IN THE MATTER OF THE CIVIL COMMITMENT OF R.G.

RECORD IMPOUNDED

                            NOT FOR PUBLICATION WITHOUT THE
                           APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
 internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-1888-16T5

IN THE MATTER OF THE
CIVIL COMMITMENT OF
R.G. SVP-83-00.
__________________________

                Submitted October 11, 2018 – Decided January 7, 2019

                Before Judges Vernoia and Moynihan.

                On appeal from Superior Court of New Jersey, Law
                Division, Essex County, Docket No. SVP-83-00.

                Joseph E. Krakora, Public Defender, attorney for
                appellant (Susan Remis Silver, Assistant Deputy Public
                Defender, on the brief).

                Gurbir S. Grewal, Attorney General, attorney for
                respondent (Melissa H. Raksa, Assistant Attorney
                General, of counsel; Victoria R. Ply, Deputy Attorney
                General, on the brief).

PER CURIAM

      R.G. appeals from the trial court's December 2016 order entered following

a review hearing pursuant to  N.J.S.A. 30:4-27.35 which continued his
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. He argues:

           POINT I

           THIS COURT SHOULD REVERSE R.G.’S CIVIL
           COMMITMENT ORDER BECAUSE THE TRIAL
           COURT FAILED TO CONSIDER R.G.’S REDUCED
           RISK OF SEXUALLY REOFFENDING SINCE HE
           WAS A JUVENILE WHEN HE COMMITTED HIS
           SEX OFFENSES.

                A. The Trial Court Failed to Consider that
           Juvenile    Offenses Often  Reflect   “Transient
           Immaturity” and Not an “Irretrievably Depraved
           Character.”

                B. The Trial Court Failed to Consider that the
           Adolescent Brain is Developing and that Juveniles
           Have a Much Lower Risk of Reoffending as an Adult.

                 C. The Trial Court Erred When It Failed to
           Consider that R.G., As A Juvenile Offender, Was More
           Susceptible to Negative Influences, Including Peer
           Pressure, but Can Better Withstand Those Influences as
           an Adult.

           POINT II

           THIS COURT MUST REVERSE BECAUSE THE
           TRIAL COURT BASED ITS DECISION ON FACTS
           THAT WERE NOT IN THE RECORD.

                 A. R.G. Did Not Have Three Prior Convictions.

                B. R.G. Did Not Have Any Uncharged Sex
           Offense Victims.

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                                     2
                  C. R.G.’s Own Psychologist Never Said that
            R.G. “Was on the Verge of a Life of Crime Including
            Sex Offenses.”

                  D. R.G.’s Psychologist Dr. Foley Did Not State
            That R.G. Currently Has a “Myriad of Psychological
            Problems.”

                  E. The Trial Court Incorrectly Cited Expert
            Testimony that R.G.’s Sexual Offenses [Were] Adult-
            Like, When Such Testimony Was Not Actually
            Presented.

                 F. R.G. Had at Least Nine Years of Sex Offender
            Treatment in the STU, Not Just Two Years, and He Did
            Not Spend Significant Periods of Time in MAP Status.

            POINT III

            REVERSAL IS REQUIRED BECAUSE THE TRIAL
            COURT FAILED TO BASE ITS COMMITMENT
            DECISION ON R.G.’S CURRENT MENTAL STATE
            AND    CURRENT      RISK OF   SEXUALLY
            REOFFENDING.

We find no merit in these arguments and affirm.

      Once convicted of a predicate offense as defined by the SVPA, a person

who "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, may be subject to

an involuntary civil commitment as a sexually violent predator,  N.J.S.A. 30:4-


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                                       3
27.32(a).   To warrant commitment, or continuation of the person's prior

commitment, the State must prove "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." In re

Civil Commitment of W.Z.,  173 N.J. 109, 132 (2002); see also In re Civil

Commitment of J.M.B.,  197 N.J. 563, 571 (2009); In re Civil Commitment of

G.G.N.,  372 N.J. Super. 42, 46-47 (App. Div. 2004). 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 person . . . will reoffend." In re Civil Commitment

of W.Z.,  173 N.J. at 130, 132-33; see also In re Civil Commitment of J.H.M.,

 367 N.J. Super. 599, 611 (App. Div. 2003).

      The record clearly establishes that R.G. committed an SVPA-predicate

offense. He pleaded guilty and was adjudicated on two counts of aggravated

sexual assault for inserting his penis into the anus of a four-year-old and a seven-

year-old when he was sixteen-years-old. Charges stemming from R.G.'s anal

penetration of a five-year-old were dismissed as part of the plea agreement.

