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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-41590-12T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF L.X.S.

SVP-261-02.

December 6, 2013

Argued November 12, 2013 - Decided

Before Judges Parrillo and Kennedy.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-261-02.

Peter W. Latimer, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney).

Lucy Elizabeth Fritz, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney).

PER CURIAM

L.X.S. appeals from a March 28, 2013 order of the Law Division continuing his involuntary commitment to the New Jersey Special Treatment Unit (STU), pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

L.X.S. was born in 1963 and is currently fifty years old. He was first arrested and charged, on April 24, 1980, with acts of delinquency that, if committed by an adult, would constitute criminal sexual contact. Those charges were dismissed. However, he was subsequently adjudicated delinquent for acts of harassment, theft and burglary and was placed on probation until his nineteenth birthday; he was to attend a residential facility of the Division of Mental Retardation.

On September 23, 1983, L.X.S. was arrested and charged with burglary, aggravated sexual assault, and possession of a weapon for unlawful purpose. On April 27, 1984, he pled guilty to burglary and aggravated sexual assault. The incident involved L.X.S. going into the home of a fourteen year-old girl and forcing her to have sexual intercourse with him at knifepoint. L.X.S. was sentenced to a term of ten years' imprisonment. He was paroled on January 6, 1988.

Less than one month later, L.X.S. committed the predicate offense. On January 29, 1988, L.X.S. was with a couple at the East Landis Motel, where they met the victim. The victim went with L.X.S. and the couple to L.X.S.'s room to watch television. After a short time, the couple left but the victim remained in the room with L.X.S. L.X.S. then held a pair of scissors to her throat and forced her to perform oral sex on him and allow him to perform oral sex on her. As a result of this incident, L.X.S. pled guilty on April 18, 1988, to aggravated sexual assault, N.J.S.A. 2C:14-2a(4), a sexually violent offense, N.J.S.A. 30:4-27.26, and was sentenced to a twenty-year term at the Adult Diagnostic and Treatment Center (ADTC) in Avenel pursuant to the New Jersey Sex Offender Act, N.J.S.A. 2C:47-1 to -10. However, in 2000, he was transferred to East Jersey State Prison for failure to participate in the ADTC treatment program and for continued inappropriate sexual acting out at the ADTC.

Prior to the expiration of his sentence, on July 10, 2002, the State petitioned for the civil commitment of L.X.S. pursuant to the SVPA. Following his temporary commitment to the STU, a final hearing was held on August 6, 2002, at which time Dr. Stanley Kern, a psychiatrist, testified that L.X.S. met the criteria for civil commitment, diagnosing him with paraphilia NOS, an impulse control disorder NOS, sexual sadism, an antisocial personality disorder and mild mental retardation. According to Dr. Kern, L.X.S. was predisposed to commit future acts of sexual violence if not committed for treatment, finding it "most likely" that L.X.S. would reoffend. The court committed L.X.S. to the STU. L.X.S. appealed and we affirmed. In the Matter of the Civil Commitment of L.X.S., A-2152-02 (App. Div. February 23, 2005). Subsequent reviews were held, and L.X.S.'s commitment was continued after each of those reviews.

The present review was conducted on March 28, 2013, at which time the State presented the expert testimony of Dr. Roger Harris, a psychiatrist, and Dr. Nicole Paolillo, a psychologist and member of the STU's Treatment Progress Review Committee (TPRC), who performed L.X.S.'s most recent annual evaluation, and authored the TPRC's March 18, 2013 report. L.X.S. testified on his own behalf but offered no other proof.

Dr. Harris had attempted three times to do an evaluation of L.X.S. on June 6, 2012, December 20, 2012, and March 25, 2013, but L.X.S. had refused to participate. Nonetheless, Dr. Harris's current evaluation of L.X.S. was based on a past assessment he had conducted on January 4, 2011, in which L.X.S. had participated; a review of multiple reports, which included information about L.X.S.'s diagnosis and risk to reoffend; and presentence reports and other evaluations, including progress notes from L.X.S.'s treatment at STU. Based thereon, Dr. Harris diagnosed L.X.S. with paraphilia NOS coercion, ruling out frotteurism (Axis I), mild mental retardation, and a personality disorder NOS with antisocial traits (Axis II).

