People v. Holmes

2016 IL App (1st) 132357No. 1-13-2357
FIRST DIVISION
January 11, 2016
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 03 CR 1915
)
ANDRE HOLMES, ) Honorable
) Michael McHale,
Defendant-Appellant. ) Judge Presiding.
JUSTICE CONNORS delivered the judgment of the court, with opinion.
Presiding Justice Liu and Justice Harris concurred in the judgment and opinion.
OPINION
¶1 In 2010, the State filed a petition to determine whether defendant, Andre Holmes, was a
sexually dangerous person pursuant to the Sexually Dangerous Persons Act (Act) (725 ILCS
205/1.01 et seq. (West 2010)). Following a 2013 bench trial, defendant was found to be a
sexually dangerous person and committed to the custody of the Department of Corrections. On
appeal, defendant asserts that: (1) he was deprived of due process when the State vindictively
and belatedly sought his commitment as a sexually dangerous person; (2) the petition should
have been dismissed because it was filed outside the applicable statute of limitations; (3) the
petition was barred by collateral estoppel; (4) he was denied his constitutional right to a speedy
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trial; (5) the court improperly admitted and relied on a diagnosis that should have been subject to
a Frye hearing (Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)); (6) the expert witnesses
improperly testified outside the scope of their written reports; (7) the court improperly admitted
an expert's prior consistent statement; (8) the court improperly restricted cross-examination about
a complaining witness's false allegations of rape; (9) the court failed to make the requisite
finding that defendant had serious difficulty controlling his criminal sexual behavior; and (10)
the evidence did not show beyond a reasonable doubt that defendant had a mental disorder
distinct from a typical recidivist rapist. We affirm.
¶2 I. BACKGROUND
¶3 This matter concerns two proceedings: a criminal proceeding initiated in 2003 and the
sexually dangerous person proceeding initiated in 2010. Throughout both matters, defendant's
history of committing sexual offenses was at issue, and we briefly summarize that history here,
beginning with the most recent. The State's versions of the incidents were as follows. On
December 28, 2002, defendant struck and choked the victim, J.B., forced her into a car, and
sexually assaulted her at knifepoint. In 1996, defendant was convicted of attempted forcible rape
in Louisiana after he forced himself on the 17-year-old victim who he had been dating, and
sexually assaulted her against her will. In that incident, defendant bent the victim's hands back
to stop her from resisting, covered her mouth, and threatened to kill her if she said anything. In
1994, defendant was convicted of sexual battery in Louisiana. In that incident, defendant told
the victim, who he had been dating, that he was armed with a gun, and then punched her in the
stomach and forced her into a car. Once defendant and the victim arrived at his home, defendant
showed the victim a kitchen knife and vaginally raped her. In 1989, defendant was convicted of
sexual battery in Florida. There, defendant and the victim were married but legally separated at
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the time of the offense. Defendant went to the victim's home and offered to take her to church.
As the victim got ready, defendant grabbed her from behind, choked her until she lost
consciousness, removed her clothing, and sexually assaulted her.
¶4 1. Criminal Proceedings
¶5 Defendant was indicted for the incident with J.B. in January 2003, and was charged with
12 counts of aggravated criminal sexual assault and criminal sexual assault. On August 19,
2003, the State filed a motion to allow other crimes evidence pursuant to section 115-7.3 of the
Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-7.3 (West 2002)). In this motion,
the State asserted that it should be permitted to present evidence at trial of defendant's 1994 and
1996 convictions in Louisiana. The State conceded that the 1989 sexual battery conviction in
Florida was too remote, but contended that the 1994 and 1996 incidents were relevant to show
defendant's propensity to try to force girlfriends and acquaintances to have sex with him and to
rape and beat them when they refuse. According to the State, all three crimes happened during
an approximately six-year period, excluding time defendant spent in custody, and there were
factual similarities among the three crimes. The State further asserted that the other crimes
evidence would rebut the defense of consent and ensure that a jury would not be misled to
believe that the latest assault was an isolated incident. The State also contended that apart from
showing defendant's propensity, the evidence was relevant to show identity, intent, motive, and
modus operandi. According to the State, violent rapes committed by otherwise "normal" men
are crimes that are inherently difficult for juries to understand. The State asserted that defendant
was, "to say the least, a man who reacts violently to rejection and rapes women who will not
agree to submit to his demands for sexual relations." In response, defendant asserted in part that
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the other crimes evidence would unfairly prejudice his case and that any probative value of the
other crimes would be significantly outweighed by their prejudicial effect.
¶6 On June 10, 2004, at the hearing on the State's motion, defendant asserted that if evidence
of the other crimes was permitted, "we're going to be having three different trials going on at
once." Defendant further contended that the potential prejudice was "just inexplicable" and he
would not receive a fair trial if the other two convictions were permitted. Defendant also noted
that the current victim, J.B., had "prior false allegations" of rape against a football player, from
whom she currently collected child support. The State responded that it did not yet have
discovery from the defense.
¶7 Ultimately, the court barred the use of the 1994 and 1996 crimes. The court stated that
the 1994 case occurred too long ago and there was no similarity between the 1996 case and the
current case.
¶8 On September 7, 2004, defendant filed a motion for specific additional discovery,
seeking the location and dates of any previous reports of assault, sexual assault, battery, or rape
made by J.B. On October 21, 2004, the State disclosed that J.B. stated in an interview that she
had been a victim in only one previous incident of assault, sexual assault, battery, or rape. J.B.
reported that the incident occurred between 1989 and 1992 in Ohio and involved her boyfriend,
who punched her in the face during an argument.
¶9 On May 30, 2006, the State filed a motion to reconsider the court's ruling about the other
crimes evidence. The State asserted that two years after it filed its original motion, new
discovery was tendered by defendant that indicated that J.B. reported a crime of rape in 1995
from which a child was born. The State further stated that J.B. currently collected child support
from the man she had accused. According to the State, defendant planned to introduce this
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evidence when cross-examining J.B. at trial. The State contended that in light of this new
discovery, the State should be allowed to present evidence of the 1994 and 1996 incidents. The
State asserted that it would be "outrageously prejudicial" to deny evidence of defendant's prior
incidents, but allow the evidence about J.B.
¶ 10 At a subsequent hearing, defense counsel confirmed that he intended to cross-examine
J.B. about the 1995 rape allegation because she had previously denied any other reports except
for the domestic battery claim against her boyfriend in 1989. The State contended that it would
be unfair if the trier of fact believed that J.B. may have possibly consented to have intercourse
with defendant, but did not know that three other women had not consented.
¶ 11 Ultimately, the court denied the State's motion to reconsider, stating that "when the
layperson hears propensity, it begins to snowball *** to almost proof of the crime," which the
court believed to be against the presumption of innocence. The State then requested that the
other crimes evidence be allowed to show defendant's motive or intent, or to show lack of
consent. The State asserted that if it could not present evidence of the other crimes, but J.B.'s
1995 allegation was permitted, the State "would be substantially impaired in proving our case
beyond a reasonable doubt," and defendant "probably will be acquitted by the trier of fact
because we will not be able to prove our case beyond a reasonable doubt." Nonetheless, the
court denied the motion to reconsider.
¶ 12 On June 2, 2006, the State filed a certificate of substantial impairment and appealed the
court's ruling pursuant to Illinois Supreme Court Rule 604(a)(1) (eff. Dec. 13, 2005). The
appellate court issued its decision on June 18, 2008. People v. Holmes, 383 Ill. App. 3d 506(2008). The court stated that although the State normally has 30 days to appeal or seek
reconsideration of a trial court's order, if the facts changed materially from the time the order was
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entered, and " 'the new evidence [is not] of a nature that with due diligence could have been
presented' at the time of filing the earlier motion, then the court may correct its ruling in light of
those newly presented facts." Id. at 513 (quoting People v. Williams, 138 Ill. 2d 377, 394
(1990)). The State had argued that the "new discovery" that J.B. had falsely accused a man of
rape before agreeing to accept child support payments for the child who was subsequently born
was a new and material change that permitted the trial court to reconsider its initial ruling. Id.The court disagreed, stating that the fact that defendant physically produced a police report two
years after defendant disclosed its contents did not make the information or allegations contained
in it "new." Id. However, the court found that the victim's failure to disclose a prior report of
sexual assault, even after defendant filed supplemental discovery to uncover it, was a new
development that triggered review of the 2004 order. Id. at 514. Ultimately, the court found that
the 1994 conviction was admissible, but the 1996 conviction was not. Id. at 516. A dissenting
justice disagreed that the "new fact" was actually new or that due diligence would not have
disclosed the discovery material with J.B.'s 1995 accusation. Id. at 520 (Cunningham, J.,
dissenting).
¶ 13 On July 23, 2008, defendant filed a petition for leave to appeal to the Illinois Supreme
Court. On October 8, 2009, the supreme court dismissed the appeal for lack of jurisdiction.
People v. Holmes, 235 Ill. 2d 59 (2009). The court stated that review of a trial court's order
outside the 30-day window would be allowed with a showing of a material change in the facts
that, with due diligence, could not have been presented during the previous proceedings. Id. at
67. The court found that there was no material change in the facts and the State failed to
demonstrate due diligence where it was made aware of J.B.'s 1995 allegation at the outset of the
proceedings. Id. at 68. The supreme court's mandate issued on November 12, 2009.
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¶ 14 2. Sexually Dangerous Person Proceedings
¶ 15 Subsequently, on March 16, 2010, the State filed a petition to proceed under the Act and
requested that the court appoint two qualified psychiatrists to determine whether defendant was a
sexually dangerous person. In addition to the 2002 offense involving J.B., the petition also
summarized the sexual offenses that had occurred in 1989, 1994, and 1996. Defendant filed a
motion to dismiss the petition, but this motion is not in the record.
¶ 16 At a subsequent court date, the State asserted that if defendant was not found to be
sexually dangerous, the State would proceed with the criminal case. The State further contended
that proceeding with the petition was an alternative to seeking punishment, and that the State was
"seeking to rehabilitate in a different arena." In response, defense counsel asserted that if the
State was truly concerned about defendant's mental state, it would have filed the petition seven
years earlier. According to defense counsel, the State filed the petition in response to "a bunch
of unfavorable rulings."
