IN THE MATTER OF THE CIVIL COMMITMENT OF J.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4957-10T2

A-1976-12T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF J.H. SVP-540-09.

_______________________________

Argued May 29, 2013 - Decided June 18, 2013

Before Judges Messano and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-540-09.

Patrick Madden, Assistant Deputy Public Defender, argued the cause for appellant J.H. (Joseph E. Krakora, Public Defender, attorney).

Erin Greene, Assistant Attorney General, argued the cause for respondent State of New Jersey (Jeffrey S. Chiesa, Attorney General, attorney).

PER CURIAM

In these matters consolidated by the court, fifty-two-year-old J.H. appeals from the May 6, 2011 and August 24, 2012 orders continuing his involuntary 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. On appeal, J.H. argues the State's experts impermissibly relied on hearsay in formulating their opinions, and the trial judge failed to properly weigh mitigating evidence of his treatment progress. We have considered these arguments in light of the record and applicable law, and affirm.

I.

A person convicted of a sexually violent offense may be subject to civil commitment as a "sexually violent predator" upon proof 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 SVPA defines a "mental abnormality" as "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. Such 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). However, "substantive due process does not require the extreme finding of a total lack of capacity to control such dangerous behavior." Id. at 126-27. That is, "[a] finding of mental abnormality that results in an impaired but not a total loss of ability to control sexually dangerous behavior can be sufficient[.]" Id. at 126. To continue an order of commitment, the State bears the burden to prove by clear and convincing evidence that the committee suffers from a mental abnormality or personality disorder, and remains in need of treatment because of a present serious difficulty controlling harmful, sexually violent behavior, causing the committee to be highly likely to reoffend if released. N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32a; N.J.S.A. 30:4-27.35. See also W.Z., supra, 173 N.J. at 130 ("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 Civil Commitment of J.H.M., 367 N.J. Super. 599, 610 (App. Div. 2003) (reiterating the legislative purpose "to help the committee and protect society"), certif. denied, 179 N.J. 312 (2004).

The scope of our review of judgments of civil commitment is particularly narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.) (citations omitted), certif. denied, 177 N.J. 490 (2003). Recognizing the trial court's expertise in the handling of these cases, we accord "'utmost deference'" to the trial judge's determinations. In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (quoting State v. Fields, 77 N.J. 282, 311 (1978)). Reversal is warranted if the court's factual findings are unsupported or "the record reveals a clear abuse of discretion." Ibid. (citation omitted). "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996) (citing Fields, supra, 77 N.J. at 311).

II.

J.H.'s prior sexually violent offenses date back to 1979, when he was eighteen years old. J.H. was arrested and charged with breaking and entering with intent to steal; theft; breaking and entering; attempted breaking and entering with intent to steal or rape; and solicitation of a lewd or unlawful sexual act. He was sentenced to the Yardville Correctional Center for an indeterminate term, not to exceed three years, to be served concurrently with a parole violation from a prior adjudication. He was also sentenced for an indeterminate term, not to exceed six months, for assault and battery, to be served concurrently with the parole violation. Charges resulting from a September 1982 armed robbery and sexual assault were dismissed by a Grand Jury. However, in October 1982, J.H. was again arrested and charged with robbery and aggravated sexual assault, to which he pled guilty in 1983. The arrest resulted from the following incident:

On or about October 16, 1982, E.H. (age 21) was sleeping in her bed at the Saxony Motel in Elizabeth, New Jersey[,] when she awoke and saw [J.H.] kneeling at the end of her bed. [J.H.] asked her for money but she told him that she did not have any. [J.H.] then stated "I heard white girls like to have their pussy eaten" and "if you don't give it, I'll take it." When she started to scream, he grabbed her by the throat and began choking her. After telling her to keep quiet, he began to lick her vagina. E.H. told him to stop and punched him in the face. [J.H.] choked her again, told her to be quiet and penetrated her vaginally. After having intercourse with her, he took her cigarettes and an undetermined amount of change and left the motel room. E.H. then notified the police, and [J.H.] was identified from a photo-lineup. The motel manager also identified [J.H.] as the individual who had been loitering on the premises of the motel that morning.

