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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4354-03T24354-03T2

IN THE MATTER OF CIVIL COMMITMENT

OF J.H.S.

_______________________________________________________

 

Submitted December 20, 2005 - Decided February 8, 2006

Before Judges R. B. Coleman and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-324-03.

Yvonne Smith Segars, Public Defender, attorney for appellant J.H.S. (Stephen M. Latimer, Designated Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent State of New Jersey (Patrick DeAlmeida, Assistant Attorney General, of counsel; Mary Beth Wood and Lisa N. Lackay, Deputy Attorney Generals, on the brief).

PER CURIAM

J.H.S. appeals from an order entered on March 15, 2004, finding that he is a sexually violent predator in need of involuntary civil commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

In 1986 and 1987, J.H.S. was convicted of two sexual offenses involving two separate victims, each a boy under the age of ten. We recite briefly the evidence that supported J.H.S.'s convictions.

On or between January 1, 1983 and April 30, 1983, J.H.S. molested a seven-year-old boy, R.H., on two separate occasions. J.H.S. was arrested and charged, under Indictment No. 86-10-0767-I, with two counts of aggravated sexual assault, N.J.S.A. 2C:14-2(b). R.H. testified that both incidents occurred in a garage. On the first occasion, J.H.S. called R.H. into the garage and hoisted him up to retrieve something from a shelf. According to R.H., when J.H.S. put him back down, he touched his private parts through his clothes. On the second occasion, J.H.S. again called R.H. into the garage, but this time J.H.S. instructed R.H. to pull down his pants and underpants and he fondled R.H. for a couple of minutes. On April 1, 1987, a jury found J.H.S. guilty on both counts.

On or between July 1, 1983 and July 31, 1984, J.H.S. molested another young boy, nine-year-old J.K. J.H.S. was arrested and charged, under Indictment No. 86-05-0310-I, with one count of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) and one count of endangering the welfare of a child, N.J.S.A. 2C:24-4(a). J.K. testified that on one occasion as they were preparing to go fishing, J.H.S. told J.K. to get undressed and get into bed. J.H.S. then inserted his penis into J.K.'s anus. After that, J.H.S. instructed J.K. to roll over. Next, J.H.S. put his mouth on J.K.'s penis. J.K. testified that similar incidents occurred on twenty-five to thirty occasions. On December 19, 1986, a jury found J.H.S. guilty of one count of aggravated sexual assault and one count of endangering the welfare of a child.

Dr. Phillip Witt and Dr. Mark Frank, clinicians at the Adult Treatment and Diagnostic Center at Avenel, New Jersey (ATDC) conducted a pre-sentence evaluation of J.H.S. They found insufficient psychological data at that time to be able to conclude that J.H.S. was motivated by deviant compulsive sexual interest patterns to commit the offenses. J.H.S. denied any guilt. He provided numerous explanations of why he might have been wrongfully accused. First, he claimed that J.K. might have resented him because his parents gave J.H.S. J.K.'s dog. Second, J.H.S. claimed since he had been involved in investigating and exposing illegal toxic waste dumping in the community, the authorities brought these charges against him in retaliation.

J.H.S. was sentenced for both convictions on the same day. As to Indictment No. 86-05-0310-I, he was sentenced to a term of twenty years imprisonment with a parole ineligibility of eight years. With respect to Indictment No. 86-10-0767-I, he was sentenced to ten years with a two-year period of parole ineligibility to be served consecutively to the sentence for Indictment No. 86-05-0310-I; on count two J.H.S. was sentenced to ten years to be served concurrent with his sentence for Indictment No. 86-05-0310-I.

J.H.S. was due to "max out" on his sentences on May 15, 2003. In view of his pending release from prison, the State filed a petition for involuntary civil commitment under the SVPA. On May 13, 2003, the court found probable cause to temporarily commit J.H.S. to the Special Treatment Unit (STU). Pursuant to an agreed upon adjournment, the commitment hearing was held on March 5, 2004. The court announced its ruling on March 14, 2004, and J.H.S. appealed.

On appeal J.H.S. raises the following argument:

POINT I: THE STATE HAS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT J.H.S. SUFFERS FROM A MENTAL ABNORMALITY OR PERSONALITY DISORDER SUCH THAT HE HAS SERIOUS DIFFICULTY IN CONTROLLING HARMFUL SEXUAL BEHAVIOR SO THAT IT IS HIGHLY LIKELY THAT HE WILL COMMIT SEXUALLY VIOLENT ACTS IF NOT CONFINED AT STU.