      Before reaching R.G.'s challenge to the trial court's analysis in deciding

to continue his commitment, we first address his arguments that the court based


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its decision on facts not supported by the record. R.G. argues the trial court

improperly based its risk assessment of the likelihood he would reoffend on

inaccurate information: he was adjudicated for the assault of all three victims –

including the five-year-old; that he sexually victimized others but was not

charged; and that the trial court continued R.G.'s commitment after it "falsely"

found that R.G.'s psychologist, Dr. Timothy Foley, said that R.G. "was on the

verge of a life of crime, including sex offenses."

        The records reviewed by Dr. Roger Harris and Dr. Debra Roquet – both

of whom were called by the State – included a February 22, 2000 psychiatric

report,1 which set forth R.G.'s admissions to masturbating and ejaculating while

"grinding and fondling" the five-year-old approximately fifteen times in a one-

month period, and to sexual involvement "with other children for which he was

never charged."      Notwithstanding that the trial court echoed the doctors'

testimony about those incidents – to which no objection was made – the court

did not base its decision to continue R.G.'s commitment on that information.

The court, after completing an extensive oral review of R.G.'s treatment history,

had already decided to continue his confinement based on his propensities and

status in treatment. The court was discussing R.G.'s current and future treatment


1
    The report was attached to a juvenile predisposition report.
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                                         5
when it commented about the "three . . . victims" and that it "was sure [R.G.]

had many victims that he was not charged based on his admissions," before

going on to say that R.G. matured and engaged in treatment, and with a fuller

engagement it was hopeful that he would one day be conditionally discharged.

The court also observed that R.G.'s own psychologist said he was on the verge

of a life of crime, but never attributed that quote to Dr. Foley as R.G. now claims.

The court continued:

            But he has aged, he's matured, his risk [has] gone down
            somewhat because of that, and that he's engaging [in]
            treatment and that if he will – if he's able to break
            through the wall that – that he's built and that – so as to
            be able to engage in treatment in the more complete
            way, hopefully it will get to the point where a
            conditional discharge would be appropriate for him.
            It's not appropriate now.

      Even though the court's finding of a third conviction was inaccurate – and,

in reviewing five of our prior decisions regarding his commitment, we

discovered the procedural histories included reference to R.G.'s plea to three

counts of aggravated sexual assault 2 – the trial court did not utilize that


2
  In re Civil Commitment of R.X.G., A-2587-03 (App. Div. Oct. 20, 2004) (slip
op. at 2); In re Civil Commitment of R.X.G., A-2472-05 (App. Div. June 13,
2006) (slip op. at 1-2); In re Civil Commitment of R.X.G., A-2626-06 (App.
Div. June 11, 2007) (slip op. at 1-2); In re Civil Commitment of R.S.G., A-3626-
10 (App. Div. Nov. 10, 2011) (slip op. at 1-2); In re Civil Commitment of R.G.,


                                                                            A-1888-16T5
                                         6
information in deciding to continue R.G.'s confinement. Nor did it use the quote

from an October 3, 2000 report in concluding recommitment was necessary. 3

      We determine R.G.'s claim that Dr. Foley never testified that R.G. had "a

myriad of psychological problems" to be without sufficient merit to warrant

discussion in this opinion. R. 2:11-3(e)(1)(E). We add only that Dr. Foley

testified that R.G. "certainly does have a host of psychological problems that

we've been discussing today," such as his pedophilic disorder and conduct

disorder.