¶ 17 At a hearing on defendant's motion to dismiss, defendant asserted several grounds for
dismissal. Defendant contended that the petition was barred by the five-year statute of
limitations in the Code of Civil Procedure (735 ILCS 5/13-205 (West 2002))—which defendant
asserted was the longest statute of limitations that would apply—and that all the facts that were
needed to file a petition were known to the State in August 2003. Defendant also contended that
he was deprived of his constitutional right to a speedy trial. Additionally, defendant asserted that
the State would be unable to prove-up the petition because the State could not relitigate the prior
rulings that the 1994 and 1996 convictions could not be used to show propensity.
¶ 18 In response, the State asserted that no statute of limitations applied to the petition. The
State further contended that defendant had never demanded a speedy trial. Additionally, the
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State noted that a petition is focused on determining whether a person suffers from a mental
disorder and is at a substantial risk to reoffend, and does not involve proving the conduct
described in the petition.
¶ 19 In a written memorandum opinion and order and oral ruling, the court denied defendant's
motion to dismiss on February 22, 2011. The court found that according to the Act's language,
the State could file a petition at any time while a criminal charge is pending and no other statute
of limitations applied. The court also found that defendant was not denied his right to a speedy
trial. As to defendant's argument that the petition was an attempt to relitigate issues already
decided, the court stated that the petition was "a completely separate civil proceeding," and while
the parties were the same in the criminal proceeding and the proceeding under the Act, "the
elements and the purposes are completely different."
¶ 20 The court subsequently appointed two psychiatrists to examine defendant and produce
written reports. In her report, Dr. Angeline Stanislaus diagnosed defendant with sexual sadism
and antisocial personality disorder. According to Dr. Stanislaus, defendant had shown evidence
of sexual sadism since 1989, when he choked and raped his then-wife. Dr. Stanislaus asserted
that defendant's sexual sadism affected his volitional and/or emotional capacity, predisposed him
to engage in acts of sexual violence, and was coupled with criminal propensities. Dr. Stanislaus
further stated that defendant demonstrated criminal propensities to commit sexual offenses by
repeatedly engaging in sexual violence with women. Based on the assessments she used, Dr.
Stanislaus found that defendant was in the "Moderate High Risk" category for reoffending. In
Dr. Stanislaus's report, defendant estimated that he may have had about 150 female sexual
partners.
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¶ 21 The report from the second psychiatrist, Dr. Terry Killian, stated that he did not find
evidence that defendant had a paraphilia or a sexual disorder. According to Dr. Killian, sex
offenses constituted "a very small part of [defendant's] sexual activity" and were not the
predominant form of his criminal offenses. Dr. Killian stated that aggressive impulses and/or a
complete disregard for others appeared to explain defendant's sex offenses. Dr. Killian
additionally found that defendant very likely met the criteria for antisocial personality disorder
because defendant "certainly [showed] a pervasive pattern of disregard for and violation of the
rights of others." According to Dr. Killian, defendant was deceitful, aggressive, showed a lack
of remorse, and repeatedly performed acts that were grounds for arrest. The report indicated that
in addition to the sexual offenses listed in the petition, defendant's criminal history included
numerous arrests for nonsexual offenses, including burglary, retail theft, felony theft, and
domestic assault. Dr. Killian acknowledged that he did not have evidence for one of the criteria
for antisocial personality disorder—evidence of a conduct disorder before the age of 15—but
believed that given the extent of defendant's adult behavior, "he likely exhibited that behavior as
well." Dr. Killian stated that he could not be certain that defendant had antisocial personality
disorder, but the evidence strongly suggested that he did. Additionally, Dr. Killian opined that
based on the assessments he used, defendant had a low-moderate risk of reoffending. Dr. Killian
further asserted that while defendant may commit future sex offenses if not confined, he could
not say with confidence that defendant had a substantial probability of doing so.
¶ 22 At the trial held on June 13, 2013, Dr. Stanislaus testified for the State. After providing
her professional background, she stated that defendant suffered from sexual sadism and
personality disorder not otherwise specified with antisocial personality traits (personality
disorder NOS). Dr. Stanislaus opined that defendant had both disorders for more than a year
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before the petition was filed. According to Dr. Stanislaus, sexual sadism was characterized by
the presence of recurrent, intense sexual fantasies, urges, or behaviors in which the physical or
psychological suffering of the victim is sexually exciting to the person, and the person acted out
the sexual acts with a nonconsenting person.
¶ 23 Dr. Stanislaus testified about how the four incidents in the petition indicated that
defendant met the criteria for sexual sadism. In the 1989 incident, Dr. Stanislaus noted that
defendant induced physical suffering on the victim by choking and knocking her to the point of
unconsciousness, and then engaging in intercourse, showing that defendant caused physical
suffering and then was sexually aroused. According to Dr. Stanislaus, physical suffering
generally inhibits sexual arousal, but here, defendant was able to be sexually aroused while the
victim was suffering. In the 1994 incident, Dr. Stanislaus noted that the victim had been in pain
and had facial bruises, which indicated that a sexual assault had occurred in the midst of physical
suffering inflicted by defendant. In the 1996 incident, Dr. Stanislaus recalled that defendant
pulled the victim's hands behind her back when the victim resisted, as well as put his hand over
the victim's mouth to stop her from screaming and threatened to kill her if she said anything. Dr.
Stanislaus asserted that here too, defendant caused suffering and pain and still had sexual
excitement. As for the 2002 incident involving J.B., Dr. Stanislaus stated that defendant had
choked, pushed, and threatened to kill her, as well as held her down and raped her numerous
times over the course of two to three hours. Additionally, per reports, J.B. had various bruises
and lacerations on her body, all of this indicating that defendant inflicted physical suffering on
the victim and engaged in sexual intercourse with her.
¶ 24 Dr. Stanislaus additionally testified that the "core feature" of sexual sadism was that
arousal was heightened or maintained in the midst of the victim's suffering. According to Dr.
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Stanislaus, that defendant was able to maintain sexual arousal while he was choking a victim
indicated that the suffering was part of his excitement. Dr. Stanislaus also noted that there were
repeated incidents over the years with multiple partners. At the same time, Dr. Stanislaus
testified that most people who engage in sexual sadism or any paraphilic behavior can also
engage in healthy sexual relationships. Nonetheless, Dr. Stanislaus noted that sexual sadism is a
chronic condition that does not remit on its own, and the only way a person learns to manage the
diagnosis is to undergo sex offender treatment, which defendant had not done.
¶ 25 Dr. Stanislaus also testified about the difference between the diagnosis of antisocial
personality disorder in her written report and the diagnosis she gave at trial of personality
disorder NOS. Dr. Stanislaus explained that a personality disorder is a pattern of maladaptive
behaviors that have been present in a person across several domains of his life. Dr. Stanislaus
stated that although defendant met most of the criteria for antisocial personality disorder, she had
to diagnose him with personality disorder NOS instead because she did not have any records to
provide evidence of a conduct disorder by the age of 15. According to Dr. Stanislaus, defendant
met the criteria for having antisocial personality traits because across several aspects of his life,
he easily violated and lacked regard for the rights of others, had difficulty following rules and
regulations, had trouble with authority, and engaged in manipulation and deceit. Dr. Stanislaus
had reviewed defendant's general criminal history since 1985 and found that defendant had
committed offenses while on probation or parole, which showed that defendant had difficulty
following rules and regulations even when he was monitored or placed on some form of court
supervision.
¶ 26 Dr. Stanislaus further testified that when a person has both sexual sadism and a
personality disorder with antisocial traits, "that drives the sexual sadism" and the person "is most
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likely to act on sexual urges and fantasies resulting in increase of committing future sex
offenses." According to Dr. Stanislaus, defendant was at a "moderate high risk" to reoffend and
it was substantially probable that defendant would reoffend. Dr. Stanislaus also stated that
defendant's mental disorder was coupled with a propensity to commit sex offenses and that based
on his criminal history, he demonstrated a propensity towards acts of sexual assault.
¶ 27 On cross-examination, defense counsel explored Dr. Stanislaus's diagnoses. Defense
counsel confirmed with Dr. Stanislaus that in the written report, she diagnosed defendant with
antisocial personality disorder, but at trial, she testified that defendant had personality disorder
NOS. Dr. Stanislaus admitted that she had not submitted an addendum that indicated the
changed diagnosis. When asked when she had first opined the diagnosis of personality disorder
NOS, Dr. Stanislaus responded that she had disclosed during a deposition that because she did
not have evidence of a conduct disorder by the age of 15, defendant did not meet the full criteria
for antisocial personality disorder. As a result, she "changed and explained" the diagnosis to
personality disorder NOS. Dr. Stanislaus admitted that she had made a mistake in the report, and
in response to defense counsel's question about when she became aware of the mistake, Dr.
Stanislaus stated that it had been during the deposition, whereupon she changed the diagnosis
and explained the reason for the change. Dr. Stanislaus further stated that the deposition
occurred on September 28, 2012, and that state's attorneys and defense counsel had been present.
According to Dr. Stanislaus, the only difference between the two diagnoses is that personality
disorder NOS "meets all the criteria of antisocial personality disorder except for that I do not
have enough information to clearly conclude that he had [a] conduct disorder by the age of 15."
¶ 28 Defense counsel also raised the issue of J.B.'s prior outcry. Specifically, defense counsel
asked Dr. Stanislaus whether it would "bear on your overall opinion with regard to the [J.B.]
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incident if you were to be aware that [J.B.] had made a false accusation of rape in the past?" The
State objected, stating that defense counsel's question called for a legal conclusion and there had
been "no showing that there was, in fact, what the [d]efense is referring to as a false allegation of
rape." The court asked defense counsel for an offer of proof. Defense counsel responded that
J.B. had alleged that she was raped by a football player and that she conceived a child as a result,
but she never followed through and subsequently sued the football player for child support.
According to defense counsel, the football player would state that he never knew that J.B. had
made a rape allegation and that the allegation was false and a detective would state that J.B.
never followed through. The State asserted that "the issue here is whether or not they can prove
that it's, in fact, a false allegation," and that J.B.'s failure to cooperate did not indicate "that it was
[per se] a *** false allegation of sexual assault." The State maintained that "it should not be
referred to as a false allegation of rape." The court agreed with the State and stated the objection
was "sustained as to false allegation. You don't know if it's false." The court directed defense
counsel not to "refer to it as a false allegation."
¶ 29 After the State rested, defendant moved for summary judgment, contending that the State
did not prove that defendant had a mental disorder. Defendant asserted that the diagnosis of
sexual sadism was flawed because the presence of physical suffering did not mean that defendant
was aroused by the suffering. Defendant further contended that the diagnosis of personality
disorder NOS was problematic. Defendant noted that the diagnosis in Dr. Stanislaus's report was
wrong and Dr. Stanislaus did not file an addendum. Defendant asserted that Dr. Stanislaus's
diagnosis was not reliable and her methodology was incorrect. Defendant noted that it was only
when Dr. Stanislaus became aware that she needed more information for a diagnosis of antisocial
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personality disorder that she "[changed] her direction and at the deposition now we have a
completely different disorder."