After careful review of the record, we reject J.H.S.'s argument and affirm.

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," and the State must establish that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 132-33. The focus of the inquiry, however, must lie with "the subject's current mental condition and the present danger to the public." In re Commitment of J.S.W., 371 N.J. Super. 217, 223 (App. Div. 2004) (quoting In re Commitment of P.C., 349 N.J. Super. 569, 582 (App. Div. 2002)).

At the commitment hearing in this case, the State presented two experts, both psychiatrists at the STU: Dr. Pogos Voskanian, M.D. and Dr. Arnold Apolito, M.D. Dr. Voskanian interviewed J.H.S. and reviewed the pre-sentence reports, investigations, victim and defendant accounts, clinical certificates and independent psychological evaluations. Dr. Voskanian diagnosed J.H.S. with paraphilia NOS by history, impulse control disorder NOS by history, polysubstance dependence by history and antisocial personality disorder by history.

Dr. Voskanian's review of Dr. Apolito's evaluation and diagnosis of J.H.S. led him to modify his own diagnosis. Deferring to Dr. Apolito, Dr. Voskanian stated, "after correlating my findings with Dr. Apolito's impression, I think Dr. Apolito is more correct in his diagnosis of pedophilia." Dr. Voskanian added that he was deferring because "[Dr. Apolito is] a much more experienced psychiatrist and I respectfully coincide."

According to Dr. Voskanian, J.H.S. is an untreated sex offender. In his assessment, Dr. Voskanian stated:

first of all he's untreated . . . nothing ha[s] changed from the time he offended against his first victim that we know of until now. He did not receive any treatment. There is no insight. There is no empathy. There is not even a partial acceptance of any of those behaviors.

According to Dr. Voskanian, J.H.S.'s performing the act of fellatio on J.K. was important because it showed J.H.S. is an "active perpetrator," and the nature of his sexual interests involve performing oral sex on a boy.

Moreover, Dr. Voskanian testified that J.H.S.'s answers were not trustworthy because his responses were "marked with discrepancies." Inconsistent answers by J.H.S. to questions throughout the interview indicated an avoidance of a range of issues that related to his wrongful acts and personal history. For example, Dr. Voskanian stated that:

When I am asking him about his parents, he says that he had a close relationship with his father. When I am asking him when did his father die, he says twenty, maybe twenty-five years ago. He does not know the cause of death of his father which is unusual for someone who describes his relationship as very close. In my understanding, there is a degree of avoidance in answering this question. He did not attend his father's funeral because he was away on a job. In addition, when we talked about his sexual offenses, substance abuse history and other issues, there were considerable inconsistencies and points that [were] difficult to take at face value.

When Dr. Voskanian questioned him about his prior substance abuse, J.H.S. minimized his marijuana and cocaine use, and only admitted to drinking a few beers on the weekend. In reports to other doctors, however, J.H.S. reported that he had spent up to $1000 a week for drugs, steadily during a ten to twelve-year period.

Based on prior reports, Dr. Voskanian also diagnosed J.H.S. with polysubstance abuse. Dr. Voskanian pointed out that J.H.S. has never received any treatment for his substance abuse problem because he does not acknowledge the problem. In the absence of such treatment, J.H.S. is substantially more likely to reoffend. Dr. Voskanian stated:

[substance abuse dependence] increases [the] individual's impulsivity and this is significant for individuals who in addition to that, have a sexual disorder because people's sexual interests are one of the strong desires and it takes a conscious effort to suppress.

Dr. Voskanian was confronted with a report indicating that J.H.S. had attended and completed a 12-Step Substance Abuse Program, while in prison. Dr. Voskanian acknowledged such but pointed out that J.H.S. had not been treated since 1999. In his opinion, people who have addictions continue going to such programs, unlike J.H.S., who discontinued his treatment.

Moreover, Dr. Voskanian diagnosed J.H.S. as exhibiting all but one of the characteristics of a person with anti-social personality disorder. J.H.S. demonstrated a lack of empathy evidenced by his denial of the offenses, failure to accept treatment, minimization of any wrongful acts, feeling satisfaction from hurting others and disregard for the safety of others. Dr. Voskanian opined that J.H.S. never received the necessary sex offender treatment and that, without such treatment, he is more likely than not to commit further acts of sexual violence.