J.H. was sentenced to eight years in prison for second-degree robbery, with a four-year period of parole ineligibility, and twelve years imprisonment for first-degree aggravated sexual assault, with a five-year period of parole ineligibility. The sentences were to be served concurrently.

In January 1991, J.H. was arrested and charged with sexual assault, when a forty-four-year-old woman reported she had been awakened by J.H., who pulled up her nightgown then fled. The case was administratively dismissed in April 1991.

The predicate offense for which J.H. was committed to the STU occurred in 1991 and involved a forty-four-year-old woman, M.D. M.D. reported J.H. knocked on her apartment door and asked to use her telephone, stating someone was sick. When M.D. opened the door, J.H. grabbed her by the neck, locked the door behind him, pushed her into the bedroom, and told her he wanted to have sex. He ordered her to take off her clothing, performed cunnilingus, then undressed and forced M.D. to engage in intercourse. After completion of the act, J.H. repeated the forced penetration. J.H. then sat on M.D.'s bed, asked her if she was satisfied, and told her to touch his legs and arms. He then asked to see her identification. When she produced this, J.H. told her he would kill her if she ever called the police. Prior to leaving M.D.'s home, J.H. stole ten gold chains and her food stamps. J.H. was arrested. His statements at that time claimed the sexual relations with M.D. were consensual.

Following trial on these charges, a jury convicted J.H. of second-degree burglary, N.J.S.A. 2C:18-2, and two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(a). He was sentenced to a ten-year term for the burglary, with a five-year period of parole ineligibility; and a twenty-year term for the first count of sexual assault, with a ten-year period of parole ineligibility, served concurrently with a ten-year term for the second count of sexual assault, with a five-year period of parole ineligibility. The sentences on the sexual assaults were to be served consecutively to the sentence for burglary.

J.H. served his sentence at the Adult Diagnostic and Treatment Center (ADTC) at Avenel. During his ADTC evaluation, J.H. revealed a pattern of coercive sexual behavior. He admitted that when he was about fourteen, he would go to the home of a thirty-year-old female neighbor and engage in sexual relations with her after she passed out from alcohol intoxication. Thereafter, J.H. acknowledged he habitually went to hotels and motels in search of unaccompanied women. He waited until his victim fell asleep, then entered her room to sexually assault her. J.H. believed that as long as he did not use a weapon or physically harm the woman, his conduct did not constitute rape. Efforts to address his sexually offensive behaviors through group treatment at ADTC were largely ineffective, because J.H. regarded his sexual encounters as "consensual," denying they constituted criminal offenses.

At the completion of J.H.'s sentence, the State petitioned for J.H.'s civil commitment under the SVPA. J.H. was committed to the STU in March 2010. This appeal challenges the trial court's conclusions following evidentiary hearings held on May 5, 2011, and August 24, 2012, that the State clearly and convincingly proved J.H. continued to suffer from a mental condition or personality disorder, affecting him emotionally, cognitively, and/or volitionally, predisposing him to sexual violence and making him highly likely to reoffend if released, thus warranting continued civil commitment at the STU.

At the May 5, 2011 review hearing, the State presented two expert witnesses, Roger M. Harris, M.D., and Christine E. Zavalis, Psy.D. Dr. Harris evaluated J.H. and diagnosed him with antisocial personality disorder and paraphilia NOS (coercion), non-consent. He identified multiple factors supporting his conclusion J.H. would be at a high risk to sexually reoffend in the foreseeable future unless confined in a secure facility for treatment, including a very strong deviant arousal, strong antisocial attitudes and behaviors, his impulsivity and deceitful use of others for personal gain, irritability and aggressiveness, psychopathic characteristics, lack of remorse, and an inability to respond to community supervision.

