ILLINOIS OFFICIAL REPORTS

Appellate Court

In re Commitment of Brown, 2012 IL App (2d) 110116

Appellate Court

Caption

In re COMMITMENT OF ROBERT D. BROWN (The People of the

State of Illinois, Petitioner-Appellee, v. Robert D. Brown, RespondentAppellant).

 District & No. Second District

Docket No. 2-11-0116

Filed June 11, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

The denial of respondent’s request for conditional release from his

commitment under the Sexually Violent Persons Act was upheld on

appeal, where the evidence did not support his claim that he committed

no sexual infractions during his incarceration, he had no support system

other than a conditional release officer if he was placed on conditional

release, he minimized treatment without having availed himself of

treatment, and he had no employment skills.

Decision Under 

Review

Appeal from the Circuit Court of Lake County, No. 02-MR-65; the Hon.

Christopher R. Stride and the Hon. Fred Foreman, Judges, presiding.

Judgment Affirmed.
Counsel on

Appeal

Gillian E. Gosch, of Gainor & Gosch, P.C., of Waukegan, for appellant.

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,

Solicitor General, and Michael M. Glick and Erica R. Seyburn, Assistant

Attorneys General, of counsel), for the People.

Panel JUSTICE ZENOFF delivered the judgment of the court, with opinion.

Justices Hutchinson and Hudson concurred in the judgment and opinion.

OPINION

¶ 1 Respondent, Robert D. Brown, was found by a jury to be a sexually violent person and

was committed to the Department of Human Services by the circuit court of Lake County.

He appeals. For the reasons that follow, we affirm.

¶ 2 BACKGROUND

¶ 3 On January 16, 2002, the State filed a petition pursuant to the Sexually Violent Persons

Commitment Act (Act) (725 ILCS 207/1 et seq. (West 2002)), alleging that respondent was

a sexually violent person. The petition alleged that respondent had been convicted of the

offense of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, ¶ 12-14) and was

sentenced to 23 years in the Illinois Department of Corrections (DOC) in 1991, and had been

convicted of rape (Ill. Rev. Stat. 1979, ch. 38, ¶ 11-1(a)) and was sentenced to 12 years’

imprisonment in 1982. The petition further alleged that respondent was scheduled for parole

within 90 days of the filing of the petition; that respondent suffered from eight mental

disorders; and that respondent was dangerous to others because his mental disorders created

a substantial probability that he would engage in acts of sexual violence. Attached to the

petition was a psychological evaluation of respondent conducted by Dr. Anthony T. Schaab

of DOC on October 9, 2001. Dr. Schaab concluded that respondent’s mental disorders of

paraphilia and personality disorder with antisocial features made it “substantially probable”

that respondent would engage in continued acts of sexual violence should he be released into

the community. On January 18, 2002, the trial court held a probable cause hearing, after

which it found probable cause and remanded respondent to the county jail. The State and

respondent filed jury demands.

¶ 4 For reasons not germane to this appeal, the case was continued by agreement for years

without a disposition. On February 14, 2008, the State moved for an updated DOC

evaluation, and on April 29, 2008, the State filed an amended motion for a “current”

evaluation. In the amended motion, the State alleged that Dr. Schaab, who conducted the

initial DOC evaluation, had retired from DOC and was prevented by contract from testifying

at respondent’s trial, thusmakingDr. Schaab “unavailable.” Respondent objected to a second

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DOC evaluation, arguing that a second evaluation “forthe sole purpose of gathering evidence

against [respondent]” violated respondent’s due process rights. After a hearing, the trial court

granted the State’s motion, and Dr. Jacqueline N. Buck of DOC conducted a second

evaluation of respondent. On June 5, 2009, the State was given leave to file its amended

petition for commitment pursuant to the Act, based upon Dr. Buck’s finding that respondent

suffered from paraphilia, a mental disorder that predisposed respondent to commit acts of

sexual violence.

