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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5928-08T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF W.C.

SVP-526-09.

_____________________________________________________

August 29, 2013

Submitted October 15, 2012 - Decided

Before Judges Graves and Espinosa.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Docket No.

SVP-526-09.

Joseph E. Krakora, Public Defender, attorney

for appellant (Thomas G. Hand, Designated

Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney

for respondent (Melissa H. Raksa, Assistant

Attorney General, of counsel; Amy Beth Cohn,

Deputy Attorney General, on the brief).

PER CURIAM

W.C. appeals from a judgment entered on June 24, 2009, committing him to the Special Treatment Unit, a facility for the custody, care and treatment of sexually violent predators under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

The SVPA's definition of "sexually violent predator" includes an individual "who has been convicted . . . of 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. Courts are authorized to order the involuntary civil commitment of an individual under the SVPA when the State has proven "by clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator." N.J.S.A. 30:4-27.32(a). The Court has explained the standard for involuntary commitment under the SVPA as follows:

To be committed under the SVPA an individual must be proven to be a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts. . . . [T]he State must prove that threat 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 sexually violent behavior and will reoffend.

Those findings . . . require an assessment of the reasonably foreseeable future. No more specific finding concerning precisely when an individual will recidivate need be made by the trial court. Commitment is based on the individual's danger to self and others because of his or her present serious difficulty with control over dangerous sexual behavior.

[In re W.Z., 173 N.J. 109, 132-33 (2002).]

The scope of appellate review of a trial court's decision in a commitment proceeding has been described as "extremely narrow, with the utmost deference accorded to the reviewing judge's determination as to the appropriate accommodation of the competing interests of individual liberty and societal safety in the particular case." State v. Fields, 77 N.J. 282, 311 (1978). The trial court's determination may only be modified "where the record reveals a clear abuse of discretion." In re V.A., 357 N.J. Super. 55, 63 (App. Div.) (internal quotation marks and citation omitted), certif. denied, 177 N.J. 490 (2003). A reviewing court must be mindful that the SVPA was enacted "to afford protection to society from those sexually violent predators who pose a danger as a result of a mental abnormality or personality disorder which makes them likely to engage in repeated acts of predatory sexual violence." In re E.D., 353 N.J. Super. 450, 456 (App. Div. 2002).

On December 23, 1997, when he was forty-eight years old, W.C. pled guilty to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), and second-degree sexual assault, N.J.S.A. 2C:14-2(b). A report prepared by the Adult Diagnostic and Treatment Center (ADTC) provided the following background information:

These charges stemmed from the reports by three sisters ranging in age from 4 to 7 years old that [W.C.] sexually abused them by fondling them. The latter charge stems from the reports from a now 19 year old girl that [W.C.] sexually abused her on three occasions when she was age 7. During the present examination, [W.C.] admitted to touching the 7 year old girl one time on the buttocks. He denied sexually abusing the other victims. [W.C.] has a history of one conviction involving criminal sexual behavior on an underaged child plus two other arrests. During the present examination, he admitted, apparently for the first time, to sexually abusing the underaged female victim of the 1994 case, which was dismissed.

The results of this evaluation leave little doubt that [W.C.'s] actions in the present offense are part of a compulsive, repetitive pattern of deviant sexual behavior involving sexual contact with underage girls. Despite having received treatment for his sexually abusive behavior, [W.C.] was unable to prevent himself from fantasizing in a sexual manner about children, and he was unable to prevent himself from fondling at least one 7 year old girl in a sexual manner, by his own admission. The evidence is strong that his actions in the present offense represent a continuation of the same compulsive, repetitive pattern of deviant sexual behavior diagnosed in 1990 by Mr. Michael Davis at the ADTC. If the victims' accounts are accurate, then [W.C.'s] actions in 1997 and 1985 were even more repetitive. In any event he is clearly eligible for sentencing under the purview of the New Jersey Sex Offender Act.