He emphasized that J.H. displays a pattern of behavior "sexualizing or losing his temper, [and] having trouble controlling his rage at women." Further, he is unaware of the triggering events leading to the assaults. For example, the 1982 assault occurred after J.H. witnessed the victim arguing with her boyfriend and he had personalized the events, stating "he experienced th[em] as if th[ey] were happening to him," and so he became enraged at the woman. Hours later he returned and assaulted her. A similar pattern was displayed regarding the 1991 assault. J.H., after fighting with another, targeted the victim, who was alone, as someone he "had the power and control over . . . . So, again, it's this triggering event that . . . taps into his rage where he then sexually [assaults] a woman." Dr. Harris stated J.H. displays a "remarkabl[y] low . . . threshold . . . for tapping his rage at wom[e]n." His likelihood of re-offending was supported by J.H.'s initial report of twenty-five to thirty additional victims, and his described "habit" of going to hotels to rape women because he found they were often alone, would not report rape, and if they did report anything, they would just say they were robbed. Although J.H. received treatment at ADTC from 1994 to 2009, Dr. Harris observed he "does not show the benefit of treatment for that long," and it was evident he was still "relatively in the beginning phases of treatment." Finally, J.H.'s score of 8 on the Static-99 showed J.H. presents a high-risk for sexually violent recidivism.

Dr. Zavalis, a member of the Treatment Progress Review Committee (TPRC) at the STU, testified regarding the TPRC's May 2, 2011 annual review report, which unanimously recommended J.H. be placed in phase two of treatment, as he was not ready for phase three. The TPRC's recommendation was based on J.H.'s participation in treatment, noting he consistently attended process group, actively participating in the discussions, and at times gave "very insightful feedback to other people." However, J.H. had "difficulty having the same amount of insight regarding himself . . . . He demonstrates overall or general knowledge of treatment concepts, but has difficulty integrating it and applying it to himself." Additionally, despite taking the floor in his process group on multiple occasions, Dr. Zavalis noted "some cognitive distortions on his part, as well as some poor judgment[.]" Dr. Zavalis explained that in addition to issues with J.H. applying the treatment to himself, J.H. was not fully focused on his own offending, and had not spent enough time discussing his own offenses and his offending dynamics to achieve control of his behavior. Also, she noted J.H. was not always receptive to feedback, often becoming overwhelmed in group and unable to manage his frustration. Further, he was inconsistent in how he presented during process group and to the TPRC.

Echoing Dr. Harris' sentiment, Dr. Zavalis highlighted discrepancies in J.H.'s reports about his offenses over time, his denial of criminal conduct, and his recitation of facts which vastly differed from the official record. She was "struck by how cordial the assault sounded" when J.H. reported the events. Dr. Zavalis opined this "sanitization" of the force aspects called into question the level of responsibility J.H. was taking for the offenses and his behavior.

As a result of her evaluation, Dr. Zavalis diagnosed J.H. with paraphilia NOS, non-consent, polysubstance dependence (in a controlled environment), and antisocial personality disorder (with narcissistic features). His Static-99 score placed him at high-risk for sexually reoffending, and his Hare PCL-R score indicated he was exceedingly close to the cutoff for psychopathy. She was concerned with J.H.'s substance abuse, though noted it was unclear how his dependence fit into his criminal behavior, as he told one evaluator drugs were involved in his crimes, but told Dr. Harris they were not. To the extent drugs were involved, they could act as a disinhibitor and thereby increase the likelihood he would act on his impulses or arousal.

In her recommendations, Dr. Zavalis concluded it was important for J.H. to work on his receptiveness to feedback. Although he had completed a substance abuse module, he needed to be willing to address those issues again as they arose during the course of his treatment, despite his "desire not to repeat things that he's already taken at ADTC." Additionally, it was important for J.H. to clarify his version of events and discuss the discrepancies in the reports he had given over time with respect to his offenses and behaviors.

Judge Philip M. Freedman entered his findings and conclusions, stating:

So, I'm satisfied after having reviewed all of the records of the initial hearing which was before Judge Mulvihill, as well as what's the testimony in the record submitted here that [J.H.] clearly suffers from a mental abnormality in the form of a paraphilia and a personality disorder in the form of antisocial personality disorder, and that he is predisposed, as his record clearly shows, to engage in criminal acts and including criminal acts of sexual violence.