Dr. Harris noted that, in discussing the two sexual assaults during the January 2011 evaluation, L.X.S. reported that he becomes enraged when faced with rejection by women and "wants to retaliate against women and sexually assault them." Furthermore, L.X.S. reported that he would masturbate up to six times a day "thinking about how angry he is at his court case," although the frequency has supposedly decreased since then. As to the predicate offense, L.X.S. admitted that having power over the victim was arousing, telling her "if you scream, I'll kill you bitch. Do you understand this bitch, I'll kill you." He also used the term "bitch" to refer to his fourteen-year-old victim, stating as to his state of mind at the time of that assault, "I'm going to do this bitch for making me feel this way and I acted out, planning and grooming it. I got to do something to get the bitch to open the door. I'm playing her. Then you got acting out: raping her."

Dr. Harris also identified problems encountered in L.X.S.'s treatment at STU. He noted that the first few years of treatment "were really problematic for [L.X.S.] because he kept moving institutions and being placed on MAP status."1 Notably, L.X.S. had a MAP placement in 2009 because he had pornographic DVDs in his possession and he threatened to assault a corrections officer. L.X.S. also had a MAP placement in March 2012, because he tested positive for drugs and then became aggressive when confronted by clinical staff.

As to treatment progress, Dr. Harris noted that L.X.S. had recently been promoted to Phase Three, and that since late 2011, he had been "engaging more in treatment" and "speaking more about taking floor dates, giving good feedback, and participating more fully than [before]."

As to the paraphilia NOS coercion diagnosis, Dr. Harris stated that L.X.S. is "aroused [by] degrading, humiliating, and subjugating another person to his demands so [that] he [can] sexually gratify himself." L.X.S. had reported wanting to retaliate against women, and had rape fantasies.

According to Dr. Harris, the combination of the personality disorder and the paraphilia NOS coercion, "increases the individual's risk to sexually re-offend" because those individuals generally "lack empathy, have a disregard for other people's rights, and have difficulty controlling their own impulses." Furthermore, L.X.S.'s "wish to humiliate, control and subjugate a woman for his sexual demands" could not be easily checked due to the antisocial personality elements. Moreover, his mild mental retardation limited his ability to use the skills taught by STU to "control his deviant arousal." Additionally, L.X.S. needed to "better self-regulate" as demonstrated by his threats against clinical staff. Thus, "while [L.X.S.] is really putting forward his best foot, his treatment gains do not at all mitigate his risk to sexually reoffend."

Dr. Harris concluded that L.X.S. would be "highly likely to sexually reoffend." Specifically, L.X.S.'s conditions

affect[] him volitionally in terms of his impairments in controlling his impulses and his aggression[,] . . . control him emotionally in that he is so vulnerable to feeling run down and wanting to retaliate to compensate for that experience[,] [a]nd

. . . [] affect[] him cognitively in that he has a set of distortions which are kind of married to his internal emotional experience.

As did Dr. Harris, Dr. Paolillo diagnosed L.X.S. with paraphilia NOS nonconsent, frotteurism, personality disorder NOS with antisocial features and mild mental retardation. She found no drug history, and therefore "one less hurdle for him to have to jump over." Dr. Paolillo also conducted Static-99R testing, scoring L.X.S. with a "5," indicative that his risk to reoffend falls between eighty and ninety percent.

As a member of the TPRC, Dr. Paolillo primarily testified to L.X.S.'s course of treatment at the STU. Currently enrolled in a Process Group, L.X.S. needed to retake the family of origin, relapse prevention I, and modified relapse prevention modules and had withdrawn from the sex education module. He had completed the anger management, basic skills, relapse prevention II and victim empathy CLS modules. According to Dr. Paolillo, the treatment team reported that L.X.S. is "active in group" and "he has been addressing treatment related concepts, specifically victim empathy." The team also reported that L.X.S. had been discussing the "self-hatred" and "low self-worth" that "pertain directly to his cycle and his sexual offending history."

