IN RE: THE CIVIL COMMITMENT OF D.G.H.

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Superior Court of New Jersey, Appellate Division.

IN RE: THE CIVIL COMMITMENT OF D.G.H., SVP–98–00.

DOCKET NO. A–5580–12T2

Decided: March 26, 2014

Before Judges Grall and Accurso.

D.G.H. is civilly committed to the Special Treatment Unit (STU), the secure custodial 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. He appeals from the April 3, 2013 order of the Law Division continuing his commitment after an annual review required by N.J.S.A. 30:4–27.35. We affirm.

D.G.H. is fifty-five years old and has been committed to the STU since 2000.   Although he has been committed for over a dozen years, D.G.H. has yet to move beyond Phase 2 of his treatment.   He has a long history of sexually related offenses, many involving voyeuristic behavior resulting in several trespassing convictions.   Three of D.G.H.'s offenses culminated in actual physical contact with his victims.

The first such offense occurred in January 1981.   D.G.H. kidnapped and assaulted a sixteen-year-old girl who had been walking home from school.   She claimed that D.G.H. grabbed her, carried her to a nearby wooded area and attempted to remove her clothing.   He was arrested and charged with kidnapping and assault, which he pled down to a crime against persons offense.

D.G.H.'s second such offense occurred in the late summer of 1985.   He assaulted an eighteen-year-old girl at a hotel.   He shoved her to the ground, pinned her, slapped her shoulder, partially removed her clothing and touched her vagina and breasts.   The victim also claimed that D.G.H. digitally penetrated her during the assault.   D.G.H. pled guilty to sexual assault and was sentenced to a seven-year term of incarceration.

The third of these offenses, the predicate offense for D.G.H.'s civil commitment, occurred in June 1996 in Plainfield.   D.G.H. approached a young woman at a bus stop and attempted to lure her into his car.   Later that same day, he approached her again as she got off a bus, grabbed her breasts, and placed his hands between her legs.   She struck him with her umbrella and escaped.   Several weeks later, when D.G.H. again attempted to follow her in his car, she got his license plate number and reported it to the police.   D.G.H. pled guilty to criminal sexual contact, N.J.S.A. 2C:14–3(b), and stalking, N.J.S.A. 2C:12–10, and was sentenced to eighteen months, which he served at the Adult Diagnostic and Treatment Center (ADTC).

Upon serving his term at ADTC, D.G.H. was involuntarily civilly committed to Trenton Psychiatric Hospital, during which he engaged in several acts of inappropriate sexual behavior.   He was subsequently transferred to the STU and temporarily committed in October 2000.   Since his initial commitment, D.G.H. has been recommitted to the STU at each annual review hearing.   We have reviewed and affirmed several such determinations, most recently in 2009.   In re Civil Commitment of D.G.H., No. A–0841–08, (App. Div. April 23, 2009).

The review hearing at issue here took place on April 3, 2013.   The court heard testimony from Dr. Pogos Voskanian, a psychiatrist, and Dr. Jamie Canataro, a clinical psychologist and member of the STU's Treatment Progress Review Committee (TPRC).  Dr. Canataro interviewed D.G.H. with the TRPC panel on January 15, 2013 and prepared a report which was admitted into evidence.   She opined that D.G.H. suffers from voyeurism, paraphilia NOS (non-consent), alcohol abuse, cannabis abuse, and personality disorder NOS (with antisocial features).   Dr. Canataro concluded that D.G.H. still required inpatient, phase two sex-offender treatment and remained at high risk for recidivism as reflected in his score of 8 on the Static–99R, an actuarial measure of relative risk for sexual offense recidivism.   She opined:

Since his commitment to the STU, [D.G.H.] has made limited progress in treatment․  [H]e is noted to demonstrate little insight into treatment concepts.

Unfortunately, [D.G.H.] has not yet identified his core treatment issues nor participate[d] in treatment in a consistent manner to warrant phase advancement despite his twelve years at the STU․

Although [D.G.H.] has a lengthy offense history, it is not considered to be the most compelling when compared to [the] STU population.   Most of his offenses are non-contact and his contact offenses involved less severe victim trauma.   Of significance is that, once [D.G.H.] addresses his treatment issues, he could be a viable discharge candidate in the future.   However, at this point, he has put forth minimal effort into progressing further.   It is essential that he demonstrate some insight into his deviant arousal and offending dynamics, take increased responsibility for this behavior, develop an understanding of his cycle, and develop a realistic relapse prevention plan.