Dr. Apolito met with J.H.S. on three occasions. He reviewed numerous reports and records regarding J.H.S., including police reports, pre-sentence reports, clinical certificates, actuarial testing and independent evaluations. During the course of one interview, J.H.S. gave many statements about his family and past history that were contradictory. J.H.S. became agitated when asked about his offenses and "developed [an] asthmatic attack which he attribute[d] to . . . substances or gasses that were coming out of the wall of the interview." At that point, J.H.S. "declared himself to be so ill that he was in need of immediate medical attention" and the interview ended. Dr. Apolito performed two more evaluations and concluded that the historical and clinical observations demonstrate "within a reasonable medical certainty that his risk of offending is high." Moreover, according to Dr. Apolito, J.H.S.'s "ability to reoffend is also high because [he] has this glib hyper manic . . . charming kind of personality which can make it quite easy for him . . . to be friends and disarm a child."

Dr. Apolito's diagnosis of J.H.S. with pedophilia was based upon his review of J.H.S.'s convictions, in particular the number of victims, their ages and the frequency of the offenses. Dr. Apolito observed that J.H.S.'s grooming behavior was intended to establish a friendly relationship with each of the victims. Such behavior indicated J.H.S. acted with premeditation in order to eliminate any resistance by the victims.

Dr. Apolito also diagnosed J.H.S. with personality disorder NOS since J.H.S. demonstrated signs of illogical thinking, an inability to realize that he has made several different statements to different people regarding the same issues and a tendency to suspect persecution from various sources. In Dr. Apolito's opinion, J.H.S. has gained no insight into the cause of his prior criminal behavior since he has not been involved in any treatment, continues to deny both offenses and offers different explanations of the circumstances that portray him as the victim. As such, in Dr. Apolito's opinion, J.H.S. is at a high risk of reoffending if he is not confined in a secure facility for control care and treatment.

J.H.S. presented three experts on his own behalf, all psychologists: Dr. Timothy Foley, Dr. Jeffrey Singer and Dr. Natalie Barone. Dr. Foley administered an Abel Assessment for Sexual Interest to J.H.S. The Abel test:

studies visual reaction time ("VRT"). A test subject is asked to view slides of clothed persons of varying age and sex for the purpose of rating sexual attractiveness on a paper-and-pencil questionnaire. The subject is supposed to think that the paper-and-pencil test is the actual test, but the critical portion of the test calculates how long the subject gazes at the slide. It is this measure of VRT that is used to determine the subject's sexual interest in the various categories of adults and children shown in the slides. Both the questionnaire results and the VRT results are emailed or faxed by the test administrator to Dr. Abel's for-profit company, Abel Screening, Inc., in Atlanta, Georgia. After analyzing the data according to his proprietary formula, Dr. Abel then faxes back to the test administrator a summary (bar graphs, etc.) of the test results.

[U.S. v. Birdsbill, 243 F. Supp. 2d 1128, 1131 (D. Mont. 2003).]

Dr. Foley determined from the Abel test that J.H.S. is a "heterosexual male primarily attracted to post-pubescent females." Thus, the Abel test indicated that J.H.S. did not have a pedophilic interest. The graph showed a lack of interest by J.H.S. in young children of either gender. Dr. Foley admitted, however, that the Abel screen does not "discriminate between a child molester and a non-child molester . . . And, in fact, using it that way would be inappropriate." Moreover, Dr. Foley admitted that the Abel screen does not measure whether or not a person would sexually molest a child.

Dr. Singer performed a risk assessment evaluation of J.H.S. In making his assessment, Dr. Singer consulted the results of the Abel test performed by Dr. Timothy Foley. Dr. Singer refused to accept that J.K. was truthful about the offenses. Instead, Dr. Singer based his opinion that J.H.S. was not a pedophile on the Abel test's findings. Dr. Singer recognized that J.H.S. had not received any sex offender treatment and that he would not benefit from such treatment given the level of his denial.

Dr. Barone conducted a forensic evaluation and risk assessment of J.H.S. She concluded that there was insufficient evidence to demonstrate that J.H.S. was sexually aroused by children; therefore she could not diagnose him as a pedophile. Similar to the findings of Dr. Voskanian and Dr. Apolito, Dr. Barone observed that "[J.H.S.] had a difficult time acknowledging his wrongful acts." Moreover, since J.H.S. did not participate in sex offender specific treatment, he is not equipped with relapse prevention strategies to prevent him from sexually reoffending. Dr. Barone acknowledged that J.H.S. exhibited five of the seven characteristics of a person with anti-social personality disorder, which contributed to his abuse of R.H. and J.K.