¶ 5 Respondent’s jury trial commenced on April 14, 2010. The State presented the following

evidence. Dr. Buck, a clinical psychologist under contract with DOC, received a court order

in July 2008 to examine respondent, who refused to cooperate in the examination. Dr. Buck

then reviewed DOC records, Department of Human Services records, and police reports

pertaining to respondent. Dr. Buck’s records review included Dr. Schaab’s report. Dr. Buck

testified to the nature of respondent’s sexually violent offenses and other relevant criminal

history, which she considered in her evaluation of respondent. Dr. Buck also considered

respondent’s history of fights with other inmates, and she testified that those fights did not

happen when respondent was housed in a maximum security facility, which indicated that

his behavior was better in a highly structured environment. According to Dr. Buck, sex

offender treatment was available to respondent while he was incarcerated, but he did not

follow up on its availability except for attendance at five sessions. Eventually, respondent

committed anothersex offense while on parole. Dr. Buck attempted to interview respondent

again in 2009. Respondent indicated that he did not want to participate, but he stayed in the

room with Dr. Buck, talking. Respondent blamed his criminal conduct on his being young

and using drugs. According to Dr. Buck, respondent expressed remorse and empathy for his

victims “on a superficial level.” Dr. Buck testified that his remorse was geared to “look what

I have done to myself.”

¶ 6 Dr. Buck opined that respondent suffered from mental disorders–paraphilia, major

depression, substance abuse in a controlled environment, and antisocial personality disorder.

Dr. Buck further opined that the mental disorder of paraphilia predisposed respondent to

commit acts of sexual violence, which made him dangerous. Dr. Buck performed a risk

assessment using various actuarial tools. Her opinion was that respondent’s risk of

reoffending was “quite high.” She highlighted that respondent had not participated in sex

offender treatment, that his belief that he would not reoffend was unfounded, and that he

exhibited psychopathy. She explained that psychopaths do not reduce their criminal activity

as they get older but continue to be as criminally oriented and as violent and aggressive as

they have been in the past. Dr. Buck opined that it was “substantially probable” that

respondent would reoffend.

¶ 7 Dr. Ray Quackenbush, a licensed clinical psychologist, performed an evaluation of

respondent on behalf of the Department of Human Servicesfollowingthe trial court’s finding

of probable cause on the State’s petition to have respondent found a sexually violent person.

Dr. Quackenbush did a records review, including a review of Dr. Schaab’s report. Dr.

Quackenbush then attempted to interview respondent, who declined to speak with him. Dr.

Quackenbush testified in detail to respondent’s criminal offenses, as evidenced in various

police reports. According to Dr. Quackenbush, respondent suffered from a number of mental

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disorders, including paraphilia, substance abuse, and personality disorder with antisocial

features. Dr. Quackenbush testified that paraphilia, which manifests itself in deviant sexual

behavior, is a permanent condition that requires treatment. Dr. Quackenbush opined that the

paraphilia predisposed respondent to commit future acts of sexual violence. Dr.

Quackenbush testified that respondent’s refusal to submit to treatment and an incident in

which respondent exposed himself to female staff while incarcerated were significant. Using

actuarial tools, Dr. Quackenbush opined that respondent was very likely to reoffend.

¶ 8 Following a stipulation that the offenses for which respondent was convicted and

sentenced to DOC were sexually violent offenses, the State rested. Respondent presented the

testimony of Dr. Luis Rosell, a licensed clinical psychologist and forensic psychologist.

Initially, Dr. Rosell was hired by the Lake County public defender’s office to evaluate

respondent with respect to the State’s petition to have respondent civilly committed as a

sexually violent person. In his first report, dated November 24, 2002, Dr. Rosell diagnosed

respondent with paraphilia. However, in later reports, Dr. Rosell rescinded that diagnosis

based upon what he perceived as a “controversy” over the use of the diagnosis. In addition

to reviewing records, Dr. Rosell personally interviewed respondent on multiple occasions.

Dr. Rosell opined that respondent did not have paraphilia or that, if he did, at the time of trial

he no longer suffered from that condition, because respondent had not exhibited any deviant

behaviors over the past 20 years of incarceration. According to Dr. Rosell, it was not

“substantially probable” that respondent would engage in future sexually violent conduct.

