IN THE MATTER OF THE CIVIL COMMITMENT OF E.W.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE CIVIL

COMMITMENT OF E.W., SVP-546-09.

___________________________________

January 30, 2014

 

Submitted December 9, 2013 - Decided

 

Before Judges Parrillo and Guadagno.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-546-09.

 

Joseph E. Krakora, Public Defender, attorney for appellant E.W. (Randall J. Peach, Designated Counsel, on the brief).

 

John J. Hoffman, Acting Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; Molly Moynihan, Deputy Attorney General, on the brief).

PER CURIAM

E.W. is civilly committed to the Special Treatment Unit (STU), the secure custodial facility designated for the treatment of persons in need of commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A.30:4-27.24 to -27.38. He appeals from the June 30, 2010 order of the Law Division continuing his commitment after an annual review required by N.J.S.A. 30:4-27.35. E.W. raises the following issues on appeal:

i.

the trial court erroneously admitted and then based its decision upon testimony pertaining to two prior unproven charges against e.w., which charges had been dismissed long ago and were never substantiated.

 

a. the testifying doctors' use of the prior charges.

 

b. the trial court's reliance on the prior charges.

 

c. the errors in the trial court's reliance on the dismissed charges.

 

ii.

 

the trial court erroneously admitted and relied upon hearsay testimony about alleged prior 'bad acts' by e.w. that were also unsubstantiated, including the inflammatory allegation that he had raped two other women in the past.

 

iii.

 

the state failed to prove by clear and convincing evidence that e.w. requires commitment as a sexually violent predator pursuant to the svpa.

 

a. the clear and convincing standard under the svpa.

 

b. the state failed to prove that e.w. was "highly likely" to sexually re-offend as a result of a mental abnormality or personality disorder.

 

c. the trial court erroneously disregarded the persuasive and well-reasoned findings of e.w.'s expert, without explanation, while automatically crediting the findings of the state's experts.

 

iv.

 

the expert testimony of the state's doctors amounted to a 'net opinion.' (not raised below).

 

We have considered these arguments and reject them.

I.

E.W. is a fifty-two-year-old male with a criminal history dating back to 1979. In December 1986, E.W. was arrested and charged with sexual battery in Florida. A sixteen-year-old girl reported to the police that E.W. offered her a ride and drove her to a wooded area when he forcibly pushed her down on the front seat and inserted his penis into her vagina. After a few minutes, he let her up and said that if she told anyone, he would kill her. She was able to escape and run away. The charges were ultimately dismissed.

In December 1998, E.W. was arrested and charged with sexual assault in Mercer County. Those charges were dismissed in 1999. E.W. claimed his niece, who was thirteen or fourteen at the time, falsely accused him of having sex with her because she was angry with him. He claimed the charges were dropped because she refused to submit to a rape kit examination.

The predicate act in this case occurred in May 2001 when E.W. raped N.W., a thirteen-year-old friend of his niece. E.W. held a pocketknife to N.W.'s throat, directed her to his basement, and placed duct tape over her mouth. He attempted to penetrate N.W. anally, but when he was unsuccessful, he raped her vaginally. E.W. then threatened N.W. that he would kill her if she told anyone.

On August 21, 2002, E.W. pled guilty to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(4). He was sentenced to ten years in prison, subject to the No Early Release Act, N.J.S.A.2C:43-7.2.

On November 6, 2009, the State filed a petition for the civil commitment of E.W. pursuant to the SVPA. The State submitted clinical certificates by psychiatrists Dr. Marina Moshkovich and Dr. Anasuya Salem. Both diagnosed E.W. with pedophilia not otherwise specified (attraction to teenage girls), paraphilia not otherwise specified (arousal to forcible sex), polysubstance dependence in institutional remission, antisocial personality disorder, myopia, and presbyopia.

In November 2009, the trial court found probable cause to believe that E.W. suffers from a mental abnormality or personality disorder that makes him likely to engage in acts of sexual violence if not committed. E.W. was temporarily committed to the STU pending a final hearing.