      We are not persuaded by R.G.'s argument that Dr. Roquet never stated that

R.G.'s offenses "were very adult-like." Dr. Roquet testified that she considered

the results of a Static-99R risk assessment because the authors of a previous

version of the Coding Manual for the test – in effect at the time she administered

the test – approved the use of the test, albeit with caution, to gauge the risk of

re-offense "in cases where the offenses are more adult-like."         The court's




A-3917-11 (App. Div. Nov. 2, 2012) (slip op. at 2); In re Civil Commitment of
R.G., A-5504-14 (App. Div. Dec. 7, 2015) (slip op. at 2). R.X.G., R.S.G. and
R.G. all refer to appellant.
3
   The report was reviewed by the court in its lengthy recitation of the case
history. The quote actually reads, "[R.G.] is on the brink of a life of continued
crime and injury to himself and others. He's also on the brink of possible
improvement if provided the appropriate intensive treatment he requires."
                                                                          A-1888-16T5
                                        7
statement, "[R.G.'s] offenses are, as Dr. Roquet testified, . . . very adult like," is

supported by this testimony. Moreover, a close examination reveals the court

was merely commenting on the doctor's rationale for using the Static -99R tool;

it did not base its decision on the Static-99R report. In fact, the court interrupted

Dr. Roquet's testimony about the Static-99R after the doctor testified that a new

Coding Manual – "hot off the presses" – recommended against scoring the test

for juvenile offenders and that, although she included the test results in her

report on R.G. because the older version permitted its use in R.G.'s situation,

she would not again use it. The court stated it was "not interested in what" Dr.

Roquet wrote in her report about the Static-99R, and was interested only in her

present opinion; in fact, the court later asked the doctor, "In the absence of a . .

. Static score, how do you reach your conclusion?"

      This and other parts of the record belie R.G.'s contentions the trial court

failed to base its decision on his "current mental state, good behavior, or

treatment progress to determine if he was highly likely to sexually reoffend";

and that "[t]he trial court ignored the fact that R.G." has not been convicted of a

sexual offense since January 1997, has not violated any of the STU rules in the

last four years, has not had any Modified Activity Placements (MAPs), and has




                                                                              A-1888-16T5
                                          8
positively responded to his many years of extensive sex-offender treatment in

STU.

       The court noted both the positive progress R.G. made as well as the current

proofs that established that he is highly likely to reoffend.                R.G.

mischaracterized the court's recital of the long history of this case as the basis

for its decision. The court based its findings on the expert testimony and

evidence it found to be reliable and credible.

       The court's chronicle of R.G.'s treatment recognized his initial modified

activity status, caused by his violent and disruptive behavior, was followed by a

positive turn – though marked at times by inappropriate behavior – that

continued for a number of years. It noted Dr. Harris's testimony that R.G. started

engaging in treatment in 2005, but then withdrew from treatment from 2010 to

2013, during which he was on MAP status for nine months for fighting; and was

making limited progress in Phase 3A – his then current treatment level to which

the court found he "accelerated" since re-engaging in treatment. The court

pointed out "for substantial periods of time [R.G.] either got himself into MAP

or refused to participate in treatment. Basically, he's been really engaging in

treatment. The latest stint for the last two years."




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                                         9
      The court recounted that Dr. Roquet, a member of the Treatment Progress

Review Committee panel that performed R.G.'s annual evaluation, testified R.G.

was still working on core treatment issues in Phase 3A, after re-engaging in

treatment. The court noted Dr. Roquet's description of R.G.'s participation as

"good, positive" and that in the last year "it's been excellent." The doctor's

testimony also included problems: R.G. was adamant that he would not attend

self-help groups; he had "very little preparedness" to leave the STU because of

his sunted social skills; he did not want to participate in a therapeutic

community; he experienced continued arousal to children.

      The trial court, crediting both of the State's doctors' testimony, noted that

R.G.'s "conduct has improved, and his hostile world view has softened

somewhat, according to [Doctor Roquet], and this is a big step." The court,

nonetheless, was concerned that his refusal to attend self-help groups, even with

a different facilitator, "raises a serious question about what [R.G.] is going to do

when he has to deal with a probation officer if he ever gets to the point of a

conditional discharge." He agreed with Dr. Roquet's assessment that "the nature

and intensity of treatment outside of the STU is nowhere near what it is inside,

and particularly [as it concerns R.G.] who needs substantial treatment." And the

court determined "he has not had anywhere near sufficient treatment." The trial


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                                        10
court decided to continue R.G.'s commitment, finding by clear and convincing

evidence that he suffers

            from paraphilia in the form of pedophilia, and
            personality disorder, be it borderline or antisocial, and
            that in combination these two are . . . robust indicator[s]
            of high risk in that he's affected emotionally,
            cognitively and volitionally, and . . . is, therefore,
            predisposed to engage in acts of sexual violence, and
            that if released he would have serious difficulty
            controlling his sexually violent behavior, along with
            other behaviors as well, and that he would be highly
            likely, within the reasonably foreseeable future, to
            engage in sexual conduct.