¶ 9 Respondent testified in his own behalf. He testified that he was 53 years old. His mother

was a “professional call girl,” and his grandparents raised him until they died, after which

respondent was “in and out” of foster homes. Respondent admitted that he committed both

offenses for which he was sentenced to DOC. He testified that he had a “care-free attitude”

then and that “nothing [mattered] except for what [he] wanted.” Respondent testified that he

had “remorse in [his] heart.” He explained that he was using drugs at the times of the

offenses. Respondent testified that he did not plan the sexual assaults, but he put himself in

the wrong places at the wrong times. When he was trapped in a riot in Stateville, he saw that

he had to respect others if he wanted respect. According to respondent, he took a lot of

classes “that are not on the record,” like an anger management class. Respondent testified

that he came into contact with women as a trustee in DOC and that he never sexually

attacked anyone. He denied that he had exposed himself. He testified that Michael Jordan

was his “mentor” and that he wanted a chance to put his life back together. On crossexamination, respondent admitted that he never received sex offender treatment. He denied

that he would benefit from treatment.

¶ 10 The jury found respondent to be a sexually violent person. Following a dispositional

hearing, the trial court determined that conditional release was inappropriate. After the trial

court denied respondent’s motion to reconsider, respondent filed a timely appeal.

¶ 11 ANALYSIS

¶ 12 Respondent raises three issues. First, he argues that the trial court erred in allowing the

State to obtain Dr. Buck’s evaluation. Second, he asserts that the State failed to prove him

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to be a sexually violent person beyond a reasonable doubt. Third, he contends that the court

erred when it failed to place him on conditional release.

¶ 13 The Act permits the State to extend the incarceration of criminal defendants beyond the

time they would otherwise be released if they are found to be “sexually violent persons.” In

re Detention of Hayes, 321 Ill. App. 3d 178, 186 (2001). A “sexually violent person” is, inter

alia, one who has been convicted of a sexually violent offense and who is dangerous because

he or she suffers from a mental disorder that makes it substantially probable that the person

will engage in acts of sexual violence. 725 ILCS 207/5(f) (West 2002); Hayes, 321 Ill. App.

3d at 186. After the State files a petition, the court must hold a hearing to determine whether

probable cause exists to believe that the person is a sexually violent person. 725 ILCS

207/15(c) (West 2002); In re Detention of Welsh, 393 Ill. App. 3d 431, 445 (2009). If the

court determines that probable cause exists, it must order the individual to be taken into

custody and transferred to an appropriate facility for an evaluation as to whether the

individual is a sexually violent person. 725 ILCS 207/30(b) (West 2002); Welsh, 393 Ill.

App. 3d at 445. At trial on the petition, the State must prove the petition’s allegations beyond

a reasonable doubt. 725 ILCS 207/35(d) (West 2002); Welsh, 393 Ill. App. 3d at 445. Section

35(b) of the Act provides in part that the State may present expert testimony from both the

DOC evaluator and the Department of Human Services psychologist. 725 ILCS 207/35(b)

(West 2002).

¶ 14 Here, Dr. Schaab, a DOC psychologist, performed the evaluation of respondent that

supported the State’s original petition, and Dr. Schaab testified at the probable cause hearing.

After the court found probable cause, the case remained pending for a long period of time.

(The record shows that respondent’s case was consolidated with other similar cases for the

purpose of pretrial motions, which contributed to numerous delays.) During the passage of

time, Dr. Schaab retired and moved out of state. The State moved to have Dr. Buck, another

DOC psychologist, furnish an evaluation, and respondent objected on the ground that section

35(b) permits the State only one evaluation each from DOC and the Department of Human

Services.

¶ 15 On appeal, respondent contends that the practical effect of allowing Dr. Buck to evaluate

him was that the State had the advantage of three psychologists “to testify” at trial, while

respondent had one. The question is whether section 35(b) of the Act restricts the State to

two evaluations. The primary objective in construing a statute is to ascertain and give effect

to the intent of the legislature. Welsh, 393 Ill. App. 3d at 445. The most reliable indicator of

legislative intent is the language of the statute. Welsh, 393 Ill. App. 3d at 445. Statutory

language is to be given its plain and ordinary meaning. Welsh, 393 Ill. App. 3d at 445.

Statutory construction presents a legal question subject to de novo review. In re Detention

of Hardin, 238 Ill. 2d 33, 40 (2010).

¶ 16 Section 35(b) governs the trial on the State’s petition to adjudicate a sexually violent

person. It provides as follows:

“At the trial on the petition it shall be competent to introduce evidence of the commission

by the respondent of any number of crimes together with whatever punishments, if any,

were imposed. The petitioner may present expert testimony from both the Illinois

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Department of Corrections evaluator and the Department of Human Services

psychologist.” (Emphasis added.) 725 ILCS 207/35(b) (West 2002).