Based on his review of D.G.H.'s STU records and his prior assessments, Dr. Voskanian diagnosed D.G.H. with voyeurism, frotteurism, paraphilia NOS, alcohol and marijuana abuse in controlled environment, and personality disorder NOS with antisocial traits.   Although D.G.H. had interviewed with Dr. Voskanian six months previously, he refused the doctor's attempts to interview him for the doctor's March 18, 2013 report.   The doctor opined:

[S]ince my last assessment ․ in November 2012, [D.G.H.] has not made measurable progress in treatment and remains in early stages of treatment.

In addition to paraphilias, [D.G.H.] has a history of alcohol and marijuana abuse and has been diagnosed with antisocial personality disorder.

[D.G.H.'s] inadequately treated sexual pathology in conjunction with a history

of substance abuse and antisocial characterologic make-up, indicate that [he] remains at high risk for sexual recidivism and in need for continuous commitment to the STU.

Following the conclusion of testimony, Judge Mulvihill ordered D.G.H.'s continued commitment to the STU. Specifically, the judge found

the State has proven by clear and convincing evidence, number one, that [D.G.H.] has been convicted of sexually violent offenses.   Number two, [there is] clear and convincing evidence that [D.G.H.] suffers from a mental abnormality that does not spontaneously remit, [and] can only be mitigated by treatment.   He's stuck in [phase two] of treatment.   His personality disorder is getting in the way of his treatment.   He is intelligent.   He is a high school graduate.   But he just can't move forward, although he does attend group.   And he is predisposed to sexual violence, and ․ if he's released from the STU now, it would be highly likely he would sexually reoffend.   So, [there is] clear and convincing evidence that he presently is highly likely to engage in further acts of sexual violence if not confined to a secure facility for control, care and treatment.

This appeal followed.

A person who has committed a sexually violent offense may be confined pursuant to the SVPA only if he or she suffers from an abnormality that causes serious difficulty in controlling sexually violent behavior such that commission of a sexually violent offense is highly likely without confinement “in a secure facility for control, care and treatment.”  In re Commitment of W.Z., 173 N.J. 109, 120, 132 (2002);  N.J.S.A. 30:4–27.26. In order to secure an order for commitment under the SVPA, the State must prove the individual is a threat to the health and safety of others because of the likelihood of engaging in sexually violent acts.  W.Z., supra, 173 N.J. at 132.   The State must prove that threat by demonstrating that the individual has serious difficulty in controlling sexually harmful behavior such that it is “highly likely” the person “will not control his or her sexually violent behavior and will reoffend.”  Ibid. The court must address the person's “present serious difficulty with control over dangerous sexual behavior,” and the State must establish “that it is highly likely that” the individual will reoffend “by clear and convincing evidence.”  Id. at 132–34;  see also In re Civil Commitment of J.H.M., 367 N.J.Super. 599, 610–11 (App.Div.2003), certif. denied, 179 N.J. 312 (2004).

Once an individual has been committed under the SVPA, a court must conduct an annual review hearing to determine whether the individual will be released or remain in treatment.  N.J.S.A. 30:4–27.35. The burden remains upon the State to prove by clear and convincing evidence that the individual continues to be a sexually violent predator, as defined in the SVPA and interpreted in W.Z., supra, 173 N.J. at 126–32.  “[A]n individual should be released when a court is convinced that he or she will not have serious difficulty controlling sexually violent behavior and will be highly likely to comply with [a] plan for safe reintegration into the community.”  Id. at 130.

The scope of appellate review of a judgment for commitment under the SVPA is “extremely narrow.”  In re Commitment of J.P., 339 N.J.Super. 443, 459 (App.Div.2001).   The trial court's decision is to be given the “ ‘utmost deference’ and modified only where the record reveals a clear abuse of discretion.”  Ibid. (quoting State v. Fields, 77 N.J. 282, 311 (1978));  see also In re Civil Commitment of V.A., 357 N.J.Super. 55, 63 (App.Div.), certif. denied, 177 N.J. 490 (2003).  “The appropriate inquiry is to canvass the significant amount of 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).

Applying those standards here, we are satisfied from our review of the record that the judge's findings are amply supported by substantial credible evidence.  State v. Locurto, 157 N.J. 463, 470–71 (1999).   We affirm substantially for the reasons stated by Judge Mulvihill in his oral opinion of April 3, 2013.

Affirmed.

PER CURIAM

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