IN THE MATTER OF THE CIVIL COMMITMENT OF R.A., SVP-194-01 (ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

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NOT FOR PUBLICATION WITHOUT THE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-4748-17T5
IN THE MATTER OF THE
CIVIL COMMITMENT OF
R.A., SVP-194-01.
________________________
Argued March 19, 2019 – Decided April 29, 2019
Before Judges Gilson and Natali.
On appeal from Superior Court of New Jersey, Law
Division, Essex County, Docket No. SVP-194-01.
Susan Remis Silver, Assistant Deputy Public Defender,
argued the cause for appellant R.A. (Joseph E. Krakora,
Public Defender, attorney; Susan Remis Silver, on the
briefs).
Stephen J. Slocum, Deputy Attorney General, argued
the cause for respondent State of New Jersey (Gurbir S.
Grewal, Attorney General, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Stephen J.
Slocum, on the brief).
PER CURIAM
R.A. appeals from a June 11, 2018 judgment involuntarily civilly
committing him to the Special Treatment Unit (STU) as a sexually violent
predator in accordance with the Sexually Violent Predator Act (SVPA), N.J.S.A.
30:4-27.24 to -27.38. After reviewing the record in light of the contentions
advanced on this appeal, we affirm.
I.
Appellant has a history of engaging in sexually violent offenses. In June
1988, he was charged with forcibly raping a woman. While released on bail
from that charge, he was charged with raping a thirteen-year-old girl. Appellant
pled guilty to fourth-degree criminal sexual conduct, N.J.S.A. 2C:14-3(b), in
connection with the first incident. He pled guilty to third-degree aggravated
criminal sexual conduct, N.J.S.A. 2C:14-3(a), in connection with the second
incident.
In December 1995, appellant was charged with physically and sexually
assaulting his former girlfriend. He pled guilty to second-degree sexual assault,
N.J.S.A. 2C:14-2(c). Appellant was then sentenced to eight years in prison, with
five years of parole ineligibility.
In 2001, the State filed a petition to civilly commit appellant under the
SVPA. Following an evidentiary hearing, the trial court granted that petition
and ordered appellant to be civilly committed and to receive treatment at the
STU. Thereafter, appellant's commitment was periodically reviewed and
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continued until 2016. Appellant twice appealed from judgments continuing his
civil commitment, but both times we affirmed. In re Civil Commitment of
R.J.A., No. A-2089-02 (App. Div. June 27, 2005); In re Civil Commitment of
R.J.A., No. A-5713-06 (App. Div. Feb. 5, 2008).
In June 2016, appellant was conditionally discharged from the STU. His
discharge was reviewed and continued by orders entered in September 2016 and
January 2017.
In October 2017, while on conditional discharge, appellant was charged
with fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). The alleged
victim, M.W., was the then nineteen-year-old daughter of appellant's girlfriend.
M.W. reported that appellant placed his hand near her vagina area and asked if
she would like him to massage her nipples. Appellant denied those allegations
and asserted that M.W. had come to his apartment and had touched his inner
thigh while he was playing a video game. Appellant also contended that he
rejected that advance and yelled at M.W.
Based on appellant's charge for criminal sexual contact, on October 10,
2017, the State moved to return appellant to the STU and for a hearing to
determine whether his conditional discharge should be vacated. By an order
entered on October 11, 2017, the trial court granted that application and directed
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that appellant was to be returned to the STU when he was released from his
arrest on the criminal charge.
Following a jury trial, which took place in April 2018, appellant was found
not guilty of criminal sexual contact in connection with the incident involving
M.W. Thereafter, the State sought to continue appellant's civil commitment,
contending that he had violated the conditions of his discharge and he posed a
high risk of engaging in sexually violent behavior if released, even on
conditions. Accordingly, in May 2018, an evidentiary hearing was conducted
in the Law Division.
At that hearing, the State presented testimony from the mother of M.W.
and two experts: Dr. Deborah Roquet, a psychologist, and Dr. Alberto M.
Goldwaser, a psychiatrist. The State also submitted numerous documents into
evidence, including an STU intake form dated April 19, 2018, documenting an
admission by appellant that he had used cocaine in the past year. Appellant
presented expert testimony from a psychologist, Dr. Christopher Lorah, and
Hawaiian Thompson-Epps, who prepared a proposed conditional discharge plan
for appellant.
Dr. Roquet and Dr. Goldwaser were both accepted as experts in their
respective fields of psychology and psychiatry. Both doctors evaluated
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appellant and testified concerning their findings. The State's experts testified
that appellant suffered from a mental abnormality that predisposed him to
commit acts of sexual violence. Those experts also opined that appellant was
highly likely to engage in acts of sexual violence if not confined and should not
be released on conditions.
Dr. Roquet and Dr. Goldwaser explained the basis for their opinions by
citing to stressors that built up while appellant was on conditional discharge.
Those stressors included unstable housing issues, unstable personal
relationships, an inability to maintain employment, and health issues. The
doctors then pointed out that those stressors caused appellant to violate the terms
of his conditional discharge by staying overnight twice at his girlfriend's home
and using cocaine.
