IN THE MATTER CIVIL COMMITMENT OF J.W.M.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2981-03T22981-03T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF J.W.M.

SVP-336-03

___________________________________

 

Submitted May 31, 2007 - Decided July 5, 2007

Before Judges Stern and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-336-03.

Ronald K. Chen, Public Advocate, attorney for appellant (Mary T. Foy, Assistant Deputy Public Advocate, of counsel and on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Lisa Marie Albano, Deputy Attorney General, on the brief).

PER CURIAM

Appellant, J.W.M., appeals from a judgment entered pursuant to the New Jersey Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 (the Act), committing him to the Special Treatment Unit for care and treatment as a sexually violent predator. We affirm.

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. On April 11, 1997, J.W.M. pled guilty to two counts of aggravated sexual assault, and one count of sexual assault. On October 6, 1997, J.W.M. was sentenced to ten years at the Adult Diagnostic and Treatment Center and was given community supervision for life. The offenses for which he was convicted involved sexual assault against a two-year-old child and two five-year-old children. According to the record, J.W.M., who was then a juvenile, sexually assaulted his five-year-old nephew from January 1994 through April 1995. He was arrested in September 1996 and was released pending a juvenile court hearing for charges arising from that abuse.

In September 1996, J.W.M., then an adult, began to baby-sit two children, a two-year-old and a five-year-old. While minding the children, he sexually assaulted them. On January 30, 1997, J.W.M. was arrested for the assault on these two children. The case involving his nephew and the case regarding the other two children were consolidated. The juvenile offense was voluntarily waived up to the adult criminal court. At the time defendant entered his plea, he was asked about the motivation for assaulting these children. He responded, "because, like I said before, something came over me that I couldn't control and that's why."

On September 9, 2003, the Attorney General petitioned for the involuntary civil commitment of J.W.M. pursuant to N.J.S.A.

30:4-27.24. The termination report prepared by Dr. James R. Reynolds of the Adult Diagnostic and Treatment Center concluded that:

[J.W.M.'s] actuarially-based risk for sexual offense recidivism was estimated using the MnSOST-R and Static-99, the results of which indicated that [J.W.M.] respectively represents moderate and medium-high risk for sexual reoffending. These results correspond somewhat with [J.W.M.'s] clinical presentation as an individual who has made minimal therapeutic progress to date. However, [J.W.M.'s] active reinforcement of his sexual arousal to prepubescent boys, and his minimal level of engagement in treatment suggests that the actuarial instruments may underestimate [J.W.M.'s] current recidivism risk. The extent of [J.W.M.'s] deviant sexual compulsion, which may increase his recidivism risk, is also illustrated by his history of committing sexual offenses after having been taken into custody and while awaiting prosecution for his first reported sexual offense.

Dr. Gilman's termination report from the Adult Diagnostic and Treatment Center concluded that J.W.M. met the criteria for civil commitment as a sexually violent predator and noted that he has indications of being at high risk of sexual reoffending, including the following:

1. He has a sexual deviance; namely, pedophilia;

2. He has sexually offended on more than one occasion;

3. He sexually offended despite having already been arrested for an earlier sexual offense;

4. He sexually offended against young boys;

5. He sexually offended against victims unrelated to him;

6. He has continued to report both hypersexual behavior and continued masturbation to fantasies of sexual contact with young boys;

7. He has been assessed by his treatment team at the ADTC to have made minimal therapeutic gains;

8. He has no stable psychosocial support once released from prison; and

9. He is young.

Following the State's petition to civilly commit J.W.M., the trial court found probable cause to believe that he was a sexually violent predator in need of commitment. He was, therefore, temporarily committed to the Special Treatment Unit pending a final hearing in the matter which occurred on December 15, 2003.

At the final hearing, the State presented the testimony of Dr. Michael McAllister and Dr. Robert S. Carlson. J.W.M. presented no evidence. Dr. McAllister was unable to interview J.W.M. because he declined the doctor's request on two occasions. The doctor had spoken with him on other occasions concerning medical needs, however. The doctor, therefore, based his evaluation on the archival review of J.W.M.'s legal record and past clinical records and evaluations.

Dr. McAllister diagnosed J.W.M. as suffering from pedophilia, impulse control disorder NOS, and personality disorder NOS. He noted in his report that:

[J.W.M.] previously admitted that he was unable to control his deviant sexual urges toward boys. While at ADTC, [J.W.M.] did not demonstrate motivation to change his deviant sexual arousals. He did demonstrate poor motivation to change, and he sought to circumvent the effects of testosterone lowering medications to deviant sexual fantasies of boys with masturbation.

He appears to have actively resisted treatment. He is not likely to demonstrate any better motivation or cooperation in treatment if released, and appears to be at substantial risk to act on his deviant sexual urges if released.

During his testimony at the hearing, Dr. McAllister elaborated on his report in response to the following questions:

Q. Is [J.W.M.] affected in a way so as to cause him to have a serious difficulty controlling his sexually offending behavior?

A. By his own admission, not only by the history that we have, but also by his own admission currently.

Q. And how would you characterize the risk that he poses to sexually offend in the foreseeable future unless confined in a secure facility for treatment?

A. I would say that it is high.

Q. And why is that?

A. [J.W.M.] was not able to control his deviant sexual urges, even after he faced legal consequences for his first offense. He deliberately attempted to overcome the effects of the medication which would control his deviant sexual urges. He demonstrated poor motivation in terms of his participation in sex offender treatment and just recently he characterized to Dr. Carlson that he had quite significant concerns himself about his ability to control his behavior and his likelihood to act upon his deviant sexual urges.

