IN THE MATTER OF THE CIVIL COMMITMENT OF C.F., SVP-690-14(ESSEX COUNTY AND STATEWIDE)(RECORDIMPOUNDED) ( 2017 )

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NOT FOR PUBLICATION WITHOUT THE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-1554-14T2
IN THE MATTER OF THE
CIVIL COMMITMENT OF C.F.,
SVP-690-14.
_____________________________
Submitted March 30, 2017 – Decided June 9, 2017
Before Judges Hoffman and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. SVP-
690-14.
Joseph E. Krakora, Public Defender, attorney
for appellant C.F. (Alison Perrone, Designated
Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent State of New Jersey
(Melissa H. Raksa, Assistant Attorney General,
of counsel; Francesco Ferrantelli, Jr., Deputy
Attorney General, on the brief).
PER CURIAM
C.F. appeals from an October 27, 2014 judgment that he
continues to be a sexually violent predator in need of civil
commitment pursuant to the Sexually Violent Predator Act (SVPA),
N.J.S.A. 30:4-27.24 to -27.38. Because the trial court's findings
as to all of the elements necessary for civil commitment under the
SVPA are supported by clear and convincing evidence, we affirm.
C.F. was first convicted of a sex offense in 1985, when he
sexually assaulted a cognitively limited adult female. C.F. pled
guilty to second-degree sexual assault, N.J.S.A. 2C:14-2(c), and
was sentenced to five years of probation and required to attend a
community psychiatric institute. While on probation for the first
offense, C.F. sexually assaulted a seven-year-old girl he was
babysitting. After the girl's mother rejected him, C.F. went in
to the girl's bedroom while she was sleeping, took off her pants,
and rubbed her vagina with his hand. C.F. pled guilty to second-
degree sexual assault, N.J.S.A. 2C:14-2(b), and was sentenced to
ten years at the Adult Diagnostic Treatment Center (ADTC) with
five years of parole ineligibility.
In addition to the two sexual assaults for which C.F. was
convicted, he admitted to sexually assaulting children and women,
from the time he turned eighteen years old in 1981 to when he was
arrested in 1989. C.F. admitted the number of victims ranged from
ten to twenty-five.
C.F. has been subject to treatment at various treatment
programs and institutions since his commitment in 1990, without
demonstrated success. During C.F.'s six-year stay at the ADTC,
C.F. had approximately twenty-nine disciplinary incidents.
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Because of his behavior, C.F. was placed in administrative
segregation for four to five years, limiting his opportunity to
engage in treatment. When C.F. was transferred to the Ann Klein
Forensic Center (AKFC) in 1998, he was considered an "untreated
sex offender" and a "danger to the community for women and young
children." While at AKFC, C.F. exposed himself to others and
engaged in inappropriate sexual activities with peers. A 2008
psychological assessment written by a clinical psychologist at
AKFC reported C.F. had achieved "little, if any progress" and had
a "total lack of impulse control." This assessment reported C.F.
was "sexually dangerous to society and must reside in a highly
supervised environment in order to prevent this inevitable
relapse."
C.F. was transferred to Trenton Psychiatric Hospital (TPH)
in 2010, where he was enrolled in a sex offender specific relapse
prevention group program. C.F. was unwilling or unable to apply
the concepts taught or to make the necessary changes in his
behavior and failed to successfully complete the program. In June
2013, C.F. reported his arousal level to be ten out of ten, with
ten being the highest. At that time, C.F. was taking Lupron to
reduce arousal. At TPH, C.F. was observed watching a video of
young girls dancing and stated he enjoyed "watching certain body
parts being shaken on screen," but acknowledged the video was
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"considered inappropriate for him" to watch. In September 2013,
C.F. inappropriately touched and attempted to kiss a
developmentally disabled patient at TPH. C.F. also disclosed to
his treatment team that he had an urge to rape one of the pregnant
patients in his unit. In November 2013, a TPH psychiatrist
recommended C.F. be considered for SVPA commitment.
On May 2, 2014, the State filed a petition to commit C.F.
pursuant to the SVPA. On May 12, 2014, the trial court issued an
order for temporary commitment pending a full hearing. A final
commitment hearing was conducted on October 23, 2014, where the
State presented expert testimony and a forensic report from Dr.
Roger Harris, M.D., and a forensic report from Dr. Christine E.
Zavalis, Psy.D.
Dr. Harris testified he conducted three evaluations of C.F.
and reviewed C.F.'s past records. C.F. reported to Dr. Harris
that he began sexually assaulting children when he turned eighteen
years old and was equally aroused by boys and girls. He told Dr.
