IN THE MATTER OF THE CIVIL COMMITMENT OF M.O.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1850-07T21850-07T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF M.O. SVP 464-07

______________________________

 

Submitted August 5, 2009 - Decided

Before Judges Rodr guez and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP 464-07.

Ronald K. Chen, Public Advocate, attorney for appellant (Stephen M. Latimer, Designated Counsel, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Lisa Marie Albano, Deputy Attorney General, on the brief).

PER CURIAM

M.O. appeals from the November 29, 2007 judgment of the Law Division civilly committing him to the New Jersey Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 (SVPA). For the reasons that follow, we affirm.

Tried to a jury in 1982, M.O. was convicted of first-degree kidnapping, N.J.S.A. 2C:13-1(b); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(5)(a); and third-degree threat to kill, N.J.S.A. 2C:12-3(b). The facts underlying the conviction were that defendant, along with a cohort, forced then-sixteen-year-old M.F. into a van where they raped and sodomized her, compelling her to submit by threatening to kill her. On July 27, 1982, defendant was sentenced to an aggregate term of forty years with a twenty-year parole ineligibility period; defendant's sentence was "scheduled to max out . . . on or about July 11, 2007."

On June 21, 2007, the State filed a petition to civilly commit M.O. under the SVPA. A hearing was held on November 26, 27 and 29, 2007, at the conclusion of which Judge Serena Perretti rendered a decision from the bench committing M.O. to the STU.

The evidence adduced at the hearing may be summarized as follows. During his twenty-five years in prison, M.O. incurred twenty-three disciplinary infractions; between 1998 and 2006, M.O. received five disciplinary infractions for exposing his genitals to female corrections officers while masturbating and, on one occasion, deliberately exposing himself in an attempt to "be transferred to a more appropriate prison."

Dr. Howard Gilman, a psychiatrist, testified on behalf of the State. M.O. had refused all of Dr. Gilman's attempts to interview him until just before the hearing when he submitted to a fifteen-minute interview. Dr. Gilman stated that he was able to prepare a report based upon documents, including M.O.'s pre-sentence report and the evaluations of other mental health professionals who had interviewed defendant. Dr. Gilman testified that he did not rely on the opinions and diagnoses of these other professionals in rendering his diagnoses, but rather referred to those documents for historical background.

Based upon his review of documents, the nature of M.O's offense in 1982, as well M.O.'s prison disciplinary record, which included several sexually-related infractions, Dr. Gilman diagnosed M.O. with antisocial personality disorder that would "affect him either emotionally, cognitively or volitionally so as to predispose him to commit acts of sexual violence[.]" He based this opinion upon M.O.'s "history of sexual acting out and sexual offenses . . . ," and testified that "[t]he fact that he's continued to show these symptoms in . . . sexual ways up until as recently as . . . even less than a year ago . . . says to me that . . . [M.O.] is unable to control his sexual behavior and his sexual violence."

Dr. Gilman noted that M.O.'s antisocial personality was further exacerbated by his "mild mental retardation" and described M.O.'s behaviors as being consistent with his diagnosis, since "anti-social refers to a problem with comporting . . . [oneself] to . . . expectations and legal constraints. . . . They tend to be impulse-ridden."

Dr. Gilman opined that M.O.'s risk of sexually re-offending, unless confined to a secure facility for treatment, was "high[,]" and explained that

based upon [M.O.'s] history, that is a sexual assault, although it was many, many years ago, but his more recent history of sexually expressing his anger and frustration, possibly having an exhibitionist diagnosis, coupled with his anti-social personality disorder, and his mild mental retardation, and his lack of treatment for sex offending behavior, I think altogether conspire to have his risk high.

Dr. Gilman scored M.O.'s risk factor as seven on the Static-99 scale, which he described as "the highest-risk category, which is 6 or above." The doctor used the Static-99 as "a confirming piece of information to [his] clinical evaluation."

Dr. Gilman acknowledged that his Static-99 rating was higher than those proffered by defendant's experts, psychologists Timothy P. Foley, Ph.D. and Brian Friedman, Psy. D., and explained that the difference was that "they ha[d]n't considered [M.O.'s] . . . five episodes of . . . exposing himself in prison as a sexual offense. . . . [T]hey . . . have basically said that that's not a sexual offense and, therefore, it wouldn't be part of the scoring system."

