NO. 4-01-0748

JUSTICE STEIGMANN delivered the opinion of the court:

In July 2001, a jury found respondent, William J.Stevens, to be a sexually violent person under the SexuallyViolent Persons Commitment Act (Act) (725 ILCS 207/1 through 99(West 2000)). Following an August 2001 dispositional hearing,the trial court ordered him committed to the Department of HumanServices (DHS) for institutional care in a secure setting.

Respondent appeals, arguing that (1) the trial courtabused its discretion by denying his motion for a Frye evidentiary hearing (see Frye v. United States, 293 F. 1013 (D.C. Cir.1923)) on the admissibility of evidence regarding actuarialinstruments used by the State's experts in assessing respondent'srisk of reoffending; and (2) the jury's finding was against themanifest weight of the evidence. We disagree and affirm.

In January 2000, the State initiated proceedings underthe Act to commit respondent to DHS indefinitely. At that time,respondent was an inmate at the Western Illinois CorrectionalCenter and was scheduled for entry into mandatory supervisedrelease on January 12, 2000, following the completion of hissentence on 1996 convictions for aggravated criminal sexual abuse(720 ILCS 5/12-16(d) (West 1996)) and aggravated battery (720ILCS 5/12-4 (West 1996)).

In February 2001, respondent filed a motion for a Fryeevidentiary hearing to determine the admissibility of evidenceregarding actuarial risk-assessment instruments used by theState's experts in assessing respondent's risk of reoffending. Alternatively, respondent's motion sought to bar such evidence. Later that month, the State filed a response to respondent'smotion. In March 2001, the trial court conducted a hearing onrespondent's motion, and after considering counsels' arguments,the court denied the motion in all respects.

At respondent's July 2001 trial, Jacqueline Buck, aclinical psychologist and special evaluator for the Department ofCorrections (DOC), testified that she had reviewed respondent'sDOC master file, which contained all of the court records relatedto respondent, including the sentencing order, the presentenceinvestigation reports, psychiatric and psychological evaluations,DOC records, and his criminal history.

Buck's review of respondent's master file showed thatwhen respondent was five or six years old, his mother reported tothe police that he had been sexually abused by a 16-year-old boy. He had also been abused by his sister when he was an infant. When respondent was five years old, he was found maneuvering in asexual way on top of a four-year-old girl. Both children wereclothed. When he was seven years old, respondent was found ontop of a little girl, rubbing his exposed penis against her. Around that same time, respondent entered foster care and wassubsequently placed in several different homes due to his havingdifficulty with other children.

When respondent was 12 years old, it was reported thathe had sexually molested two 5-year-old boys in a foster home. Buck acknowledged that she received this information in a telephone conversation with the Adams County State's Attorney, notfrom any documents in respondent's master file. However, shestated she had no reason to disbelieve the report, and respondentwas removed from the foster home where the incident allegedlyoccurred.

When respondent was 13 years old, he took a 15-year-oldgirl who had some "intellectual deficits" into a stairwell and"performed sexual acts." Buck found it clear from the policereport that the girl did not understand what respondent was doingto her.

When respondent was 14 years old, he took a 13-year-oldgirl (who respondent had referred to as his "girlfriend") intothe bathroom at his foster home and "made her disrobe." He alsoundressed, and fondled the girl's breasts and attempted vaginaland anal intercourse. He then demanded that she perform oral sexon him, and he ejaculated on the bathroom wall. The girl wascrying during the oral sex. As a result of this incident,respondent was adjudicated delinquent for aggravated criminalsexual abuse (720 ILCS 5/12-16 (West 1998)). Respondent wascommitted to DOC juvenile division.

Respondent was also charged with aggravated criminalsexual abuse of a 12-year-old boy who was mentally and physicallydisabled and a member of respondent's foster household. Thereport indicated that respondent fondled the boy's penis in abedroom while another boy stood guard outside the door. Thecharge was dropped when respondent pleaded guilty to some otherpending charges.

