A-0IN THE MATTER OF THE CIVIL COMMITMENT OF R.T June 13, 2014

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE

CIVIL COMMITMENT OF R.T.

_____________________________

June 13, 2014

Submitted June 3, 2014 Decided

Before Judges Espinosa and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-649-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Randall J. Peach, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; Jeffrey Widmayer, Deputy Attorney General, on the brief).

PER CURIAM

R.T. appeals from an order of November 14, 2012, civilly committing him to the Special Treatment Unit (STU), which is the secure facility designated for the treatment of persons in need of commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. See N.J.S.A. 30:4-27.34a. We affirm.

On October 3, 2003, R.T. pled guilty to second-degree sexual assault, N.J.S.A. 2C:14-2(c). During the plea colloquy, he admitted to having sexual intercourse with a female between the ages of thirteen and sixteen. At the time, he was twenty-four years old. R.T. was sentenced to a six-year term of imprisonment and community supervision for life.

R.T. was released from prison in May 2007. Four months later, he was charged with second-degree attempting to lure a minor, N.J.S.A. 2C:13-6, to which he pled guilty in November 2007. He also pled guilty to fourth-degree violation of community supervision for life, N.J.S.A. 2C:43-6.4(d). During the plea colloquy, he admitted he communicated with a person he believed was a fourteen-year old female1 through the internet, and arranged to meet with her for purpose of taking her to an isolated area to have "sexual contact."

R.T. was sentenced to a seven-year term of imprisonment, with a three-year period of parole ineligibility. He was also sentenced to a one-year term on a violation of the community supervision for life provision, to run concurrently with his sentence for attempting to lure a minor. The court also ordered parole supervision for life, N.J.S.A. 2C:43-6.4, upon his release.

Just five days before his release, the Attorney General filed a petition for R.T.'s civil commitment pursuant to the SVPA. An order of temporary civil commitment was entered and a final hearing held on November 14, 2012. Following the hearing, the trial court noted that not only had R.T. been convicted of two sexually violent offenses, see N.J.S.A. 30:4-27.26(a), but found clear and convincing evidence he suffers from a mental abnormality or personality disorder that causes him to engage in sexually violent behavior of such degree to pose a threat to the health and safety of others. The court further found that, as R.T. cannot control his behavior, it is highly likely he will reoffend unless committed to the STU for further treatment. See In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004).

Psychologist Rosemarie Stewart, Ph.D., called by the State as an expert witness, evaluated R.T. six weeks before the hearing. She concluded R.T. suffers from a personality disorder that predisposes him to committing acts of sexual violence, particularly upon underage girls, and that it is "highly likely" he is going to reoffend.

Dr. Stewart reviewed the emails between R.T. and the fictitious fourteen-year that led to his most recent conviction. In the emails, R.T. expressed a desire to have oral sex and sexual intercourse with the fictitious girl, whom he believed was only fourteen-years of age, and arranged to meet her. Of particular concern to Dr. Stewart was that within just a few months of being released from prison for sexual assault upon a fourteen-year old girl, he was again on the hunt for underage girls with whom to have sex. Neither imprisonment nor community supervision deterred him, revealing that he has serious difficulty controlling his sexual impulses. Dr. Stewart also noted R.T. was oblivious to the harm he caused or could cause by engaging in sex with a child. In addition to her clinical exam, she reviewed objective test results that revealed R.T. had significant psychopathic traits and chronic psychological maladjustment, which caused him to, among other things, manipulate others to fulfill his need for self-gratification.

Pogos Voskanian, M.D., also testified for the State. He evaluated R.T. in September 2012. He pointed out that R.T.'s first victim committed suicide within days of the sexual assault; notwithstanding, R.T. felt no remorse, unable to comprehend the impact his behavior had upon his victim. Like Dr. Stewart, he too thought it significant that, despite being incarcerated for a prolonged period of time for committing a sexual assault upon a young girl, he could not overcome his urge to have sexual contact with an underage female shortly after his release from prison.