On April 24, 1998, the court sentenced W.C. to twenty years imprisonment with ten years of parole ineligibility to be served at the ADTC. W.C. participated in treatment while he was at the ADTC. The ADTC termination report dated November 4, 2008, summarized W.C.'s treatment as follows:

[W.C.] continuously claimed that he had difficulty speaking up in [therapeutic community] group due to anxiety. However, his claim was not supported by his behavior when he actively participated for others and confronted others. It would appear that [W.C.'s] claim that he has difficulty speaking up in group is rooted in his efforts to avoid confrontation about his sex offending dynamics. He has been confronted in group about his consistent lying and making up personal victimization issues that have later turned out to be non-existent according to his admission. He expressed that his motivation to invent traumatic issues was merely to elicit pity from others.

[W.C.'s] progress in treatment has vacillated significantly as reflected by his scores in his six month reviews. However, what seems to have remained constant is the minimization of his pedophilic sexual arousal and his sexual offending behavior. From the first few reviews and onwards, [W.C.] has continued to remain highly defended on aspects of his behaviors, often presenting as confused or too anxious to answer any questions. . . . Recent notes from his psychiatrist who has been treating his anxiety indicate that [W.C.] blames his anxiety for his lack of progress in treatment, yet within the same session asks his psychiatrist to lower his medication for anxiety. . . .

The termination report also noted W.C.'s failure to "demonstrate any intellectual or emotional victim empathy":

[W.C.] has yet to describe his crimes with any degree of honesty or without gross minimizations despite the numerous chances given by his therapists. He does not demonstrate any intellectual or emotional victim empathy. At one point, when asked in his process group about how safe he perceives himself to be from victimizing another child, he replied, "Not safe, I would probably take another victim." A few months later, [W.C.] decided to withdraw his statement and stated that he believes he can control himself. Within that timeframe, his group members suggested to him that he refer himself to a committee comprised of his peers in the [therapeutic community] to better address his issues. During that process, [W.C.] disclosed that he probably has "more than a hundred victims, if I were to count frottage." Despite the fact that he has successfully completed his Relapse Prevention module, when confronted in his process group with plausible scenarios which might trigger him to relapse, he continues to struggle with coming up with strong interventions to prevent relapse given the strong compulsive nature of his arousal.
. . .

In summary, [W.C.] seems to have done his best to go through the motions in this treatment program, by completing all the modules and joining the [therapeutic community], without an authentic willingness to address his highly compulsive deviant arousal or to address his challenges in preventing relapse.

Prior to W.C.'s release from the ADTC, the State filed a petition to civilly commit him under the SVPA, and he was temporarily committed pending a hearing. W.C.'s initial commitment hearing was held on May 19, May 20, and May 29, 2009. The State presented the testimony of Pogos Voskanian, M.D., a psychiatrist, and W.C. presented the testimony of David Kalal, Ph.D., a psychologist. W.C. also testified on his own behalf.

Dr. Voskanian evaluated W.C. on May 20, 2009. He testified he diagnosed W.C. with "pedophilia, aroused to underage girls, not limited to incest, nonexclusive," and "personality disorder NOS, with antisocial traits." Dr. Voskanian also testified as follows:

Q. Doctor, do these diagnoses that you rendered in this case cause [W.C.] serious difficulty controlling his sexually violent behavior?

A. Yes.

Q. Now, Doctor, do you consider [W.C.'s] age, which I believe he just turned 60, as mitigating his risk to any substantial degree?

A. No.

Q. Why not?

A. He's a pedophile, and with pedophilia, age does not have significant impact, and . . . he's a fondling pedophile, basically, as he describes himself.

. . . .

Q. Doctor, would you characterize [W.C.'s] risk to sexually reoffend in the foreseeable future, unless confined in a facility for sexually violent predators to be highly likely?

