IN THE MATTER OF THE CIVIL COMMITMENT OF L.X.F.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2975-10T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF L.X.F., SVP-255-02.

__________________________________

February 22, 2012

 

Argued October 25, 2011 - Decided

 

Before Judges Carchman and Nugent.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP- 255-02.

 

Patrick Madden, Assistant Deputy Public Defender, argued the cause for appellant L.X.F. (Joseph E. Krakora, Public Defender, attorney).

 

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

PER CURIAM

L.X.F. appeals from the February 1, 2011 judgment continuing his commitment to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He contends the trial court gave insufficient weight to the testimony of his expert and to his progress treatment notes. Based on that premise, defendant argues the trial court's finding that he was a sexually violent predator in need of continuing involuntary civil commitment was against the weight of the evidence. We conclude the trial court's determination was supported by substantial credible evidence in the record and therefore affirm.

The SVPA provides for the involuntary commitment of any person who requires "continued involuntary commitment as a sexually violent predator." N.J.S.A.30:4-27.32a. As the Supreme Court observed in In re Civil Commitment of J.M.B., 197 N.J.563, 570-71, cert. denied, __ U.S.__, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009), "[t]he Legislature enacted the SVPA to protect other members of society from the danger posed by sexually violent predators." A "sexually violent predator" includes a person convicted of a sexually violent offense who "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.

To involuntarily commit a sexually violent predator, the State must prove "the individual poses a 'threat to the health and safety of others'" because of his or her likelihood of engaging in sexually violent acts due to a "'serious difficulty in controlling his or her harmful behavior such that it is highly likely'" that he or she will reoffend. J.M.B., supra, 197 N.J.at 571 (quoting In re Commitment of W.Z., 173 N.J.109, 130 (2002)). "Put succinctly, '[c]ommitment under the [SVPA] is contingent on proof of past sexually violent behavior, a current mental condition, and a demonstrated inability to adequately control one's sexually harmful conduct.'" Ibid. (first alteration in original) (quoting State v. Bellamy, 178 N.J.127, 136 (2003)).

L.X.F. is a sixty-two-year-old male with a lengthy history of sexual and nonsexual offenses. Since 1968, he has been charged on six occasions with sexual offenses, two of which resulted in convictions for rape. L.X.F.'s predicate offense occurred when he attempted to rape a young woman by holding an object to her back, telling her it was a gun, pushing her into a secluded area, and ordering her to remove her clothes. L.X.F. then held a broken bottle to the victim's throat but fled without completing the act because her screams attracted bystanders. On December 16, 1996, L.X.F. was convicted of second-degree attempted aggravated sexual assault and thereafter sentenced to a prison term of ten years with four years of parole ineligibility.

On June 25, 2002, the State filed a Petition for Civil Commitment under the SVPA. L.X.F. was temporarily committed in July 2002 and finally committed on December 6, 2002. He has been continually committed since then.

The parties presented the following evidence at the review hearing that occurred on non-consecutive days between October 5, 2010 and February 1, 2011. In January 2010, L.X.F. met with the STU Treatment Progress Review Committee (TPRC). In its January 22, 2010 report the TPRC recommended that L.X.F. remain committed to continue with his treatment, a recommendation consistent with the determination of L.X.F.'s treatment team at the STU. Dr. Jamie Canataro, a psychologist and member of the TPRC, testified that L.X.F. was diagnosed with paraphilia not otherwise specified (NOS), polysubstance abuse, and personality disorder NOS, with antisocial features. While Dr. Canataro commended L.X.F. for the work he had accomplished in treatment, she opined that L.X.F. had not completed Phase Three, the "core phase of treatment," and that L.X.F.'s score on the Static-99R, a test designed to predict the likelihood of sexual recidivism, indicated L.X.F. had a moderate to high risk of relapse. Dr. Canataro recommended L.X.F. remain committed to pursue longer- term treatment goals including participation in the "therapeutic community," completion of the "arousal reconditioning" module of treatment which is "very important . . . to formulate individualized relapse prevention techniques," and completion of a sexual history questionnaire and polygraph.

