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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0836-12T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

J.X.S., SVP-622-11.

____________________________

May 1, 2014

Submitted February 24, 2014 Decided

Before Judges Yannotti and Ashrafi.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Docket No.

SVP-622-11.

Joseph E. Krakora, Public Defender, attorney

for appellant (Michele C. Buckley, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General,

attorney for respondent (Melissa H. Raksa,

Assistant Attorney General, of counsel;

Victoria R. Ply, Deputy Attorney General,

on the brief).

PER CURIAM

J.X.S. appeals from an order of May 8, 2012, directing his civil commitment to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

Appellant is now twenty-eight years old. He has twice been convicted of committing sexual offenses by force against adolescent girls. In 2004, when appellant was eighteen years old, he stalked a twelve-year-old girl and followed her onto an elevator. Alone with the girl, he rubbed his crotch against her front and then took his penis out of his pants and masturbated. He was charged with several offenses, and eventually pleaded guilty to fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). He was sentenced in August 2005 to three years of probation on the condition that he receive mental health counseling. He was also required to register as a Megan's Law sex offender, N.J.S.A. 2C:7-2.

During his probationary term, appellant was arrested many times, including for robbery and theft, bail jumping, theft of services, possession of marijuana, simple assault, Megan's Law violation for failing to notify the police of his change of address, and possession of crack cocaine with intent to distribute. According to the 2008 presentence report in our record, appellant received probationary terms and fines on some of these offenses, and others remained pending when the presentence report was written.

While still on probation on the first sex offense, appellant committed the second sex offense constituting a predicate crime under the SVPA. While in a convenience store in May 2008, appellant approached an eleven-year-old girl from behind, grabbed her by the waist, and rubbed his groin against her buttocks. She broke free and escaped. Appellant was arrested the same day and, in August 2008, he pleaded guilty to second-degree sexual assault, N.J.S.A. 2C:14-2(b). In accordance with a plea agreement, he was sentenced within the third-degree range to four years imprisonment at the Adult Diagnostic and Treatment Center for sex offenders at Avenel (Avenel), and lifetime parole supervision as a sex offender, N.J.S.A. 2C:43-6.4.

As appellant was approaching the time of his release from imprisonment, the State filed a petition for his civil commitment pursuant to the SVPA. Under the SVPA, "[t]he Attorney General may initiate a court proceeding for involuntary commitment." N.J.S.A. 30:4-27.28(c). "If the court finds by clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator, it shall issue an order authorizing the involuntary commitment of the person to a facility designated for the custody, care and treatment of sexually violent predators." N.J.S.A. 30:4-27.32(a).

"Sexually violent predator" means a person 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.]

"'Mental abnormality' means 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. "'Likely to engage in acts of sexual violence' means the propensity of a person to commit acts of sexual violence is of such a degree as to pose a threat to the health and safety of others." Ibid.

"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." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). "[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 her sexually violent behavior and will reoffend." Ibid.

A person committed under the SVPA is afforded an annual hearing for judicial review of his commitment status. N.J.S.A. 30:4-27.35. The "standard of proof and the burden of meeting it at each periodic review hearing must be identical to that required in the initial proceeding." In re Civil Commitment of E.D., 183 N.J. 536, 550-51 (2005) (quoting State v. Fields, 77 N.J. 282, 295 (1978)). The trial judge must assess the offender's "present serious difficulty with control over dangerous sexual behavior," and the State must establish by clear and convincing evidence a high likelihood that the petitioner will offend again. W.Z., supra, 173 N.J. at 131-33.

In this case, Judge Philip Freedman, an experienced SVPA judge, heard testimony from mental health professionals on four dates from October 2011 to May 2012, and he reviewed appellant's record while at Avenel. Judge Freedman then placed an oral decision on the record in which he reviewed the evidence in detail, made credibility findings between the conflicting areas of expert testimony, and concluded the State had proven by clear and convincing evidence that appellant suffered from mental abnormalities that predispose him to acts of sexual violence. The judge also concluded that if released from confinement, appellant would be highly likely to reoffend within the reasonably foreseeable future. Therefore, Judge Freedman ordered appellant's civil commitment and continuing sex offender treatment, and he scheduled a review hearing for April 2013. We have not been informed of the results of the review hearing.