Respondent's master file also contained an April 1992juvenile DOC disciplinary report, which stated that respondenthad pressured another boy for a sexual favor and had threatenedto split the boy's head open.

Buck interviewed respondent in October 1999. Based onthe interview and her review of respondent's master file andother information, Buck diagnosed respondent with paraphilia nototherwise specified (paraphilia NOS), sexually attracted tononconsenting persons (nonexclusive type). Her diagnosis wasbased on the evidence that beginning at age 12, respondentestablished a pattern of victimizing "younger people or peoplementally retarded or disabled in some way."

She also diagnosed respondent with "polysubstancedependencies without physiological dependency and in a controlledenvironment," based on the evidence of respondent's long historyof substance abuse. She further explained that substance abusewas a factor in determining respondent's probability of re-offending with additional acts of sexual violence because substance abuse contributes to a loss of ability to control sexualurges. Respondent had not participated in any substance-abusetreatment.

Buck also diagnosed respondent with antisocial personality disorder. Seven criteria exist for that diagnosis, and thepresence of any three warrants the diagnosis. Respondent satisfied all seven criteria. Buck described antisocial personalitydisorder as "a pervasive disregard for and violation of therights of others." The diagnosis is relevant to respondent'sprobability of reoffending because a person with this disorderlacks empathy or concern for other people. Buck describedrespondent as good at charming people to get what he wants, andrespondent described himself as being "devoid of feelings." Buckfurther explained that "by being cut off from his feelings he isable to inflict a lot of harm on other people and not feel anyremorse or shame or sorrow for that."

Buck used "several" actuarial risk-assessment instruments to assess respondent's probability of reoffending, and sheconcluded that his risk was "extremely high." (The record showsthat Buck administered the following instruments: (1) theMinnesota Sex Offender Screening Tool-Revised; and (2) theViolence Risk Assessment Guide.) She subsequently administeredthe "Sex Offender Risk Assessment Guide," on which respondentscored in the 99th percentile. This score placed respondent inthe category of offenders with a 100% probability of reoffendingwithin 7 or 10 years. Buck also administered a personalityinventory (the Hare Psychopathy Checklist-Revised) in evaluatingrespondent.

Respondent's master file showed that he refused sex-offender treatment on three different occasions while at DOC. Respondent told Buck that he did not need treatment. He saidthat all he needed to do was "grow up" and he had done that. Buck acknowledged that documents in the master file indicatedthat respondent successfully completed a sex-offender educationprogram and sex-offender treatment at the Illinois Youth Centerin Joliet. However, in her interview with respondent, he did notadmit that he had participated in treatment and would not tellBuck anything he had learned in any sex-offender program.

Buck opined that should respondent be released to thecommunity, it was substantially probable that he would reoffendwith additional acts of sexual violence due to his untreateddiagnoses of paraphilia NOS, sexually attracted to nonconsentingpersons (nonexclusive type), polysubstance dependency, andantisocial personality disorder.

Robin Weaver testified that on November 21, 2000, shewas employed as a DHS security therapy aide. On that date, sheand another staff member were transporting respondent, who was inrestraints, to the Adams County courthouse. While walkingrespondent to the van, he became agitated and resisted gettinginto the van. Once he was inside the van, he laid down on hisback and began kicking the interior of the van. After about 10minutes, respondent calmed down and Weaver and her colleagueentered the front compartment of the van. However, before theydrove off, Weaver's colleague left the van to take a telephonecall. At that point, respondent said to Weaver, in a low tone,"'You think you are better than me, don't you. You are all highand mighty looking down on me. *** Well, bitch. You are not anybetter than me.'" Weaver told him to be quiet. Respondent thensaid, "'You think you are tough, don't you? *** Well, that tinbadge don't make you tough, bitch. You are not tough. You arejust full of cellulite.'" Respondent's last remarks to Weaverwere, "'I will throw you down and stick my pipe in you. We willsee how tough you are then. We will see then how tough you arewhen I do this'"; and "'Well, hell, you can't even control mewith these handcuffs on. How are you going to do it when theyare off?'" Weaver stated that she was terrified by respondentwhen he said these things.