Psychiatrist Alberto Goldwaser testified for the State and recommended that L.X.F. remain committed at the STU. Dr. Goldwaser evaluated L.X.F. in January and September 2010, and diagnosed him with paraphilia NOS, polysubstance abuse, institutional remission, and antisocial personality disorder. The doctor observed that L.X.F. was "not progressing well in treatment," and that "[L.X.F.] expressed to me on the two occasions that I examined him, that he considers his being [in the STU] basically a joke[.]" L.X.F. expressed to the doctor that he was only in the STU "because the State needs to fill beds, or room[s] here." Dr. Goldwaser concluded that L.X.F.'s demeanor and test results indicated a high risk of reoffending.

L.X.F. offered the testimony of Dr. Douglas Martinez, a clinical psychologist who evaluated L.X.F. on September 6, 2010 and October 1, 2010. During those evaluations, Dr. Martinez performed a series of tests, including the Minnesota Multiphasic Inventory 2, the Hare Psychopathy Interview, and the Milan Clinical Multiaxial Inventory 3. Dr. Martinez concluded that L.X.F.'s risk of offending was low, but acknowledged his assessment hinged upon L.X.F.'s ability to "stay totally away from . . . alcohol, or any substance." Dr. Martinez explained:

[H]is risk [of reoffending] is low, based on three factors. One, he has been addressing his primary motivating factor, his feeling inadequate . . . . [Two], he has worked through a lot of . . . the factors that were involved in the diagnosis of antisocial personality . . . . [Three], he just absolutely has to stay totally away from . . . alcohol, or any substance . . . . [G]iven the amount of work that he's done on substance abuse treatment, if he continues that . . . I would say that his risk is low.

 

After reviewing the evidence and testimony of the witnesses, Judge John McLaughlin made the following findings of fact and conclusions of law:

[T]he State has proven by clear and convincing evidence that [L.X.F.] presently suffers from an abnormality of personality disorder, namely paraphilia, and antisocial personality disorder, NOS, as diagnosed by Dr. Canataro and Dr. Goldwaser.

 

I find that the testimony of Dr. Canataro, in particular, who was involved in the actual treatment, and with his treatment providers, has determined that [L.X.F.] . . . is going through the motions, and yet does not fully grasp the principles and the self help mechanisms to control his sexual desires, and that additional treatment is needed. They spend day to day with [L.X.F.], and are in a superior condition to determin[e] how he is responding to treatment.

 

Dr. Martinez based his opinion on . . . his interview and his response to certain tests . . . . He stated . . . [L.X.F.] . . . still suffers from these abnormalities. I find the State has also proved that these abnormalities presently cause him to have serious difficulty controlling his harmful sexually violent behavior . . . .

 

. . . .

 

Accordingly, I find that the State has proven, by clear and convincing evidence, that it is highly likely that if released, [L.X.F.] will reoffend in the reasonably foreseeable future. In fact, . . . Dr. Martinez testif[ied] that if he was released, . . . conditions . . . would be imposed, including continued sex offense treatment, substance abuse treatment, [and] close supervision, all of which he will be receiving at the [STU] . . . .

 

Accordingly, it is ordered that [L.X.F.] continue to be committed to the [STU], a secure facility for control, care, and treatment for sexually violent offenders.

 

On February 1, 2011, Judge McLaughlin entered judgment and ordered L.X.F.'s continued commitment to the STU.

L

.X.F. essentially argues in this appeal that we should reverse the trial court's credibility determinations. Absent a very obvious and exceptional showing of error, appellate courts ordinarily should not undertake to alter credibility determinations of the trial courts. See State v. Locurto, 157 N.J. 463, 474 (1999); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div. 2003) (holding that a trial court's determination regarding a commitment hearing be modified "only where the record reveals a clear abuse of discretion"). We find no such obvious and exceptional showing of error. The trial court's findings of fact and conclusions of law are fully supported by substantial credible evidence.

Affirmed.