IN THE MATTER OF THE CIVIL COMMITMENT OF M.E.H.

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NOT FOR PUBLICATION WITHOUT THE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 M.E.H.

__________________________

February 11, 2014

Submitted February 4, 2014 Decided

Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-354-04.

Joseph E. Krakora, Public Defender, attorney for appellant M.E.H. (Michele C. Buckley, Designated Counsel, on the brief).

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

PER CURIAM

In this appeal, M.E.H. challenges a July 11, 2011 order continuing his involuntary civil commitment to the Special Treatment Unit (STU), pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38. For the reasons that follow, we affirm.

M.E.H. has a long history of committing sexual offenses against women and young girls. We reviewed his offense history at length in our opinion affirming his initial commitment to the STU and need not repeat it in detail here. See In re Civil Commitment of M.E.H., No. A-5923-05 (App. Div. Feb. 27, 2008). To summarize, since 1982, M.E.H. had been involved in a series of increasingly violent sexual offenses. In 1996, M.E.H. was charged with two separate rapes that occurred in May and June 1996. In 1997, he pled guilty to second-degree sexual assault with respect to one of the rapes, in exchange for dismissal of the charges concerning the other sexual assault. He was sentenced to ten years in prison with a four-year parole bar.

M.E.H. was initially committed to the STU in 2004, as his prison term was about end. He appealed, and in our prior opinion, we affirmed his STU commitment. We found substantial credible evidence to support the trial court's finding that M.E.H. suffered from paraphilia not otherwise specified (NOS), was highly dangerous, and was highly likely to re-offend if released. For the first five years of his commitment to the STU, from 2004 to 2009, M.E.H. refused treatment. He finally began participating in process groups and receiving therapy in 2009.

This appeal arises from a review hearing held on July 8 and 11, 2011, to determine whether M.E.H.'s civil commitment should continue.1 At the beginning of that hearing, the State's attorney placed on the record that the author of the "most recent TPRC [Treatment Progress Review Committee] report" was on emergency medical leave and, rather than have another Committee member appear and testify, both sides stipulated that the report could be admitted in evidence "substantively without cross-examination." The treatment notes of various STU therapists were also admitted in evidence. However, the court agreed with defense counsel that the treatment notes would be admitted as business records, but not for the truth of any diagnoses included in the notes. See N.J.R.E. 808.

The State presented testimony from Dr. Pogos Voskanian, who opined that sexual sadism was part of M.E.H.'s diagnosis, because M.E.H. obtained gratification from inflicting pain on his victims. He explained that part of M.E.H.'s pathology was a need to enhance his sense of masculinity by committing sexual crimes. In that context, he opined that:

[H]is offenses are not sexual. These are not offenses to satisfy sexual drive. . . . These are offenses driven by anger, by [a] need to feel more masculine . . . . He may or may not be aroused at all. He would still offend in a sexual manner. And there's a considerable humiliating component in his behaviors to the victim.

According to Dr. Voskanian, M.E.H. still lacked insight as to the "pathology" that led to his sexual offending conduct, and he had no relapse prevention plan or strategies. Dr. Voskanian opined that M.E.H. suffered from paraphilia NOS, but not pedophilia, because he had multiple victims, both children and adults. This pathology was also marked by enjoyment of the victims' suffering. He opined that M.E.H. was still only at the beginning stage of treatment, known at the STU as Phase Two, and had made "practically no progress" because he was still minimizing his offenses. For example, M.E.H. could not bring himself to admit to Dr. Voskanian that he raped a twelve-year-old girl. M.E.H. explained that he thought the victim was thirteen, as though that made a difference.

Dr. Voskanian also testified that M.E.H. was dependent on a spectrum of illegal substances, including alcohol, marijuana, cocaine and anabolic steroids. Use of those substances would impair his judgment and impulse control and make M.E.H. more likely to re-offend if released. Dr. Voskanian further opined that M.E.H. had a personality disorder, which caused him to blame his victims. He opined that M.E.H. remained at a high risk to re-offend if released. He opined that M.E.H. "still has not addressed his psychological need to sexually assault to feel good." On cross-examination, Dr. Voskanian clarified that M.E.H. suffered from a sexual compulsion even if he was not seeking sexual gratification from attacking his victims. Rather he had "a need to act out in a sexually aggressive manner to satisfy his disintegrated emotional state at the time."

Defendant testified that discovery from his criminal cases would show that his version of events was accurate and the alleged victims' versions were inaccurate. He essentially sought to establish that even though he pled guilty to sexual crimes against the victims, he really had not molested them.

The defense also presented testimony from Dr. Frank M. Dattilio, who examined defendant in 2004 and again in 2011. Dr. Dattilio opined that it was a positive factor that defendant voluntarily sought treatment in 1996, while he was awaiting trial. However, on cross-examination, he admitted that M.E.H.'s five-year refusal to participate in treatment at the STU was a negative factor. Dr. Dattilio agreed that M.E.H. had paraphilia NOS, and personality disorder NOS, as well as a history of substance dependence.

