IN THE MATTER OF THE CIVIL COMMITMENT OF E.B., SVP-724-15 (ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: March 26, 2019
• Docket: A-3821-17T5
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3821-17T5

IN THE MATTER OF THE CIVIL COMMITMENT OF E.B., SVP-724-15. _______________________________

Argued March 5, 2019 – Decided March 26, 2019

Before Judges Fisher and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-724-15.

Susan Remis Silver, Assistant Deputy Public Defender, argued the cause for appellant E.B. (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).

Appellant filed a pro se supplemental brief.

PER CURIAM E.B. appeals from an April 3, 2018 judgment committing him to the State

of New Jersey Special Treatment Unit (STU), pursuant to the Sexually Violent

Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. In 2017, we reversed a

2016 commitment judgment, finding the State's experts based their opinions, at

least in part, on inadmissible evidence. In re Civil Commitment of E.B., No. A-

2404-15 (App. Div. November 17, 2017) (slip op. at 13). We therefore

remanded for "a new hearing to assess E.B.'s current condition and risk of sexual

violence." Id. at 13-14.

On this appeal, E.B. argues the trial court again committed him "based on

unproven hearsay allegations," asserting the State's experts' testimony lacked

empirical bases and constituted net opinions. In a pro se supplemental brief,

E.B. contends the trial court denied him procedural due process by not holding

a hearing within twenty days of the previous remand. We reject these arguments

and affirm.

I.

On July 14, 2014, E.B. pleaded guilty to Community Supervision for Life

(CSL) violations, which included initiating contact with a fourteen-year-old girl,

missing required treatment sessions, and failure to notify police of an address

change. The record reveals the minor reported that E.B. called out to her,

A-3821-17T5 2 stating, "Yo little girl, come here, come here." The minor stated E.B. followed

her, making her feel nervous and scared; when she eventually turned around, he

was gone. E.B. received an eighteen-month sentence for these violations.

Before E.B.'s release, the Attorney General successfully petitioned to have him

committed pursuant to the SVPA.

In reversing the 2016 commitment judgment, we concluded the State's

experts relied too heavily on unproven allegations, namely police reports of

contact with underage females, which did not lead to convictions. Id. at 13.

After a two-day hearing, Judge James F. Mulvihill 1 committed E.B. to the STU,

finding he "has serious difficulty controlling his sexually violent behavior," and

is "highly likely to sexually reoffend."

In 1992, E.B. pleaded guilty to second-degree sexual assault, N.J.S.A.

2C:14-2(c)(1). He was sentenced to an eight-year term of imprisonment, subject

to a four-year period of parole ineligibility. In addition, he was sentenced to

CSL and ordered to register under Megan's Law. E.B., slip op. at 1. During his

plea colloquy, E.B. stated he, along with other men, participated in a gang attack

upon a group of young girls at a public swimming pool. Ibid. E.B. admitted he

vaginally penetrated one of the girls in the pool. Id. at 1-2. The victim was less

1 A different judge heard and decided the matter in 2016. A-3821-17T5 3 than sixteen but older than thirteen years of age; E.B. was twenty-two years old

at the time. Id. at 2.

In 2002, E.B. pleaded guilty to second-degree sexual assault, N.J.S.A.

2C:14-2(b). It is not disputed E.B. fondled the breasts and buttocks of an eleven-

year old female and engaged in several sexually-explicit telephone

conversations with her. Ibid. He was sentenced to a ten-year term at the Adult

Diagnostic and Treatment Center (ADTC), subject to a five-year period of

parole ineligibility. Ibid. At the time of his sentence, he had been convicted of

ten indictable offenses, including guilty pleas to the two sexual offenses. Ibid.

In 2008, upon E.B.'s release from the ADTC, two psychologists stated, in

an ADTC "Termination Report," that E.B. understood his deviant arousal pattern

and offending dynamics, and had developed coping mechanisms to deal with

high risk situations. An addendum to the "Termination Report" stated that

although objective testing "suggests a high risk for sexual re-offense[,] [f]rom a

clinical perspective[,] his overall risk of sexual re-offense appears to be

substantially reduced by [his] significant treatment gains," and a "strong support

system" provided by his family. Id. at 2-3. Nevertheless, the psychologists

recommended that upon his discharge E.B. "avoid children and relationships

with women who have children."

A-3821-17T5 4 In 2011, E.B. pleaded guilty to using marijuana, in violation of CSL, and

the court sentenced him to a nine-month prison term. The record also

demonstrates a number of other non-sexual crimes committed by E.B. over the

years, mostly drug-related. As noted, in July 2014, E.B. pleaded guilty to the

CSL violations, which included initiating contact with an underage female,

leading to an eighteen-month prison term.