A. It is highly likely, yes.

Q. Do you hold all the opinions you've expressed here this afternoon to a reasonable degree of medical certainty?

A. Yes, I do.

Dr. Kalal evaluated W.C. on December 10, 2008. He testified that on standardized risk assessment tests, W.C.'s scores suggested "a moderate to moderately high risk to reoffend." Dr. Kalal did not diagnose W.C. as suffering from pedophilia or antisocial personality disorder, but he acknowledged that he did not "do a full diagnostic interview." However, when asked if he agreed that W.C. is a pedophile, he answered, "I would have to review the diagnostic criteria for that, but, loosely, offhand, it's quite likely that he meets those criteria."

When W.C. testified, he attempted to clarify a statement that was attributed to him. According to W.C., he was asked whether it was safe to say with "a hundred percent certainty" that he would never commit another crime, so he said "not safe within a hundred percent." In addition, W.C. agreed that he may have said he "would probably take another victim," but he did not "remember whether those were [his] exact words, or someone else's."

In an oral decision on June 24, 2009, the trial court carefully reviewed the evidence and credited Dr. Voskanian's testimony. The court concluded that W.C. would have serious difficulty controlling his sexually harmful behavior within the reasonably foreseeable future if he were not confined:

I find that the State has convincingly and clearly proven that [W.C.] has serious difficulty controlling his sexually harmful behavior, and that it is highly likely that he will not control the sexually violent behavior, and will reoffend in the reasonably foreseeable future, unless confined in a secure facility for control, care, and treatment.

W.C. submits the following arguments on appeal:

POINT I

BY ALLOWING THE STATE'S EXPERTS TO BASE THEIR DIAGNOSES AND CONCLUSIONS ON ALLEGED FACTS ESTABLISHED THROUGH INADMISSIBLE HEARSAY, THE SVPA PROCEEDING VIOLATED THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY CONSTITUTION ARTICLE 1, PARAGRAPH 1 (PROCEDURAL DUE PROCESS, EQUAL PROTECTION AND SUBSTANTIVE DUE PROCESS CLAUSES).

A. COURTS SHOULD APPLY ANALOGOUS CRIMINAL DUE PROCESS PROTECTIONS TO SVPA HEARINGS.

B. TESTIFYING EXPERTS SHOULD NOT BE ALLOWED TO CONSIDER FACTS OUTSIDE OF CONVICTIONS IN ARRIVING AT DIAGNOSES AND DETERMINING RISK.

C. THE STATE CANNOT EVADE THE CONFINES OF APPRENDI/BLAKELY/

SHEPARD THROUGH THE BACKDOOR OF R. 703.

D. IN THE ALTERNATIVE, AT THE SVPA PROCEEDING, THE STATE'S EXPERTS MAY ONLY MAKE DIAGNOSES OR DRAW CONCLUSIONS FROM (1) THE FACTS DEFENDANT HAS PLED TO OR (2) HEARSAY SUPPORTED BY SUBSTANTIVE PROOF.

E. THE SAME COURT CANNOT ACT AS BOTH GATEKEEPER AND FACTFINDER IN SVPA PROCEEDINGS.

F. THE SVPA VIOLATES FEDERAL AND STATE SUBSTANTIVE DUE PROCESS.

POINT II

THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT W.C. SHOULD HAVE BEEN INVOLUNTARILY COMMITTED.

A. STANDARD OF REVIEW.

B. THE STATE FAILED TO PROVE THE LACK OF CONTROL REQUIREMENT OF W.C.

Based on our examination of the record and the applicable legal principles, we reject these arguments and affirm C.W.'s involuntary commitment under the SVPA substantially for the reasons stated by Judge John A. McLaughlin in his comprehensive oral decision on June 24, 2009. See State v. Bellamy, 178 N.J. 127, 136 (2003) ("Commitment under the [SVPA] is contingent on proof of past sexually violent behavior, a current mental condition, and a demonstrated inability to adequately control one's sexually harmful conduct."). C.W.'s arguments do not warrant any additional discussion. R. 2:11-3(e)(1)(E).

Affirmed.