The State's experts also emphasized that appellant did not adequately
address the stressors he was facing in treatment during his conditional discharge.
For example, the doctors noted that appellant did not voluntarily raise the
incident with M.W. in his counseling while on discharge. Dr. Roquet scored
appellant at a seven on a Static-99R actuarial tool, which corresponded to the
"well above average" risk group. Dr. Goldwaser scored appellant at six on the
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same Static-99R actuarial tool, which also corresponded to the "well above
average risk" group.
Dr. Lorah, who testified on behalf of appellant, was accepted as an expert
in the field of psychology. Dr. Lorah acknowledged that appellant posed a risk
of reoffending, but opined that that risk could be managed on conditional
discharge.
After considering all of the evidence presented at the hearing, the trial
judge civilly committed appellant finding that the State had presented clear and
convincing evidence of the elements necessary for a civil commitment. The trial
judge reviewed appellant's criminal record and found that there was no dispute
that he had been convicted of sexually violent offenses. The judge also found
that there was no dispute among the three experts that appellant suffered from a
mental abnormality that predisposed him towards sexual violence.
The court then relied on the expert testimony presented by Dr. Roquet and
Dr. Goldwaser and found that there was clear and convincing evidence that
defendant "would be highly likely to engage in acts of sexual violence within
the reasonable foreseeable future if released." In accepting the testimony of Dr.
Roquet and Dr. Goldwaser, the trial court found that both doctors relied on
sources and information that were regularly relied upon by experts in their
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respective fields. The court also found that both doctors were credible. In
contrast, the court rejected and did not accept the opinion of Dr. Lorah that
appellant could comply with conditions if he was conditionally discharged.
Accordingly, in a judgment dated June 11, 2018, the trial court ordered appellant
to be committed to the STU for care and treatment and scheduled a review
hearing to be conducted in June 2019.
II.
On this appeal, appellant makes two principal arguments, which he
articulates as follows:
POINT I – THE TRIAL COURT ERRED WHEN IT
COMMITTED R.A. WITHOUT REQUIRING THE
STATE TO PRESENT CLEAR AND CONVINCING
EVIDENCE THAT HE IS "HIGHLY LIKELY" TO
SEXUALLY REOFFEND.
A. This Court Must Reverse Because
R.A. Was Committed for Being Alone with
a Woman When Nothing in His Discharge
Order Barred Him from Being Alone with
a Woman.
B. R.A. Was Wrongfully Committed
Based on the Trial Judge's Improper
Assumption that the Jury's Acquittal Was
Either In Error or that R.A. Could Not Deal
With His Anger Because He Yelled Out
When His Fiancee's Adult Daughter
Touched His Inner Thigh.
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C. This Court Must Reverse Because
No Expert Testified that R.A.'s Two
Overnight Stays at His Fiancee's House
Meant that He Was Highly Likely to
Sexually Reoffend.
D. The Fact That R.A.'s Medical
Condition Caused Him to Take a Break
from Employment Does Not Warrant His
Commitment in the STU.
E. R.A. Denies Drug Use and Had
Negative Drug Screens, But Even if He had
a One-Time Drug Use, the State Failed to
Prove This Made Him Highly Likely to
Sexually Reoffend.
POINT II – The State Doctors Only Offered
Inadmissible Net Opinion When They Found R.A. At
High Risk to Sexually Reoffend.
Having reviewed the record and law, we are not persuaded by these arguments.
To civilly commit an individual as a sexually violent predator, the State
must establish three elements by clear and convincing evidence:
(1) that the individual has been convicted of a sexually
violent offense, (2) that he [or she] suffers from a
mental abnormality or personality disorder, and (3) that
as a result of his [or her] psychiatric abnormality or
disorder "it is highly likely that the individual will not
control his or her sexually violent behavior and will
reoffend[.]"
[In re Civil Commitment of R.F., 217 N.J. 152, 173
(2014) (citations omitted) (first citing N.J.S.A. 30:4-
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27.26; and then quoting In re Commitment of W.Z., 173
N.J. 109, 130 (2002)).]
The same standard applies when the State seeks to recommit a person who
was given a conditional discharge. In re Civil Commitment of E.D., 183 N.J.
536, 551 (2005). In that regard, our Supreme Court has stated "for the State to
cause the recommitment of a committee who has been conditionally discharged,
the State must establish by clear and convincing evidence that the committee is
highly likely not to control his or her sexually violent behavior and will
reoffend." Ibid.The SVPA provides standards and procedures that govern both the
conditional discharge from civil commitment and when a person may be
recommitted. Section 27.32(c) of the SVPA sets forth the standard and
procedures for conditional discharge from commitment. N.J.S.A. 30:4-
27.32(c)(1). That statute provides that a person can be conditionally discharged
when a "court finds that the person will not be likely to engage in acts of sexual
violence because the person is amenable to and highly likely to comply with a
plan to facilitate the person's adjustment and reintegration into the
community[.]" Ibid. Our Supreme Court has described that standard as the
"other side of [the] coin" to the third prong of the sexually-violent-predator test.
W.Z., 173 N.J. at 130.