However, after recently interviewing M.E.H., Dr. Dattilio found that he appeared to show remorse, was genuinely motivated to succeed in treatment, and had "a very good understanding of his sexual arousal pattern and what the triggers were." He opined that M.E.H. had support from his family, had "a plan for relapse," and was "committed to . . . a life of sobriety." Dr. Dattilio believed that even though M.E.H. was only in Phase Two of treatment, he could complete the remainder of his treatment in the community. On cross-examination, however, he admitted that his 2011 report did not reflect M.E.H.'s current description of his offenses, to determine whether he was finally willing to acknowledge them or whether he was still blaming the victims. Nor did his report indicate that M.E.H. described his offending cycle for Dr. Dattilio or described "his relapse prevention strategies -- what he's learned."

In an oral opinion placed on the record on July 11 2011, Judge John H. Pursel found, based on the opinions of both experts, that M.E.H. suffered from paraphilia NOS and personality disorder as well as substance abuse. The judge reasoned that the recollection of M.E.H.'s victims, as reported to the police, were more likely to be accurate than M.E.H.'s recollections, in part because M.E.H. claimed he was intoxicated and under the influence of steroids when he committed the offenses.

In evaluating the opinions of the two experts, Judge Pursel found Dr. Voskanian's testimony more credible, in part because it was more consistent with the reports of the treatment team that interacted with M.E.H. on a daily basis. The judge also credited Dr. Voskanian's opinion that M.E.H. did not have "a relapse prevention plan" and did not have "command over his sexual offense cycle." The judge considered that M.E.H. was still at the beginning of his course of treatment and had not yet moved on to Phase Three, which would provide him with "more specific group therapy." Based on those findings, the judge concluded that M.E.H. still suffered from a mental abnormality or personality disorder, that he still required treatment, and that he would still be highly likely to engage in further acts of sexual violence if not confined to the STU for that treatment.

On this appeal, our review of Judge Pursel's decision is exceedingly narrow. In re Civil Commitment of W.X.C., 407 N.J. Super. 619, 630 (App. Div. 2009). We must give the "'utmost deference' to the [civil commitment] judge's determination of the appropriate balancing of societal interest and individual liberty." Ibid. (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). On appeal, that determination will be subject to modification "only where the record reveals a clear abuse of discretion." In re Civil Commitment of J.M.B. 395 N.J. Super. 69, 90 (App. Div. 2007). Thus, we canvas the expert testimony in the record to determine whether the trial court's findings were clearly erroneous. Ibid. (citing In re D.C., 146 N.J. 31, 58-59 (1996)).

On this appeal, M.E.H. raises the following points:

POINT I. THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT M.[E].H. WAS SUBJECT TO CONTINUED COMMITMENT AS A SEXUALLY VIOLENT PREDATOR.

A. The court improperly relied upon the predicate offenses to find that M.E.H. is a current risk to re-offend.

POINT II. THE TRIAL COURT ERRONEOUSLY RELIED UPON HEARSAY DOCUMENTS IN FINDING THAT M.E.H. IS A SEXUALLY VIOLENT PREDATOR.

Having reviewed the record, we conclude that those arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and we find no basis to disturb Judge Pursel's decision, which is amply supported by the evidence. We add the following comments.

On this appeal, defendant essentially argues that the judge should have credited the testimony of Dr. Dattilio instead of the testimony of Dr. Voskanian. However, we find no basis in this record to second-guess the judge's credibility determinations. While Dr. Dattilio testified in generalities about M.E.H.'s progress in treatment, he admitted on cross-examination that his report contained none of the important specifics that would demonstrate that progress. He also downplayed the significance of M.E.H.'s five-year refusal to participate in treatment which, in turn, resulted in his only being in Phase Two at the time of the hearing.

We cannot agree with M.E.H.'s argument that the judge's decision was based solely on his past offenses. We find sufficient credible evidence in the record that M.E.H. still suffers from a paraphilia of a type in which he obtains gratification from committing violent sexual offenses, and that he does not yet have the ability to control his impulses. The judge reasonably relied on Dr. Voskanian's opinion that, until M.E.H. makes further progress in treatment, he will continue to pose a high risk of committing sexual offenses if released.

Defendant argues that the judge relied too heavily on the STU's treatment reports. To the extent that he now objects to the judge's consideration of the TPRC report, that argument is barred by the doctrine of invited error, because his counsel stipulated to the admission of that document without the need for testimony. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340-41 (2010). However, we also conclude that the argument is without merit, because the judge properly considered the TPRC report, and other STU reports, in evaluating Dr. Voskanian's credibility, rather than accepting expert diagnoses contained in the reports themselves. See N.J.R.E. 703; N.J.R.E. 808; In re Commitment of A.X.D., 370 N.J. Super. 198, 201-02 (App. Div. 2004). Additionally, a great deal of information in the reports consists of factual observations such as M.E.H.'s participation or non-participation in therapy, and statements made by M.E.H., which are admissible because they are contained in a business record. A.X.D., supra, 370 N.J. at 202.

Affirmed.

1 On the first day of the hearing, counsel for the State advised the judge that M.E.H. had not had a review hearing since his initial commitment. This may have reflected his refusal to engage in treatment for a number of years.