On appeal from the original May 8, 2012 commitment order, appellant argues that the testimony of his expert psychologist, Christopher Lorah, Ph.D., should have been credited over the State's expert psychiatrist, Roger Harris, M.D., with respect to the appropriate diagnoses of his mental status and the likelihood that he would reoffend if released.

Dr. Harris interviewed appellant in October 2011, but appellant walked out of the interview in anger after about twenty minutes. In addition to the limited information Dr. Harris received directly from appellant, he reviewed the reports from Avenel and other information in the file to prepare his report. During the interview, appellant told Dr. Harris that he would expose his genitals to girls when he was a teenager and then engage in sexual activity with them. He described his 2004 offense, stating that he had seen the twelve-year-old girl and liked the way she looked. He had then waited for her to come home from school and taken advantage of the opportunity to get on an elevator with her alone. Regarding the 2008 offense, he admitted rubbing up against the eleven-year-old girl and told Dr. Harris he did not plan the assault but that it happened because at that moment he wanted immediate gratification and was not able to control himself.

Dr. Harris also reviewed reports from other mental health clinicians who had interviewed or treated appellant over the years. Those reports indicated that appellant acknowledged he was aroused by under-aged girls. He also reported sexual activity with adult women, claiming that he had coerced women to have sex with him about twenty times in the past. He had engaged in sex with prostitutes, and he had burned adult women with a cigarette during sexual activity.

The treating therapists at Avenel described appellant as "demanding" and "difficult to control behaviorally." The reports indicated that appellant would violate institutional rules and was defiant, oppositional, immature, and impulsive in his treatment sessions. He did not seem to have benefitted significantly from his several years of treatment at Avenel.

Dr. Harris diagnosed appellant under Axis I with pedophilia, girls, not exclusive; paraphilia NOS,1 coercion, not exclusive; and depressive disorder, in remission. The doctor also diagnosed appellant under Axis II with antisocial personality disorder.2 He noted that appellant had a score of seven on the Static-99 test,3 which places him at a high risk for being charged or convicted of another sexual offense. The doctor believed the Static-99 score actually underestimates appellant's risk of reoffending because of his antisocial attitudes and behavior. He concluded that appellant is highly likely to reoffend and meets the criteria for civil commitment under the SVPA.

Dr. Lorah disagreed with some of Dr. Harris's diagnoses and concluded that appellant could be released from confinement on the condition that he continue outpatient treatment. Dr. Lorah interviewed appellant for ninety minutes in December 2011. In his testimony, he stated that he disagreed with the diagnosis of pedophilia because appellant's predominant sexual activity was with adult women and also because appellant claimed his attraction to the girls he assaulted was focused on their anatomical features that were developed. According to Dr. Lorah, this attraction was inconsistent with pedophilia, which is defined as attraction to the absence of secondary sexual characteristics. In addition, Dr. Lorah stated that appellant did not report fantasies and urges focused on prepubescent girls. As a result of these factors, Dr. Lorah concluded that appellant did not meet the diagnostic criteria for pedophilia.

Dr. Lorah also disagreed with Dr. Harris's diagnosis of paraphilia NOS. He testified that Dr. Harris relied on statements that appellant had made to other clinicians before his 2008 sentencing, namely, that he had coerced twenty women to engage in sexual conduct. Dr. Lorah emphasized that the truth of those admissions had not been verified and they seemed exaggerated. Appellant had admitted malingering with respect to mental conditions in order to obtain prescriptions for drugs that he would then sell to other inmates. Dr. Lorah believed that better proof was needed to diagnose appellant with paraphilia NOS, coercion, based on his admissions.

Dr. Lorah diagnosed appellant only with an antisocial personality disorder, and he found that diagnosis not especially relevant to a risk of sexual re-offense, as opposed to violating criminal laws in general. He also discounted factors pertinent to appellant's Static-99 score. Dr. Lorah agreed that appellant was in need of further treatment, but he believed an appropriate treatment plan could be devised in a less restrictive setting without institutional confinement.