¶ 30 The court denied defendant's motion, finding that the sexual sadism diagnosis was not
"utterly implausible." The court further stated that according to Dr. Stanislaus's testimony,
antisocial personality disorder and personality disorder NOS had the same criteria, except that
the former required evidence of a conduct disorder before the age of 15. The court did not see a
significant difference between the two disorders and stated that Dr. Stanislaus did not have to
submit an addendum.
¶ 31 Dr. Killian testified for the defense. After providing his professional background, Dr.
Killian stated that outside of the four sexual offenses at issue, there was not much evidence that
defendant had a sexual disorder. Dr. Killian further stated that there was also not much evidence
that defendant derived pleasure from hurting women and there was no evidence that defendant
was specifically aroused by inflicting pain. Dr. Killian concluded that defendant very likely had
antisocial personality disorder, but he could not make that diagnosis with certainty because he
did not have defendant's adolescent criminal history. Dr. Killian stated that "everything else in
his life, everything else that I know about [defendant] points to antisocial personality disorder."
Dr. Killian asserted that it would be incorrect to say that he could not make a diagnosis because
"psychiatric diagnosis isn't strictly we look at a certain number of pieces of information and you
add those things up." Dr. Killian further stated that the American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, DSM-IV-
TR, at xxxii (2000) cautions that it is "not meant to be used in a cookbook fashion."
Additionally, Dr. Killian testified that defendant was at a high risk for reoffending if not kept in a
locked facility, and that he had a propensity to commit acts of sexual assault. Dr. Killian noted
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that he had made an error in his written report about defendant's risk of reoffending and had sent
an addendum accordingly.
¶ 32 During the State's cross-examination, Dr. Killian stated that "within a reasonable degree
of confidence, psychiatric confidence[,] I can say that he has antisocial personality. What I said
a few minutes ago is I can't say so with absolute certainty because I don't have the adolescent
criminal history. Given his adult behavior and what I saw, it would be very surprising if he had
not had conduct disorder as a young man." Dr. Killian further stated that antisocial personality
disorder was not specifically coupled with a propensity towards sex offenses, but defendant "has
what I believe with a reasonable degree of confidence is antisocial personality disorder and ***
he does have such a criminal propensity." Dr. Killian could not say that the propensity was
directly linked to the antisocial personality disorder because the disorder was not specifically a
sexual disorder, but defendant's antisocial behavior included the criminal acts he committed.
¶ 33 In its closing argument, the State noted that Dr. Stanislaus diagnosed defendant with
sexual sadism and personality disorder NOS. The State further asserted that Dr. Killian also
diagnosed defendant with a personality disorder and stated that Dr. Killian "tried to initially say
it was probable antisocial disorder," but "essentially *** admitted on cross-examination that
[defendant] has a personality disorder."
¶ 34 Defense counsel argued in closing that only one issue was at stake—whether the State
proved beyond a reasonable doubt that defendant had a mental disorder. Defense counsel stated
that Dr. Stanislaus had the opportunity to make additions and corrections to her report and did
not correct the diagnosis or submit an addendum about her error and the changed diagnosis.
Additionally, defense counsel stated that Dr. Killian knew he could not make an affirmative
diagnosis of antisocial personality order, but that "I guess you could say the State flipped him"
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on cross-examination, when Dr. Killian testified that he believed within a reasonable degree of
certainty that defendant had antisocial personality disorder. According to defense counsel, the
doctors' diagnoses changed because the doctors realized they made a mistake. Defense counsel
posited that when Dr. Killian "basically changed his testimony, changed his opinion about the
diagnosis," he was either "wishy-washy" or impeached himself. Defense counsel further stated
that Dr. Stanislaus clearly admitted she had made a mistake. Defense counsel contended that the
State provided a "shifting round of testimony, of changing diagnosis, of changing opinions" and
that "they expect you to believe this morass of testimony." Defense counsel further asserted that
each diagnosis was fraught with contradictions, disagreements, or changes in opinion, which was
not a basis for finding proof beyond a reasonable doubt.
¶ 35 The court found that defendant was a sexually dangerous person. According to the court,
the State proved that defendant suffered from sexual sadism. The court recognized that the
experts had different opinions about whether defendant was aroused by his victims' pain and
suffering, but found that Dr. Stanislaus was far more experienced in working with sexual
offenders than Dr. Killian. The court stated that defendant was aroused by pain and suffering
and that the infliction of pain was "so closely connected with the forced sexual intercourse that
he was aroused." The court further stated that the force and violence used went beyond what
was necessary to gain the victims' compliance. Additionally, the court found that defendant
suffered from antisocial personality disorder and personality disorder NOS. The court stated that
the two diagnoses were basically the same but for the lack of juvenile records to show if
defendant had a conduct disorder before the age of 15, and that both experts essentially agreed
that defendant suffered from antisocial personality disorder or personality disorder NOS. The
court also recalled Dr. Killian's testimony that he could not give his diagnosis with absolute
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certainty, but stated that "[a]bsolute certainty is not what's required here. What's required here is
proof beyond a reasonable doubt. I feel that his testimony reaches that level."
¶ 36 The court also found that the State proved that defendant's mental disorder was coupled
with criminal propensities to the commission of sex offenses. The court defined "criminal
propensities" as "a substantial probability that the respondent will engage in the commission of
sex offenses if not confined." The court continued that the "clearly defined pattern of sexual
offense behavior" made it abundantly clear that defendant had such criminal propensities. The
court further stated that defendant had a demonstrated propensity towards acts of sexual assault.
¶ 37 Defendant filed a motion for a new trial that alleged the following: (1) the State failed to
prove defendant was a sexually dangerous person "beyond all reasonable doubt"; (2) the court
erred in denying defendant's motion for summary judgment at the close of the State's case; (3)
the State failed to prove every material allegation of the petition beyond a reasonable doubt; and
(4) the court erred in denying defendant's motion to dismiss the petition.
¶ 38 At the hearing on defendant's motion for a new trial, defense counsel asserted that
defendant should not have been prosecuted, "even though that's not the correct legal term in this
case, but that's what happened after he had a very long delay in the underlying charge." Defense
counsel further contended that because there was a dispute between the experts at trial, the court
erred when it decided defendant was a sexually dangerous person. In response, the State
contended that the court was able to weigh the testimony and the case was proven beyond a
reasonable doubt.
¶ 39 Following argument, the court stated as follows:
"Before I rule on the motion for a new trial, I want to clarify my finding. I
want to specifically state that I believe—I can't remember the wording that I used,
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but I want to specifically state that there was a finding of sexual dangerousness
premised on the elements of the statutory sections of the *** Act. And there was
or there is an explicit finding that it is substantially probable the person subject to
the commitment proceedings, that being [defendant], will engage in the
commission *** of sex offenses in the future if not confined. I make that ruling
with People v. James Masterson in mind. ***
I essentially believe I made that ruling, but I wanted to use that wording
just because that case seems to indicate that the wording is extremely important. I
don't think it's any different than the ruling I made. It just further clarifies it."
¶ 40 The court then denied defendant's motion for a new trial, stating that the experts were
consistent on the substantive underlying issues.
¶ 41 II. ANALYSIS
¶ 42 On appeal, defendant asserts the following: (1) he was deprived of due process when the
State vindictively and belatedly sought his commitment as a sexually dangerous person in
retaliation for the State losing its interlocutory appeal in the Illinois Supreme Court; (2) the
petition should have been dismissed for not complying with the applicable statute of limitations;
(3) collateral estoppel barred the petition where the petition attempted to relitigate a prior ruling
that previous incidents did not show a propensity to commit sexual offenses; (4) he was denied
his constitutional right to a speedy trial; (5) the trial court improperly admitted and relied on Dr.
Killian's diagnosis of antisocial personality disorder where the diagnosis did not meet the criteria
of the DSM-IV and should have been tested by a Frye hearing; (6) the experts' testimony was
outside of the scope of their written reports; (7) the trial court improperly allowed Dr.
Stanislaus's testimony to be bolstered with a prior consistent statement; (8) the trial court
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improperly restricted defendant's cross-examination of Dr. Stanislaus about prior false
allegations of rape; (9) the trial court did not make the requisite finding that the defendant had
serious difficulty controlling his criminal sexual behavior; and (10) the evidence did not show
beyond a reasonable doubt that defendant had a mental disorder distinct from a typical recidivist
rapist. We discuss each in turn.
¶ 43 1. Vindictive Prosecution
¶ 44 Defendant first contends that he was deprived of due process because the State
vindictively sought his commitment as a sexually dangerous person in retaliation for losing its
interlocutory appeal in the supreme court. Defendant argues that the substance and timing of the
petition suggest it was filed in retaliation for his successful appeal to the supreme court.
Defendant states that without an explanation for a seven-year delay, and with no new facts
having come to light about his mental disorder or propensity to commit sexual assault, the State
filed the petition shortly after the supreme court mandate was issued, asserting the same
incidents for propensity that had been barred from the criminal case. Defendant further contends
that when defense counsel objected to the filing of the petition, the State did not provide any
objective facts to justify a change to a qualitatively different and potentially more severe penalty.
According to defendant, the criticism of the state's actions in the appellate opinions provided an
incentive for the State to act vindictively.
¶ 45 As a preliminary matter, we note that defendant failed to raise this issue below, which
ordinarily results in forfeiture. The two most important tasks of a reviewing court are to
ascertain its jurisdiction and determine which issues, if any, have been forfeited. People v.
Smith, 228 Ill. 2d 95, 106 (2008). In criminal cases, a defendant preserves an issue for review by
raising it in either a motion in limine or a contemporaneous trial objection, and including it in a
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posttrial motion. People v. Denson, 2014 IL 116231, ¶ 11. In civil cases, a posttrial motion is
not required (Kic v. Bianucci, 2011 IL App (1st) 100622, ¶ 12), but the defendant must make a
contemporaneous objection at trial (Illinois State Toll Highway Authority v. Heritage Standard
Bank & Trust Co., 163 Ill. 2d 498, 502 (1994)). Here, defendant failed to raise a vindictive
prosecution issue at all in the trial court. While defendant attacked the State's petition on several
grounds, he did not specifically contend that the commitment proceedings were a vindictive
prosecution. Additionally, defendant's written motion to dismiss is not in the record, and so
while we do not know for certain whether the motion asserted that the petition was a vindictive
prosecution, we presume it did not. See Foutch v. O'Bryant, 99 Ill. 2d 389, 392 (1984) (any
doubts that may arise from the incompleteness of the record are resolved against the appellant).