Dr. Carlson also prepared a report concerning J.W.M., diagnosing him as suffering from pedophilia, and noted rule out personality disorder as an additional diagnosis. Dr. Carlson stated in his report that he was able to interview J.W.M. in December 2003 for approximately one hour and fifteen minutes. During the interview, Dr. Carlson asked J.W.M. to rate his risk for reoffense if released. His reports states:

When asked to self-rate his risk for reoffense if released to the community at this time on a scale of 1 (no chance for sexual reoffense) to 10 (reoffend immediately upon release), [J.W.M.] rated himself between [sic] as a 7. When asked why he was so self-critical regarding the risk, he indicated that he had little internal confidence of understanding the situation which led to his original sexual misbehavior.

Dr. Carlson noted in his opinion that J.W.M.'s "psychological dynamics" suggest that he has become increasingly better participating in groups, but that he could benefit from orientation and short-term individual treatment to accelerate his treatment progress. The doctor concluded, however, that:

There is no question that given his self-evaluation having confused and/or little confidence in his ability to control his pedophilic interest that he is not, at this time, a candidate for integration back into the community. [J.W.M.'s] progress and treatment is judged to be guarded but optimistic. It is hoped that his predisposition for negative self-evaluation would be a strength that he can ultimately draw upon in further treatment.

Based upon the information gathered for this evaluation, it is concluded that [J.W.M.] would pose a significant threat to act out sexually if released to the community at this time.

Dr. Carlson's testimony at the hearing was consistent with that in his report. He elaborated on his report during his testimony, saying that J.W.M. suffers from a mental abnormality or personality disorder which predisposes him or affects him emotionally, cognitively or volitionally so as to predispose him to commit acts of sexual violence. Dr. Carlson reiterated that he found J.W.M.'s risk to sexually reoffend at this point in time to be significant.

The trial court rendered its decision in this case on December 15, 2003. The court found that J.W.M. had been convicted of various sexually violent offenses, which finding was not contested by J.W.M. The court noted that at the time of sentencing, J.W.M. admitted that he could not control himself and that is why the offenses occurred. The court reviewed the ages of the victims and the treatment J.W.M. received at the Adult Diagnostic Treatment Center. It observed that the termination reports demonstrated that the treatment was minimal and that he failed various courses, such that the treatment records demonstrated an insufficient treatment effect in this case. The court concluded that J.W.M. suffered from pedophilia and that this was a long standing condition. It found that the testimony of the two experts was, on the whole, consistent, and that J.W.M. was highly likely to reoffend if confined because he significantly lacked the self-control over his sexual offending behavior and entered the judgment committing him to the Special Treatment Unit. This appeal ensued.

On appeal, J.W.M. argues that the State failed to prove by clear and convincing evidence that he is subject to civil commitment under the Act.

We begin our consideration of this argument by restating the applicable legal principles. We have recently summarized the requirements necessary pursuant to the Act, for a court to commit an individual to the Special Treatment Unit:

To be committed to the STU, the State must prove that the alleged predator committed a "sexually violent offense . . . and 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 nomenclature of 'mental abnormality' or 'personality disorder' is not dispositve. What is important is that . . . the mental condition 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). The alleged predator must be substantially unable to control sexually harmful conduct. Id. at 128. To meet this standard, "the State must prove 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." Id. at 132. In other words, the State must prove that the alleged predator's "propensity to commit acts of sexual violence is of such a degree as to pose a threat to the health and safety of others." N.J.S.A. 30:4-27.26.

[In re Civil Commitment of A.H.B., 386 N.J. Super. 16, 24 (App. Div.), certif. denied, 188 N.J. 492 (2006).]

We have also noted that, "the order of civil commitment must be based on 'clear and convincing evidence that an individual who has been convicted of a sexually violent offense[] suffers from a mental abnormality and personality disorder[] and presently has serious difficulty controlling harmful sexually violent behavior such that it is highly likely that the individual will reoffend.'" In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 225 (App. Div. 2007) (quoting In re Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004)). We have also held that we can only reverse a commitment pursuant to the Act for an abuse of discretion or lack of evidence to support it. Ibid.

We note at the outset that there is no question that J.W.M. committed sexually violent offenses. There is also no dispute in this record that defendant suffers from a mental abnormality. Both testifying doctors provided clear and convincing proof that J.W.M. suffers from pedophilia. Both doctors also testified that J.W.M. has serious difficulty in controlling his sexually harmful behavior and would be highly likely to reoffend if released to the public. J.W.M. himself, in his interview with Dr. Carlson, stated that on a scale of 1 to 10, his risk of reoffending was a 7. While J.W.M.'s attorneys point to the actuarial studies and some minor differences in the opinions of doctors McAllister and Carlson, we find those points to be without merit. After reviewing the doctors' reports, together with their extensive testimony, we are satisfied that the State clearly and convincingly demonstrated that J.W.M. has serious difficulty in controlling his harmful sexual behavior such that it is highly likely that he will not control his sexually violent behavior and will reoffend.

 
The record contains substantial credible evidence to support the trial court's findings and its decision was a reasonable exercise of its discretion. Accordingly, we affirm.

(continued)

(continued)

11

A-2981-03T2

RECORD IMPOUNDED

July 5, 2007