No. 2--01--0880

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE BOWMAN delivered the opinion of the court:

Respondent, Thomas Traynoff, appeals from a trial court order finding himto be a sexually violent person pursuant to the Sexually Violent PersonsCommitment Act (Act) (725 ILCS 207/1 et seq. (West 1998)). On appeal, respondentargues that (1) the Act is unconstitutional under the United States SupremeCourt's decision in Kansas v. Crane, 534 U.S. 407, 151 L. Ed. 2d 856, 122 S. Ct.867 (2002); (2) the trial court erred in finding that respondent lacked controlof his sexually violent behavior; and (3) the trial court erred in orderingrespondent to submit to a mental evaluation by the Department of Human Services(DHS). In a supplemental brief, respondent also argues that the trial court erredin allowing expert testimony regarding certain actuarial instruments utilized topredict the likelihood that respondent would reoffend. We affirm in part andremand with directions.

On December 16, 1998, the State filed a petition to commit respondentpursuant to section 40 of the Act (725 ILCS 207/40 (West 1998)). The petitionalleged as follows: on November 4, 1993, respondent, age 49, pleaded guilty toaggravated criminal sexual abuse. Respondent engaged in sexual intercourse withhis girlfriend's niece, age 14. Prior to intercourse, respondent placed his penison her vagina, his mouth on her vagina, his finger on her vagina, and his penisin her mouth. These acts were videotaped and occurred after respondent gave thegirl alcohol until she became intoxicated. For this offense, respondent wassentenced to six years in prison.

Respondent's criminal history also included one conviction of unlawfuldelivery of a controlled substance, two convictions of burglary, one convictionof delivery of cannabis, and a federal conviction of possession of firearms. Thesix-year prison term imposed for unlawful delivery ran consecutive to the six-yearterm imposed for the sex offense involving the girlfriend's niece. In addition,respondent was sentenced to one year in a federal prison, consecutive to the aboveterms.

The petition further alleged that respondent was convicted twice ofcontributing to the sexual delinquency of a child. At age 22, he was sentencedto 364 days in jail. At age 24, respondent was sentenced to one year of probationand 90 days in jail.

According to the petition, respondent did not participate in sexual offendertreatment and suffered from mental disorders including paraphilia not otherwisespecified, alcohol abuse, and antisocial personality disorder. The State allegedthat respondent was dangerous to others because his mental disorders created asubstantial probability that he would engage in further acts of sexual violence. A mental health evaluation, prepared by psychologist Dr. Jacqueline N. Buck,accompanied the petition.

On December 22, 1998, the court determined that there was probable cause tobelieve respondent was eligible for commitment. On January 11, 1999, Dr. PhilReidda and Dr. Paul Heaton, DHS psychologists, attempted to evaluate respondentpursuant to the Act. Respondent, however, refused to participate in theevaluation process. On February 10, 1999, the State filed a motion to compelrespondent to submit to a mental evaluation. On May 27, 1999, the court grantedthe State's motion to compel respondent to cooperate with DHS psychologists. Respondent's request for appointment of an independent psychologist to evaluatehim was also granted.

A bench trial commenced on June 7, 2000. DHS psychologist Dr. Bucktestified that respondent suffered from three mental disorders: (1) paraphilia nototherwise specified; (2) alcohol abuse; and (3) severe antisocial personalitydisorder with narcissistic features. Dr. Buck defined paraphilia as a sexualdisorder in which an individual is sexually aroused in a deviant manner by personsor things. Dr. Buck found respondent to be sexually attracted to minor females. Dr. Buck also found that respondent showed no remorse for his criminal conduct,failed to accept blame for it, and transferred blame instead to the victim. Dr.Buck opined that, if respondent were released, he would be at high risk toreoffend with acts of sexual violence.

Dr. Buck based her opinion, in part, on two actuarial instruments known asthe Minnesota Sex Offender Screening Tool-Revised (MnSost-R) and the Static 99. Dr. Buck testified that a landmark study developed by Dr. Hanson in 1996, referredto as a "meta-analysis," identified risk factors that distinguish sex offenderswho reoffend from those who do not. Dr. Buck further testified that, because themeta-analysis does not provide a percentage of risk of sexual reoffense, actuarialtools such as the MnSost-R, the Static 99, and the Rapid Risk Assessment of SexualOffense (RRASOR) were developed to weight the risk factors and predict thelikelihood of sexual offender recidivism.

The Static 99, also developed by Dr. Hanson, contains 10 factors designedto assess the probability that a sexual offender will reoffend. Using the Static99, Dr. Buck scored respondent an 8, which put him in the high risk category. When asked whether Static 99 is reasonably relied upon by members of the field,Dr. Buck stated that it was a "work in progress" but strongly relied upon. Dr.Buck indicated that the predictive accuracy of this instrument was moderatelyhigh.