At the remand hearing before Judge Mulvihill, the State presented the

testimony of Dr. Roger Harris, a psychiatrist, who interviewed E.B. on two

occasions in 2015. From these examinations, along with his review of E.B.'s

criminal and treatment records, Dr. Harris diagnosed E.B. with other specified

paraphilic disorder, or hebephilia, "to describe [E.B.'s] arousal to teenage gi rls,

who are under[]age," and antisocial personality disorder.

Dr. Harris testified that the combination of E.B.'s two disorders "increases

the[] risk to sexually reoffend"; that E.B. "is at a high risk to reoffend if placed

in a less restrictive setting than the STU"; that E.B. "has demonstrated a

volitional deficit in being able to control his sexual arousal to underage teenage

girls"; and that E.B. has "demonstrated a failure to conform to social norms."

A-3821-17T5 5 According to Dr. Harris, E.B.'s score of six on the Static-99 test2 places him

"well above [the] average risk to sexually reoffend."

Dr. Laura Carmignani, a psychologist, completed a forensic evaluation of

E.B. in January 2018.3 She diagnosed E.B. with other specified paraphilic

disorder (hebephiliac); other specified personality disorder with antisocial traits;

and cannabis use disorder. Like Dr. Harris, Dr. Carmignani found E.B. scored

a six on the Static-99 test, which she "then considered with the aggravating

influence of his history of noncompliance under community supervision[,]

indicat[ing] that his overall risk to sexually recidivate falls within th e 'highly

likely' threshold." She also scored E.B. "within the [h]igh range on the

STABLE-2007," which "was developed to assess change in intermediate term

risk status, assessment needs, and help predict recidivism in sexual offenders."

2 "The Static-99 is an actuarial test used to estimate the probability of sexually violent recidivism in adult males previously convicted of sexually violent offenses." In re Civil Commitment of R.F., 217 N.J. 152, 164 n.9 (2014). Our Supreme Court "has explained that actuarial information, including the Static - 99, is 'simply a factor to consider, weigh, or even reject, when engaging in the necessary factfinding under the SVPA.'" Ibid. (quoting In re Commitment of R.S., 173 N.J. 134, 137 (2002)). 3 Dr. Carmignani's evaluation did not include any input from E.B., who declined her request for an interview. However, about a year before her testimony, Dr. Carmignani met with E.B. for a Treatment Progress Review Committee review.

A-3821-17T5 6 E.B "also fell within the [h]igh range on the PCL-R, a measure of psychopathic

personality traits." Ultimately, Dr. Carmignani opined, "within a reasonable

degree of psychological certainty," that E.B. "presents as a high risk and is

highly likely to engage in future acts of deviant sexual behavior as defined by

the SVP statute if released into the community at this time."

Dr. Harris and Dr. Carmignani noted the unproven allegations of E.B.'s

contact with underage females in their reports and testimonies; however, they

each minimized their use of the information in reaching their conclusions. When

Dr. Harris was asked if he used the unproven allegations as a "significant or

substantial building block to form [his] diagnosis of antisocial personality

disorder," Dr. Harris responded, "No." When asked if he was "to ignore the CSL

violations[,] would [he] still diagnose antisocial personality disorder," Dr.

Harris testified, "Yes." Finally, he stated that he did not "weigh" the unproven

allegations "heavily," as "his two offenses are a clear indication, his approaching

the [eleven]-year-old and his 199[2] offense are sufficient." Regarding the

charges against E.B. that were dismissed, Dr. Carmignani testified, "I

understand that the charges were dismissed and they were not pursued legally.

I consider them, but they are not significant building blocks to . . . my overall

opinion and . . . evaluation." Dr. Carmignani testified that her opinion that E.B.

A-3821-17T5 7 is highly likely to reoffend would not change if the dismissed charges "did not

exist at all."

Judge Mulvihill concluded that the State had shown by clear and

convincing evidence that E.B. "continues to suffer mental abnormality,

personality disorder," "other specified personality disorder," and "hebephilia,

attracted to teenage girls." The judge further found by "clear and convincing

evidence that presently [E.B. is] highly likely to sexually reoffend."

Judge Mulvihill found the State's experts "were both very credible

witnesses . . . ." He noted the testimony of Dr. Harris regarding E.B.'s "strong

antisocial attitude and behavior," which "does not spontaneous[ly] remit."

There's a volitional deficit, sexually aroused to teenage girls. Static-99R is a [six], well above average risk to sexually reoffend. In the opinion of Dr. Harris, he's highly likely to sexually reoffend[,] [to a r]easonable degree of psychiatric certainty.

. . . .