Ordinarily, defendant would have been subject to the rule that "[f]ailure to raise an error to the
trial court with sufficient clarity and specificity results in forfeiture." People v. Hayes, 319 Ill.
App. 3d 810, 819 (2001). However, because forfeiture is "in the nature of an affirmative defense
that the State may either raise, waive, or forfeit" (internal quotation marks omitted) (People v.
Beachem, 229 Ill. 2d 237, 241 n.2 (2008)), and the State has not raised forfeiture, we will address
the merits of defendant's argument.
¶ 46 We find that the sexually dangerous person proceeding was not a vindictive prosecution.
A prosecution is vindictive and violates due process if it is undertaken to punish someone
because he did something the law plainly allows him to do. People v. Hall, 311 Ill. App. 3d 905,
911 (2000). Vindictiveness is presumed when a prosecutor brings additional and more serious
charges after a defendant has successfully overturned a conviction, "effectively subjecting the
defendant to greater sanctions for pursuing a statutory or constitutional right." People v. Rendak,
2011 IL App (1st) 082093, ¶ 16. In the pretrial setting, where a prosecutor has broad discretion
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in charging a defendant, there is no automatic presumption of vindictiveness. Id. When no
automatic presumption applies, a defendant must establish actual vindictiveness by producing
objective evidence that the prosecutor had some animus or retaliatory motive and that tends to
show the prosecution would not have occurred without that motive. Hall, 311 Ill. App. 3d at
911-12. After the defendant establishes actual vindictiveness, the prosecution must present
objective evidence of a legitimate motivation for filing the charge. Id. at 912.
¶ 47 Here, defendant's criminal case remained in the pretrial stage, but defendant contends that
we should apply a presumption of vindictiveness because a presumption can apply in the pretrial
setting under unique circumstances (Rendak, 2011 IL App (1st) 082093, ¶ 17), when there is a
reasonable likelihood of vindictiveness (United States v. Goodwin, 457 U.S. 368, 373 (1982)).
Defendant asserts that such unique circumstances existed here, noting that the State brought an
entirely new petition after losing its appeal, civil commitment is more severe and qualitatively
different than a prison term, and the State did not provide an explanation for waiting seven years
to file the petition. Defendant asserts that these circumstances undercut the State's assertion that
it sought to provide treatment.
¶ 48 We find that rather than showing a reasonable likelihood of vindictiveness, the State's
actions were entirely consistent with the nature of pretrial decision-making. In the course of
preparing a case for trial, a prosecutor may realize that his information has a broader significance
and his assessment of the proper extent of prosecution may not have crystallized. Id. at 381.
Additionally, before trial, a defendant is expected to invoke procedural rights that "inevitably
impose some 'burden' on the prosecutor," and it is unrealistic to assume that a prosecutor's
probable response to such actions is to seek to penalize and deter. Id. Invoking these procedural
rights "is an integral part of the adversary process in which our criminal justice system operates."
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Id. Here, defendant sought to keep out evidence of his other crimes from his criminal trial, and
successfully upheld that ruling through the interlocutory appeal. Before the appeal, the State
asserted during a hearing that if it was not allowed to bring in evidence of defendant's other
crimes but J.B.'s prior outcry was allowed, defendant would probably be acquitted because the
State would not be able to prove its case beyond a reasonable doubt. Later, after the supreme
court ruling that, in effect, barred the evidence of defendant's other crimes, the State changed
course. The prosecutor stated that the petition was an alternative to seeking punishment and that
the State was "seeking to rehabilitate in a different arena." These comments suggest that after
the supreme court ruling, the State reevaluated its case, just as prosecutors are expected to do
before trial. Further, the reasons the State gave for filing the petition are consistent with the
purposes of the Act, which are to (1) protect the public by sequestering a sexually dangerous
person until that person is recovered and released, and (2) subject a sexually dangerous person to
treatment so that the person may recover from the propensity to commit sexual offenses and be
rehabilitated. People v. Trainor, 196 Ill. 2d 318, 323-24 (2001). It is also worth noting that even
in the criminal proceeding, the State sought a life sentence. The circumstances here do not
indicate a reasonable likelihood of vindictiveness, but rather reflect a change in approach for
addressing defendant's conduct based on new circumstances.
¶ 49 Because we decline to automatically presume vindictiveness, defendant must provide
objective evidence of an animus or retaliatory motive and evidence that the prosecution would
not have occurred without that motive. Hall, 311 Ill. App. 3d at 912. Defendant has failed to do
so. Defendant's assertions—that the only change in circumstances was the State losing its
appeal, that the petition asserted the same incidents for propensity that had been barred from the
criminal case, and that the appellate rulings' criticism of the State provided an incentive to act
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vindictively—amount to speculation that the State filed the petition to retaliate against him.
Under these circumstances, we reject defendant's vindictive prosecution claim.
¶ 50 2. Statute of Limitations
¶ 51 Next, defendant contends that the petition should have been dismissed for not complying
with a statute of limitations. Defendant argues that because the Act states that the "provisions of
the Civil Practice Law *** shall apply to all proceedings hereunder except as otherwise provided
in this Act" (725 ILCS 205/3.01 (West 2010)), at most the five-year statute of limitations from
the Code of Civil Procedure applied to the petition. Defendant asserts that as a result, the
petition was untimely. Defendant additionally argues that removing a limitations period from
sexually dangerous person proceedings is contrary to the Act's language and frustrates the Act's
purpose of obtaining treatment for sexually dangerous persons.
¶ 52 Defendant's argument involves two sections of the Act. Section 3.01 of the Act states:
"The proceedings under this Act shall be civil in nature, however, the burden of
proof required to commit a defendant to confinement as a sexually dangerous
person shall be the standard of proof required in *** criminal proceedings of
proof beyond a reasonable doubt. The provisions of the Civil Practice Law, and
all existing and future amendments of that Law and modifications thereof and the
Supreme Court Rules now or hereafter adopted in relation to that Law shall apply
to all proceedings hereunder except as otherwise provided in this Act." Id.
Additionally, section 3 of the Act states:
"When any person is charged with a criminal offense and it shall appear to the
Attorney General or to the State's Attorney of the county wherein such person is
so charged, that such person is a sexually dangerous person, within the meaning
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of this Act, then the Attorney General or State's Attorney of such county may file
with the clerk of the court in the same proceeding wherein such person stands
charged with criminal offense, a petition in writing setting forth facts tending to
show that the person named is a sexually dangerous person." 725 ILCS 205/3
(West 2010).
¶ 53 We must determine what statute of limitations, if any, applies to a petition. As the issue
before us is a matter of statutory construction, our review is de novo. In re Detention of
Lieberman, 201 Ill. 2d 300, 307 (2002). When construing the meaning of a statute, our primary
objective is to ascertain and give effect to the legislature's intent. Michigan Avenue National
Bank v. County of Cook, 191 Ill. 2d 493, 503-04 (2000). We determine legislative intent by
examining the language of the statute, which is " 'the most reliable indicator of the legislature's
objectives in enacting a particular law.' " Williams v. Staples, 208 Ill. 2d 480, 487 (2004)
(quoting Michigan Avenue National Bank, 191 Ill. 2d at 504). Words and phrases must be
interpreted in light of other relevant provisions and must not be construed in isolation. Id.Further, we may ascertain the legislature's intent from considering the entire Act, its nature, its
object, and the consequences that would result from construing it one way or another. In re
Detention of Lieberman, 201 Ill. 2d at 308.
¶ 54 We find that a petition is not subject to a five-year statute of limitations and the only time
restriction is that a criminal charge must be pending. Our conclusion is based on the interplay
between section 3.01 and section 3 of the Act. Section 3.01 states that the "provisions of the
Civil Practice Law" apply, "except as otherwise provided in this Act." 725 ILCS 205/3.01 (West
2010). We believe the "otherwise provided" situation is found in section 3, which states that a
petition may be filed "[w]hen any person is charged with a criminal offense and it shall appear"
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to the Attorney General or State's Attorney that the person is sexually dangerous. 725 ILCS
205/3 (West 2010). Reading the two sections together, a petition may be filed when a criminal
charge is pending and it appears that a person is sexually dangerous—no other time limit is
imposed. To provide a different statute of limitations for a petition would separate the petition
from the underlying criminal charge, which is inconsistent with the Act. See Potts v. People, 80
Ill. App. 2d 195, 198-99 (1967) (proceedings under the Act must be part of a criminal
proceeding). Additionally, our interpretation aligns with the Act's purpose. The Act provides for
treatment and recovery in lieu of criminal prosecution, and the goal of the Act is to provide a
sexually dangerous person with an opportunity to receive help for his propensity to commit
sexual offenses. People v. Spurlock, 388 Ill. App. 3d 365, 375 (2009). Another purpose of the
Act is to prevent the mentally ill from being held criminally responsible for crimes committed
while mentally ill. People v. Allen, 107 Ill. 2d 91, 105 (1985). To impose a five-year statute of
limitations, as defendant requests, would cut off opportunities for sexually dangerous persons to
receive the treatment they need, and instead subject them to criminal prosecutions when they
should not be, which is at odds with Act's goals.
¶ 55 We are not persuaded by defendant's reliance on People v. Capoldi, 37 Ill. 2d 11 (1967).
Capoldi held that the civil timeline for appellate review applied to the Act, and did not address
the statute of limitations for filing a petition. Id. at 16. Further, the civil timeline for appellate
review was expressly provided for in the version of the Act in Capoldi. See id. at 14-15 ("[t]he
provisions of the Civil Practice Act including the provisions for appeal *** shall apply to all
proceedings hereunder except as otherwise provided in this Act") (emphasis and internal
quotation marks omitted). Here, the language of the version of the Act we are construing
demonstrates that a civil statute of limitations does not apply.
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¶ 56 3. Collateral Estoppel
¶ 57 Defendant next contends that collateral estoppel barred the petition. Defendant asserts
that there was a final ruling in the criminal proceeding that the 1994 and 1996 incidents did not
show propensity and notes that the State conceded that the 1989 incident was too remote to show
propensity. Defendant argues that as a result, the State could not use those same incidents in the
sexually dangerous person proceeding to relitigate defendant's propensity to commit sexual
assault, and accordingly, the petition was barred.