Harris he had been voluntarily committed in 1982, after he
approached young girls offering them money in exchange for sex.
C.F. stated his victims were children he would babysit or
relatives, and he would fondle their private parts with his hand.
C.F. stated he was "most aroused to [sic] 7 years old" as they
were most "appealing." C.F. stated young girls and boys made him
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feel "important and powerful" because he had "control over them."
C.F. reported he had dreams of having sex with children while at
AKFC. As to his first sexual assault conviction, C.F. reported
he tied up and raped the woman because "her parents were in [their]
business," and he was angry the woman's mother would not let her
have sex with him.
Dr. Harris noted C.F.'s "ease at being so dismissive of some
pretty serious events" and his "carefree attitude about
behaviors." Based upon his observations, Dr. Harris diagnosed
C.F. with pedophilic disorder, primarily girls, not exclusive;
other specific personality disorder with borderline and antisocial
traits; and other specified psychotic disorder. Dr. Harris
testified C.F.'s arousal had not dissipated despite years of
treatment. Based upon his assessment, C.F.'s arousal would be
highly unlikely to diminish. Dr. Harris testified C.F.
demonstrated cognitive distortions, which allowed him to
rationalize and minimize his actions, and he demonstrated poor
volitional control.
Dr. Harris concluded C.F. was "highly likely to sexually re-
offend if placed in a less restrictive setting." Dr. Harris
testified he used Static-99, an "actuarial instrument . . . used
to give[] an estimate on the risk to sexually re-offend." C.F.
scored a low to moderate risk to reoffend, however, Dr. Harris
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testified the instrument did not fully estimate C.F.'s risk to
reoffend considering his strong deviant arousal and his
demonstrated strong antisocial attitudes and behaviors. C.F.
estimated his risk to reoffend was at fifty percent.
The State moved Dr. Zavalis's report into evidence as
substantive testimony without objection. Dr. Zavalis reported
C.F. admitted to the two sexual assaults that resulted in
convictions but did not believe his actions had any effect on his
victims. Dr. Zavalis diagnosed C.F. with pedophilic disorder
(sexually attracted to males and females, nonexclusive type);
other specified paraphilic disorder (hebephilia & nonconsent);
other specified personality disorder (antisocial and borderline
features); other specialized schizophrenia spectrum and other
psychotic disorder; alcohol use disorder (mild, in a controlled
environment); and intellectual disability. Dr. Zavalis also used
the Static-99 test and found C.F. scored in the moderate-high risk
category. Dr. Zavalis concluded C.F. was highly likely to engage
in future acts of sexually deviant behavior if released into the
community and recommended C.F. be committed to Special Treatment
Unit (STU).
C.F. testified on his own behalf. He testified about his
treatment, how he has learned to switch his thoughts when having
a deviant sexual thought, and how he would continue to seek
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treatment in the community if discharged. C.F. denied admitting
he asked young girls for sex in exchange for money and reports he
watched videos of teenagers dancing. C.F. stated the incident
when he kissed a fellow patient was consensual and denied touching
the patient inappropriately. When asked why his doctors would
make up these alleged statements, he answered, "[P]eople do tell
stories." C.F. numbered his victims between ten and twenty-five
and many were young girls between the ages of seven and teenage
years. When asked about his reported arousal level being ten out
of ten, C.F. answered, "Unfortunately, yes that's true", but
testified his arousal level to young girls had gone away. C.F.'s
mother asked the court if her son could be placed in a home or
participate in a program.
The judge rendered his oral opinion on October 27, 2014.
Based upon the expert testimony and documents in evidence, the
court found the State met its burden by clear and convincing
evidence. The judge found C.F. suffers from mental abnormalities
that individually and collectively predispose him to engage in
acts of sexual violence and if released, he would "be in the
reasonably foreseeable future highly likely to engage in acts of
sexual violence."
On appeal, C.F. argues:
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THE STATE FAILED TO PROVE BY CLEAR AND
CONVINCING EVIDENCE THAT C.F. WAS SUBJECT TO
SVP COMMITMENT.
"The scope of appellate review of a commitment determination
is extremely narrow and should be modified only if the record
reveals a clear mistake." In re D.C., 146 N.J. 31, 58 (1996). We
give the utmost deference to the reviewing judge's determination,
as these judges are "specialists" in SVPA matters. In re Civil
Commitment of R.F., 217 N.J. 152, 174 (2014) (citing In re Civil
Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007)).