The second actuarial tool utilized by Dr. Buck was the MnSost-R, whichcontains 16 factors designed to predict the probability percentage of sexualrecidivism. Using the MnSost-R, Dr. Buck determined that there was a 92%probability that respondent would reoffend.

On cross-examination, Dr. Buck admitted that the risk factors listed in Dr.Hanson's meta-analysis in 1996 had changed due to more research and studies in1998. In 1996, Dr. Hanson found that factors such as low self-esteem, anger,denial, and general life stress did not impact the rate of recidivism. Dr. Buckexplained that the reason she used these factors to evaluate respondent was thatthe 1996 study was out of date in some aspects and that Dr. Hanson had changed hismind about a number of things since that time.

When asked why she did not utilize the Rapid Risk Assessment of SexualOffense (RRASOR), Dr. Buck responded that Dr. Hanson, who had created theinstrument, now discouraged its use. She further testified that she could not,in good faith, apply a four-item test to predict recidivism. Dr. Buck alsotestified that she considered the MnSost-R to be more reliable than the RRASOR. She stated that "that's what makes this field exciting because you have folksduking it out over the subtleties."

Based on her clinical opinion, her experience, her clinical judgment, plusthe actuarial tools, Dr. Buck opined that respondent was dangerous due to mentaldisorders making it substantially probable that he would commit future acts ofsexual violence.

The State also called Dr. Paul Heaton, a private practitioner whoseprofessional group did psychological evaluations for the DHS in similar cases. Dr. Heaton determined that respondent's IQ was in the high to superior range. Healso concluded that respondent had a pattern of chronic psychic maladjustment,including severe defensiveness, suspicion, insecurity, evasiveness, andnarcissistic personality traits. Dr. Heaton found that respondent was in strongdenial of wrongdoing and had little empathy for the victim. Dr. Heaton'sdiagnosis matched that of Dr. Buck, and he also noted that respondent had notparticipated in any treatment program. Dr. Heaton opined that respondent's mentaldisorders predisposed him to commit more acts of sexual violence.

In forming his assessment, Dr. Heaton utilized the RRASOR and MnSost-R. Dr.Heaton explained that actuarial tools were screening devices that a laypersoncould use without advanced training or special licensing. These instruments couldalso be used without any personal interview with the subject. Dr. Heaton statedthat the RRASOR was a very quick way of assessing a person's potential forreoffense with only four factors. Dr. Heaton also stated that he had some concernover the limited nature of the tool since several factors had now been added toit. Using the RRASOR, Dr. Heaton scored respondent a four, which indicated thatthere was a 33% probability that respondent would reoffend.

Dr. Heaton also utilized the MnSost-R when it became available because hewanted to make sure that the results that he had obtained from the RRASOR had notchanged significantly due to new information in the field. According to Dr.Heaton, the MnSost-R had been cross-validated and was considered a state-of-the-art study. Dr. Heaton scored respondent a 16 on the MnSost-R, which put him inthe high risk category.

Dr. Heaton stated that he would never rely on actuarial studies alone andthat they were a way to support or corroborate the information obtained throughother means. Based on his interview with respondent, his professional experienceand education, as well as the actuarial tools, Dr. Heaton opined thatrespondent's mental disorders made it substantially probable that he wouldreoffend.

Defense witness Dr. Timothy Brown, a clinical psychologist and director ofthe Kane County Diagnostic Center, reviewed the reports of Drs. Buck and Heatonand diagnosed respondent as suffering from an adult antisocial behavior disorderand paraphilia not otherwise specified. Dr. Brown testified that respondent didnot accept full responsibility for his criminal acts. While Dr. Brown concludedthat there was no substantial probability that respondent would reoffend as aresult of his mental disorders, he acknowledged that he was not experienced inperforming risk assessments under the Act. Dr. Brown also admitted that he didnot access all of the information reviewed by Drs. Buck and Heaton. Dr. Brownopined that respondent posed a moderate risk to reoffend.

Dr. Brown utilized the RRASOR and the MnSost-R in order to assessrespondent. Using the RRASOR, Dr. Brown scored respondent a four, which indicatedthat there was a 33% probability that respondent would reoffend. Using theMnSost-R, Dr. Brown determined that there was a 42% probability that respondentwould reoffend, putting him in the moderate risk category.

Dr. Brown testified that there was controversy within the field regardingthe use of actuarial tools to predict sexual recidivism. Dr. Brown stated thatthey were not tests but research instruments, meaning that there were no manualsto accompany them. Dr. Brown further stated that, although they could be used tobuttress testimony, they could not definitively determine whether a person shouldbe committed under the Act.