¶ 58 The doctrine of collateral estoppel precludes relitigating issues that were resolved in a
prior case. People v. Jackson, 2015 IL App (1st) 123695, ¶ 27. Collateral estoppel has three
elements: " '(1) the court rendered a final judgment in the prior case; (2) the party against whom
estoppel is asserted was a party or in privity with a party in the prior case; and (3) the issue
decided in the prior case is identical with the one presented in the instant case.' " Id. (quoting
People v. Tenner, 206 Ill. 2d 381, 396 (2002)).
¶ 59 We find that the petition was not barred by collateral estoppel because the third element
is not met—the issue decided in the criminal proceeding was different from the issue presented
by the petition. During the criminal proceedings, the State sought to allow evidence of
defendant's other crimes pursuant to section 115-7.3 of the Code (725 ILCS 5/115-7.3 (West
2002)), which allows evidence of a defendant's prior sexual offenses to show propensity if
certain requirements are met. People v. Donoho, 204 Ill. 2d 159, 176 (2003). Before the other
crimes evidence is admitted, the court must weigh the probative value of the evidence against
undue prejudice to the defendant, considering: "(1) the proximity in time to the charged or
predicate offense; (2) the degree of factual similarity to the charged or predicate offense; or (3)
other relevant facts and circumstances." 725 ILCS 5/115-7.3(c) (West 2002).
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¶ 60 Accordingly, when presented with the State's motion during the criminal proceedings, the
court engaged in the weighing process described above. Ultimately, the court found that too
much time had passed between the 1994 offense and the charged offense, and that there was no
similarity between the 1996 offense and the charged offense. On appeal, the supreme court
decided the jurisdictional question of whether the interlocutory appeal could be reviewed, and
left the trial court's ruling in place. Holmes, 235 Ill. 2d at 72.
¶ 61 Later, when the State filed the petition, at issue was whether defendant was a sexually
dangerous person. Section 1.01 of the Act defines sexually dangerous persons as "[a]ll persons
suffering from a mental disorder, which mental disorder has existed for a period of not less than
one year, immediately prior to the filing of the petition hereinafter provided for, coupled with
criminal propensities to the commission of sex offenses, and who have demonstrated
propensities toward acts of sexual assault or acts of sexual molestation of children." 725 ILCS
205/1.01 (West 2010). Accordingly, defendant's propensity to commit sexual offenses was at
issue in the sexually dangerous person proceeding. Additionally, the State could use defendant's
prior criminal acts to prove propensity. See People v. Bingham, 2013 IL App (4th) 120414, ¶ 46,
aff'd, 2014 IL 115964 (a defendant's prior criminal acts may be admitted to prove propensity to
commit acts in pursuit of his sexual urges).
¶ 62 Comparing the criminal and sexually dangerous person proceedings, the issues at stake
were different, even though the term "propensity" was used in both. In the criminal proceedings,
the court was presented with defendant's prior offenses, but was tasked with deciding not
whether defendant had a propensity to commit sexual offenses, but whether the probative value
of the prior offenses outweighed undue prejudice to defendant. The court ultimately found that
one incident happened too long ago and the other was too dissimilar to be admitted. The court
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did not decide whether the incidents themselves showed that defendant had a propensity to
commit sexual offenses. In contrast, during the sexually dangerous person proceedings, the State
had to prove defendant's propensity. Because the issues were different in the two proceedings,
the petition was not barred by collateral estoppel.
¶ 63 4. Speedy Trial
¶ 64 Defendant next contends that his constitutional right to a speedy trial was violated
because the State waited more than seven years to file the petition. According to defendant, the
State did not explain why it waited seven years, and moreover, the State was aware of the facts
that would give rise to a petition at least seven years before it was filed. Defendant also notes
that the supreme court found that the State failed to act diligently in the criminal case and that a
dissenting appellate court opinion criticized the State's actions as well.
¶ 65 Initially, the State asserts that defendant forfeited review of this issue because he never
demanded trial and failed to preserve the issue in his motion for a new trial. However, defendant
raised a speedy trial issue in his motion to dismiss the petition, stated in his motion for a new
trial that the court improperly denied his motion to dismiss, and referred to a "very long delay" in
his criminal proceeding. Perhaps defendant could have been more specific, as the "[f]ailure to
raise an error to the trial court with sufficient clarity and specificity results in forfeiture." Hayes,
319 Ill. App. 3d at 819. However, forfeiture is a limitation on the parties and not the reviewing
court, and we may overlook forfeiture where necessary to obtain a just result or maintain a sound
body of precedent. Wilson v. Humana Hospital, 399 Ill. App. 3d 751, 757 (2010). Given the
unique situation, we will address this issue on the merits.
¶ 66 Defendant recognizes that the Illinois speedy trial statute (725 ILCS 5/103-5 (West
2010)) does not apply to sexually dangerous persons proceedings. In re Detention of Hughes,
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346 Ill. App. 3d 637, 648 (2004). However, even though the proceedings are civil in nature, a
defendant in a sexually dangerous person proceeding must be accorded the essential protections
available at a criminal trial, and has a due process right to a speedy trial. People v. Trainor, 196
Ill. 2d 318, 328 (2001). While this right is not the same as the right to a speedy trial under the
state or federal constitutions, the analysis accorded to a sixth amendment right to a speedy trial
provides meaningful guidance and has been applied to sexually dangerous person proceedings.
In re Detention of Hughes, 346 Ill. App. 3d at 648-49. Four factors must be balanced to
determine whether a defendant was deprived of his speedy trial right: the length of the delay, the
reasons for the delay, the defendant's assertion of his right, and the prejudice, if any, to the
defendant. People v. Crane, 195 Ill. 2d 42, 48 (2001). These factors are closely related and no
single factor is necessary or sufficient to find that the right to a speedy trial has been violated.
Id. at 52. Further, "because the remedy for a speedy trial violation requires that a defendant go
free, the right to a speedy trial should always be in balance and consistent with the public's right
to justice." In re Detention of Hughes, 346 Ill. App. 3d at 649. As for the standard of review,
any factual determinations are upheld unless they are against the manifest weight of the
evidence, and the ultimate determination of whether a defendant's speedy trial right has been
violated is reviewed de novo. Crane, 195 Ill. 2d at 51-52.
¶ 67 Examining the length of the delay, we note that a certain amount of delay is " 'inevitable
and wholly justifiable.' " Id. at 52 (quoting Doggett v. United States, 505 U.S. 647, 656 (1992)).
A speedy trial inquiry will not be triggered unless the complained-of delay crosses the threshold
from ordinary to "presumptively prejudicial," which has generally been found to be a delay
approaching one year. (Internal quotation marks omitted.) Id. at 52-53. Here, defendant was
charged criminally in 2003, the sexually dangerous person petition was filed in 2010, and his
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sexually dangerous person trial took place in 2013. Accordingly, the delay was presumptively
prejudicial. However, a presumptively prejudicial delay does not mean that the delay will be
found to have actually prejudiced the defendant. Id. at 53. Instead, it marks the point at which
we analyze the delay under the remaining three factors listed above. Id.
¶ 68 Defendant states that the delay from the indictment to when the petition was filed
violated his speedy trial right. We find it helpful to our analysis of the reasons for the delay to
divide that seven-year period into four segments: (1) January 23, 2003, to June 10, 2004; (2)
June 10, 2004 to May 30, 2006; (3) June 2, 2006, to November 12, 2009; and (4) November 12,
2009, to March 16, 2010. Although the State bears the burden of justifying any delay that has
occurred, defendant's conduct throughout the entire seven-year period is relevant. See id. at 53,
58 (defendant's conduct in asserting, or failing to assert, rights was a factor to be weighed in the
balancing test and failure to assert the right would make it difficult to prove he was denied a
speedy trial); In re Detention of Hughes, 346 Ill. App. 3d at 650 (while analyzing speedy trial
claim related to sexually dangerous person petition, noting the respondent's actions during his
criminal proceeding).
¶ 69 The first segment, from November 23, 2003, to June 10, 2004, represents the time from
when the indictment was filed to when the court denied the State's motion to allow other crimes
evidence. According to the record, all continuances during this period were by agreement. Of
note during this segment, the State filed its motion to allow other crimes evidence on August 19,
2003. At the hearing on the State's motion, on June 10, 2004, defense counsel stated that the
victim involved in the criminal proceedings, J.B., had made prior false allegations of rape against
a football player, from whom she also received child support. We find no unjustified delay
during this period.
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¶ 70 We next summarize the second segment, from June 10, 2004, until May 30, 2006, which
covers the date the court denied the State's motion to allow other crimes evidence to when the
State filed its motion to reconsider. In that motion, the State asserted that the court should
reconsider its ruling because of new discovery tendered by defendant, which showed that J.B.
reported a rape in 1995 and collected child support from the man she accused. The record
indicates that the continuances during this time were either by agreement, or in 10 instances, at
defendant's request.
¶ 71 After the court denied the motion to reconsider, the State filed a notice of appeal on June
2, 2006, beginning the third segment of time that covers the appeals in the appellate and supreme
courts. The appellate court issued its decision on June 18, 2008, the supreme court issued its
decision on October 8, 2009, and the mandate issued on November 12, 2009. Defendant
contends that the delay caused by the motion to reconsider and subsequent appeal were
unjustified because both were too late and so had no chance of success. We disagree. Reasons
for a delay are assigned different weights. Crane, 195 Ill. 2d at 53. For example, evidence that
the State intentionally delayed prosecution to gain a tactical advantage will weigh very heavily
against the State, while other more neutral reasons, such as a crowded court docket, faulty police
procedure, negligence, or incompetence will be weighed less heavily. Id. Generally, an appeal
by the State is a valid reason that justifies delay. Id. at 56. To assess the purpose and
reasonableness of an appeal, we consider several factors, including the strength of the State's
position on the appealed issue, the importance of the issue in the case's posture, and in some
cases, the seriousness of the crime. United States v. Loud Hawk, 474 U.S. 302, 315 (1986). If
the appealed issue was clearly tangential or frivolous, the delay from the appeal would weigh
heavily against the State. Id. at 315-16. Further, the charged offense usually must be sufficiently
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serious to justify restraints that may be imposed on the defendant pending the outcome of the
appeal. Id. at 316.