And then in 2014, he approached the [fourteen]- year-old, show[ing] that his other specified paraphilia is alive and well, and that Dr. Harris opined that he is highly likely to sexually reoffend despite having some mitigation of his risk through treatment.

Addressing Dr. Carmignani's testimony, the judge found that she gave "less

weight to the allegations where the charges were dismissed." The judge found that

A-3821-17T5 8 E.B.'s "PCL-R score [was a] 27.8, which is in the high range of psychopathy.

Doesn't meet the threshold of a 30, but still in the high range . . . . [which ranges

from] 25 to 32." Based on Dr. Carmingnani's diagnoses of E.B., the judge found she

concluded the "[r]isk to reoffend is highly likely within a reasonable degree of

psychological certainty."

The judge further found that

even though [E.B.] . . . did well at ADTC[,] . . . . the other specified paraphilic disorder is still there because he approached a [fourteen]-year-old girl and he was told that he should have no contact with any teenage girls. Despite that, he did that, [pleaded] guilty and went to prison for that.

It's not a sexual offense, but it shows his deviant arousal, which he acknowledged, to teenage girls is . . . alive and well. And he has had some mitigation of risk, but . . . there's clear and convincing evidence he's been convicted of sexual violent offenses.

II.

We first address E.B.'s argument that the trial court based its commitment

order on inadmissible and unreliable hearsay. Defendant points to portions of

the record where the State's experts were questioned on the CSL violations,

police reports, and allegations against E.B. that were dismissed and never

substantiated. In each of the cited instances, E.B.'s counsel objected based on

hearsay, and the trial judge overruled the objections, thereby allowing the

A-3821-17T5 9 experts to discuss the allegations. We are not convinced that the manner in

which the court utilized the hearsay documents warrants a reversal of the court's

commitment order.

Courts may order the involuntary civil commitment of a person under the

SVPA when the "State has proven 'by clear and convincing evidence that the

person needs continued involuntary commitment as a sexually violent

predator.'" In re Civil Commitment of J.P., 393 N.J. Super. 7, 11 (App. Div.

2007) (quoting N.J.S.A. 30:4-27.32(a)). A "sexually violent predator" is

a person who has been convicted . . . for commission of a sexually violent offense . . . and 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.]

To prove that commitment is necessary, the State must establish that "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).

In evaluating the evidence, "a trial court's evidentiary rulings are 'entitled

to deference absent a showing of an abuse of discretion . . . .'" State v. Brown,

A-3821-17T5 10 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)).

"[A]n appellate court should not substitute its own judgment for that of the trial

court, unless 'the trial court's ruling was so wide of the mark that a manifest

denial of justice resulted.'" Ibid. (quoting Marrero, 148 N.J. at 484) (internal

quotations omitted).

In commitment hearings, "official reports, including police reports, [may

be] properly considered and used by the court as relevant background

information and [may be] properly considered by . . . experts, although the

included hearsay may not be admitted as substantive information." In re Civil

Commitment of J.M.B., 395 N.J. Super. 69, 94-95 (App. Div.), aff'd, 197 N.J.

563 (2007). "[S]ignificant state action, such as SVPA commitment, cannot and

should not be based on unproven allegations of misconduct," particularly those

not subject to cross-examination. In re Civil Commitment of A.E.F., 377 N.J.

Super. 473, 490 (App. Div. 2005).

Here, E.B. cites to portions of the record where the State's experts were

questioned about the CSL violations, police reports, and allegations against E.B.

that were dismissed and never substantiated. E.B.'s counsel objected on the

basis of inadmissible hearsay, and the trial judge overruled the objections,

thereby allowing the experts to discuss the allegations. However, the

A-3821-17T5 11 introduction of this evidence did nothing more than relate E.B.'s history and

background, as both experts testified that they did not consider the evidence as

significant building blocks, and they would have reached the same conclusions

if the evidence did not exist. Thus, the experts' opinions in the second trial did

not suffer from the same deficiencies as the experts' opinions in the first tria l.

Instead, the experts here properly focused their opinions on E.B.'s current

condition, based upon admissible evidence.

E.B. also argues that his statement from his 2014 conviction, "Yo, little

girl, come here," was a hearsay statement assumed as true by both experts, and

that both experts assumed the offense was sexual in nature. E.B. pleaded guilty

to initiating contact with a minor, in violation of CSL, and served eighteen

months for the crime. He also admitted guilt of this offense to both of the experts

who interviewed him before his first commitment hearing, each time stating he

was abusing drugs and alcohol at the time. Our Supreme Court also noted that

such statements can properly be admitted as statements of a party for the purpose

of assessing whether the conduct "constituted a sexually violent offense

substantially equivalent to the conduct encompassed in" the listed offenses

under N.J.S.A. 30:4-27.26(a). J.M.B., 197 N.J. at 597 n.9.