On October 16, 2000, respondent was found to be a sexually violent personpursuant to the Act. Following a dispositional hearing on July 18, 2001, thecourt ordered that respondent be released based upon compliance with numerousconditions. Respondent filed a timely notice of appeal.

Respondent first argues that the Act is unconstitutional because it iscontrary to the due process standard established by the Supreme Court in Crane. Specifically, respondent contends that the Act is unconstitutional because itallows the civil commitment of a person as sexually violent without a finding thatthe person lacks control over his or her behavior. Respondent relies on thelanguage in Crane, which states that "there must be proof of serious difficultyin controlling behavior." Crane, 534 U.S. at 413, 151 L. Ed. 2d at 862, 122 S.Ct. at 870. For the reasons that follow, we find the Act constitutional asapplied to respondent.

Before Crane, in Kansas v. Hendricks, 521 U.S. 346, 138 L. Ed. 2d 501, 117S. Ct. 2072 (1997), the Supreme Court made clear that due process requires atleast two findings to be made before a sex offender may be committed under a civilcommitment statute: a finding of dangerousness linked with the existence of amental illness or mental abnormality. Hendricks, 521 U.S. at 358, 138 L. Ed. 2dat 512-13, 117 S. Ct. at 2080. In Crane, the Supreme Court then stated that there"must be proof of serious difficulty in controlling behavior." Crane, 534 U.S.at 413, 151 L. Ed. 2d at 862, 122 S. Ct. at 870. While the Court stated that"Hendricks set forth no requirement of total or complete lack of control," theCourt made it clear that the Constitution does not permit commitment "without anylack-of-control determination." (Emphasis in original.) Crane, 534 U.S. at 411-12, 151 L. Ed. 2d at 861-62, 122 S. Ct. at 870.

The question necessarily raised by Crane is whether a specific finding isrequired regarding a person's ability to control his or her sexually violentconduct. The State argues that Crane requires no specific finding. Specifically,the State contends that the Act is constitutional because the definition of"mental disorder" impliedly includes a finding regarding a lack of control.

According to the Act, a "sexually violent person" is "a person who has beenconvicted of a sexually violent offense *** and who is dangerous because he or shesuffers from a mental disorder that makes it substantially probable that theperson will engage in acts of sexual violence." 725 ILCS 207/5(f) (West 1998). A "mental disorder" is then defined as a "congenital or acquired conditionaffecting the emotional or volitional capacity that predisposes a person to engagein acts of sexual violence." 725 ILCS 207/5(b) (West 1998).

The State cites various cases to support its position that Crane does notrequire a specific determination regarding a lack of control. For example, inPeople v. Hancock, 329 Ill. App. 3d 367, 375 (2002), the court held that nospecific jury finding was required that defendant had serious difficulty incontrolling his behavior. Likewise, In re Detention of Isbell, 333 Ill. App. 3d906, 912 (2002), held that Crane does not require a specific jury determinationin every case. Both cases relied on our supreme court's opinion in In reDetention of Varner, 198 Ill. 2d 78, 84-85 (2001), which upheld theconstitutionality of the Act but required no specific finding regarding arespondent's ability to control his sexually violent conduct.

However, Varner is no longer settled law. Not long ago, the United StatesSupreme Court issued an order vacating our supreme court's judgment and remandingthe cause for further consideration in light of Crane. Varner v. Illinois, ___U.S. ___, 154 L. Ed. 2d 3, 123 S. Ct. 69 (2002) (mem.). As a result, it isunclear at this point how Crane will be interpreted by our supreme court.

Even if Crane is interpreted to require a specific determination regardinga lack of control, such a finding was made in the case before us. In its writtenruling on the "sexually violent" petition, the trial court made an explicitfinding that respondent was not able to control his sexually violent conduct inan unstructured environment. Therefore, we find the Act constitutional as appliedto respondent. Having found the Act constitutional as applied, we need notconsider whether the Act is constitutional on its face. Courts are not tocompromise the stability of the legal system by declaring legislationunconstitutional when a particular case does not require it. Trent v. Winningham,172 Ill. 2d 420, 425 (1996). This is true because existing legislation enjoys apresumption of constitutional validity, and courts operate only in the context ofresolving lawsuits. Winningham, 172 Ill. 2d at 425-26.