Judge Perretti issued her opinion in the matter on March 15, 2004. She noted that J.H.S. was a convicted sexually violent predator. She found it significant that both Dr. Voskanian and Dr. Apolito diagnosed J.H.S. with pedophilia and expressed the opinion that J.H.S.'s performing fellatio on J.K. constituted a highly pathological act. Both Dr. Voskanian and Dr. Apolito diagnosed J.H.S. with polysubstance dependence and antisocial personality disorder. Dr. Apolito found the following character traits exhibited by J.H.S.: lack of scruples, lack of respect for others, recklessness, impulsive behavior, lack of remorse, pursuit of his own pleasure without regard to harming others, glibness, blaming others, and malingering. Furthermore, Dr. Apolito noted that J.H.S. portrays himself as the victim and shows no remorse or empathy. According to Dr. Apolito, the foregoing form a complex of traits called antisocial personality. The judge acknowledged, however, that neither could make a legitimate diagnosis of antisocial personality disorder since there was no information of J.H.S. having conduct disorder prior to age fifteen, which is necessary to make such a diagnosis.

Judge Perretti observed that neither Dr. Voskanian nor Dr. Apolito relied heavily on the Abel screen. In her opinion, little weight should be given to the Abel screen because "the instrument had not been substantially validated."

The court rejected Dr. Singer's testimony entirely since his conclusion that there was insufficient evidence of pedophilia was not supported by an understanding of the indictment. The court also found that Dr. Singer inappropriately rejected the reliable testimony of J.K. because he believed children lie. Judge Perretti observed that Dr. Singer rejected the testimony of the child in favor of the findings of the Abel screen. The court pointed out that Dr. Foley admitted the Abel screen can provide a false profile. Accordingly, the court discounted Dr. Singer's opinion because it was "based entirely upon the rejection of the evidence at trial . . . and a belief that the Abel screen is definitive."

Judge Perretti pointed out that Dr. Barone, although she did not diagnose it herself, agreed that, as applied to the facts of this case, the acts committed by J.H.S. are sufficient to make a by-the-book diagnosis of pedophilia. The court also noted that Dr. Barone's failure to diagnosis J.H.S. as a pedophile stemmed greatly from her acceptance of the results of the Abel screen.

Judge Perretti concluded that the State had established by clear and convincing evidence, that J.H.S. is a sexually violent predator, who "suffers from abnormal mental conditions and personality disorders that adversely impact his volitional, emotional and cognitive capacities so as to predispose him to commit sexual violent acts." The court found J.H.S. has very little control over his sexually violent behavior and that he is highly likely to reoffend if he is not retained for further care and treatment.

In reviewing a judgment for commitment under the SVPA, "[t]he scope of appellate review . . . [is] extremely narrow," and the trial court's decision should be "accorded '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) (quoting State v. Fields, 77 N.J. 282, 311 (1978)); 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 . . . 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 State v. Fields, 77 N.J. 282, 311 (1978)).

We are satisfied from our review of the record that the judge's findings are supported by substantial credible evidence. State v. Locurto, 157 N.J. 463, 471 (1999). Accordingly, we affirm substantially for the reasons stated by Judge Perretti in her oral opinion of March 15, 2004. The State's burden was satisfied by the expert witnesses for the State, in particular Dr. Apolito, who offered the opinion, accepted by the court, that J.H.S. is at a high risk for reoffending if he is not committed. Judge Perretti acted within her discretion to disregard the results of the Abel test and the testimony of the defense experts relying on it. We observe that other courts have also found that proponents of the Abel test have failed to demonstrate that it provides reliable and accurate assessments of sex offenders. See, e.g., Birdsbill, supra, 243 F. Supp.2d 1133-36; Ready, 824 N.E.2d 474, 478-81 (Mass. App. Ct. 2005) (affirming Abel test's exclusion since the trial court did not abuse its discretion by finding the Abel test was not adequately tested, had an unacceptably high error rate and was irrelevant because "there is no evidence indicating that it predicts the likelihood a subject will reoffend").

 
Affirmed.

 

(continued)

(continued)

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A-4354-03T2

RECORD IMPOUNDED

February 8, 2006