¶ 72 We cannot identify a reason for the State's two-year delay in bringing its motion to
reconsider. As the supreme court noted and the record indicates, during the original hearing in
2004, the State was made aware that J.B. had previously accused another man of raping her, but
the State claimed in 2006 that this was a new development. See Holmes, 235 Ill. 2d at 68 ("the
entire controversy underlying this appeal revolves around J.B.'s prior rape allegation,
information unchanged since defense counsel first raised the issue during pretrial proceedings").
The State has not explained the two-year delay either. However, during the time that the State
was aware of J.B.'s prior allegation but had not yet filed its motion to reconsider, defendant
requested 10 continuances. While the State's delay was problematic, defendant also played a role
in delaying the proceedings during this two-year period.
¶ 73 Further, the delay caused by the appellate process itself was justified. The appeal was not
tangential or frivolous. Though the State ultimately lost in the supreme court due to
consequences from its two-year delay in filing a motion to reconsider, the State's lack of success
was not a given. Indeed, the appellate court partly ruled in the State's favor and found that one of
defendant's prior convictions could be admitted at defendant's trial. Holmes, 383 Ill. App. 3d at
519. Further, the State asserted during pretrial proceedings that admitting the other crimes
evidence was very important to its case, and moreover, other crimes evidence is powerful. See
Donoho, 204 Ill. 2d at 170 ("[s]uch evidence is not considered irrelevant; instead, it is
objectionable because such evidence has " 'too much' probative value' " (quoting People v.
Manning, 182 Ill. 2d 193, 213 (1998))). Additionally, although defendant was incarcerated
throughout the entire history of this case, including during the interlocutory appeal, the charged
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offenses—12 counts of aggravated criminal sexual assault and criminal sexual assault—were
serious.
¶ 74 Returning to our timeline, the fourth segment of time began when the case returned to the
circuit court after the supreme court mandate was issued on November 12, 2009, and ended
when the State filed the sexually dangerous person petition on March 16, 2010. Continuances
between these dates were by agreement. There was no unjustified delay during this time.
¶ 75 Next, we examine whether defendant was prejudiced by the delay. Prejudice is assessed
in light of the interests of defendants that the speedy trial right was designed to protect—
preventing oppressive pretrial incarceration, minimizing the defendant's anxiety and concern
about the pending charge, and limiting the possibility that the defense will be impaired by the
delay. Crane, 195 Ill. 2d at 59. Defendant's continuous incarceration throughout all of the
proceedings is a significant consideration. Detention before a proper adjudication "is exactly the
type of prejudice that the speedy-trial clause was intended to protect against." Id.¶ 76 At the same time, and as noted above, the speedy trial factors are interrelated and we will
not find a violation based on the presence or absence of any single factor. Id. at 60. Defendant
either acquiesced or agreed to a significant portion of the delay in the trial court and never
contested the length of the proceedings until he filed a motion to dismiss the petition on May 20,
2010. Additionally, although we agree that seven years is a significant period of time to have
elapsed between the indictment and the filing of the petition, we also find that it is
understandable that the State would reevaluate its options after learning that it could not use
defendant's prior offenses as part of the criminal proceedings. See In re Detention of Hughes,
346 Ill. App. 3d at 650 (in response to the respondent's assertion that the State did not begin
proceedings under the Act until after he successfully suppressed certain statements to the police,
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the court called the delay "understandable, as the State's view of its case would certainly have
been affected by the suppression of those statements"). The seven-year gap between the
indictment and the petition was long, and the State's two-year delay in filing a motion to
reconsider was problematic, but the overall length of the proceedings appears to have resulted
from the State's reevaluation of its case, rather than from the State's desire to intentionally delay
the proceedings. Under these circumstances, defendant was not deprived of his right to a speedy
trial.
¶ 77 5. Frye Hearing
¶ 78 Next, defendant contends that the trial court improperly admitted and relied on testimony
that should have been subject to a Frye hearing. Defendant asserts that on cross-examination,
Dr. Killian changed his diagnosis to antisocial personality disorder even though he admitted that
he found no evidence of a childhood conduct disorder—a required factor for making the
diagnosis. According to defendant, Dr. Killian's testimony amounted to a change in
methodology and was sufficiently novel to trigger further inquiry. Defendant further argues that
the State did not meet its burden of demonstrating general acceptance that the requirement of a
childhood conduct disorder should be abandoned.
¶ 79 Defendant acknowledges that he did not request a Frye hearing and requests that we
review his claim for plain error. The plain error rule allows a reviewing court to reach a forfeited
error that affects substantial rights in two circumstances: (1) where the evidence is so closely
balanced that the verdict may have resulted from the error and not the evidence, and (2) where
the error is so serious that the defendant was denied a substantial right, and thus a fair trial.
People v. Herron, 215 Ill. 2d 167, 178-79 (2005). Before we address either prong, we first
determine whether an error occurred at all. People v. McLaurin, 235 Ill. 2d 478, 489 (2009).
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¶ 80 In Illinois, the admission of expert testimony is governed by the standard expressed in
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which dictates that scientific evidence is
admissible at trial only if the methodology or scientific principle the opinion is based on is
" 'sufficiently established to have gained general acceptance in the particular field in which it
belongs.' " In re Commitment of Simons, 213 Ill. 2d 523, 529-30 (2004) (quoting Frye, 293 F. at
1014). The Frye test only applies to "new" or "novel" methodologies, defined as being "original
or striking" or "does not resembl[e] something formerly known or used." (Internal quotation
marks omitted.) Id. at 530. Indeed, "[t]he purpose of the Frye test is to exclude new or novel
scientific evidence that undeservedly creates a perception of certainty when the basis for the
evidence or opinion is actually invalid." (Internal quotation marks omitted.) In re Detention of
New, 2014 IL 116306, ¶ 26. The Frye test can apply to a diagnosis. Id. ¶ 32.
¶ 81 Here, we determine that the Frye test did not apply to Dr. Killian's testimony because he
did not make a new or novel diagnosis. On direct examination, Dr. Killian testified that
defendant very likely had antisocial personality disorder, but he could not make that diagnosis
with certainty because he did not have defendant's adolescent criminal history. On cross-
examination, Dr. Killian stated that defendant "has what I believe with a reasonable degree of
confidence is antisocial personality disorder," but he could not make that diagnosis with
"absolute certainty" because he did not have defendant's adolescent criminal history. Dr. Killian
additionally stated that he would be surprised if defendant had not had a conduct disorder, given
his adult behavior and what Dr. Killian observed. Dr. Killian's testimony on cross-examination
was entirely consistent with his testimony on direct examination and with the DSM-IV-TR, "an
undisputed authoritative reference manual in the field of psychology and psychiatry." Id. ¶ 42.
As defendant notes, the DSM-IV-TR's definition of antisocial personality disorder requires
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evidence of a conduct disorder before the age of 15 (DSM-IV-TR, at 706), which Dr. Killian
admitted he did not have. However, the DSM-IV-TR also states that:
"[t]he specific diagnostic criteria *** are meant to serve as guidelines to
be informed by clinical judgment and are not meant to be used in a
cookbook fashion. For example, the exercise of clinical judgment may
justify giving a certain diagnosis to an individual even though the clinical
presentation falls just short of meeting the full criteria for the diagnosis as
long as the symptoms that are present are persistent and severe." DSM-
IV-TR, at xxxii.
Dr. Killian used his clinical judgment to state with a reasonable degree of confidence that
defendant had antisocial personality disorder, despite a missing element, just as the DSM guides
clinicians to do. Dr. Killian did not eliminate the requirement for a childhood conduct disorder.
He acknowledged that this piece of evidence was missing, and explained that as a result, he
could not give the diagnosis with absolute certainty. Because Dr. Killian's testimony did not
present a new or novel diagnosis, a Frye hearing was not required, and no error occurred.
¶ 82 6. Testimony Outside the Scope of Written Reports
¶ 83 Next, defendant contends that the trial court improperly admitted the experts' testimony
outside the scope of their written reports. Defendant asserts that on cross-examination, Dr.
Killian diagnosed defendant with antisocial personality disorder even though his written report
had rejected that diagnosis. Additionally, defendant states that during her testimony, Dr.
Stanislaus diagnosed defendant with personality disorder NOS, but her written report did not
include that diagnosis and she did not file an addendum or withdraw her written report.
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¶ 84 Defendant appears to argue that this issue has been preserved because defense counsel
complained in closing argument that Dr. Killian was "flipped" off his report, cross-examined Dr.
Stanislaus about the lack of a written addendum, and argued that the court should consider Dr.
Stanislaus's second diagnosis unreliable because it was not in the written report. These actions
were not enough to preserve error. In a criminal case, counsel must object to the error at trial
and raise the error in a motion for a new trial. McLaurin, 235 Ill. 2d at 485. In a civil case, no
posttrial motion is required (Kic, 2011 IL App (1st) 100622, ¶ 12), but a defendant must make
contemporaneous objection at trial (Denson, 2014 IL 116231, ¶ 23). Counsel did not specifically
object that the experts testified outside the scope of their reports, and failure to raise an error to
the trial court with sufficient clarity and specificity results in forfeiture. Hayes, 319 Ill. App. 3d
at 819. In the alternative, defendant urges that we review this issue for plain error. As stated
above, the first step in plain error review is to determine whether an error occurred at all. People
v. Thompson, 238 Ill. 2d 598, 613 (2010).
¶ 85 Section 4 of the Act provides that after a sexually dangerous person petition is filed, the
court must appoint two qualified psychiatrists, who in turn examine the person and file a
corresponding written report. 725 ILCS 205/4 (West 2010). A copy of the report must be given
to the defendant. Id. To comport with due process, a psychiatrist must not testify outside the
scope of his written report. People v. Austin, 24 Ill. App. 3d 233, 236 (1974).
¶ 86 As to Dr. Killian, no error occurred because his testimony on direct and cross-
examination was consistent with his written report. In his written report, Dr. Killian stated that
defendant very likely met the criteria for antisocial personality disorder, but he did not have
evidence of a conduct disorder before the age of 15. On direct examination, Dr. Killian testified
that defendant very likely had antisocial personality disorder, but he could not make that
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diagnosis with certainty because he did not have defendant's adolescent criminal history. On
cross-examination, Dr. Killian testified that he could diagnose defendant with antisocial
personality disorder with a reasonable degree of confidence, but could not make that diagnosis
with absolute certainty because he did not have defendant's adolescent criminal history. In all
three circumstances—the report, direct examination, and cross-examination—Dr. Killian
essentially stated that defendant probably had antisocial personality disorder, but he could not be
certain because of the missing adolescent criminal history. Dr. Killian did not testify outside the
scope of his written report.