As a final matter, we note that this court recently upheld the Act'sconstitutionality in People v. Swanson, 335 Ill. App. 3d 117, 122 (2002). InSwanson, we stated that, even though the Act does not explicitly mandate adetermination regarding a person's ability to control himself or herself, it doesprovide that the State must prove that the person suffers from a mental disorderthat affects the person's ability to control his or her conduct. Swanson, 335Ill. App. 3d at 122. We concluded that the Act sufficiently "narrows 'the classof persons eligible for confinement to those who are unable to control theirdangerousness.' " Swanson, 335 Ill. App. 3d at 123, quoting Hendricks, 521 U.S.at 358, 138 L. Ed. 2d at 513, 117 S. Ct. at 2080.

We are not obligated in this case, for the reasons stated above, todetermine whether the Act is constitutional on its face. Until Varner is decidedby our supreme court, the effect of Crane remains unclear. Nevertheless, becausethe trial court made a specific finding that respondent was not able to controlhis sexually violent behavior, we find the Act constitutional as applied.

Respondent's second argument is that the evidence does not support a findingthat he lacked the ability to control his sexually violent behavior as requiredunder Crane. "On review, we ask only whether, after viewing all the evidence inthe light most favorable to the State, any rational trier of fact could find thatthe elements of the offense have been proved beyond a reasonable doubt." In reDetention of Tittlebach, 324 Ill. App. 3d 6, 11 (2001).

Respondent initially argues that there is no evidence in the record to showthat he has serious difficulty in controlling his behavior. Respondent bases thisargument on the testimony of Drs. Buck and Heaton that respondent committed theseoffenses with volition. Respondent apparently takes the position that because hecommitted these acts with volition, the State has not proved that he lacks controlover his sexually violent behavior. For the following reasons, we find thisargument to be without merit.

First, as we have stated, it is clear that Crane requires at least somelack-of-control determination. Crane, 534 U.S. at 412, 151 L. Ed. 2d at 862, 122S. Ct. at 870. Here, the trial court satisfied this requirement by specificallyfinding that respondent was not able to control his sexual conduct in anunstructured environment. The trial court's written ruling on the "sexuallyviolent person" petition stated:

"I find from considering all of the testimony, including that whichestablished Respondent's refusal to undergo treatment, his denial of selfblame, his placing blame on the victim, and the nature of his mentalillness, that he is not able to control his sexual conduct in anunstructured environment."

Second, we find sufficient evidence in the record to support the trialcourt's finding. First, State expert Dr. Buck testified that respondent showedno remorse for his criminal conduct, failed to accept blame for it, andtransferred blame instead to the victim. Dr. Buck also found that respondentsuffered from paraphilia not otherwise specified, alcohol abuse, and severeantisocial personality disorder, with narcissistic features. Applying herfindings of respondent's traits to accepted actuarial studies, Dr. Buck foundrespondent to be at a high risk to reoffend. In sum, Dr. Buck opined that, to areasonable degree of psychological certainty, respondent was dangerous due tomental disorders making it substantially probable that he would commit future actsof sexual violence.

Consistent with Dr. Buck's findings, State expert Dr. Heaton found thatrespondent was in strong denial of wrongdoing and had little empathy for thevictim. Dr. Heaton's diagnosis matched that of Dr. Buck, and Dr. Heaton notedthat respondent had not participated in any treatment program. Dr. Heatontestified that, to a reasonable degree of psychological certainty, respondent'smental disorders rendered it substantially probable that he would reoffend andcommit further acts of sexual violence.

Finally, defense expert Dr. Brown diagnosed respondent as suffering fromadult antisocial behavior and paraphilia not otherwise specified. While Dr. Brownconcluded that there was no substantial probability that respondent would reoffendas a result of his mental disorders, he testified that respondent did not acceptfull responsibility for his criminal acts. In addition, Dr. Brown acknowledgedthat he was not experienced in performing risk assessments under the Act and thathe did not access all of the information reviewed by Drs. Buck and Heaton. Dr.Brown concluded that respondent posed a moderate risk to reoffend.

After careful review of the record, we conclude that sufficient evidenceexists to support the trial court's determination that respondent is a sexuallyviolent person. Three experts testified as to respondent's mental disorders andrisk for reoffending. All three agreed that respondent suffered from paraphilianot otherwise specified and posed a risk to reoffend. In sum, we find that thetestimony of the three experts and the nature of respondent's mental disorders,in conjunction with his refusal to undergo treatment, his denial of self-blame,and his placing blame on the victim, established proof beyond a reasonable doubtthat respondent lacked the ability to control his sexually violent behavior. Testimony that respondent committed these acts of sexual violence withvolition does not prevent commitment under the Act. In no way do we interpretCrane as yielding such an absurd result. If we were to adopt such a position, allpersons subject to commitment would escape such a finding by declaring all oftheir past criminal conduct to be volitional. Under that view, commitment wouldresult only when a person confessed to an inability to control his sexuallyviolent behavior, as was the case in Hendricks. Hendricks, 521 U.S. at 360, 138L. Ed. 2d at 514, 117 S. Ct at 2081. We decline to interpret Crane in such arestrictive manner. Rather, as Crane illustrates, the Constitution's safeguardsof human liberty in the area of mental illness and the law are not best enforcedthrough precise, bright-line rules. Crane, 534 U.S. at 413, 151 L. Ed. 2d at 863,122 S. Ct. at 870. The Court explained:

"And we recognize that in cases where lack of control is at issue,'inability to control behavior' will not be demonstrable with mathematicalprecision. It is enough to say that there must be proof of seriousdifficulty in controlling behavior. And this, when viewed in light of suchfeatures of the case as the nature of the psychiatric diagnosis, and theseverity of the mental abnormality itself, must be sufficient to distinguishthe dangerous sexual offender whose serious mental illness, abnormality, ordisorder subjects him to civil commitment from the dangerous but typicalrecidivist convicted in an ordinary criminal case." Crane, 534 U.S. at 413,151 L. Ed. 2d at 862-63, 122 S. Ct. at 870.

For the reasons stated earlier, we find there is sufficient evidence to supportthe trial court's determination that respondent lacked control of his sexuallyviolent behavior.

Respondent also asserts that, because the trial court incorrectly statedthat he was diagnosed as a pedophile, his adjudication as a sexually violentperson should be reversed. We disagree.

Parties are not entitled to error-free trials, but to fair trials, free ofsubstantial prejudice. Perry v. Murtagh, 278 Ill. App. 3d 230, 240 (1996). Notevery error committed by the trial court in a civil case leads to reversal;rather, there must be some showing that the appellant has been prejudiced by thaterror, and reversal is required only where it appears that the outcome might havebeen different had the error not occurred. In re Marriage of Wilder, 122 Ill.App. 3d 338, 344-45 (1983). The burden is on the party seeking reversal toestablish prejudice. Goldstein v. Scott, 108 Ill. App. 3d 867, 879 (1982).

We do not believe that the misstatement of the trial court in this casewarrants reversal. As respondent concedes, in its initial written ruling on the"sexually violent person" petition, the trial court correctly referred torespondent's diagnosis as "paraphilia not otherwise specified." In that ruling,the trial court made no mistake as to respondent's mental disorder, referring toit at all times as paraphilia. It was not until the court's ruling onrespondent's motion for a new trial that the court misstated respondent'sdiagnosis as pedophilia. Therefore, the court relied on the correct diagnosis inits original ruling finding respondent to be a sexually violent person within themeaning of the Act. As a result, we do not believe that respondent was prejudicedor that the outcome would have been different had the trial court not made thismisstatement. Where it appears that the error does not affect the outcome below,or where the court can see from the record that no injury has been done, thejudgment will not be disturbed. In re Estate of LaCasse, 265 Ill. App. 3d 847,854 (1994). In sum, we find that the misstatement did not deprive respondent ofa fair trial. Accordingly, we affirm the trial court's determination thatrespondent is a sexually violent person.

Respondent's next argument is that the trial court erred when it ordered himto submit to an evaluation by the DHS. Respondent maintains that because thisissue was raised in his posttrial motion, it was preserved for appellate review. The State contends that this issue is waived because respondent did not object tothe motion during the proceedings.

As a general rule in civil cases, the failure to specifically and timelyobject waives the objection for purposes of review. Rice v. Merchants NationalBank, 213 Ill. App. 3d 790, 798 (1991). As respondent concedes, he did not objectto the order compelling him to submit to a DHS evaluation at the time of theproceedings. However, waiver is an admonition to the parties rather than alimitation on the reviewing court's jurisdiction, and it may be relaxed in orderto maintain a uniform body of precedent or where the interests of justice sorequire. American Federation of State, County & Municipal Employees, Council 31v. County of Cook, 145 Ill. 2d 475, 480 (1991). Given that respondent raised theissue in his posttrial motion and argues it at length on appeal, we find that theinterests of justice require our review of this issue.

Respondent contends that the trial court erred by compelling him to submitto a DHS evaluation. Specifically, respondent argues that the order (1) violatedhis right to remain silent pursuant to section 25(c)(2) of the Act (725 ILCS207/25(c)(2) (West 1998)); and (2) was contrary to section 30(c) of the Act (725ILCS 207/30(c) (West 1998)). For the following reasons, we reject both of thesearguments.

