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NOT FOR PUBLICATION WITHOUT THE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-0202-16T5
IN THE MATTER OF THE CIVIL
COMMITMENT OF B.R., SVP-753-16.
_______________________________
Submitted August 30, 2017 – Decided September 12, 2017
Before Judges Rothstadt and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Docket No.
SVP-753-16.
Joseph E. Krakora, Public Defender, attorney
for appellant B.R. (Susan Remis Silver,
Assistant Deputy Public Defender, of counsel
and on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent State of New Jersey
(Melissa H. Raksa, Assistant Attorney General,
of counsel; Stephen Slocum, Deputy Attorney
General, on the brief).
PER CURIAM
B.R. appeals from a judgment entered by the Law Division
committing him to the Special Treatment Unit (STU) pursuant to the
Sexually Violent Predators Act (SVPA), N.J.S.A. 30:4-27.24 to
27.38. He contends there was insufficient evidence supporting the
court's determination that he suffered from a mental abnormality
or personality disorder and presents a high risk of reoffending,
the court erred by shifting the burden of proof to him during the
commitment hearing, and the State failed to sustain its burden of
proof. We disagree and affirm.
Based on B.R.'s exposure of his penis to a ten-year-old boy
and his request that the child perform fellatio on him, B.R. was
convicted in January 1985 of child abuse and sentenced to probation
and participation in counseling. Ten months later, he was
convicted of lewdness and received a suspended sentence with
probation after exposing himself to another ten-year-old boy.
In 2001, B.R. approached a nine-year-old boy in a casino
video arcade and placed his penis on the boy's shoulder or neck.
He pleaded guilty to second-degree sexual assault, N.J.S.A. 2C:14-
2(b), and was sentenced to a five-year custodial sentence to be
served at the Adult Diagnostic and Treatment Center (ADTC),
community supervision for life, N.J.S.A. 2C:43-6.4, and compliance
with the requirements of Megan's Law, N.J.S.A. 2C:7-1 to -23. On
November 6, 2006, B.R. was released on parole.
In August 2008, B.R. pressed his groin against the back of a
six-year old boy in a casino arcade. B.R. was charged, and
subsequently pleaded guilty to second-degree sexual assault,
N.J.S.A. 2C:14-2(b). He was sentenced to an eight-year custodial
term subject to the requirements of the No Early Release Act,
2 A-0202-16T5
N.J.S.A. 2C:43-7.2, compliance with Megan's Law, N.J.S.A. 2C:7-1
to -23, and parole supervision for life, N.J.S.A. 2C:43-6.4. The
court ordered that B.R. serve his sentence at the ADTC.
In August 2016, the State requested B.R.'s civil commitment
pursuant to the SVPA. The State arranged for Dr. Roger Harris, a
psychiatrist, and Dr. Debra Roquet, a STU psychologist, to evaluate
B.R., but B.R. refused to meet with them. Dr. Harris and Dr.
Roquet conducted forensic evaluations of B.R. based on his ADTC
records and other records related to his offense history.
Dr. Harris and Dr. Roquet testified at the final commitment
hearing. They recognized that reports from B.R.'s prior treatment
included favorable information, but they separately and
independently determined B.R. suffered from a mental abnormality
or personality disorder, and presented a high likelihood of
reoffending.
Dr. Harris testified B.R. suffered from pedophilic disorder.
He based the diagnosis on B.R.'s history of sexual crimes and
offenses committed against young boys, his determination that B.R.
compulsively repeated deviant behavior, and B.R.'s reporting of
years of sexual fantasies involving boys between the ages of six
and twelve.
Dr. Harris further opined that the pedophilic disorder
predisposed B.R. to engage in acts of sexual violence and that
3 A-0202-16T5
B.R. demonstrated an inability to control his impulses. Dr. Harris
noted B.R. had been in treatment when he committed his criminal
offenses, committed the criminal offenses following prior
convictions for sexually deviant conduct toward young boys, and
committed the crimes in public places where there was a high risk
of being caught. Dr. Harris observed that defendant suffered from
some traits of antisocial personality disorder including
impulsivity, which contributed to B.R.'s inability to "override
his sexual desire" for young boys.
In part, Dr. Harris's opinion was also based on his use of
the Static-99 assessment instrument.1 According to Dr. Harris,
B.R.'s score of seven on the assessment showed B.R. had a high
risk of reoffending.
Dr. Harris testified that B.R.'s disorders would not
spontaneously remit. He stated that although the records included
favorable information concerning B.R.'s prior treatment, B.R.'s
treatment did not effectively mitigate his risk of reoffending.
Dr. Harris explained that B.R. was in the "high-risk category of
men who sexually reoffend when released." Based on all of the
information he considered, he opined that B.R. presented a current
1
The Static-99 is a ten item actuarial assessment instrument
utilized to assess male sex offenders' risk of re-offense.
Static99/Static99R, Static99 Clearinghouse,
http://www.static99.org (last visited August 31, 2017).
4 A-0202-16T5
risk of a high likelihood of reoffending if placed in a setting
less restrictive than the STU.