Following the conflicting diagnoses and opinions of the two doctors,4 Judge Freedman permitted Dr. Lorah to administer to appellant a test called the Abel Assessment of Sexual Interest, and the hearing was continued to another date. On the next hearing date, Dr. Lorah testified that the Abel Assessment showed that appellant did not have a deviant sexual interest in girls under thirteen years old. The judge also heard follow-up testimony from Dr. Harris, who disputed the accuracy and significance of the Abel Assessment.

Appellant argues that the conflicting expert testimony demonstrates the State lacked clear and convincing proof that appellant is suffering from a mental abnormality that makes him highly likely to reoffend if released. He argues that Dr. Lorah's evaluation and testimony should not have been discredited by the judge in reaching his ultimate conclusions. Judge Freedman, however, did not ignore Dr. Lorah's testimony. He evaluated it in conjunction with other evidence and explained why he found parts of that testimony not to be persuasive. For example, after admitting the 2008 offense to the probation officer who prepared a presentence report, appellant said: "I really need help. I like to rub myself against girls. It's getting out of hand." He admitted to the Avenel clinicians at the time of his 2008 sentencing that he had engaged in coercive sex with adult women and that he had injured them with lit cigarettes during sexual activity. Dr. Lorah seemed to disregard completely appellant's admissions of sexual misconduct, and that aspect of his evaluation detracted from its overall credibility.

In In re Civil Commitment of R.F., ___ N.J. ___, ___, (slip op. at 41-42) (2014), the Supreme Court restated the "extremely narrow" scope of appellate review of a commitment judgment. Quoting from In re D.C., 146 N.J. 31, 58 (1996), and citing Fields, supra, 77 N.J. at 311, the Court stated:

The judges who hear SVPA cases generally are "specialists" and "their expertise in the subject" is entitled to "special deference." See In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007)). The final decision whether a person previously convicted of a sexually violent offense is highly likely to sexually reoffend "lies with the courts, not the expertise of psychiatrists and psychologists. Courts must balance society's interest in protection from harmful conduct against the individual's interest in personal liberty and autonomy." A trial judge is "not required to accept all or any part of [an] expert opinion[]". The ultimate determination is "a legal one, not a medical one, even though it is guided by medical expert testimony."

[R.F., supra, ___ N.J. at ___ (slip op. at 41-42) (citations omitted).]

This narrow standard of review requires that we defer to Judge Freedman's opportunity to evaluate the evidence firsthand and to his expertise in making determinations pertinent to appellant's commitment. The credibility findings that the judge made were fully explained in his oral decision. They were based on appellant's offense conduct and treatment history, as well as the testimony of the two doctors who diagnosed appellant and diverged on their predictions of the risk of future re-offense.

"[A]n appellate court should not modify a trial court's determination either to commit or release an individual unless 'the record reveals a clear mistake.'" Id. at ___ (slip op. at 42) (quoting D.C., supra, 146 N.J. at 58). We see no clear mistake in Judge Freedman's findings and conclusions.

Affirmed.

1 Paraphilia is defined as "a pattern of recurring sexually arousing mental imagery or behavior that involves unusual and especially socially unacceptable sexual practices (as sadism, masochism, fetishism, or pedophilia)." Merriam-Webster's Online Medical Dictionary, http://www.merriam-webster.com/medical/ paraphilia (last visited April 21, 2014). NOS means "not otherwise specified."

2 Antisocial personality disorder is defined as "a personality disorder that is characterized by antisocial behavior exhibiting pervasive disregard for and violation of the rights, feelings, and safety of others starting in childhood or the early teenage years and continuing into adulthood, that is often marked by a lack of remorse for having hurt, mistreated, or stolen from others, and that in practice is often difficult to diagnose because it is confounded with disorders in which drug addiction or substance abuse is a factor called also psychopathic personality disorder." Ibid.

3 The actuarial data of the Static-99 test are "simply a factor to consider, weigh, or even reject, when engaging in the necessary factfinding under the SVPA." Civil Commitment of R.F., ___ N.J. ___, ___ (slip op. at 23 n.9) (2014) (quoting In re Commitment of R.S., 173 N.J. 134, 137 (2002)) (internal quotation marks omitted).

4 The State also presented testimony from psychologist Eve Adams, who had been treating appellant during most of his imprisonment at Avenel and subsequent treatment at STU. That testimony generally supported a finding that defendant had not benefited significantly from sex offender treatment up to that point and was in need of further treatment.