The resolution of both issues hinges upon the interpretation of the Act. Therefore, our review is de novo. Department of Public Aid v. Brewer, 183 Ill.2d 540, 554 (1998).

Section 25(c)(2) states:

"Except as provided in paragraph (b)(1) of Section 65 and Section 70of this Act, at any hearing conducted under this Act, the person who is thesubject of the petition has the right to:

***

(2) Remain silent." 725 ILCS 207/25(c)(2) (West 1998).

Respondent argues that the evaluation compelled by the court violated hisright to remain silent. However, this court has held that the right to remainsilent applies only during any hearing held after the filing of a petition. Inre Detention of Anders, 304 Ill. App. 3d 117, 121 (1999). It is clear that thelegislature's use of the phrase "at any hearing" was meant to limit the scope ofthis protection to "hearings." Anders, 304 Ill. App. 3d at 121. Interpretingsection 25 of the Act as affording a person the right to remain silent during anevaluation ignores the clear language of the statute. Anders, 304 Ill. App. 3dat 121. Therefore, we hold that the court's order compelling respondent to submitto an evaluation by the DHS did not violate respondent's right to remain silentunder section 25(c)(2) of the Act.

Likewise, we reject the argument that respondent had the right to refuse tocooperate with the DHS evaluation under section 30(c) of the Act (725 ILCS207/30(c) (West 1998)). Section 30(c) states, in pertinent part:

"If the court determines after a hearing that there is probable causeto believe that the person named in the petition is a sexually violentperson, the court shall order that the person be taken into custody if heor she is not in custody and shall order the person to be transferred withina reasonable time to an appropriate facility for an evaluation as to whetherthe person is a sexually violent person. If the person named in thepetition refuses to speak to, communicate with, or otherwise fails tocooperate with the expert from the Department of Human Services who isconducting the evaluation, the person shall be prohibited from introducingtestimony or evidence from any expert or professional person who is retainedor court appointed to conduct an evaluation of the person." 725 ILCS207/30(c) (West 1998).

Apparently, respondent interprets section 30(c) of the Act as giving aperson the right to remain silent at evaluations. We disagree. As the courtstated in In re Detention of Tiney-Bey, 302 Ill. App. 3d 396, 402 (1999), "arespondent has the power, but not the right, to refuse to comply with anevaluation." Section 30(c) of the Act "merely addresses the practical problemsthat may arise because of this and does not imply a right to remain silent." Tiney-Bey, 302 Ill. App. 3d at 402.

Respondent also argues that the ruling deprived him of a trial strategy,causing his trial to be unfair. When the court granted the State's motion tocompel respondent to submit to a DHS evaluation, the court also grantedrespondent's request for appointment of an expert. Respondent, however, arguesthat had he been able to refuse cooperation with the DHS, and thereby forgo hisown expert, the trial may have yielded a different outcome. Respondent relies ontwo cases decided by this court to support his argument.

The intent of the statute is to prevent either the State or the respondentfrom having an evidentiary advantage and to guarantee that both parties have theopportunity to present evidence substantially equal in character. In re Detentionof Trevino, 317 Ill. App. 3d 324, 330 (2000). In In re Detention of Kortte, 317Ill. App. 3d 111, 116 (2000), we concluded that the respondent was denied a levelplaying field because the State had the opportunity to call two nonexaminingexpert witnesses, while the respondent was barred from calling a nonexaminingexpert of his own. Similarly, in Trevino, we held that the respondent's right todue process was violated because the State was able to present one examining andone nonexamining expert witness, while the respondent was able to present onlyone nonexamining expert. Trevino, 317 Ill. App. at 331. The circumstances inKortte and Trevino are not present here. As respondent concedes, the courtgranted his request for appointment of an expert. As a result, the State was ableto present two examining expert witnesses and respondent was able to present oneexamining expert witness. Because both sides were able to call examining experts,neither party had an evidentiary advantage and both parties had the opportunityto present evidence substantially equal in character. Therefore, the court'sapplication of section 30(c) in this case did not deny respondent due process.

Respondent's final argument, raised in a supplemental brief, is that it waserror to allow expert testimony regarding certain actuarial instruments utilizedto predict the likelihood that respondent would reoffend. Specifically,respondent maintains that the RRASOR, MnSost-R, and Static 99 fail the test foradmissibility as articulated in Frye v. United States, 293 F. 1013 (D.C. Cir.1923). Respondent relies on a case recently decided by this court which held thatpsychological or psychiatric testimony of an expert predicated upon actuarialinstruments is scientific evidence subject to Frye. People v. Taylor, 335 Ill.App. 3d 965, 976 (2002).