Dr. Roquet testified that she conducted a forensic evaluation
of B.R. based on the ADTC treatment records and other records
related to B.R.'s prior offenses. She explained that B.R. admitted
he was sexually attracted to pre-pubescent boys and that there had
been occasions he could not resist his impulse to act on his
attraction. She testified B.R.'s attraction to young boys was
"powerful" and "behaviorally compelling" and observed that B.R.'s
history showed an escalation from noncontact to physical contact
offenses.
Dr. Roquet acknowledged the ADTC records showed B.R. did well
in treatment prior to his release in 2006 and again in 2016. She
noted, however, that B.R. reoffended following the completion of
his ADTC treatment in 2006, and while he was serving community
supervision for life. She opined that B.R.'s ostensible success
in treatment did not mitigate his risk of reoffending because of
his history, the power of his arousal for young boys, and his
inability to control his impulses.
Dr. Roquet diagnosed B.R. with pedophilic disorder and
substance abuse issues with cocaine and cannabis that are in
remission. She testified that B.R.'s age, fifty-one, is the primary
factor mitigating against his reoffending. She concluded,
5 A-0202-16T5
however, that based on B.R.'s history, powerful pedophilic
arousal, substance abuse issues, and the failure of treatment to
effectively mitigate against the risk of reoffending, it was highly
likely that B.R. would reoffend if he was released. Dr. Roquet
also relied upon B.R.'s score of seven on the Static-99 assessment
instrument as support for her conclusion B.R. represented a high
risk of reoffending.
B.R. did not present any witnesses. The court found Dr.
Harris and Dr. Roquet were credible witnesses. Based on their
testimony, the court determined the State clearly and convincingly
proved B.R. suffers from a mental abnormality and personality
disorder, pedophilia, that does not spontaneously remit, he is
predisposed to sexual violence, he has serious difficulty
controlling his violent behavior, and presently is highly likely
to reoffend. The court entered a civil commitment order in
accordance with the SVPA, and B.R. appealed.
B.R. makes the following arguments:
POINT I
THE COMMITMENT COURT COMMITTED REVERSABLE
LEGAL ERROR WHEN IT SHIFTED THE BURDEN OF
PROOF TO B.R. AND HELD THAT UNLESS B.R.
SUBMITTED TO AN INTERVIEW WITH THE STATE
DOCTORS AND CONVINCED THE COMMITMENT COURT
THAT HE WAS NOT HIGHLY LIKELY TO REOFFEND,
THEN THE COURT HAD NO CHOICE BUT TO COMMIT
HIM.
6 A-0202-16T5
POINT II
REVERSAL IS REQUIRED BECAUSE THE STATE
INTRODUCED NO EVIDENCE THAT B.R. HAS A CURRENT
MENTAL ABNORMALITY OR PERSONALITY DISORDER
THAT MAKES HIM A CURRENT RISK OF BEING HIGHLY
LIKELY TO SEXUALLY REOFFEND.
POINT III
[B.R.'S] COMMITMENT ORDER MUST BE REVERSED
BECAUSE THE STATE WITNESSES RELIED SOLELY ON
DOCUMENTS THAT THE STATE NEVER ENTERED INTO
EVIDENCE. AS A RESULT, THE STATE FAILED TO
MEET ITS BURDEN BY CLEAR AND CONVINCING
EVIDENCE THAT B.R. REQUIRED CIVIL COMMITMENT
UNDER THE SVPA.
The scope of our review of a commitment determination under
the SVPA is "extremely narrow." In re Civil Commitment of R.F.,
217 N.J. 152, 174 (2014) (quoting In re D.C., 146 N.J. 31, 58
(1996)). "The judges who hear SVPA cases generally are
'specialists' and 'their expertise in the subject' is entitled to
'special deference.'" Ibid.
We give deference to trial judges' findings of fact because
"they have the 'opportunity to hear and see the witnesses and to
have the "feel" of the case, which a reviewing court cannot
enjoy.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 161
(1964)). We will "not overturn a trial court's findings because
it 'might have reached a different conclusion were it the trial
tribunal' or because 'the trial court decided all evidence or
7 A-0202-16T5
inference conflicts in favor of one side' in a close case." Ibid.
(quoting Johnson, supra, 42 N.J. at 162).
"So long as the trial court's findings are supported by
'sufficient credible evidence present in the record,' those
findings should not be disturbed." Ibid. (quoting Johnson, supra,
42 N.J. at 162). We "should not modify a trial court's
determination either to commit or release an individual unless
'the record reveals a clear mistake.'" Ibid. (quoting D.C., supra,
146 N.J. at 58).
Under the SVPA, "[i]f 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). To classify a person as a sexually violent
predator, the State must establish the following:
(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.
[R.F., supra, 217 N.J. at 173 (citations
omitted) (quoting In re Commitment of W.Z.,
173 N.J. 109, 130 (2002)); see also N.J.S.A.
8 A-0202-16T5
30:4-27.26 (enumerating the three
requirements).]