A different judge presided over E.W.'s commitment trial on June 1, 2010. The State presented testimony of psychiatrist Dr. Alberto Goldwaser and psychologist Dr. Nicole Paolillo; E.W. presented testimony of psychologist Dr. Timothy P. Foley.

Dr. Goldwaser examined E.W., reviewed the discovery file and treatment records, and prepared a report. He testified that he reviewed materials of the kind customarily relied on by experts in the field in forming his own diagnosis. Dr. Goldwaser diagnosed E.W. with paraphilia not otherwise specified (adolescent females, non-exclusive), antisocial personality disorder, and poly-substance dependence. Dr. Goldwaser testified that E.W. attempted to justify his sexual assault of N.W.:

he mentions that the reason why he ended up raping her, and the way he did it, was because she was cursing him out, or she was unruly. She was not a -- she was not a nice girl, so to speak. He also mentioned that another excuse for his doing it was because he was high on drugs and -- and alcohol. And, another one was that he was very upset . . . because some people . . . owed him money and were not paying him.

 

Dr. Goldwaser noted that E.W.'s characterization of the sexual assault as a "charge," not a conviction, was evidence of E.W.'s failure to accept responsibility. E.W. "described the sexual assault without the concomitant affect expected after many years of treatment to acquaint him with his sexual crime." E.W.'s antisocial personality disorder was evident by him immediately planning his alibi by making himself visible to neighbors and using the alibi to the police. Dr. Goldwaser noted that during the interview, E.W.'s "tone of voice never changed from beginning to end. There was no remorse. There was no pain. There was no sense of regret."

Regarding the 1986 Florida charge, E.W.'s version was totally at odds with the materials Dr. Goldwaser reviewed, including describing the victim as a twenty-five-year old woman, not a sixteen-year-old girl. Dr. Goldwaser testified that E.W. "acknowledged being particularly attracted to teenage female[s]" and had "a long-standing disorder indicating his experience in intense, arousing sexual fantasies, sexual urges or/and behavior with adolescent females lasting for a period of over six months. And creating problems in . . . his functioning in society and eventually ending up incarcerated because of it."

Even though E.W. only had one conviction for a sexual offense, Dr. Goldwaser believed the paraphilia diagnosis was accurate because of "the fact that his sexual fantasies and sexual urges were there all along." In addition, E.W. sought out strip clubs where adolescent females danced, and even worked at one club where fourteen- to seventeen-year-old girls worked.

Dr. Goldwaser described E.W.'s treatment at the Adult Diagnostic Treatment Center (ADTC) as "poor." Even after treatment, E.W. still blamed the victim or outside factors for the offense. Dr. Goldwaser testified that the combination of disorders elevated E.W.'s risk to reoffend as he "will not need much to . . . carry out the act of pedophilia, of rape." Dr. Goldwaser opined that E.W. did not have sufficient treatment at ADTC to learn how to control himself, and that he was at a high risk to sexually reoffend if not confined. In addition, Dr. Goldwaser noted that E.W. had no relapse prevention plan or strategy and E.W. told him that he did not need any further sex offender treatment.

Dr. Paolillo also testified that she reviewed materials of the kind customarily relied on by experts in the field in forming her own diagnosis. Dr. Paolillo also diagnosed E.W. with paraphilia not otherwise specified, non-consent with hebephilic traits, poly-substance dependence, antisocial personality disorder (severe), and borderline intellectual functioning.

Dr. Paolillo discussed a number of inconsistencies in E.W.'s recollection of the details of his prior offenses. While he told Dr. Paolillo that he had no prior interaction with N.W. before the assault, he told another doctor that he had sex with her on a prior occasion. He told Dr. Paolillo that he was never charged after his 1996 arrest for sexual assault in Florida even though the records show he was. Dr. Paolillo also noted that E.W. reported to Dr. Jeffrey B. Allen "that he raped an ex-girlfriend and raped his son's mother[,]" and reported to her that he once had sex with a sixteen-year-old when he was thirty-nine.