Dr. Voskanian concluded R.T has anti-social personality disorder. Given his past conduct and inability to stay away from girls after his initial incarceration, Dr. Voskanian found R.T. predisposed to committing acts of sexual violence, as he has "serious difficulty in controlling his sexually offending behavior," and is therefore at "high risk" to reoffend.

On appeal, R.T. presents the following arguments:2

POINT I THE TRIAL COURT ERRONEOUSLY ADMITTED AND RELIED UPON TESTIMONY PERTAINING TO AN ALLEGED INCIDENT OCCURRING IN MIDDLE SCHOOL, WHEN R.T. WAS TWELVE YEARS OLD. (NOT RAISED BELOW).

POINT II THE TRIAL COURT ERRONEOUSLY FOUND THAT ALL THREE TESTIFYING DOCTORS HAD DIAGNOSED R.T. WITH ANTISOCIAL PERSONALITY DISORDER; IN FACT, THE STATE PSYCHOLOGIST TESTIFIED THAT SHE WAS UNABLE TO MAKE A DIAGNOSIS OF ANTISOCIAL PERSONALITY DISORDER. (NOT RAISED BELOW).

POINT III THE TRIAL COURT ERRED IN FOCUSING ON THE FACT THAT R.T. HAD NOT YET RECEIVED SEX-OFFENDER TREATMENT, WHICH IS NOT A CRITERION FOR CIVIL COMMITMENT, AND WHERE IT HAD BEEN THE STATE THAT HAD EARLIER DETERMINED THAT R.T. WAS NOT ELIGIBLE FOR SEX-OFFENDER TREATMENT AT THE ADTC3. (NOT RAISED BELOW).

POINT IV THE EXPERT TESTIMONY OF THE STATE'S DOCTORS AMOUNTED TO A NET OPINION, WHERE THEIR TESTIMONY DID NOT ESTABLISH A LINK BETWEEN R.T.'s PERSONALITY DISORDER AND HIS RISK TO REOFFEND, AND INSTEAD FOCUSED SOLELY ON HOW R.T.'s "PAST CONDUCT" ALONE DEMONSTRATED HIS FUTURE RISK. (NOT RAISED BELOW).

POINT V THE STATE PSYCHIATRIST ALSO VIOLATED THE NET OPINION RULE IN TESTIFYING THAT R.T. HAD "SEXUAL URGES" HE COULD NOT CONTROL AND A PARAPHILIC "AROUSAL" TO YOUNG GIRLS, WHERE THE STATE PSYCHIATRIST CONCEDED THAT HE WAS UNABLE TO DIAGNOSE R.T. WITH PARAPHILIA OR ANY OTHER DISORDER INVOLVING SEXUAL COMPULSION OR SEXUAL DEVIANCE. (NOT RAISED BELOW).

POINT VI THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT R.T. WAS HIGHLY LIKELY TO SEXUALLY RE-OFFEND AS A RESULT OF A MENTAL ABNORMALITY OR PERSONALITY DISORDER.

POINT VII R.T.'s COMMITMENT UNDER THESE CIRCUMSTANCES IS PUNITIVE IN NATURE, AND THUS AMOUNTS TO THE APPLICATION OF AN EX POST FACTO LAW AGAINST HIM. (NOT RAISED BELOW).

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. 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).

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 her 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 Commitment of 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 the reviewing judge's determination as to the appropriate accommodation of the competing interests of individual liberty and societal safety in the particular case." In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); see also 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." V.A., supra, 357 N.J. Super. at 63 (internal quotation marks and citation omitted).

Based on our review of the record, we conclude the trial court's findings are amply supported by substantial credible evidence, and the matter was correctly decided. R.T.'s arguments lack sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

Affirmed. Top of Form

Bottom of Form

1 R.T. later discovered he was in fact communicating with an undercover police officer.

2 For brevity, we have deleted the subparts to Points I and VI.

3 Adult Diagnostic and Treatment Center