The SVPA defines a "[m]ental abnormality," as a "condition
that affects a person's emotional, cognitive or volitional
capacity in a manner that predisposes that person to commit acts
of sexual violence." N.J.S.A. 30:4-27.26. Although the SVPA does
not define "personality disorder," our Supreme Court has held that
it is sufficient if the offender has a mental condition that
adversely affects "an individual's ability to control his or her
sexually harmful conduct." See W.Z., supra, 173 N.J. at 127;
N.J.S.A. 30:4-27.26.
We first address B.R.'s contention that there was
insufficient evidence supporting the court's determination that
he suffered from a current mental abnormality or personality
disorder resulting in a current risk that he is highly likely to
sexually reoffend. B.R. argues the State did not present evidence
showing his "current mental state and present state of
dangerousness and therefore did not establish that he will engage
in "sexually violent behavior and will reoffend . . . in the
foreseeable future." See W.Z., supra, 173 N.J. at 132-33 (finding
commitment under the SVPA must be based on the offender's "present
serious difficulty with control over dangerous sexual behavior").
B.R. argues Dr. Harris, Dr. Roquet and the court erroneously
9 A-0202-16T5
ignored his success in treatment at the ADTC and, as a result, the
court's finding that he currently presents a high likelihood of
reoffending is not supported by competent evidence.
B.R. relies on In re Commitment of G.G.N., 372 N.J. Super.
42, 58 (App. Div. 2004), where we found the State's experts'
testimony was insufficient to sustain a commitment order. The
experts in G.G.N. did not consider the offender's fourteen years
of treatment while in ADTC and "came close to testifying that in
their view, commission of the original offenses, twenty-one years
earlier, was sufficient for SVP[A] commitment." Ibid. Here, Dr.
Harris and Dr. Roquet did not ignore B.R.'s long-term treatment
or the favorable reports about his treatment, and they did not
rely exclusively on the commission of B.R.'s prior offenses to
support their conclusions.
The doctors testified directly about B.R.'s treatment and
favorable reports, but offered opinions discounting the mitigating
effects of the treatment on B.R.'s risk of reoffending. They
explained B.R. underwent treatment after his first criminal
offense and continued treatment after being released in 2006, but
that he nevertheless could not resist the impulse to again sexually
assault a young boy in a public place. They relied on B.R.'s
admitted powerful compulsion to sexually assault young boys and
concluded that his impulsivity and substance issues result in an
10 A-0202-16T5
inability to control his compulsion. They each utilized the
Static-99 assessment instrument and separately graded B.R. at
level seven, which supported their conclusions that B.R. was
currently highly likely to sexually reoffend in the future. We
therefore discern no basis in the record to reverse the court's
findings and conclusions.
We find B.R.'s remaining arguments to be of insufficient
merit to warrant extensive discussion in a written opinion. R.
2:11-3(e)(1)(E). We add only the following comments.
We are not persuaded by B.R.'s contention that the court
improperly shifted the burden of proof to him. B.R. argues the
court shifted the burden by observing that he refused to meet with
Dr. Harris and Dr. Roquet and by stating that had he met with
them, he may have provided information supporting a finding that
his treatment mitigated his risk of reoffending.
It is not disputed that the State had the burden of proving
by clear and convincing evidence each of the necessary statutory
elements for a civil commitment under the SVPA. In re Civil
Commitment of D.Y., 218 N.J. 359, 380 (2014). The court found
that based on the testimony of Dr. Harris and Dr. Roquet, the
State satisfied that burden here.
The court's reference to B.R.'s refusal to speak to Dr. Harris
and Dr. Roquet did not alter or shift the burden. B.R. did not
11 A-0202-16T5
have a right to refuse to speak with the doctors and he cannot
benefit from his refusal to do so. In re Civil Commitment of
A.H.B., 386 N.J. Super. 16, 29 (App. Div.), certif. denied, 188
N.J. 492 (2006). Nevertheless, the court did not indicate that
it held B.R.'s refusal against him. To the contrary, when the
court discussed B.R.'s refusal to speak with the doctors, it said
B.R. had no obligation to speak with them.
The court never said or suggested that B.R. had the burden
of proving anything related to his commitment and the court never
relied upon B.R.'s refusal to speak with the doctors as a basis
for its finding that the State met its burden. The court noted
only that B.R.'s decision deprived the doctors of an opportunity
to obtain information that might have changed their opinions about
the effectiveness of B.R.'s treatment. In any event, the record
shows that it was the doctors' testimony, and not B.R.'s refusal
to speak with them, that provided the clear and convincing evidence
upon which the court relied for its findings and conclusions.
We also reject B.R.'s contention that the court's findings
cannot be sustained because the reports and records relied upon
by Dr. Harris and Dr. Roquet were not admitted in evidence. The
court based its findings and conclusions upon the testimony of the
witnesses, who testified in detail concerning the various
documents they reviewed and relied upon to form their respective
12 A-0202-16T5
opinions. Also, there was no objection to the testimony based on
the failure to admit the documents in evidence.
Affirmed.
13 A-0202-16T5
IN THE MATTER OF THE CIVIL COMMITMENT OF B.R., Â Â SVP-753-16(ESSEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED)
Combined Opinion