I'm satisfied to credit the opinions of Dr. Harris and Dr. Zavalis. I think . . . their opinions are amply supported by the record, and despite Dr. Harris'[] error, I think the records clearly support his conclusion that [J.H.] has admitted to more than the two crimes that was -- that he was convicted of.

And I find by . . . clear and convincing evidence that if [J.H.] was released now, he would have serious difficulty controlling his sexually violent behavior to such a degree that he would be highly likely within the reasonably foreseeable future to engage in acts of sexual violence.

Judge Freedman entered the May 6, 2011 order continuing J.H.'s civil commitment and treatment at the STU. J.H. timely appealed.

Prior to the appeal being considered, another review hearing was held on August 24, 2012. The State presented testimony from Dr. Zavalis regarding the TPRC's review and the expert testimony of Pogos H. Voskanian, M.D. Prior to the hearing, J.H. refused to meet with Dr. Voskanian; the expert formulated his diagnosis, conclusions, and opinion, based upon his review of J.H.'s current treatment records and the information gathered during his 2010 interview.

When asked for his opinion regarding how J.H. is doing in treatment at the STU, based on his review of the records, Dr. Voskanian replied:

[J.H.]'s attendance to groups is good. However, to summarize, he continues with the same trajectory of minimizing the degree of violence. On the other hand, however, in one of the . . . recent TPRC interviews, [J.H.] reported that his fantasies of violence is rape [sic] were much stronger than what he actually has done to his victims, he did not do even part of it.

. . . .

[T]hat establishes the diagnosis, basically.

Dr. Voskanian stated his diagnosis had not changed from the prior evaluation. He explained J.H. had a "very rudimentary knowledge of his assault cycle[,] ha[d] not yet presented his relapse prevention maintenance contract[,] and ha[d] not completed the relapse prevention . . . modules." Although treatment providers had recommended phase three, they later changed their mind, and J.H. remained in phase two of treatment. He concluded J.H. suffers from a mental abnormality or personality disorder which predisposes him to sexual re-offense. Moreover, the fact that J.H. suffers from both antisocial personality disorder and the diagnosed sexual pathologies "markedly increase[d]" his risk to sexually re-offend. Additionally, substance abuse would further impair his judgment and impulse control, greatly increasing his risk to sexually re-offend. Dr. Voskanian concluded the conditions he diagnosed are ones which affect J.H. emotionally, cognitively, and/or volitionally, "so as to still predispose him to sexual violence and cause him to have serious difficulty controlling his sexual offending behavior." Finally, he advised that treatment can have a mitigating effect to the extent one can learn to control his or her impulses, but J.H. needed to put more effort into his treatment to reach that goal.

Dr. Zavalis discussed the May 11, 2012 report of the TPRC following J.H.'s annual evaluation. She recommended J.H. remain in phase two of treatment, noting the team recommended advancing him to phase three. Dr. Zavalis presented a general roadmap of treatment suggestions, and she opined phase two remained appropriate for J.H.

Since his last evaluation, J.H. successfully completed three modules, and was currently attending a substance abuse module. Dr. Zavalis advised J.H. consistently attended group, participated, and provided insightful feedback to other people, "but he ha[d] a limited insight about his own dynamics and about his own behavior." Although J.H. sometimes was receptive to feedback, other times he became defensive, loud, and angry when confronted with certain issues. "There was also concern that his engagement in treatment appeared somewhat superficial and shallow as far as how deep he's going." J.H. began to demonstrate progress in admitting his victims did not consent to the sexual assaults, but he "continued to struggle with accepting himself as a rapist." Although J.H. completed a sexual history questionnaire, his written version of his events differed from his oral report during Dr. Zavalis' interview. Further, she noted J.H. frequently continued to experience pop-up fantasies. Dr. Zavalis also testified J.H.'s PCL-R score placed him in the high range for psychopathy, though just below the threshold. J.H.'s Static-99 score placed him in the high risk category.