¶ 87 The question of whether Dr. Stanislaus testified outside the scope of her report is more
problematic. In her report, Dr. Stanislaus diagnosed defendant with sexual sadism and antisocial
personality disorder. On direct examination, Dr. Stanislaus testified that defendant suffered from
sexual sadism and personality disorder NOS. Dr. Stanislaus admitted that she had not submitted
an addendum that indicated the changed diagnosis from the written report. She also stated that
she had disclosed during a deposition that defendant did not meet the full criteria for antisocial
personality disorder and had changed the diagnosis accordingly. While we agree with defendant
that Dr. Stanislaus testified outside the scope of her written report in that she gave a different
diagnosis at trial, this does not rise to the level of plain error under either prong of the plain error
rule. Even apart from the personality disorder NOS diagnosis, there was ample evidence that
defendant had a mental disorder, a required finding for civil commitment (725 ILCS 205/1.01
(West 2010)). Dr. Stanislaus also diagnosed defendant with sexual sadism based on defendant's
arousal in the midst of his victims' suffering. Although Dr. Killian disagreed that defendant had
sexual sadism, he testified that it was very likely that defendant had antisocial personality
disorder. Moreover, the trial court did not solely rely on the personality disorder NOS diagnosis
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and found that defendant had sexual sadism and antisocial personality disorder. No one testified
that defendant did not have a mental disorder, even if the experts disagreed about the specific
diagnosis.
¶ 88 Additionally, the admission of Dr. Stanislaus's testimony did not affect a substantial right
under the second prong of the plain error rule. The second prong of the plain error rule has been
equated with structural error, which is "a systemic error that erodes the integrity of the judicial
process" and undermines the fairness of the defendant's trial. (Internal quotation marks omitted.)
People v. Pace, 2015 IL App (1st) 110415, ¶ 75. Structural error has been recognized in a
narrow subset of cases—namely, those involving the denial of a public trial, complete denial of
counsel, trial before a biased judge, racial discrimination in grand jury selection, denial of the
right of self-representation at trial, and where the trial court gives a defective reasonable doubt
instruction. Id. None of these situations occurred here. Further, Dr. Stanislaus's testimony did
not affect the integrity of the judicial process or undermine the fairness of defendant's trial.
Defendant was aware of the changed diagnosis well before trial, as defense counsel had been
present at the September 2012 deposition where Dr. Stanislaus disclosed her mistake. Moreover,
it was defense counsel who elicited on cross-examination that Dr. Stanislaus changed her
diagnosis without submitting an addendum. The purpose of providing a defendant with a copy
of the written report before trial is to give him an opportunity to know the psychiatrists' findings,
the basis of such findings, and to cross-examine the psychiatrists "in an intelligent fashion and
without surprise." Austin, 24 Ill. App. 3d at 236. That purpose was fulfilled here, and so we
decline to review the admission of Dr. Stanislaus's testimony under the second prong of the plain
error rule. Any error is forfeited.
¶ 89 7. Prior Consistent Statement
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¶ 90 Next, defendant contends that the court abused its discretion by admitting and relying on
Dr. Stanislaus's prior consistent statement that during a deposition, she diagnosed defendant with
personality disorder NOS. Defendant argues that Dr. Stanislaus's testimony bore directly on the
critical question of whether defendant had a mental disorder.
¶ 91 Generally, prior consistent statements are hearsay and inadmissible to bolster a witness's
credibility or rehabilitate a witness after he has been impeached by a prior inconsistent statement.
People v. Randolph, 2014 IL App (1st) 113624, ¶ 14. Here, Dr. Stanislaus testified on direct
examination that defendant had personality disorder NOS, and then testified on cross-
examination that she gave this diagnosis at a deposition. Defendant acknowledges that he failed
to properly preserve this error for review because he did not object at trial, and requests that we
review for plain error. However, defendant may not challenge the prior consistent statement at
all because he invited the error. "When a party procures, invites, or acquiesces in the admission
of evidence, even though the evidence is improper, that party cannot contest the admission on
appeal." People v. Caffey, 205 Ill. 2d 52, 114 (2001). On cross-examination, defense counsel
asked Dr. Stanislaus when she first gave the diagnosis of personality disorder NOS. Dr.
Stanislaus responded that the diagnosis was given at the deposition. The following exchange
then occurred between defense counsel and Dr. Stanislaus:
"Q. So it's your testimony here today that during your deposition that you
testified that he had the anti-personality not otherwise specified diagnosis?
A. No. Personality disorder not otherwise specified with antisocial
personality traits.
Q. And your testimony here today is that you testified to that language at
your deposition?
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A. That is correct."
Because defendant elicited the prior consistent statement, he cannot now complain that it was
admitted.
¶ 92 Defendant argues in the alternative that defense counsel was ineffective for eliciting Dr.
Stanislaus's prior consistent statement and for failing to object to further testimony and argument
about the statements made at her deposition. Defendant contends that counsel fell below the
standard of competence by failing to recognize the application of well-settled evidentiary rules.
Defendant additionally asserts that his counsel's actions could not be considered trial strategy
because the bulk of the defense consisted of arguing that Dr. Stanislaus was not credible or
reliable due to her inconsistent diagnoses. Defendant further contends the prior consistent
statement hurt the defense because the trial court relied on it when denying the motion for
summary judgment.
¶ 93 Defendant is entitled to effective assistance of counsel under the same standard as in a
criminal case. People v. Dinwiddie, 306 Ill. App. 3d 294, 300 (1999). To succeed on a claim for
ineffective assistance of counsel, a defendant must show that: (1) his counsel's performance was
deficient, and (2) the deficient performance prejudiced the defense, in that there is a reasonable
probability that but for counsel's errors, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). The failure to satisfy either the
deficiency prong or the prejudice prong is fatal to an ineffective assistance claim. People v.
Enis, 194 Ill. 2d 361, 377 (2000).
¶ 94 A court must indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance, and a defendant must overcome the presumption
that, under the circumstances, the challenged action " 'might be considered sound trial strategy.' "
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(Internal quotation marks omitted.) People v. Manning, 241 Ill. 2d 319, 334 (2011) (quoting
Strickland, 466 U.S. at 689). Counsel's strategic decisions are "virtually unchallengeable." Id. at
333. After consulting with the defendant, counsel has the right to make the ultimate decision
about tactics and strategy, including what witnesses to call, whether and how to conduct cross-
examination, what jurors to accept and strike, what trial motions should be made, and the defense
to be presented at trial. People v. Ramey, 152 Ill. 2d 41, 54 (1992).
¶ 95 Eliciting Dr. Stanislaus's prior consistent statement was a strategic decision, used to
undermine the evidence that defendant had a mental disorder. During counsel's argument for
summary judgment, he stated that Dr. Stanislaus's diagnosis was not reliable and that she
"[changed] her direction and at the deposition now we have a completely different disorder."
Defendant also contended that Dr. Stanislaus's methodology was incorrect. During closing
argument, defense counsel noted that Dr. Stanislaus admitted that she made a mistake and
contended that the State had provided a "shifting round of testimony, of changing diagnosis, of
changing opinions," and expected the court to believe "this morass of testimony." Defense
counsel also asserted that each diagnosis was "fraught with contradictions, disagreements[,] or
changes in opinion," which was not a basis for finding proof beyond a reasonable doubt. Based
on these comments, defense counsel intentionally elicited Dr. Stanislaus's prior consistent
statement in service of the theory that experts' diagnoses were unreliable because they kept
changing. As a result, counsel's performance was not deficient and defendant's ineffective
assistance claim fails.
¶ 96 8. Restricting Cross-Examination
¶ 97 Next, defendant contends that he was deprived of due process because the court
improperly restricted his cross-examination of Dr. Stanislaus about a witness's false allegation of
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rape. Defendant argues he was entitled to contest the facts presented about the underlying
criminal charge, and the court's refusal to allow cross-examination resulted in manifest prejudice.
Defendant contends that if the cross-examination had been allowed, he could have shown that
Dr. Stanislaus did not have an adequate basis for her opinion that defendant raped the witness
because of his sexual sadism.
¶ 98 Although proceedings under the Act are considered civil, the right to due process applies
and the defendant has the right to confront and cross-examine the witnesses testifying against
him. In re Detention of Hunter, 2013 IL App (4th) 120299, ¶ 30. At the same time, a trial judge
has wide latitude to impose reasonable limits on cross-examination based on concerns of
harassment, prejudice, confusion of issues, witness safety, or repetitive interrogation. People v.
Dall, 207 Ill. App. 3d 508, 524 (1991). On review, the question is whether the limitation created
a substantial danger of prejudice by depriving the defendant of the ability to test the truth of the
witness's direct testimony. Id. Further, "the scope of cross-examination is within the sound
discretion of the trial judge and *** a reviewing court will not interfere unless there has been a
clear abuse of discretion resulting in manifest prejudice to the defendant." People v. Leak, 398
Ill. App. 3d 798, 822 (2010). An abuse of discretion occurs where the court's decision is
arbitrary, fanciful, or unreasonable, or where no reasonable person would agree with the position
taken by the court. People v. Becker, 239 Ill. 2d 215, 234 (2010).
¶ 99 The State asserts that defendant has forfeited this issue under criminal standards because
he did not include the matter in his posttrial motion. In response, defendant contends that he
followed the proper procedure by presenting an offer of proof and not continuing to question in a
way that the court found objectionable. Forfeiture aside, the court's ruling was not an abuse of
discretion. The exchange at issue happened during defendant's cross-examination of Dr.
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Stanislaus. Defense counsel asked Dr. Stanislaus whether it would "bear on your overall opinion
with regard to the [J.B.] incident if you were to be aware that [J.B.] had made a false accusation
of rape in the past?" The State objected on the basis that the question called for a legal
conclusion and contended that the victim's lack of cooperation did not mean that her prior
allegation was false. The court agreed with the State, noting that there were many reasons why
someone might initially report a rape and then decide not to cooperate. The court added that
"simply the fact that they did not [cooperate] after initially reporting it does not prove that it's
false. So you will not refer to it as a false allegation."
¶ 100 Based on what actually transpired, defendant misrepresents the record when he states in
his brief that the court "would not allow cross-examination because the motive of the
complainant was ambiguous." The court's ruling merely limited how the prior allegation was
characterized and avoided any confusion about whether the allegation was actually false—a
matter that had not been decided. Defendant could not refer to the allegation as "false," but the
court did not prohibit all cross-examination about the substance of defendant's question.
