IN THE MATTER OF THE CIVIL COMMITMENT OF R.F.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0018-11T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF R.F.

SVP-396-05.

________________________________________________________________

November 15, 2011

Argued October 25, 2011 - Decided

Before Judges Carchman and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-396-05.

Joan Van Pelt, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney).

Mark Singer, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney).

PER CURIAM

Appellant, R.F., appeals from the Law Division's April 12, 2011 judgment continuing his involuntary commitment to the Special Treatment Unit (STU) under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He argues that the State presented insufficient evidence to support his continued commitment. We have thoroughly reviewed the record, and we find appellant's argument lacking in merit. We are satisfied the judge's findings are amply supported by the record. Accordingly, we affirm.

The predicate offense that resulted in appellant's conviction and, ultimately, his civil commitment is based on events that transpired on December 30, 1992. On that date, appellant entered a travel agency in Trenton and asked 32-year-old K.B. about the purchase of airline tickets for a honeymoon trip. K.B. told appellant she would check prices for him, and he said he would return the next day. Instead, he returned one hour later. After another customer left the shop, appellant asked K.B. to see some jewelry in the counter at the rear of the shop. As K.B. attempted to open the showcase, appellant grabbed her from behind around her neck. He dragged her into the bathroom, ripped her clothes off and started to beat and threaten her. He pulled down his pants and attempted to rape her, but he was unable to perform. Enraged, he grabbed a rug from the floor and attempted to strangle her. After, he banged her head against the sink, breaking the sink, and then tried to force her head into the toilet bowl. He also threatened her with a pocketknife and demanded money. After approximately twenty minutes, appellant fled, and K.B.'s screams from the bathroom brought help and eventually the police. It was determined that appellant must have been observing the store because on his first visit he made inquiries regarding another employee who was present at an earlier date. K.B. later identified appellant and provided the police with his name and telephone number.

On July 14, 1993, appellant pled guilty to second-degree attempted aggravated sexual assault, N.J.S.A. 2C:14-2a, and first-degree robbery, N.J.S.A. 2C:15-1b, in connection with the December 30, 1992 incident. In January 1994, he was sentenced to a term of twenty years incarceration.

On May 18, 2005, prior to appellant's parole eligibility date, the State filed a Petition for Civil Commitment under the SVPA. According to this petition, appellant had a history of sexual and other offenses dating back to 1970, including two juvenile adjudications for attempted rape and adult convictions for sexual assault, sodomy, public lewdness, robbery and taking and receiving stolen property.

The record revealed that in April 1970, while serving a probationary sentence as a juvenile for two sexual-related offenses, appellant entered a residence and attempted to rape a fifteen-year-old girl. As a result, in July 1970, appellant pled guilty to assault with intent to commit rape and was sentenced to an indeterminate term, not to exceed twelve years, of which he served nine years in prison.

Finally, in 1984, appellant was sentenced to probation in Georgia for a charge of sodomy/aggravated sodomy.

On May 20, 2005, appellant was temporarily committed to the STU. Following a hearing and stipulation on the complaint for commitment, the judge found appellant to be a sexually violent predator with a high likelihood of re-offending, and thereafter in June 2005, appellant was committed to the STU for a period of twelve months. Subsequent reviews were held, and appellant's commitment was continued in each of those reviews.

The present review was conducted on April 8 and 12, 2011, at which time Judge James Mulvihill considered the expert testimony of psychologist Jamie Canataro, Psy.D. and author of appellant's Treatment Progress Review Committee (TPRC) report; psychiatrist Pogos Voskanian, M.D.; and psychologist Timothy Foley, Ph.D., as well as the testimony of appellant and an investigator for the Public Defender's office, Brian Nolan. The court considered, among other things, written psychological reports from Dr. Canataro, Dr. Voskanian and Dr. Foley and a discharge report from Mr. Nolan.

According to the testimony and reports, appellant has had issues with sexual deviancy since adolescence. His biological father was an alcoholic, and appellant was placed in a foster home when he was three months old. Appellant's first foster father beat and raped his foster mother in front of appellant when appellant was six or eight years old. When that happened, appellant reported feeling both fear and satisfaction. Appellant would use his foster father's violent tendencies to blackmail his foster mother: "[w]hen I didn't get my way from my foster mother I would tell my foster [father]. He would rape her"; "I wanted her to feel the same way I felt when she said no . . . ."