Dr. Friedman, who is on the staff of the STU, testified on behalf of M.O. His testimony was based upon his interview with M.O. on November 20, 2007, as well as his review of documents respecting M.O.'s history, prison records and treatment records.

Dr. Friedman gave M.O. a score of four on the Static-99. In his report, Dr. Friedman acknowledged that "[i]t can be reasonably argued that [M.O.] should receive a score of [eight] on the Static-99, if his most recent institutional infraction for exposing himself is viewed as the index sexual offense; this is consistent with the Static-99 scoring rules." However, the doctor

decided not to view [M.O.'s] institutional sexual misbehavior as the index offense for a number of reasons. First, the item "Prior sexual offense charges and convictions" taps into the sexual deviance aspect of recidivism risk, and this evaluator feels that [M.O.]'s sexual offending was more driven by general antisociality. Similarly, if [M.O.] was a paraphilic exhibitionist, I would expect to see an earlier onset of this behavior, not at age 40 after 15 years of incarceration. Exhibitionism typically has an age of onset by young adulthood. This is not to say that [M.O.] does not have significant issues with women, as all of his exposure charges in prison involved female corrections officers, but simply that this behavior is viewed as more reflective of his antisocial personality structure and impulsivity as opposed to a focused sexual deviance.

Dr. Friedman concluded that M.O.'s disciplinary infractions constituted "sexual acting out [that] is just . . . one part of his difficulty with authority, refusing to obey orders."

Dr. Friedman diagnosed M.O. with polysubstance dependence, depressive disorder NOS, antisocial personality disorder and borderline intellectual functioning. The doctor opined that M.O.'s history of juvenile offenses constituted "symptoms . . . of a conduct disorder prior to age [fifteen]." Dr. Friedman further opined that M.O. "has problems with impulsivity. He can be deceptive. He has difficulty accepting full responsibility for his behavior at times." While he did not find M.O. "to be a high risk, [he] still d[id] believe that his personality disorder predisposes him towards sexually . . . inappropriate, illegal, or aggressive behavior."

Dr. Foley also gave M.O. a score of four on the Static-99, for essentially the same reasons as Dr. Friedman, namely that the institutional sexual infractions "appear[ed] to be motivated in the context of a generalized antisocial approach rather than indicative of a paraphilia disorder." In fact, Dr. Foley testified that he "relied to some degree on Dr. Friedman's formulation, which [he] thought was . . . very attuned to the various issues . . . ." Based upon his Static-99 assessment, Dr. Foley opined that M.O. "was less than highly likely[]" to sexually re-offend if not confined at the STU.

Dr. Foley also diagnosed M.O. with antisocial personality disorder; however, he stated that there was "no high correlation to sexual recidivism." If M.O. were released to the community, Dr. Foley believed he would be "three times more likely to be charged and convicted of a non-sexual crime than a sexual crime."

At the end of the proceedings, Judge Perretti put a comprehensive oral opinion on the record, stating her reasons for ordering M.O.'s civil commitment. The judge reviewed M.O.'s background, including his record of juvenile adjudications and his adult criminal record. The judge also noted defendant's numerous disciplinary infractions while incarcerated, five of which were "sexual in nature[,]" and had occurred in August 1998, April 2000, December 2001, September 2005 and December 2006. The judge further noted that the incident in December 2006 "constitute[d] a fourth-degree crime of criminal sexual contact."

The judge extensively reviewed the testimony. Regarding the discrepancy in the experts' Static-99 scores, the judge concluded that Dr. Gilman's use of M.O.'s institutional infractions was "within the protocols and the directions for scoring the instrument." Specifically, the last incident in December 2006 "fulfill[ed] all of the requirements for its use as an index offense. While committed in custody, it was an offense, which, in the community would be regarded as a crime . . . ."

The judge noted Dr. Friedman's concession that "'[i]f [M.O.'s] most recent institutional infraction for exposing himself [wa]s viewed as the index sexual offense, this [would be] consistent with the Static-99 scoring rules[] . . . [and] would obviously elevate his actuarially-determined level of risk to the high risk category.'" The judge concluded that Dr. Friedman's failure to "consider the infraction in 2006 as the index offense for purposes of scoring[]" constituted a "depart[ure] from the scoring protocols as defined in the instrument's manual." The judge underscored this conclusion with the observation that

Dr. Friedman reached his conclusions about [M.O.]'s behavior while incarcerated from his acceptance of [M.O.]'s reasons, namely to secure an institutional transfer or simply an unjust accusation. By making such a finding, which is integral to Dr. Friedman's entire theory, he is resting upon unfounded speculation and possibilities unsupported by reliable, factual evidence.