Phil Reidda, a clinical psychologist, testified that hehad been appointed by the Adams County circuit court to evaluaterespondent. He reviewed respondent's DOC master file, administered psychological tests, and conducted a clinical interview,which lasted approximately 3 1/2 hours.

Reidda administered the following tests to respondent: (1) the Gamma General Mental Ability Test, which is a cursoryevaluation of intelligence; (2) the Millon Multiaxial PersonalityInventory Assessment, which generates a personality profile; and(3) the Minnesota Multiphasic Personality Inventory. Respondent's score on the Gamma Test was "a little high average." Theresults of the Millon Assessment indicated that respondent hadantisocial personality disorder, and the results of the MinnesotaMultiphasic Personality Inventory underscored the conclusions ofthe Millon Assessment. The personality tests indicated thatrespondent was defiant, had conflict with authority, and hadproblems with his self-image. Reidda also noted that an August1998 mental health evaluation performed by Dr. Alton Angus at theLincoln Correctional Center indicated that respondent had anantisocial personality disorder.

Reidda stated that respondent's sexually aggressivebehavior began when he was only five or six years old and thatthe reports "escalated" as time passed and became "stronger" asrespondent matured. Reidda opined that the early onset ofrespondent's sexual acting out was significant because it is "oneof the high risk indicators." In addition to the incidentstestified to by Buck, Reidda noted that in 1996, respondent beganhaving sexual relations with K.H., a 13-year-old girl, for whichhe was sentenced to DOC.

In addition to respondent's history as a sex offender,Reidda also considered that respondent had been a victim ofsexual abuse during his childhood.

Reidda's review of respondent's criminal historyunrelated to sexual assault showed that respondent had only oncesuccessfully completed a term of probation or parole. This wassignificant to Reidda because it indicated how difficult it wasfor respondent to "manage at the community level." In addition,respondent told Reidda that he was a gang member. This wasrelevant to Reidda's evaluation because it showed that respondentidentified with a group of people who hold "procriminal values"and are associated with violence.

Reidda also noted that respondent was consistentlyrecommended for sex-offender treatment, and as an adult, he didnot take advantage of any treatment opportunities. Reiddafurther noted that the sex-offender education program in whichrespondent participated while he was in DOC juvenile division didnot have a significant impact on respondent. He did not participate in follow-up programs and reoffended after participating inthat program.

The master file also showed that when respondent was 13years old, his family participated in family counseling. Thecounselor's notes showed that respondent's sister stated thatrespondent had been "patting her on the butt and making sexualadvances," and she was afraid of him. The counselor also notedthat progress toward treatment goals was minimal because of theseverity of the problems and respondent's "lack of real motivation." Reidda found this report significant because it showed(1) respondent's inability to respect boundaries; (2) his problems were "chronic"; and (3) he had never been in a situationwhere he was held to treatment. A report dated four months laterindicated that respondent remained resistant to dealing withanything other than superficial issues and would not addressfamily and sexual issues. The counselor thought the prognosiswas very poor. Reidda opined that respondent remained at thisstage.

Reidda also cited an April 1991 evaluation by Dr.Robert Thorud, when respondent was in DOC juvenile division. Thorud opined that when placed in stressful situations, respondent would "act out sexually."

Reidda further testified that the documents relating torespondent's mental health strongly supported his view of respondent's risk of reoffending because the documents consistentlydiscuss the degree of respondent's pathology, lack of motivation,and the need for clinical intervention.

In addition, respondent's record showed that he hadover 30 disciplinary infractions while at DOC. Most of respondent's disciplinary reports had to do with either rule violationsor challenges to authority. This indicated to Reidda thatrespondent had trouble with authority and difficulty managing hisbehavior, even in a controlled setting. Reidda found the incident with Weaver to be particularly significant because respondent's comments to Weaver support the conclusion that respondentcannot control himself.