He was later transferred to a different foster family where he was raped repeatedly by his second foster father and his foster father's son. Appellant also reported being physically abused by both foster families. While living with his second foster family, appellant "set fires, killed kittens and experienced explosive feeling of rage." Appellant committed a rape for the first time when he was thirteen years old and continued to rape younger girls throughout his adolescence.

Appellant dropped out of high school after the ninth grade due to violence against his teachers; he subsequently obtained his GED while he was admitted for sex offender treatment at what is now the Adult Diagnostic & Treatment Center in Avenel, New Jersey (ADTC). He indicated that he "faked his way through [this] treatment by taking problems from other inmates in groups, and subsequently identifying them as his problems."

Appellant claimed he raped over sixty prostitutes and gay men. He also reported raping hitchhikers and homeless people. "[I]f they said 'no' I raped them . . . and if they said 'yes' I still raped them . . . if I gave them food and soap to clean themselves they owe me." Appellant preferred to hear "no" in response to his requests for sex. He was married briefly, during which time he raped his wife as well. "I told her I had a marriage license I own you . . . you do what I say . . . ." He reported that most of his sexual encounters throughout his life were non-consensual.

Regarding the predicate offense, R.F. admitted he stalked the victim for several days and masturbated while doing so. Also, during the crime, he became sexually stimulated while beating her. He wanted to kill the victim and thought he had when she stopped moving. He then ran to his house and masturbated while fantasizing about his crime, covered in her blood.

Appellant has a history of abusing alcohol, marijuana, cocaine and other drugs. His medical history is significant for HIV, Hepatitis B, diabetes, hypertension and neuropathy. He was diagnosed with both HIV and Hepatitis B before he committed the predicate offense. He also has a speech impediment (stuttering). At the time of the hearing, he had recently had multiple surgeries for rectal warts and was wearing a colostomy bag, which was preventing him from attending sex offender treatment at the STU.

Dr. Canataro testified that R.F. suffers from sexual sadism; paraphilia not otherwise specified (NOS) non-consent; alcohol, cannabis, and cocaine dependence in a controlled environment; and antisocial personality disorder. The diagnosis of sexual sadism is very rare and indicates he "derives sexual excitement from the suffering of his victims." The diagnosis of paraphilia NOS non-consent indicates that appellant derives sexual arousal from non-consensual sexual interactions. Appellant said to Dr. Canataro that consensual sex is "boring" and that in order to ejaculate, he needs to "take it to that next level" by beating his victims. Dr. Canataro maintained that this combination of sexual sadism and paraphilia "is well ingrained" in appellant, beginning "probably in his teenage years" and reinforced over four decades through masturbation. Dr. Canataro opined that "it could possibly be his only sexual arousal pattern."

Appellant scored a nine on the Static-99R test, which, according to Dr. Canataro, places him in the "high range to sexually reoffend." Dr. Canataro acknowledged that once appellant turns sixty years old, his score will be reduced to seven due to his age, but that a score of seven still places him in the high risk range.

Dr. Canataro indicated that appellant "does well in treatment." For example, he "takes full responsibility for . . . his offenses in the past" and "has been exploring his own personal abuse and . . . victimization and how that could have contributed to his sexual offending." Dr. Canataro acknowledged that appellant's defensiveness and coping skills have shown improvement over the past five years of treatment. He has taken the floor in group therapy on multiple occasions. He has completed multiple modules and treatment groups at the STU, including ones on anger management, relapse prevention and substance abuse. He also advanced to Phase 3 of his STU treatment quickly, bypassing Phase 2 entirely.

However, he has had to repeat some modules, including arousal reconditioning and relapse prevention II and III. Appellant has also not yet advanced to Phase 4. According to Dr. Canataro, advancement to Phase 4 "would indicate that he has accomplished most of what he needs to accomplish in treatment, as well as with a discharge plan he could be safely managed into the community." Dr. Canataro explained that "we don't believe that this is . . . appropriate . . . . [E]ven acknowledging how well he has done in the five years . . . [it] is not enough to consider [appellant] safe within the community at this time . . . ." Dr. Canataro asserted that "given his history, [appellant] is going to need a lot of treatment in order for people to feel comfortable that he can advance in treatment and eventually be released."