Dr. Paolillo was also concerned that E.W. failed to take responsibility for the sexual assault of N.W., claiming that she provoked him. Dr. Paolillo described E.W.'s lack of empathy for his victims as "callous," and opined that his threats and use of a weapon during the assault of N.W. demonstrates his lack of concern for the victim and his deviant arousal.

Regarding his treatment at ADTC, Dr. Paolillo concluded that E.W.'s lack of understanding "indicates that he didn't internalize either what he learned or dismissed it, or devalued it." She found no "discernible effect from the treatment that [E.W.] was exposed to."

Dr. Paolillo testified that because of E.W.'s disorders, he had serious difficulty controlling his sexual offending behavior, and that his risk to reoffend sexually was high. She concluded that he has a predisposition for sexual violence. The "two most robust predictors of sexual recidivism[,]" sexual deviance and psychopathy, apply to E.W. Further, he has "struggled in the community with complying with supervision in the past," evidence that supervision would not be sufficient to prevent recidivism.

Dr. Foley diagnosed E.W. with antisocial personality disorder and found indications of poly-substance dependence, however, he found that there was insufficient pattern of conduct to diagnose paraphilia, as E.W.'s prior sex-related charges were dismissed and never substantiated.

As to E.W.'s rape of N.W., Dr. Foley noted that E.W. still does not know why he raped her; E.W. attributed it to his lifestyle and being angry with her for disrespecting him. Dr. Foley stated E.W. had previously blamed N.W. and her mother for the rape, and acknowledged "it would be better for [E.W.] if that remark was not in the records."

Dr. Foley testified that E.W.'s attraction to adolescent girls was "natural" and was not enough evidence for a sexual pathology, there was insufficient indication that for E.W. "forcing people to have sex was preferred or obligatory[,]" and there was no six-month history of such conduct. Based on E.W.'s history of treatment at ADTC and the diagnostic testing, Dr. Foley concluded that E.W. was "less than highly likely" to sexually reoffend if released. Dr. Foley found significant the progress E.W. made in treatment and the fact that he was already subject to community supervision for life and would be closely monitored.

Therefore, Dr. Foley concluded that E.W. did not meet the statutory criteria for civil commitment. Dr. Foley did agree that E.W. needs continued sex offender treatment.

On June 30, 2010, the court found by clear and convincing evidence that E.W. "continues to be a sexually violent predator in need of involuntary civil commitment in a secure facility for control, care and treatment," ordered E.W. restrained, and set a one-year review of his case. In his decision, the judge found that E.W. suffers from antisocial personality disorder, polysubstance dependence, and paraphilia. The court also found that he presented with a serious difficulty controlling his sexual violent behavior:

Dr. Goldwaser and Dr. Paolillo note that he has no relapse prevention plan. That he's developed no empathy for his victims, and that he still has a tendency to blame his victims and avert responsibility for himself. So, he is not successfully treated to mitigate his propensity to -- or his likelihood to reoffend. That he continues to be highly likely to reoffend in the reasonable foreseeable future, and this creates a -- commit to the health and safety of others.

II. "Review of a trial court's decision regarding a commitment hearing is extremely narrow." In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.) (citing State v. Fields, 77 N.J. 282, 311 (1978)), certif. denied, 177 N.J.490 (2003). The trial court's determination is given "'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). "In re C.A., therefore, affirmed the principle first enunciated in Doe v. Poritz [142 N.J.71 (1990)] that the ultimate determination of a registrant's risk of reoffense and the scope of notification is reserved to the sound discretion of the trial court." In re Registrant G.B., 147 N.J. 62, 79 (1996). A.

E.W. first argues that the State's doctors improperly used the two dismissed sex-related charges to find that he was a sexually violent predator in need of involuntary commitment, and the trial court relied on the charges to commit E.W. We disagree.