The State maintains that respondent waived this issue because he neverobjected to the experts' testimony at trial or in a posttrial motion. Respondent,however, asserts that this issue should be considered under the doctrine of plainerror.

The plain error analysis applies where the defendant has failed to make atimely objection. People v. Thurow, No. 90911, slip op. at 8 (February 6, 2003). In this situation, " '[i]t is the defendant rather than the [State] who bears theburden of persuasion with respect to prejudice.' " Thurow, slip op. at 8, quotingUnited States v. Olano, 507 U.S. 725, 734, 123 L. Ed. 2d 508, 520, 113 S. Ct.1770, 1778 (1993). Plain error is a limited and narrow exception to the generalwaiver rule, and is invoked only where the evidence is closely balanced, or wherethe alleged error is so substantial that it deprived the defendant of a fairtrial. People v. Kuntu, 196 Ill. 2d 105, 128 (2001).

Illinois courts follow the Frye test in determining the admissibility ofexpert testimony based on novel scientific evidence. Frye, 293 F. 1013; Donaldsonv. Central Illinois Public Service Co., 199 Ill. 2d 63, 77 (2002). The "generalacceptance" test articulated in Frye provides that scientific evidence isadmissible only if the methodology or scientific principle upon which the opinionis based is sufficiently established to have gained general acceptance in theparticular field in which it belongs. Frye, 293 F. at 1014; Donaldson, 199 Ill.2d at 77 (2002). In determining what constitutes "general acceptance," thequestion is whether there is consensus versus controversy over a particulartechnique. Taylor, 335 Ill. App. 3d at 977, citing Donaldson, 199 Ill. 2d at 78.

In Taylor, we noted that several Illinois courts have held that Frye shouldgovern the admissibility of psychological and psychiatric expert testimony thatis not predicated solely on the evaluator's own clinical observation andexperience. Taylor, 335 Ill. App. 3d at 973. Consequently, we held that theState is obligated to satisfy the Frye test before an expert's testimonypredicated upon actuarial instruments is admitted. Taylor, 335 Ill. App. 3d at973. Specifically, Taylor found that the MnSost-R, RRASOR, and Static 99constitute scientific evidence subject to the Frye test. Taylor, 335 Ill. App.3d at 973.

In the case at bar, all three experts testified that they relied, at leastin part, on the MnSost-R, RRASOR, and Static 99 in finding respondent to be asexually violent person under the Act. Therefore, their assessments ofrespondent's risk for reoffense were not predicated solely upon their clinicaljudgment, training, and expertise. In addition, there was no determination underFrye in this case regarding the general acceptance of using these actuarial toolsto measure the likelihood of reoffense.

We also note that all three experts testified that they had concernsregarding the use of these instruments. State expert Dr. Buck indicated that shewould not utilize the RRASOR because of its limited capacity (only fourquestions). She also indicated that Dr. Hanson, a primary leader in the field,had changed several of the risk factors identified in the 1996 meta-analysis dueto further research and study. Similarly, State expert Dr. Heaton testified that,although he used the RRASOR to assess respondent, he also had concerns regardingits reliability. Finally, Dr. Brown indicated that there was controversy withinthe field regarding the overall use of actuarial tools to predict sexualrecidivism. He expressed concern because there were no manuals to accompany theseinstruments.

For all of the above reasons, we find that plain error occurred in thiscase. In other words, we believe respondent has satisfied his burden of showingthat he was prejudiced by the admission of the experts' testimony predicated uponthe MnSost-R, RRASOR, and Static 99. As noted above, all three experts relied,in part, on the actuarial tools to predict respondent's likelihood of reoffense. However, on the basis of the record before us, it is unclear whether theseinstruments are still in the experimental stages or whether their validity hasbeen established.

Because the trial court is in the best position to make a determinationregarding the admissibility of these instruments, we remand this case to the trialcourt to conduct a Frye hearing. Specifically, we direct the trial court toconduct a Frye hearing to determine the admissibility of the MnSost-R, RRASOR, andStatic 99. If it is determined that these actuarial tools satisfy the standardset forth in Frye, then the judgment of the trial court is affirmed. If, however,the State fails to meet its burden to show that the MnSost-R, RRASOR, and Static99 have gained general acceptance from the psychological and psychiatriccommunities, then the judgment of the trial court is reversed and the case isremanded for a new trial.

For the reasons stated, the order of the circuit court of Kane Countycompelling respondent to submit to a DHS evaluation is affirmed and the cause isremanded with directions to conduct a Frye hearing to determine the admissibilityof the MnSost-R, RRASOR, and Static 99 and for further proceedings in accordancewith this opinion.

Order affirmed; cause remanded with directions.

HUTCHINSON, P.J., concurs.