Dr. Canataro admitted that she had not had the opportunity to factor appellant's recent surgeries, including the attachment of the colostomy bag, into her report, and that medical limitations such as these would affect her evaluation of the risk of re-offending.

Dr. Voskanian testified that appellant is an "extremely violent person and his violence presents itself during his offenses in a sexual manner." Regarding the predicate offense, Dr. Voskanian stated that "[t]he excessive degree of that brutality, violence, coupled with sexual arousal speaks of [an] extremely poor prognosis . . . . [b]ecause it points to severe sexual pathology, especially in this case where he's capable of . . . communicat[ing] with this woman in a socially appropriate manner." Dr. Voskanian noted that appellant's inability to get an erection while he was beating his victim "is very diagnostic of sexual sadism."

Dr. Voskanian asserted that, although appellant behaves "exemplary" while institutionalized, "[o]utside, he promptly reoffends." According to Dr. Voskanian, the fact that appellant had received sex offender treatment in the past indicates that while appellant is receiving treatment, "he can listen to what is being told to him, he can verbalize it. However, when nobody is watching him directly, he's not in a structured setting, he's not able to maintain that therapeutic gain." Appellant "verbalize[s] that he feels bad for his victims[;] however, his expressions do not coincide with what he's saying[:] the rigidity, the anger, the exhilaration when he speaks about his offenses." Dr. Voskanian testified, "I do not believe . . . he has a capacity for empathy." Dr. Voskanian acknowledges that appellant's STU progress reports indicate he participates in group therapy, has exhibited growth in his treatment and appears sincere in his desire to change. However, Dr. Voskanian contends that "[appellant's] emotionality is connected not to empathy to his victims, but to his own history of being victimized."

Dr. Voskanian diagnosed appellant with sexual sadism, paraphilia NOS, rule-out voyeurism, polysubstance dependence in a controlled environment, and antisocial personality disorder. He described the various diagnoses of sexual sadism and paraphilia as "pervasive," i.e., unlikely to change.

Dr. Voskanian indicated that appellant is "at a high risk" of sexually offending. Dr. Voskanian claimed that appellant's current medical condition, including his recent surgeries and attachment of a colostomy bag, would not affect his risk assessment because "[i]t does not interfere with [appellant's] sexual function."

Dr. Foley indicated that he diagnosed appellant with sexual sadism, antisocial personality disorder and probable substance dependence. However, Dr. Foley noted that he considers appellant's antisocial personality disorder "in remission":

Generally, you don't say "in remission" to a personality disorder.

I mean, all DSM diagnoses are kind of forever, particularly[] the personality disorders, but I don't see any evidence that it's operating right now in any kind of a significant or noteworthy way, so that's why I added in remission.

Dr. Foley maintained that appellant has done "extremely well in treatment . . . . My impression . . . is that he is . . . rather transparent about his life. He expresses remorse for that, he expresses resolve to not revisit . . . any of the things that have got[ten] him into trouble for most of his life." Dr. Foley believes that appellant is not "fak[ing] treatment progress." He believes that appellant considers his treatment rewarding: "he feels good about the treatment, he feels good about his participation." Unlike when appellant was at the ADTC, appellant is now "older, more mature" and has "profited from the treatment that he has availed himself of for a number of years in [STU]."

Regarding appellant's speech impediment, Dr. Foley observed that "[s]tutterers typically garner . . . negative evaluations from the listener . . . . [S]tuttering is difficult and uncomfortable . . . for most people to listen to, so it creates an aversive state in the listener that then is placed back on the speaker."

Dr. Foley opined that "it's less than highly likely" that appellant will re-offend if released because of his age and participation in treatment. Dr. Foley suggested that a conditional and monitored discharge would decrease the risk that appellant would re-offend and that appellant would be "very amenable to treatment and to supervision." Dr. Foley admitted that he had not reviewed any discharge plan for appellant.

Appellant testified on his own behalf. He urged that:

Today, I'm a different [person]. I have respect for all races of people, men and women. I have no right to violate their security, to violate their job or bring harm down upon them. Today, I'm still dealing with what I did to people and it still hurts because now I see that at that particular time I was a monster. And I hurt a lot of people, men, women and the lady in the travel agency on my last predicate offense.