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Once conditionally discharged, a person may be re-committed under the
procedures outlined in subsection 27.32(c)(3) of the SVPA:
A designated staff member on the person's treatment
team shall notify the court if the person fails to meet the
conditions of the discharge plan, and the court shall
issue an order directing that the person be taken to a
facility designated for the custody, care and treatment
of sexually violent predators for an assessment. The
court shall determine, in conjunction with the findings
of the assessment, if the person needs to be returned to
custody and, if so, the person shall be returned to the
designated facility for the custody, care and treatment
of sexually violent predators. The court shall hold a
hearing within 20 days of the day the person was
returned to custody to determine if the order of
conditional discharge should be vacated.
[N.J.S.A. 30:4-27.32(c)(3).]
Certain due process protections apply to recommitment hearings. E.D.,
183 N.J. at 548. In that regard, "the person must be given written notice of each
alleged violation sufficiently in advance of the court proceeding to provide a
reasonable opportunity to prepare a defense." Ibid. As already noted, at the
recommitment hearing, "the State must establish by clear and convincing
evidence that the committee is highly likely not to control his or her sexual
violent behavior and will reoffend." Id. at 551.
"The scope of appellate review of a commitment determination is
extremely narrow." R.F., 217 N.J. at 174 (quoting In re D.C., 146 N.J. 31, 58
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(1996)). "The judges who hear SVPA cases generally are 'specialists' and 'their
expertise in the subject' is entitled to 'special deference.'" Ibid. (quoting In re
Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007)). When
a trial judge's findings are supported by sufficient credible evidence in the
record, they should not be disturbed. Id. at 175 (citing State v. Johnson, 42 N.J.
146, 162 (1964)).
Here, there was substantial credible evidence supporting each of the trial
judge's findings that appellant should be recommitted. There were no disputes
concerning the first two prongs of the test. Appellant had been previously
convicted of a sexually violent offense. All three experts who testified at the
recommitment hearing agreed that appellant suffered from a mental abnormality
or personality disorder that predisposed him towards sexual violence.
Accordingly, the principal contention at the recommitment hearing was whether
the State presented clear and convincing evidence that appellant is highly likely
not to control his sexually violent behavior and will reoffend.
As noted earlier, the trial court relied on the expert testimony of Dr.
Roquet and Dr. Goldwaser and found that it was highly likely that appellant
would not control his sexually violent behavior if he was released. In that
regard, the trial court's finding is supported by evidence in the record and we
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discern no basis to disturb that finding. See R.F., 217 N.J. at 174 (explaining
that appellate courts give deference to trial judges concerning the third prong of
the civil commitment test).
Appellant argues that the trial court erred because there was no clear and
convincing evidence that appellant is highly likely to sexually reoffend. In
making that argument, appellant takes issue with some of the factors discussed
by the trial court. For example, he argues that he did not violate the conditions
of his discharge by being alone with M.W. He also contends that the trial judge
improperly ignored the jury verdict acquitting appellant of the charge of criminal
sexual contact with M.W. He goes on to argue that his violations of discharge
conditions by staying overnight at his girlfriend's home, his failure to maintain
stable employment, and his use of cocaine do not warrant his recommitment.
We reject these arguments because they fail to recognize the basis for the
trial court's decision. The trial court discussed a number of incidents that
occurred while appellant was on conditional discharge. The court did not,
however, rely on any one particular incident in making its findings. Instead, the
court relied on the testimony of the two State experts who described various
stressors that resulted in their assessment that appellant would be highly likely
to engage in sexual violence if released, and even if released on conditions. In
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reaching that conclusion, the trial court did not reject the jury verdict acquitting
appellant of his most recent charge. Indeed, the trial court expressly stated that
it recognized that verdict and did not rely solely on the charge.
Appellant also contends, for the first time on this appeal, that the opinions
of Dr. Roquet and Dr. Goldwaser were "net opinions." We disagree.
"An expert may not provide an opinion at trial that constitutes 'mere net
opinion.'" Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 410 (2014)
(quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011)).
The net opinion rule bars admission "of an expert's conclusions that are not
supported by factual evidence or other data." Townsend v. Pierre, 221 N.J. 36,
53-54 (2015) (quoting Polzo v. Cty. of Essex, 196 N.J. 569, 583 (2008)).
Accordingly, an expert must provide the factual basis and analysis that supports
her or his opinion. Davis, 219 N.J. at 410.
Here, both Dr. Roquet and Dr. Goldwaser testified concerning the facts
and analysis that supported their opinions. Both doctors had interviewed and
evaluated appellant. They had also reviewed treatment records and used
actuarial instruments that are generally accepted by professionals who assess
sex offenders for the risk of re-offense. Accordingly, the State's experts
provided the factual basis for their conclusions and explained the methodologies
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they employed. See In re Civil Commitment of A.Y., ___ N.J. Super. ___, ___
(App. Div. 2019) (slip op. at 26-28).
In summary, we conclude that the trial court used the appropriate standard
and the court's findings were supported by substantial credible evidence in the
record. To the extent not specifically addressed, appellant's remaining
arguments are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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