JUSTICE KAPALA, dissenting:

Respondent concedes that he waived his right to challenge for the first timeon appeal the admissibility of the testimony of the State's experts regardingtheir use of three actuarial instruments: the RRASOR, the MnSOST-R, and theStatic-99. I respectfully dissent from that portion of the majority opinion whichcircumvents waiver by concluding that it was plain error to admit expert testimonyregarding the use of those three instruments.

Plain error is a limited and narrow exception to the general waiver rule,to be invoked only when the evidence is closely balanced or the alleged error isso substantial that it denied the defendant a fair trial. People v. Kuntu, 196Ill. 2d 105, 128 (2001). It is the defendant who has the burden of showing plainerror. People v. Thurow, No. 90911, slip op. at 8 (February 6, 2003).

In this case, the evidence was not closely balanced on the issue ofrespondent being a sexually violent person. Respondent had a history of prior sexoffenses. The evidence also showed he denied wrongdoing, refused to undergotreatment, and placed blame on the victims. More importantly, both State experts,relying on information separate from the actuarial instruments, opined he was asexually violent person who had a high risk of reoffending in the future. Dr.Buck based her opinion on her clinical assessment of respondent, his past history,and her experience. Dr. Heaton relied on similar information to reach hisopinion. Even respondent's own expert, Dr. Brown, diagnosed respondent assuffering from adult antisocial behavior and paraphilia. He also testified thatrespondent did not accept full responsibility for his acts. Moreover, he concededrespondent posed a "moderate risk to reoffend." I simply cannot conclude, inlight of this evidence showing the seriousness of respondent's sexual disorder andhis likelihood of reoffending, that the evidence was so closely balanced as tojustify imposition of the plain error doctrine.

I also do not consider the error in allowing the experts to testifyregarding the actuarial instruments to be so substantial that it deprivedrespondent of a fair trial. This second prong of the plain error exception is tobe invoked only where the possible error is so serious that its consideration isnecessary to preserve the integrity and reputation of the judicial process. Kuntu, 196 Ill. 2d at 128.

Here, the reliance by the State's experts on the actuarial instruments was,at best, insubstantial. Dr. Buck utilized the Static-99 and MnSOST-R but not theRRASOR. Dr. Heaton utilized the RRASOR and the MnSOST-R but not the Static-99. Further, their use of these instruments played a minimal role, if any, in reachingtheir ultimate opinions as to respondent's likelihood of reoffending.

Dr. Buck testified that she had already formulated her opinion thatrespondent qualified as a sexually violent offender before utilizing the actuarialinstruments. She also stated on redirect examination that the two instruments"simply confirmed [her] clinical opinion" and that she would never form an opinionof the probability of someone committing future acts of sexual violence based onactuarial studies alone.

In a similar vein, Dr. Heaton testified, with no mention of actuarialinstruments, that based on his evaluation and experience he believes respondentsuffers from paraphilia and other psychological disorders that predispose him tocommit acts of sexual violence. As for the RRASOR and the MnSOST-R, Dr. Heatontestified that they do not reflect a particular individual's risk of reoffending,but merely place a person in a category of people who have a certain risk ofcommitting sex offenses. According to Dr. Heaton, he would never form an opinionof someone's risk to reoffend based on an actuarial study alone because it is onlya screening tool and there are a "number of other significant risk factors" and"all kinds of information" that must be considered. Dr. Heaton conceded that inrespondent's case, the RRASOR is not an accurate indicator because itunderestimates respondent's risk to reoffend based on the additional informationthat indicates his risk is much greater. Dr. Heaton added that it is not goodpractice to rely solely on a combination of actuarial instruments, and they shouldonly be compared to the independent assessment of an individual.

It is worth noting that this case involves more than just respondentneglecting to object to the State's experts' testimony regarding the actuarialinstruments. Respondent's own expert, Dr. Brown, used the RRASOR and the MnSOST-Rto evaluate respondent and incorporated the results in his testimony on behalf ofrespondent.

It is evident when the record is viewed in its entirety that any error inadmitting testimony regarding the use of the three actuarial instruments at issuein this case was not so substantial as to have deprived respondent of a fairtrial. It is clear that the State's experts limited their use of the actuarialinstruments as a method of cross-reference. They also stated unequivocally thatthey did not use the actuarial instruments to formulate their opinions but,rather, to confirm them. Based on the three experts' explanations of the limitedpurpose of the actuarial instruments, it would seem unlikely the trial courtplaced much, if any, weight on the use of those instruments in reaching itsfinding that respondent is a sexually violent person. Under the facts of thiscase, I would not find plain error and would, therefore, affirm the order of thecircuit court.