After respondent was released from parole in 1995, hecommitted criminal offenses, including possession of drug paraphernalia, criminal trespass, fighting, possession of liquor by aminor, battery and aggravated battery, and aggravated criminalsexual abuse. According to Reidda, respondent's record wassignificant because it showed that his incarceration made nosignificant impact on him and he still had no control over hisaggressive impulses.

Reidda diagnosed respondent with (1) paraphilia NOS,with a subdiagnosis of polysubstance dependency in a controlledenvironment; and (2) antisocial personality disorder, severe,with narcissistic traits. Reidda described antisocial personality disorder as follows:

"[i]n layman's terms it *** is someone whohas a disregard for the other people or theirproperty, someone who has trouble adhering torules, and while they understand the letterof the law, they cannot seem to concern themselves about it. Generally, *** when we seeantisocial personality characters, generallypeople think--people who are not trained--tosee them as somebody without a conscience."

Reidda characterized respondent's disorder as "severe" because ofits chronicity and intensity, and respondent's refusal to participate in any kind of treatment.

Reidda used two actuarial risk-assessment instrumentsin evaluating respondent: the Static-99 and the Minnesota Screening Tool-Revised. The results of the Static-99 placed respondentin the category of very high risk of committing future acts ofsexual violence. The Minnesota Screening Tool-Revised alsoplaced respondent in a very-high-risk category. The results ofthe two actuarial instruments were consistent with Reidda'sclinical opinion. According to Reidda, this consistency underscored the validity of his assessment. Reidda opined that asubstantial probability exists that respondent would commitfuture acts of sexual violence. Reidda further stated that hisopinion regarding respondent's likelihood of reoffending would bethe same even if he excluded from consideration the unverifiedreport regarding the two five-year-old boys.

Terry Brelje, a licensed clinical psychologist, testified on respondent's behalf that he conducted a two-hour interview with respondent and reviewed approximately 170 pages ofbackground material. He concluded that respondent did not meetthe criteria for commitment as a sexually violent person underthe Act. At the time of his interview, Brelje did not believethat respondent was experiencing any mental disorder. He ruledout antisocial personality disorder because that disorder requires that the person had a conduct disorder before 15 years ofage. Brelje had reviewed a psychiatric evaluation of respondentthat was conducted when he was 15 years old, and the diagnosisdid not include a conduct disorder. An antisocial personalitydisorder diagnosis also requires that the personality disorder becontinuing into adulthood. Brelje did not believe sufficientevidence existed that respondent exhibited repetitive and continuing behavior consistent with a diagnosis of antisocial personality disorder.

Brelje further concluded that respondent did not meetthe diagnosis for paraphilia. He saw no evidence of "inappropriate sexual arousal" or arousal to nonconsenting partners, andstated that "you can't use sexual behavior as a child or anadolescent to justify a diagnosis of paraphilia." The only"nonconsenting" behavior in respondent's adulthood was with K.H.,a 13-year-old girl, who was nonconsenting only in that she wasbelow the legal age of consent. Brelje acknowledged that respondent had a history of depression and substance abuse.

Brelje also acknowledged that he uses actuarial risk-assessment instruments, but he stated that it was not appropriateto use incidents which occurred before a person reached the ageof 18 in applying those instruments. Brelje opined that theresults of such tests are not valid when based on informationfrom juvenile years because the tests were not designed to makeassessments based on juvenile conduct. Brelje concluded thatrespondent did not have a substantial probability of reoffendingsexually.

Carmella Stevens testified that in 1995, after datingrespondent for three or four months, she and respondent married. Shortly after they married, Stevens became pregnant. At the timeof respondent's trial, they were still married but had beenseparated since a few weeks after their nuptials. Respondent wasloving toward their child, was never abusive toward her, andnever forced her to have sex.

K.H. testified that she dated respondent when she was13 years old. She later learned that before they started dating,respondent had been having sexual intercourse with her mother. K.H. and respondent had sexual intercourse, but respondent nevertried to force her to have intercourse. She had had sexualintercourse with one person before respondent. Respondent neverstruck her or physically abused her and she chose to have sexwith him. K.H. further testified that she fell in love withrespondent when she was 13 and loved him even more now. Shewould do anything to help him.