In his opinion, Judge James F. Mulvihill concluded:

[T]he State has met its burden and I find that there's clear and convincing evidence, number one, that [J.H.] has been convicted of sexually violent offenses; clear and convincing evidence that [J.H.] continues to suffer from a mental abnormality or personality disorder -- his antisocial personality disorder and paraphilia -- and that these do not spontaneously remit. They predispose him to sexual violence.

There's clear and convincing evidence that presently [J.H.] is highly likely to engage in further acts of sexual violence if not confined in a secured facility, controlled care and treatment.

Both experts are very credible, and [J.H.] is stuck in phase two, unfortunately, and there's not much the [c]ourt can do to rectify that.

But the [S]tate has proven by clear and convincing evidence that [J.H.] is a threat to the health and safety of others, because of the high likelihood of his engaging in sexually violent acts if released from the STU.

The [S]tate has demonstrated by clear and convincing evidence that [J.H.] has serious difficulty controlling sexually violent behavior. Highly likely he will not control his sexually violent behavior and will re-offend if released. This is a present serious difficulty by clear and convincing evidence.

We have considered J.H.'s challenges to the sufficiency of the evidence and his claims that the trial judges failed to weigh the evidence of treatment progress. We reject these contentions as lacking sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

The opinions of Judges Freedman and Mulvihill demonstrate a full review of all evidence, including consideration of the modules J.H. completed, the report of his continued appropriate behavior and lack of institutional infractions at the STU, and his attendance in his designated process group. However, the court's findings credited the unrefuted expert opinions, concluding J.H. needed continued treatment to acknowledge his past behavior and learn to control his identified sexually violent impulses and alcohol abuse, so as to mitigate future risk of re-offense.

Further, we conclude the court properly permitted the State's testifying expert, Dr. Voskanian, to utilize reports generated by prior psychiatric and psychological evaluations in formulating a present opinion during the August 24, 2012 hearing, as J.H. refused to attend a current evaluation. These types of records are relied upon by experts in the fields of psychiatry and psychology in arriving at their own independent diagnoses and opinions. See In re Civil Commitment of A.X.D., 370 N.J. Super. 198, 201-02 (App. Div. 2004); J.H.M., supra, 367 N.J. Super. at 612; N.J.R.E. 703. Clearly, "the use of hearsay as [a] basis for expert testimony and the hearing judge's evaluation of expert credibility" is permissible. In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 55 (App. Div. 2004) (citations omitted); In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 489 (App. Div.), certif. denied, 185 N.J. 393 (2005); A.X.D., supra, 370 N.J. Super. at 201-02. In fact, some hearsay is admissible for the truth of the matter asserted, such as treatment records under N.J.R.E. 803(c)(6). See A.X.D., supra, 370 N.J. Super. at 202. While "experts at the [civil commitment] hearing cannot simply parrot the findings of the doctors who author the clinical certificates[,]" A.E.F., supra, 377 N.J. Super. at 491, their reliance on these reports is not precluded "as long as the opinion ultimately rendered at the . . . commitment hearing is that of the [expert] witness based on his or her own evaluation of the committee, [the committee's] prior offenses, and objective test data," id. at 492.

We find no flaw in the limited purpose for which evidence of the non-testifying experts' reports were admitted by Judge Mulvihill. It is equally clear Dr. Voskanian formed his own opinions based on his independent review and past interviews and evaluations of J.H., J.H.'s prior offenses, and objective test data. Further, his opinions were subject to full cross-examination by counsel for J.H. Under the circumstances, we find no error in any of the evidentiary rulings of the trial judge.

Therefore, we affirm substantially for the reasons stated in Judge Freedman's and Judge Mulvihill's oral opinions of May 6, 2011, and August 24, 2012, respectively. We conclude from our review of the record that the judges' findings are amply supported by substantial credible evidence, State v. Locurto, 157 N.J. 463, 470-71 (1999), and that J.H. continues to be highly likely to re-offend and otherwise meets all criteria for continued SVPA commitment.