Defendant could still ask Dr. Stanislaus about the underlying facts circumstances of the victim's
prior rape allegation, and how they would impact her opinion. As a result, defendant was not
manifestly prejudiced and the court's ruling was not an abuse of discretion.
¶ 101 9. Serious Difficulty Finding
¶ 102 Next, defendant contends that his commitment must be reversed where the court did not
make the requisite finding that he had serious difficulty controlling his criminal sexual behavior.
Defendant asserts that the trial court did not make any reference to his emotional or volitional
capacity. According to defendant, the findings in this case were constitutionally insufficient.
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¶ 103 To classify a defendant as a sexually dangerous person under the Act, the State must
prove that the defendant has: (1) a mental disorder existing for at least one year before the
petition was filed; (2) criminal propensities to the commission of sex offenses; and (3)
demonstrated propensities toward acts of sexual assault or acts of sexual molestation of children.
725 ILCS 205/1.01 (West 2010); People v. Bingham, 2014 IL 115964, ¶ 27. On appeal, we must
consider all of the evidence introduced at trial in the light most favorable to the State and
determine whether any rational trier of fact could have found the essential elements to be proven
beyond a reasonable doubt. People v. Bailey, 405 Ill. App. 3d 154, 171 (2010).
¶ 104 Defendant's argument concerns the findings that the court must make at the end of a
sexually dangerous person trial. In Kansas v. Crane, the United States Supreme Court found that
to commit someone as a sexually dangerous person, there must be proof that the defendant has
"serious difficulty in controlling behavior." Kansas v. Crane, 534 U.S. 407, 413 (2002).
Subsequently, our supreme court determined that the Act did not specifically address volitional
capacity, failed to define the term " 'mental disorder,' " and did not provide "an explicit standard
for gauging the probability or likelihood that the subject of the proceeding will commit sexual
offenses in the future." People v. Masterson, 207 Ill. 2d 305, 329 (2003). To address these
problems and comply with Crane, the court read the definition of a "mental disorder" from the
Sexually Violent Persons Commitment Act (725 ILCS 207/1 et seq. (West 1998)) into the Act
(725 ILCS 205/1.01 et seq. (West 1998)). Masterson, 207 Ill. 2d at 329. Accordingly, the court
construed the term "mental disorder" in the Act "to mean a congenital or acquired condition
affecting the emotional or volitional capacity that predisposes a person to engage in the
commission of sex offenses and results in serious difficulty controlling sexual behavior." Id.The court also held that a finding of sexual dangerousness under the Act "must hereafter be
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accompanied by an explicit finding that it is 'substantially probable' the person subject to the
commitment proceeding will engage in the commission of sex offenses in the future if not
confined." Id. at 330. In 2006, the legislature amended the Act to define "mental disorder" as "a
congenital or acquired condition affecting the emotional or volitional capacity that predisposes a
person to engage in acts of sexual violence." Pub. Ac. 94-705, § 5 (eff. June 1, 2006) (adding
725 ILCS 205/4.03). 1 Although the current definition of "mental disorder" does not include
"serious difficulty" language, there must still be a showing that a defendant has serious difficulty
controlling his behavior. Bingham, 2013 IL App (4th) 120414, ¶ 35.
¶ 105 Overall, to prove that a defendant has a mental disorder, (1) the State must show that the
defendant has serious difficulty controlling his sexual behavior, and (2) the fact finder must (a)
make a finding of sexual dangerousness based on the elements of section 1.01 of the Act that is
(b) accompanied by an explicit finding that it is substantially probable that the defendant will
engage in the commission of sex offenses in the future if not confined. Id. ¶ 36. Thus, the State
must show that a defendant has serious difficulty controlling his behavior, but only the
"substantially probable" finding must be made explicit by the court. Defendant is therefore
incorrect when he suggests that the court must also make an explicit "serious difficulty" finding.
¶ 106 People v. Bailey, 2015 IL App (3d) 140497, relied on by defendant, does not change this
result. There, the court stated that Masterson "clearly considered volitional impairment and the
'substantially probable' finding to be two separate requirements for civil commitment." Id. ¶ 17.
However, although these are two separate requirements for commitment under the Act, they do
not both need to be explicit findings by a trial court. Indeed, the problem in Bailey was that the
1
In 2013, after defendant's trial, the legislature further amended the Act to include a definition of "criminal
propensities to the commission of sex offenses," which "means that it is substantially probable that the person
subject to the commitment proceeding will engage in the commission of sex offenses in the future if not confined."
Pub. Act 98-88, § 5 (eff. July 15, 2013) (adding 725 ILCS 205/4.05).
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trial court failed to make an explicit "substantial probability" finding. Id. ¶ 15. The court did not
state that there must be an explicit finding that a defendant has serious difficulty controlling his
sexual behavior. Id. ¶¶ 15-17.
¶ 107 Further, the State proved that defendant had serious difficulty controlling his sexual
behavior. " '[D]angerousness and lack of control are the touchstones for civil commitment.' "
People v. Bailey, 405 Ill. App. 3d 154, 170 (2010) (quoting Masterson, 207 Ill. 2d at 328).
Further, by acting on their propensities, "those suffering from mental disorders demonstrate
dangerousness and impaired volitional capacity." Masterson, 207 Ill. 2d at 328. Dr. Stanislaus
testified that defendant lacked regard for and easily violated others' rights, and that when both of
defendant's diagnoses—sexual sadism and personality disorder NOS—are present, a person "is
most likely to act on sexual urges and fantasies resulting in increase of committing future sex
offenses." Dr. Stanislaus further noted that there were repeated incidents over the years with
multiple partners. Dr. Stanislaus additionally stated that defendant had committed offenses while
on probation or parole, which showed that he had difficulty following rules and regulations even
while he was being monitored or supervised. Although Dr. Killian testified differently from Dr.
Stanislaus, he testified that defendant's antisocial behavior included his criminal acts, defendant
was at a high risk for reoffending, and defendant had a propensity to commit acts of sexual
assault. Further, the trier of fact was in a superior position to hear the expert testimony, weigh
the evidence, and decide if defendant's mental condition made it seriously difficult for him to
control his behavior. See Bailey, 405 Ill. App. 3d at 170. Based on the evidence, the State
proved that defendant had serious difficulty controlling his criminal sexual behavior.
¶ 108 Although defendant does not contend that the court failed to make an explicit "substantial
probability finding," we note that the court did so. Initially, the court found that the State had
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proven that defendant's mental disorder was coupled with criminal propensities to the
commission of sex offenses, and defined "criminal propensities" as "a substantial probability that
the respondent will engage in the commission of sex offenses if not confined." Later, in denying
defendant's motion for a new trial, the court clarified its ruling and stated "there was or there is
an explicit finding that it is substantially probable the person subject to the commitment
proceedings, that being [defendant], will engage in the commission *** of sex offenses in the
future if not confined." The court made the explicit finding required by Masterson in its initial
ruling and again when denying defendant's motion for a new trial. Additionally, the language in
the court's ruling shows that the court made a finding of sexual dangerousness based on the
requirements of the Act.
¶ 109 10. Sufficiency of the Evidence of a Mental Disorder
¶ 110 Lastly, defendant contends that the evidence did not show beyond a reasonable doubt that
he had a mental disorder distinct from a typical recidivist rapist. Defendant challenges the
diagnoses given by both of the experts. Defendant asserts that, in finding that defendant had
antisocial personality disorder, the court held that the State did not need to show that there was
evidence of a childhood conduct disorder, in contrast to what the DSM-IV-TR requires.
Defendant further argues that Dr. Stanislaus's testimony about defendant's personality disorder
was inconsistent, and was neither reliable nor credible. Defendant also notes that Dr. Killian
disagreed with her testimony. Additionally, defendant contends there was conflicting evidence
that he was a sexual sadist and that the facts of his prior offenses were not atypical of the many
sexual assault cases on the court's criminal docket.
¶ 111 Here, the evidence was sufficient to find that defendant had all three mental disorders
raised by the experts. Dr. Stanislaus testified that defendant had personality disorder NOS. This
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was different than the diagnosis in her written report of antisocial personality disorder, but Dr.
Stanislaus stated that the only difference between the two was evidence of a childhood conduct
disorder. According to Dr. Stanislaus, defendant lacked regard for others' rights, had trouble
with authority, engaged in manipulation and deceit, and had exhibited these traits across several
aspects of his life. Dr. Killian testified that, within a reasonable degree of confidence, defendant
had antisocial personality disorder, and that his antisocial behavior included his criminal acts.
As for the inconsistencies in Dr. Stanislaus's testimony and Dr. Killian's lack of absolute
certainty that defendant had antisocial personality disorder, those were matters for the trier of
fact to resolve. It is for the trier of fact to weigh the evidence (id.) and assess the witnesses'
credibility (People v. Cole, 299 Ill. App. 3d 229, 234 (1998)).
¶ 112 The evidence was also sufficient to find that defendant had sexual sadism. In her
testimony, Dr. Stanislaus recalled defendant's previous incidents of sexual assault, and stated that
in each, defendant was sexually aroused despite the victim's suffering. Dr. Stanislaus testified
that the "core feature" of sexual sadism was that arousal was heightened or maintained in the
midst of the victim's suffering. Further, as noted above, Dr. Stanislaus stated that when sexual
sadism and personality disorder are both present, a person is most likely to act on sexual urges
and fantasies. Dr. Stanislaus also noted that defendant had repeated incidents over the years with
multiple partners and was at a moderate-high risk to reoffend. We reiterate that "
'[d]angerousness and lack of control are the touchstones for civil commitment' " (Bailey, 405 Ill.
App. 3d at 170 (quoting Masterson, 207 Ill. 2d at 328)), and Dr. Stanislaus's testimony covered
both of those traits, which distinguishes defendant from being a typical recidivist rapist. Dr.
Killian's disagreement with her sexual sadism diagnosis does not change our result. A court may
choose to believe one psychiatrist over another and find in favor of the State's petition even when
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the State's burden is proof beyond a reasonable doubt. People v. Antoine, 286 Ill. App. 3d 920,
926 (1997). Accordingly, the court was entitled to credit Dr. Stanislaus's testimony about sexual
sadism over that of Dr. Killian. Overall, based on the evidence presented, the evidence was
sufficient to find that defendant had a mental disorder under the Act.
¶ 113 III. CONCLUSION
¶ 114 For the foregoing reasons, the judgment of the circuit court is affirmed.
¶ 115 Affirmed.
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