      The court's findings and its expertise as a specialist in these matters are

entitled to our deference. In re Civil Commitment of R.F.,  217 N.J. 152, 174-

75, (2014) (citing In re Civil Commitment of T.J.N.,  390 N.J. Super. 218, 226

(App. Div. 2007)). The findings are well-supported by the record. See id. at

175 (citing In re Civil Commitment of J.M.B.,  197 N.J. at 597) (noting an

appellate court only examines the record to determine if there is substantial

credible evidence to support the trial court's conclusion).

      Although all three testifying experts differed somewhat in their diagnoses

of R.G., all agreed that he suffered from some mental disorder. Dr. Foley, as

we already related, diagnosed R.G. with pedophilic disorder and conduct

disorder. Dr. Harris diagnosed R.G. with pedophilic disorder, post-traumatic


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                                       11
stress disorder by history and antisocial personality disorder with paranoid traits.

Dr. Roquet diagnosed R.G. with pedophilic disorder, nonexclusive; antisocial

personality   disorder,   post-traumatic     stress   disorder   by   history;   and,

provisionally, sexual sadism.

      Dr. Harris found relevant R.G.'s continued violent fantasies and potential

risk of violence caused by his admitted consistent distrust of people. The doctor

suggested that, in order to treat R.G.'s compromised ability to internally

modulate his impulses, R.G. should eventually transfer to a therapeutic

community so he could "really get a much broader range of skills so he can

better modulate his internal state," but not before he treated in his regular

process group for, perhaps, another year. Dr. Harris also recommended that

R.G. explore medication options to control his impulsivity. R.G. was resistant

to both treatment in a therapeutic community and medication. Dr. Harris, based

on R.G.'s treatment record, opined that R.G. had not yet had enough treatment

to control the impulses caused by his mental disorders. He thought R.G.'s "poor

problem solving, poor self-regulation, and his antisocial attitudes and behaviors

really compromise[d] his functioning and increase[d] his risk to sexually

reoffend."




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                                        12
      Dr. Roquet, when reviewing the treatment modules R.G. completed, noted

several – relapse prevention 2B, personal victimization, victim empathy, relapse

prevention 2 – that the treatment team wanted him to repeat "to get a better grasp

of the concepts that are presented to be able to apply the concepts to himself, to

his own cycle, or to his own personal issues that he's working on in treatment."

The doctor told of R.G.'s stated reason for adamantly refusing to attend

recommended self-help groups. Referencing a prior conflict he had with a group

facilitator, she opined, "he does not like someone telling him what to do." She

also spoke of R.G.'s resistance to "the idea of the therapeutic community" and

his associated "stunted social development." She also confirmed her discussions

with R.G. about his arousal, including his self-reports "as recently as last year

[2015]," of "pop-up thoughts about children." Dr. Roquet, however, said the

treatment team did not "necessarily find it a negative that he is not very far

advanced in understanding his deviant arousal" considering that he was "about

two years into treatment."

      Dr. Roquet opined, "it is very clear that [R.G.] presents with . . .

difficulties of interpersonal functioning, hostility, problems with self -control,

volatility, problems of decision-making, judgment, emotional reactivity and




                                                                          A-1888-16T5
                                       13
negativity, all of which is over the past couple of years somewhat contained

within the structured environment of the STU."

      In light of the evidence and after a careful review of the trial court's

decision, we determine R.G.'s contention that the court did not consider that he

had more than two years of treatment and did not spend a significant amount of

time in MAP status to be without sufficient merit to warrant discussion here. R.

2:11-3(e)(1)(E). The record indicates he restarted treatment in August 2013, a

little over two years before Dr. Roquet wrote her March 2016 report.