The judge concluded that Dr. Foley similarly "neglect[ed] to take into consideration that . . . [M.O.] commit[ted] a sex offense while in custody in December of 2006." Therefore, the judge rejected Dr. Foley's score of four on the Static-99.

Judge Perretti concluded her opinion with the following findings:

The testimony of Dr. Gilman was persuasive and . . . squarely based on reliable material in the record. The evidence by the [S]tate was clear and convincing. [M.O.] is a sexually violent predator. He has been convicted of a sexually-violent offense in the first-degree.

He has demonstrated by his repeated sexual acts while in custody that he has serious difficulty controlling his sexually-violent behavior. He suffers from abnormal mental conditions and [a] personality disorder that influences emotional, cognitive and volitional functioning so as to predispose him to commit sexually-violent acts.

It is highly likely that [M.O.] will commit sexually violent acts in the foreseeable future if not confined for care and for the protection of the public.

On appeal, M.O. presents the following arguments for our consideration:

POINT 1

THE TRIAL COURT'S HOLDING THAT DR. FRIEDMAN'S OPINION WAS NOT BASED ON GENERALLY ACCEPTED OBJECTIVE STANDARDS IS ERRONEOUS

POINT 2

THE STATE HAS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT M.O. IS HIGHLY LIKELY TO COMMIT A SEX OFFENSE IF RELEASED TO THE COMMUNITY

Having considered these contentions in light of the record and the controlling legal principles, we are convinced they are without merit. We affirm substantially for the reasons stated by Judge Perretti in her decision rendered from the bench on November 29, 2007. R. 2:11-3(e)(1)(A). We add the following comments.

The scope of appellate review of judgments of civil commitment is exceedingly narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). An appellate court should give the "utmost deference" to the reviewing judge's determination of the appropriate balancing of societal interests and individual liberty. In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)). That determination will be subject to modification "only where the record reveals a clear abuse of discretion." Ibid. "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).

Under the SVPA, involuntary civil commitment can follow an offender's service of a sentence, or other criminal disposition, when 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 statute defines "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.

A mental abnormality or personality 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). A finding of a total lack of control is not necessary. Id. at 126-27. Instead, a showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Id. at 127.

At the commitment hearing, the State must prove a 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.

[Id. at 132.]

The court must address the individual's "present serious difficulty with control over dangerous sexual behavior[,]" and the State must establish, by "clear and convincing evidence[,]" that it is "highly likely" that the individual will reoffend. Id. at 132-34. See also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004); N.J.S.A. 30:4-27.32.

M.O.'s principal argument is that the trial judge erroneously rejected Dr. Friedman's method of scoring the level of his risk of re-offending under the Static-99. In support of this argument, he proffers articles and opinions we addressed at length in In re Commitment of R.S., 339 N.J. Super. 507, 540-45 (App. Div. 2001). In that opinion, we accepted the Static-99 as a scientifically reliable instrument admissible in commitment hearings under the SVPA. Id. at 539. As to the weight to be accorded to such evidence, we concluded:

SVPA commitment hearings are tried before a judge, not a jury. The court understands that it is the ultimate decision maker and must reach a conclusion based upon all of the relevant evidence "psychiatric or otherwise-according each type such weight as [it] see[s] fit." An experienced judge who is well-informed as to the character of the actuarial instruments and who is accustomed to dealing with them is much less likely to be prejudiced by their admission than a one-case, fact-finding jury would be. The judge can accord the appropriate weight to actuarial assessments in any given case, or reject them.

[Id. at 539-540 (quoting State v. Fields, supra, 77 N.J. at 308).]

We are satisfied that Judge Perretti, one of two judges assigned to preside over SVPA commitment and review hearings in this state, is just such "[a]n experienced judge who is well-informed as to the character of the actuarial instruments and who is accustomed to dealing with them . . . ." Ibid. We therefore defer to her analysis and weighing of the discrepancies between the Static-99 scores proffered at the hearing.

For the reasons stated, we reject M.O.'s claim that the State failed to meet its burden of proof by clear and convincing evidence; that argument is without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

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A-1850-07T2

RECORD IMPOUNDED

August 24, 2009