Dr. Goldwaser's report notes that E.W. acknowledged arrests in Florida and New Jersey where victims reported similar sexual behavior. He concluded that E.W.'s "arousal and sexually offending behavior to these types of victims is longstanding, enduring, repetitive and compulsive." At trial, Dr. Goldwaser testified he did not know why the two charges were dismissed, but that he did rely on those two charges in his diagnosis of E.W. and his prediction of whether E.W. is likely to reoffend. He testified that it is "one of the criteria" that is used to "score an actuarial . . . to assess risk of recidivism."

Dr. Paolillo's report referenced E.W.'s "history of unconvicted sexual charges" and she noted that "the frequency of his offending and similarity between the incidents suggest the existence and contribution of his deviant sexual arousal."

The trial court noted the two charges, and their dismissal, but never indicated any reliance on them. E.W. argues that because the predicate offense was his only sex-related conviction, the court's reference to "victims" demonstrates that it improperly considered the prior unsubstantiated offenses. E.W. argues that the "other crime" evidence was admitted improperly, as it was not established by clear and convincing evidence and constituted hearsay.

Evidentiary decisions of a trial judge are reviewed utilizing the abuse of discretion standard. State v. Brown, 170 N.J.138, 147 (2001). "An expert is permitted to rely on hearsay information in forming his opinion concerning the defendant's mental state." State v. Eatman, 340 N.J. Super. 295, 302 (App. Div.) certif. denied, 170 N.J. 85 (2001). "[An] expert who substantially relies on hearsay evidence for his or her opinion may testify at trial as long as the hearsay information "was of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." Biunno, Current N.J. Rules of Evidence, comment 6 on N.J.R.E. 703 (2013). Specifically, "presentence reports [are] proper since such evidence [is] of a type reasonably relied upon by mental experts in formulating their evaluations of an individual's mental condition." In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 612 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

Here, both experts discussed the dismissed charges from police reports and court records. In C.A., supra, 146 N.J. at 98, the Court noted that police and medical reports bore an "indicia of reliability" and can be admitted as an exception to the hearsay rule under N.J.R.E. 803(c)(6). Further, both Dr. Goldwaser and Dr. Paolillo testified that the documents they reviewed in writing their reports were of the type "reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject."

The prior charges were relied on by Dr. Goldwaser to demonstrate E.W.'s lack of credibility through his different and contradictory version of the events from the court documents. Dr. Paolillo also assessed the similarities in E.W.'s versions of the prior charges and the predicate offense as negatively affecting his credibility and "should be weighed when considering his denial of sexual deviance." Therefore, both experts considered E.W.'s explanation of the charges as relevant in determining his credibility and evaluating his mental condition, and did not testify about them as proof of past acts.

Therefore, the expert testimony of prior charges was properly admitted pursuant to N.J.R.E. 703. There is also no support for E.W.'s assertion that the trial court relied on the prior dismissed charges to commit E.W. The trial court never expressed any reliance on or applicability of the charges. The plural use of the word victims is not enough to show that the trial court substantially relied on the dismissed charges in committing E.W. Further, in that part of its decision, the court was referring to E.W.'s mental state, in his aversion of responsibility and blame. The court was not referring to victims as evidence of history of sex-related charges.

 

 

B.

E.W. next argues that the State's experts improperly relied on hearsay statements of E.W. to Dr. Jeffery B. Allen that he had raped two other females. E.W. denied to Dr. Goldwaser that he made such an admission to Dr. Allen and claims on appeal that Allen's report was hearsay and should not have been considered by the court.

As an expert, Dr. Goldwaser was permitted to rely on facts constituting hearsay, so long as they are "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject[.]" See N.J.R.E. 703.

Prior expert opinions are admissible, not as substantive evidence, but as a basis for the expert's opinion. In re Commitment of E.S.T., 371 N.J. Super. 562, 576 (App. Div. 2004). Dr. Allen's report is a prior expert opinion and was admitted as a basis for Dr. Goldwaser's and Dr. Paolillo's opinions. Therefore, the testimony of E.W.'s admission was properly admitted pursuant to N.J.R.E. 703.