      Finally, the trial court did not, as R.G. argues, fail to consider that he

presented a reduced risk of sexually offending because he was a juvenile when

he sexually assaulted his victims. The court rejected Dr. Foley's opinion, which

cited to United States Supreme Court holdings, that juveniles are distinct from

adults and that he would not have committed R.G. if he knew in 2000 what he

knows about the juvenile maturation process now. The trial court concluded,

"that may be [Dr. Foley's] opinion but I don't see that there is any basis . . . for

him to have it." Based on the testimony of the other doctors, the court rejected

"Dr. Foley's view in this regard, as I also reject his conclusion that [R.G. is] not

highly likely [to recommit a sexual offense]." See Slutsky v. Slutsky,  451 N.J.

Super. 332, 357 (App. Div. 2017) (noting "a factfinder may accept or reject


                                                                            A-1888-16T5
                                        14
expert testimony in whole or in part" (citing Brown v. Brown,  348 N.J. Super.
 466, 478 (App. Div. 2002))).

      The inapposite United States Supreme Court's decisions cited by R.G. in

advancing this argument – Roper v. Simmons,  543 U.S. 551 (2005), Graham v.

Florida,  560 U.S. 48 (2010), Miller v. Alabama,  567 U.S. 460 (2012) and

Montgomery v. Louisiana,  136 S. Ct. 718 (2016) – address criminal sentencing

under the Eighth Amendment. See Roper,  543 U.S. 551 (holding juvenile death

sentence unconstitutional); Graham,  560 U.S. 48 (holding juvenile life-without-

parole sentence for non-homicide crimes unconstitutional); Miller,  567 U.S. 460

(holding juvenile's mandatory life sentence unconstitutional); Montgomery,  136 S. Ct. 718 (applying Miller to post-conviction relief and habeas corpus

proceedings); see also State v. Zuber,  227 N.J. 422, 448 (2017) (holding Miller

applies "in each [juvenile] case that calls for a lengthy sentence that is the

practical equivalent of life without parole").   They do not apply to civil

commitment hearings, see State v. Bellamy,  178 N.J. 127, 138 (2011) (noting

civil commitment under the SVPA is not penal), which require annual

evaluations for a "current mental state" and recommitments based on that

analysis. A commitment is fundamentally distinct from mandatory life-long

incarceration. See Kansas v. Hendricks,  521 U.S. 346, 362-64 (1997) (noting


                                                                       A-1888-16T5
                                     15
criminal statutes deter and punish conduct while the civil commitment statute at

issue did not; it was predictive, protective and "only potentially indefinite"); see

also In re Commitment of W.Z.,  173 N.J. at 127 (noting the SVPA, is

"essentially the same as the Kansas statute examined [by the United States

Supreme Court] in Hendricks in that it 'requires evidence of past sexually violent

behavior and a present mental condition that creates a likelihood of such conduct

in the future if the person is not incapacitated'" (quoting Hendricks,  521 U.S. at
 357)).

         Further, R.G. is no longer a juvenile. The court, in its annual review,

evaluated whether a thirty-six-year-old man was likely to reoffend because he

could not control his sexually violent behavior. The scientific data supporting

the United States Supreme Court holdings in Roper, Graham, Miller and

Montgomery do not concern a thirty-six-year-old sexual offender's current

mental state. Dr. Foley testified that only four percent of juveniles are likely to

sexually reoffend and that, given the new scientific research about juvenile

decision-making, he would not have recommended R.G. be civilly committed in

the first place.    Dr. Foley cited to Miller and Montgomery to support his

assertions about juveniles being treated differently under the law and asserted

that, since R.G. has been civilly committed since 2000, he effectively has a


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                                        16
juvenile mindset. The trial court found Dr. Foley's conclusion and reasoning

lacking, including his assertion that he would not have committed R.G. in 2000.

We discern no abuse of discretion in the trial court's holding.

      We will not consider R.G.'s challenge, raised in an August 8, 2018 letter

pursuant to Rule 2:6-11(d), to only the State's experts' testimony – not Dr.

Foley's – based on our Supreme Court's recent decision, In re Accutane

Litigation,  234 N.J. 340 (2018). This argument was not raised to the trial court.

Nieder v. Royal Indem. Ins. Co.,  62 N.J. 229, 234 (1973) (per curiam). The

balance of R.G.'s arguments are without sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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