Dr. Paolillo also reported that L.X.S. has been "regular and active in process group," "discuss[es] his offenses" and "expresses a desire to move forward in treatment." Specifically, L.X.S. was described as "appropriate, attentive, challenging, self-disclosing, supportive, task oriented and appropriately confrontational." Dr. Paolillo contrasted this to earlier behavior, crediting the turnaround to the time he advanced to Phase Three.

Dr. Paolillo spoke with L.X.S. in preparing her report. L.X.S. discussed his difficulty with female authority figures, advising that it was a "longstanding difficulty for him" and that it "ties into his self-worth." She noted that he demonstrated "insight" although "not a great deal, but enough" necessary to make connections between his behavior and his past experiences. Dr. Paolillo noted that L.X.S. has not yet taken any polygraphs.

According to Dr. Paolillo, the TPRC recommended that L.X.S. remain in Phase Three of the treatment program and re-enroll in educational programming, since he had not been attending. She noted that the most important treatment goal for L.X.S. would be to avoid MAP placements because they "directly interrupt his progress in treatment." Upon questioning by the court, Dr. Paolillo admitted that even though she did not recommend release, L.S.X.'s risk could be mitigated in the future.

L.X.S. then testified. In particular, he discussed the January 2012 MAP incident and claimed that the drug test arose from an illegal search of his room that did not turn up any drugs. He did note, however, that his reaction was wrong and that he should have handled the situation better. He further stated that he felt very good about his progress to Phase Three, noting that he now had a fiancé and felt positive about his progression to Phase Four.

At the close of evidence, Judge Mulvihill concluded that L.X.S.'s commitment should continue, finding

clear and convincing evidence that [L.X.S.] has been convicted of two sexually violent offenses . . . [c]lear and convincing evidence that he continues to suffer from a mental abnormality, personality disorder that does not spontaneously remit, [t]here's paraphilia and personality disorder, . . . [c]lear and convincing evidence that presently he's highly likely to engage in further acts of sexual violence if not confined in a secure facility for control, care and treatment.

Specifically, the court noted that L.X.S. admitted in 2011 to committing both rapes because he was "enraged, wanted to retaliate against women, wanted to assault them" and that "it was exhilarating"; that L.X.S.'s paraphilia and personality disorder, which both increase his risk to reoffend, do not spontaneously remit and "can only be mitigated by way of treatment"; and that L.X.S. "has a ways to go in treatment[,]" despite being "on a very good trajectory towards conditional discharge sometime in the future."

This appeal follows.

An involuntary civil commitment can follow service 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. "[T]he State must prove that

threat [to the health and safety of others because of the

likelihood of his or her 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 court must address "his or her

present serious difficulty with control over dangerous sexual

behavior[,]" and the State must establish "that it is highly

likely that" the individual will reoffend "by clear and

convincing evidence." Id. at 132-33 (emphasis added); see also In re Civil 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 individual 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 individual continues

to be a sexually violent predator, as defined in the SVPA and

interpreted in In re Commitment of W.Z., supra, 173 N.J. at 126-32. "[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 judgment for commitment under the SVPA, the

scope of appellate review is "extremely narrow[,]" and the trial

court's decision should be given the "'utmost deference' and

modified only where the record reveals a clear abuse of

discretion." 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)); see also In re Civil Commitment of V.A., 357 N.J.

Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003).

"The appropriate inquiry is to canvass the significant amount of expert testimony in the record and determine whether the lower

court['s] findings were clearly erroneous." In re D.C., 146

N.J. 31, 58-59 (1996) (citing Fields, supra, 77 N.J. at 311).

We are satisfied from our review of the record that the

judge's findings are amply supported by substantial credible

evidence. 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 March 28, 2013.

1 Modified Activities Program (MAP) is a "component of the clinical treatment program at the STU that focuses on stabilizing disruptive or dangerous behavior." See M.X.L. v. N.J. Dep't of Human Servs./N.J. Dep't of Corr., 379 N.J. Super. 37, 45-46 (App. Div. 2005).