A-3821-17T5 12 "The judges who hear SVPA cases generally are 'specialists' and 'their

expertise in the subject' is entitled to 'special deference.'" In re Civil

Commitment of R.F., 217 N.J. 152, 173-74 (2014) (quoting In re Civil

Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007)). We find

there is substantial and credible evidence in the record for the judge to have

concluded the 2014 incident demonstrated E.B.'s deviant arousal, and that

special deference should be accorded as to this part of the holding.

E.B. next argues that the testimonies of Dr. Harris and Dr. Carmignani

lacked empirical bases establishing that E.B. was highly likely to reoffend, and

therefore constituted net opinions. In another civil commitment case, we

recently discussed the admissibility of expert opinions:

"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)). The expert must provide the factual basis and analysis that support the opinion, rather than stating a mere conclusion. Davis, 219 N.J. at 410. Courts "may not rely on expert testimony that lacks an appropriate factual foundation and fails to establish the existence of any standard about which the expert testified." Ibid. (quoting Pomerantz Paper, 207 N.J. at 373).

A-3821-17T5 13 The net opinion rule does not require experts to organize or support their opinions in a specific manner "that opposing counsel deems preferable." Townsend, 221 N.J. at 54. Consequently, "[a]n expert's proposed testimony should not be excluded merely 'because it fails to account for some particular condition or fact which the adversary considers relevant.'" Ibid. (quoting Creanga v. Jardal, 185 N.J. 345, 360 (2005)). An expert's failure "to give weight to a factor thought important by an adverse party does not reduce his testimony to an inadmissible net opinion if he otherwise offers sufficient reasons which logically support his opinion." Ibid. (quoting Rosenberg v. Tavorath, 352 N.J. Super. 385, 402 (App. Div. 2002)). Instead, such omissions may be subjected to exploration and searching cross-examination at trial. Id. at 54-55.

Even so, the net opinion doctrine requires experts to "be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are [scientifically] reliable." Id. at 55 (quoting Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992)).

In [In re Accutane Litig., 234 N.J. 340 (2018)], the Supreme Court explained trial courts perform their "gatekeeping role" to assure reliability of expert scientific testimony by requiring experts "to demonstrate" they applied "scientifically recognized methodology in the way that others in the field practice the methodology." Id. at 399-400. Thus, when "a proponent does not demonstrate the soundness of a methodology, both in terms of its approach to reasoning and to its use of data, from the perspective of others within the relevant scientific community, the

A-3821-17T5 14 gatekeeper should exclude the proposed expert testimony on the basis that it is unreliable." Id. at 400.

[In re Civil Commitment of A.Y., ___ N.J. Super. ___ (App. Div. 2019) (slip op. at 26-28).]

Here, E.B. contends the State's experts failed to present evidence that he

had at least a fifty-one percent chance of reoffending. He points to Dr. Harris'

assessment that E.B.'s score of six on the Static-99 test amounts to a 25.7 percent

recidivism rate. However, our Supreme Court refused to impose a technical

meaning or quantitative threshold in establishing a lack of control; rather it held

that "the State must prove by clear and convincing evidence . . . it is highly

likely that the person will not control his or her sexually violent behavior and

will reoffend." W.Z., 173 N.J. at 133-34. E.B. provides no legal support for his

argument that we should interpret "highly likely" to mean "clearly more than

just a [fifty-one percent] risk."

Moreover, E.B. ignores the fact that both of the State's experts interviewed

E.B. extensively and relied on prior evaluations, treatment records, a thorough

review of E.B.'s past, and actuarial instruments that are "generally accepted by

professionals who assess sex offenders for risks of re[-]offense." In re

Commitment of R.S., 339 N.J. Super. 507, 538 (App. Div. 2001); see also In re

R.S., 173 N.J. 134, 137 (2002) ("[A]ctuarial risk assessment instruments may be

A-3821-17T5 15 admissible in evidence in a civil commitment proceeding under the SVPA when

such tools are used in the formation of the basis for a testifying expert's opinion

concerning the future dangerousness of a sex offender."). The State's experts

provided the factual bases for their conclusions and explained the methodologies

they employed. The State's experts therefore satisfied the requirements imposed

by the Court in Accutane, and the trial court did not abuse its discretion in

admitting and considering the testimony of Dr. Harris and Dr. Carmignani.

To the extent not specifically addressed here, plaintiff's remaining

arguments are without sufficient merit to warrant discussion in a written

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

Affirmed.

A-3821-17T5 16