for those reviews. According to Dr. Voskanian, R.X.W.'s progress was only "so-so," and for that reason, his involuntary commitment was continued.

Nothing in the record before us suggests that, since R.X.W. commenced his treatment refusal in May 2006, his condition has improved. At the time of the refusal, R.X.W. had not completed even the introductory phase of his treatment. We have been offered no basis for concluding that spontaneous remission of defendant's mental abnormalities has taken place. Indeed, both Dr. McCall and Dr. Voskanian testified to the contrary. It is thus clear that continued commitment is mandated.

We find the facts of this case to provide a poor vehicle for the legal arguments made by defense counsel. As the result of R.X.W.'s refusal to be interviewed or participate in treatment, Dr. McCall and Dr. Voskanian were required to base their opinions on their review of prior records. Nonetheless, we have been offered nothing to suggest that the evidence that provided the foundation for the experts' opinions was unreliable. See In re Commitment of G.G.N., 372 N.J. Super. 42, 57 (App. Div. 2004) (rejecting the applicability of Crawford to civil commitment proceedings and focusing on the reliability of evidence forming the foundation for the experts' opinions). In particular, we note that in two instances, sexually-related charges against R.X.W. were tried and resulted in jury verdicts against him. We thus have confidence that the underlying facts of those matters were basically as claimed. In the third instance, R.X.W. entered a plea to charges against him. However, he has not denied the underlying facts, but only his sexual motivation.

Nor is there any basis to challenge the experts' reliance on other evaluative and treatment materials. As we have previously held, precedent should not be interpreted "to preclude reliance, in part, on prior evaluations conducted for other purposes . . . as long as the opinion ultimately rendered at the . . . commitment hearing is that of the witness based on his or her own evaluation of the committee, prior offenses, and objective test data." In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 492 (App. Div.), certif. denied, 185 N.J. 393 (2005); see also In re Civil Commitment of J.M.B., 395 N.J. Super. 69, 93-97 (App. Div. 2007), aff'd 197 N.J. 563, cert. denied, sub nom. J.M.B. v. New Jersey, ___ U.S. ___, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009); In re Civil Commitment of A.X.D., 370 N.J. Super. 198, 201-02 (App. Div. 2004); In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 611-14 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004) (all discussing the use of hearsay by testifying experts). We find that standard to have been essentially met in this case, determining that R.X.W.'s lack of cooperation should not provide grounds either for the unnecessary prolongation of the yearly hearing regarding his status or for his release.

Affirmed.

We note that the Court has approved reliance upon such actuarial predictors. In re Commitment of R.S., 173 N.J. 134, 137 (2002).

(continued)

(continued)

14

A-4078-08T2

RECORD IMPOUNDED

February 8, 2010