The findings of the trial court "should be disturbed only if so
clearly mistaken that 'the interests of justice demand
intervention'"; as long as the findings are supported by
"sufficient credible evidence present in the record," the findings
will not be disturbed. Id. at 175 (quoting State v. Johnson, 42
N.J. 146, 162 (1964)).
The SVPA allows for the involuntary commitment of an
individual believed to be a "sexually violent predator." In re
Commitment of W.Z., 173 N.J. 109, 120 (2002) (citing N.J.S.A.
30:4-27.28). The individual must have been "convicted,
adjudicated delinquent, or found not guilty by reasons of insanity
of a 'sexually violent offense.'" Ibid. (quoting N.J.S.A. 30:4-
27.26). At a commitment hearing, the State must prove the
individual has been convicted of a sexually violent offense, the
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individual has "a mental abnormality or personality disorder," and
the individual is highly likely to reoffend due to the disorder.
Ibid. Trial courts must determine if
[a]n individual . . . pose[s] a threat to the
health and safety of others if he or she were
found, by clear and convincing evidence, to
have serious difficulty in controlling his or
her harmful behavior such that it is highly
likely that the individual will not control
his or her sexually violent behavior and will
reoffend.
[Id. at 130.]
The testimony and expert opinion of Dr. Harris, and the expert
opinion of Dr. Zavalis, support the determination by clear and
convincing evidence C.F. suffers from a mental abnormality and
personality disorder that significantly impairs C.F.'s ability to
control his sexually violent behavior. The record establishes
C.F. has not progressed in treatment and his behaviors demonstrate
poor volitional control. Both Dr. Harris and Dr. Zavalis found
C.F. to be highly likely to reoffend if released.
The trial judge found both experts to be credible and
uncontradicted. We give deference to a trial judge's findings
based upon their "opportunity to hear and see the witnesses and
to have the 'feel' of the case." R.F., supra, 217 N.J. at 174
(quoting Johnson, supra, 42 N.J. at 161). C.F. has had the
opportunity to engage in treatment; however, he is still considered
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an untreated sex offender. We find there is ample evidence in the
record to support the trial judge's order committing C.F. to the
STU.
C.F. argues the State is using his sexual assault conviction
from twenty-seven years ago to commit him. While "the commission
of the original crime[] is not in and of itself conclusive of
further commitment," see In re Commitment of G.G.N., 372 N.J.
Super. 42, 59 (App. Div. 2004), the State presented expert
testimony and opinions detailing C.F.'s post-offense history.
C.F. admitted to Dr. Harris and Dr. Zavalis his high arousal level
in recent years, which the court found to be "damaging." C.F.
reported his arousal level was ten out of ten. Dr. Harris
testified C.F. admitted his likelihood of reoffending was fifty
percent. The record demonstrates the court did not rely solely
on C.F.'s sexual assault conviction but rather, considered C.F.'s
entire history, past and present, to determine C.F. posed a high
likelihood of committing a sexually violent act if released.
Additionally, C.F. argues the trial court afforded too much
evidential value to the State's experts and the experts' reliance
on hearsay was fundamentally unfair. During trial, C.F.'s counsel
did not object during Dr. Harris's testimony or when the State
moved to admit Dr. Zavalis's expert opinion into the record as
substantive testimony.
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We have said, "[T]here is a tipping point where due process
is violated by the use of hearsay," G.G.N., supra, 372 N.J. Super.
at 58, but that is not the case here. An expert may rely on
hearsay statements while testifying at trial as long as the
information is such as "reasonably relied upon by experts in the
particular field in forming opinions or inferences upon the
subject." In re Civil Commitment of J.H.M., 367 N.J. Super. 599,
612 (App. Div. 2003) (quoting N.J.R.E. 703). Additionally, an
expert may testify as to hearsay statements "to confirm an opinion
which he reached by independent means." Baldyga v. Oldman, 261
N.J. Super. 259, 266 (App. Div. 1993) (citing State v. Humanik,
199 N.J. Super. 283, 305 (App. Div.), certif. denied, 101 N.J. 266
(1985)).
Both experts were permitted to rely upon C.F.'s past records
in order to formulate their opinion of him currently and report
their findings, as the review of C.F.'s records was of the type
forensic experts would have reviewed to make their evaluations
pursuant to N.J.R.E. 703. Accordingly, we conclude that the record
supports the trial judge's determination that each of the elements
under the SVPA were proven by clear and convincing evidence.
C.F.'s last argument concerning the expert's reliance upon
"supposed admissions" lacks sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
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Affirmed.
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