Based on the evidence presented, the jury found thatrespondent was a sexually violent person. The trial court laterordered him committed to DHS for institutional care in a securesetting. This appeal followed.

A. The Trial Court's Denial of Respondent's
Motion for a Frye Hearing

Respondent first argues that the trial court erred bydenying his motion for a Frye evidentiary hearing to determinewhether to admit evidence regarding actuarial instruments used byBuck and Reidda in assessing respondent's risk of reoffending. We disagree.

1. Applicability of the Frye Standard to Actuarial
Risk-Assessment Instruments

a. Scientific Principle, Method, or Test

In In re Detention of Erbe, 344 Ill. App. 3d 350, 364,800 N.E.2d 137, 149 (2003), this court recently held that actuarial risk-assessment instruments of the sort used in this case--namely, the Minnesota Screening Tool-Revised, the Static-99, and the Violence Risk Assessment Guide--do not purport toinvolve a scientific principle, method, or test to which Fryeapplies. In so holding, we stated, in pertinent part, as follows:

"Actuarial risk-assessment instruments, likethose used in this case, were developed byobserving those sex offenders who reoffend todetermine which 'risk factors' they have incommon. See In re Detention of Isbell, 333Ill. App. 3d 906, 911, 916, 777 N.E.2d 994,997-98, 1002 (2002) (by observing what alarge number of reoffenders have had in common, one can compile a list of risk factors). One can then calculate the relative frequencywith which sex offenders with those riskfactors have reoffended and thus assess theprobability that other sex offenders with thesame risk factors will reoffend. Isbell, 333Ill. App. 3d at 916, 777 N.E.2d at 1002. Theactuarial instruments merely help the professional draw inferences from historical dataor the collective experience of other professionals who have assessed sex offenders forrisks of reoffending. In this regard, theinstruments are akin to actuarial tables forlife expectancy admitted as evidence to ajury for the determination of the grossamount awarded for future pain and sufferingor used by an economic expert to determinethe present cash value of a pension. Suchinstruments simply do not constitute aspecial scientific principle, method, or testto which Frye applies." Erbe, 344 Ill. App.3d at 364-65, 800 N.E.2d at 149.

We adhere to our holding in Erbe and thus reject respondent'scontention that Frye applies in this case.

Even assuming that the sort of actuarial instrumentsused by Buck and Reidda involve a scientific principle, method,or test, those instruments do not involve the kind of "new" or"novel" scientific principle, method, or technique to which Fryeapplies. Erbe, 344 Ill. App. 3d at 365, 800 N.E.2d at 150. Aswe stated in Erbe, 344 Ill. App. 3d at 366, 800 N.E.2d at 150,"Our society uses actuarial methods to predict human behavior allthe time (for example, in liability insurance and economics). Inaddition, actuarial instruments similar to the ones used in thiscase have long been used in predicting recidivism by releasedprisoners."

Even assuming that the Frye standard applies, we agreewith the trial court that the use of actuarial risk-assessmentinstruments is generally accepted by professionals who assess sexoffenders for risk of reoffending.

In Erbe, 344 Ill. App. 3d at 369, 800 N.E.2d at 153,this court held that "the use of actuarial risk-assessmentinstruments is sufficiently established to have gained generalacceptance by professionals who assess sex offenders for risks ofreoffending." In so holding, we thoroughly examined everyreported decision in the United States that addressed theadmissibility of evidence regarding actuarial risk-assessmentinstruments in a sexually-violent-persons proceeding and foundthe decisions allowing evidence regarding such instruments to bemore persuasive (see for example In re Commitment of R.S., 339N.J. Super. 507, 540-41, 773 A.2d 72, 92 (2001), aff'd 173 N.J.134, 801 A.2d 219 (2002) (in which the New Jersey appellate courtheld that the use of actuarial instruments was generally acceptedby professionals who assess sex offenders for risks ofreoffending); In re Detention of Strauss, 106 Wash. App. 1, 8, 20P.3d 1022, 1025 (2001) (in which the Washington appellate courtheld that actuarial instruments were generally accepted withinthe relevant scientific community)). Erbe, 344 Ill. App. 3d at369-70, 800 N.E.2d at 152. We adhere to our holding in Erbe andthus conclude that the trial court did not err by denyingrespondent's motion for a Frye hearing.