C.

E.W.'s next argument is that the State failed to prove by clear and convincing evidence that he was a sexually violent predator who suffers from a mental disorder such that it is highly likely that he will reoffend if not committed.

"[T]he ultimate determination of a registrant's risk of reoffense and the scope of notification is reserved to the sound discretion of the trial court." G.B., supra, 147 N.J. at 79. The SVPA requires a past "sexually violent offense" for the involuntary commitment of an individual believed to be a sexually violent predator. In re Commitment of W.Z., 173 N.J.109, 127 (2002); N.J.S.A. 30:4-27.26. The SVPA also requires that the person must "'suffer[] 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.'" W.Z., supra, 173 N.J. at 127 (quoting N.J.S.A. 30:4-27.26).

E.W. claims that the State failed to prove by clear and convincing evidence that he suffers from a mental abnormality or personality disorder that makes him likely to engage in acts of sexual violence if not confined. He claims that the experts' diagnosis of paraphilia lacked foundation, as they relied on prior dismissed charges and unsubstantiated "bad acts."

All three experts diagnosed E.W. with antisocial personality disorder. N.J.S.A.30:4-27.26 defines a "sexually violent predator" as someone who, among other things, suffers from a mental abnormality orpersonality disorder. "[T]he diagnosis of each sexually violent predator susceptible to civil commitment need not include a diagnosis of 'sexual compulsion.'" W.Z., supra, 173 N.J.at 129. A personality disorder alone is sufficient to satisfy the statute.

E.W. argues that the trial court erroneously disregarded the findings of his expert, Dr. Foley, while adopting the findings of the State's experts. A trial court's evidentiary rulings are "entitled to deference absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment." State v. Marrero, 148 N.J. 469, 484 (1997).

In issuing its decision, the trial court accepted the findings of Dr. Goldwaser and Dr. Paolillo as to E.W.'s sexual urges, his unsuccessful completion of treatment, his inability to internalize concepts he learned, his lack of relapse prevention plan, his lack of empathy for his victims, and his tendency to blame victims and avert responsibility.

The court noted Dr. Foley's testimony that E.W. participated in group sessions, but found the "evaluators at the ADTC were of the opinion that . . . he was unable to internalize concepts that he learned." There is ample support in the records for these findings. Even Dr. Foley conceded that E.W.'s understanding of the sexual assault cycle was "very, very rudimentary," despite five years of treatment.

The trial court's conclusion that the State had presented clear and convincing evidence that E.W. suffers from paraphilia, antisocial personality disorder, and polysubstance abuse finds ample support in the record.

D.

Lastly, E.W. claims that Dr. Goldwaser's and Dr. Paolillo's testimony amounted to net opinions. The basis for his argument is that the experts improperly relied on the dismissed prior charges, as well as the prior unproven "bad acts" and therefore once these prior acts are removed from the experts' analysis, there is nothing left to support their conclusions. We conclude that this argument lacks sufficient merit to warrant discussion in our opinion beyond the following brief remarks. See R. 2:11-3(e)(1)(E).

The "net opinion" rule holds "that an expert's bare conclusions, unsupported by factual evidence, [are] inadmissible." Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). "N.J.R.E. 703 requires that an expert's opinion be based on facts, data, or another expert's opinion, either perceived by or made known to the expert, at or before trial." Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002). "Under the 'net opinion' rule, an opinion lacking in such foundation and consisting of bare conclusions unsupported by factual evidence is inadmissible." Ibid. (citing Johnson v. Salem Corp., 97 N.J. 78, 91 (1984)). "In essence, the net opinion rule requires an expert witness to give the why and wherefore of his expert opinion, not just a mere conclusion." Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996).

Both of the State's experts interviewed E.W. extensively and relied on appropriate documents that supported their conclusions. E.W.'s argument that these conclusions are unsupported net opinions is without merit.

Affirmed.