I caused them harm, their family harm, their children harm. I caused her harm, her husband harm . . . and their children harm . . . . I still take that responsibility and I'm accountable. And I'm always going to be accountable for that.

Appellant noted that if he were released, he would live with his cousin, a female nurse who lives in Trenton, New Jersey.

Mr. Nolan, an investigator for the public defender's office, also testified. According to Mr. Nolan, appellant had multiple family members willing to help him upon release, including two brothers, an aunt and four cousins. Appellant would live in one room of his cousin's five-bedroom house, which had two other occupants, with a rent of $500 per month. Mr. Nolan had not visited the house and did not know how many bars were in its vicinity. Mr. Nolan did not perform background checks on any of appellant's listed family members or the other occupants of his cousin's house. Upon discharge, appellant planned to attend weekly sex offender group therapy with Kenneth Singer, M.S.W. Mr. Nolan's discharge report also addressed other issues, such as transportation, income, medical treatment and Megan's Law registration.

In continuing R.F.'s civil commitment, the court found the testimony of Dr. Canataro, Dr. Voskanian, Dr. Foley and appellant to be credible, though it disagreed with Dr. Foley's risk assessment. The court explained, "I think the higher risk is somewhat waning . . . but it hasn't waned sufficiently where it's not clear and convincing that he is still a high risk to sexually reoffend." The court also found Mr. Nolan's discharge report to be "a very sketchy preliminary plan." Judge Mulvihill concluded,

I do find at this time there is still clear and convincing evidence that [appellant] . . . continues to suffer from . . . personality disorders [predisposing him to] sexual violence.

Sexual sadism is a very serious diagnosis, very rare . . . . And while he's 59 years old, he has medical problems . . . I find clear and convincing evidence from Dr. Voskanian and also what Dr. Canataro testified to and the Static-99R that he's still highly likely to engage in . . . acts of sexual violence . . . if not in a secure facility of controlled care and treatment.

An involuntary civil commitment may follow completion of a sentence, or other criminal disposition, when the offender "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; N.J.S.A. 30:4-27.32a.

[T]he State must prove that threat [to the health and safety of others because of the offender's likelihood of 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.

[In re Commitment of W.Z., 173 N.J. 109, 132 (2002).]

The judge must address "his or her present serious difficulty with control over dangerous sexual behavior[,]" and the State must establish, by clear and convincing evidence, that it is highly likely that the committee will reoffend. Id. at 132-33. See also In re Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

Once an individual has been committed under the SVPA, a court must conduct an annual review hearing to determine whether the committee will be released or remain in treatment. N.J.S.A. 30:4-27.35. The burden remains upon the State to prove by clear and convincing evidence that the committee continues to be a sexually violent predator, as defined in the SVPA and interpreted in W.Z., supra, 173 N.J. at 131-32. "[A]n 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." Id. at 130.

In reviewing a commitment under the SVPA, our appellate review is "exceedingly narrow"; the trial court's decision should be given the "utmost deference" and will be subject to modification "only where the record reveals a clear abuse of discretion." In re Civil Commitment of W.X.C., 407 N.J. Super. 619, 630 (App. Div. 2009), aff'd, 204 N.J. 179 (2010), cert. denied, ___ U.S. ___, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011). See also In re Commitment of J.M.B., 395 N.J. Super. 69, 89 (App. Div. 2007) (J.M.B. I), aff'd, 197 N.J. 563 (2009) (J.M.B. II); In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "[I]t is our responsibility to canvas the record, inclusive of the expert testimony, to determine whether the findings made by the trial judge were clearly erroneous." W.X.C., supra, 407 N.J. Super. at 630 (citing In re D.C., 146 N.J. 31, 58-59 (1996)).

We are satisfied from our review of the record that the judge's findings are amply supported by substantial credible evidence based on the clear and convincing standard required by the SVPA. J.M.B. II, supra, 197 N.J. at 597. See also State v. Locurto, 157 N.J. 463, 470-71 (1999). We affirm substantially for the reasons stated by Judge Mulvihill in his oral opinion of April 12, 2011.