Even accepting respondent's contention that the trialcourt erred by failing to conduct a Frye hearing, we concludethat any error was harmless because the evidence presented atrespondent's trial established that the actuarial risk-assessmentinstruments at issue are generally accepted by professionals whoassess sex offenders for risks of reoffending. In particular,Reidda testified that such actuarial instruments are generallyaccepted and are the "best tools" that professionals have toassess sex offenders' risks of reoffending. Indeed, Breljeacknowledged that a "large percentage" of professionals whoevaluate sex offenders, including Brelje himself, use actuarialinstruments in assessing the risks of reoffending. He alsoacknowledged that (1) actuarial instruments "add to the overallbatch of stuff that [professionals] look at" in assessing therisks of reoffending; and (2) risk-assessment predictions thatare based on actuarial instruments are "slightly more" accuratethan predictions that are based solely on a clinician'sprofessional judgment. Brelje further acknowledged that theactuarial instruments utilized by Buck and Reidda wereappropriate to administer to respondent based on his adultbehavior.

As a final matter, we note that traditional methods,such as cross-examination and rebuttal witnesses, offeredrespondent the opportunity to challenge Buck's and Reidda'sopinions in the proper forum--that is, during trial in front ofthe jury. As the Supreme Court stated in Daubert v. Merrell DowPharma- ceuticals, Inc., 509 U.S. 579, 596, 125 L. Ed. 2d 469,484, 113 S. Ct. 2786, 2798 (1993), "[v]igorous cross-examination,presentation of contrary evidence, and careful instruction on theburden of proof are the traditional and appropriate means ofattacking shaky but admissible evidence." See also Halleck v.Coastal Building Maintenance Co., 269 Ill. App. 3d 887, 897, 647N.E.2d 618, 627 (1995) (on cross-examination, counsel may probethe weaknesses in the bases of an expert's opinion as well as thegeneral soundness of his opinion).

The record shows that respondent conducted a vigorouscross-examination of Buck and Reidda. In addition, Breljetestified regarding the predictive value of actuarial risk-assessment instruments, how professionals may misuse actuarialinstruments, and when it is appropriate to use such instrumentsto assess the risks of reoffending.

Last, respondent argues that the jury's finding that hewas a sexually violent person was contrary to the manifest weightof the evidence. Specifically, he contends that the evidence wasinsufficient because (1) the State failed to prove that he lackedthe ability to control his sexually dangerous behavior; (2) theevidence did not support Buck's and Reidda's diagnoses ofparaphilia; and (3) the evidence did not establish a connectionbetween his mental disorder and his probability of reoffending. We disagree.

Section 5(f) of the Act defines a sexually violentperson as an individual who has "been convicted of a sexuallyviolent offense, *** and who is dangerous because he or shesuffers from a mental disorder that makes it substantiallyprobable that the person will engage in acts of sexual violence." 725 ILCS 207/5(f) (West 2000). The State must prove theallegations of its petition beyond a reasonable doubt. 725 ILCS207/35(d)(1) (West 2000). On review, we ask only whether, afterviewing the evidence in the light most favorable to the State,any rational trier of fact could find the elements proved beyonda reasonable doubt. In re Detention of Tittlebach, 324 Ill. App.3d 6, 11, 754 N.E.2d 484, 488 (2001).

Respondent contends that (1) Kansas v. Crane, 534 U.S.407, 151 L. Ed. 2d 856, 122 S. Ct. 867 (2002), requires aseparate lack-of-control determination couched in terms of"serious difficulty in controlling his dangerous behavior"; and(2) the State failed to prove this element. We disagree.

In Crane, the United States Supreme Court interpretedKansas's Sexually Violent Predator Act (Kan. Stat. Ann.