The plain language of section 35(b) speaks to the testimony the State may present at trial, not

the number of evaluations it may obtain, by providing that the petitioner may present expert

testimony from both the DOC evaluator and the Department of Human Services

psychologist. Nothing in the language of this section or any other section of the statute

prohibits the State from obtaining more than two evaluations. Thus, respondent’s argument

that Dr. Schaab was not unavailable for trial is not pertinent. Because the statute did not limit

the State to using Dr. Schaab’s evaluation, the State was not obliged to call Dr. Schaab as a

witness even if he was available. Furthermore, the State did not have three evaluators testify

at trial. Dr. Buck testified that she reviewed Dr. Schaab’s report, but in her direct testimony

Dr. Buck did not elaborate on any of Dr. Schaab’s findings. The only references to Dr.

Schaab’s findings were elicited by defense counsel on cross-examination of the State’s

witnesses.

¶ 17 Respondent relies on In re Detention of Kortte, 317 Ill. App. 3d 111 (2000), for his

argument that due process required respondent to have equal “expert ammunition” to present

to the jury. Under the version of the Act then in place, the respondent in Kortte was

prohibited from introducing any expert testimony in his own behalf because he had refused

to cooperate with the State’s evaluation. Kortte, 317 Ill. App. 3d at 116. This court declined

to hold the statute unconstitutional on its face, but held that a respondent should be allowed

to counter the State’s evidence with evidence of “equal quality.” Kortte, 317 Ill. App. 3d at

118. In our case, respondent presented the expert testimony of Dr. Rosell, who had the

advantage ofmultiple personal interviews with respondent, something the State’s experts did

not have. Thus, respondent was not deprived of evidence of an “equal quality” with the

State’s evidence. Respondent admits this in his reasonable-doubt argument, where he

maintains that Dr. Rosell was more credible than the State’s experts because Dr. Rosell had

personal access to respondent. Respondent is now contending that Kortte requires something

more than equal quality, that being equal quantity. However, Kortte does not stand for that

proposition. Moreover, the Act did not restrict respondent to one expert. Section 25(e)

provides that a respondent may retain “experts” or “professional persons” to perform an

examination. 725 ILCS 207/25(e) (West 2002). At no time did respondent request the

appointment of additional experts, although he could have. Accordingly, the trial court did

not err in allowing Dr. Buck to perform an additional evaluation of respondent.

¶ 18 Respondent’s second argument is that the State failed to prove beyond a reasonable doubt

that he was a sexually violent person. Our standard of review is whether, after viewing all

of the evidence in the light most favorable to the State, any rational trier of fact could find

that the elements have been proved beyond a reasonable doubt. In re Detention of Tittlebach,

324 Ill. App. 3d 6, 11 (2001). Under the Act, the State is required to prove that (1)

respondent had been convicted of a sexually violent offense; (2) he would be discharged

from DOC within 90 days; (3) he has a mental disorder; and (4) he is dangerous to others

because the mental disorder creates a substantial probability that he will engage in future acts

of sexual violence. Tittlebach, 324 Ill. App. 3d at 11. Here, respondent stipulated that he had

been convicted of sexually violent offenses, and he did not challenge that he would be

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discharged within 90 days. Respondent’s sole contention is that the State failed to prove that

he suffered from a mental disorder that created a substantial probability that he will engage

in future acts of sexual violence. Respondent relies solely on the testimony of his expert, Dr.

Rosell, who initially diagnosed respondent with paraphilia but subsequently rescinded the

diagnosis. Respondent argues that paraphilia requires that the person suffer from recurrent

and intense sexual urges, feelings, and behavior for a period of six months, and respondent

had been incarcerated for 20 years without any evidence of deviant thoughts or behavior.

This argument ignores the testimony of the State’s two psychologists and the evidence that

respondent had exposed himself while incarcerated. Dr. Quackenbush testified that paraphilia

is like diabetes; it does not go away, although it can be controlled with treatment. The record

is clear that respondent refused to avail himself of sex offender treatment while incarcerated.

Dr. Buck testified that respondent is a psychopath whose criminalitywould not diminish with

age. Additionally, the State presented evidence that respondent engaged in fights unless he

was confined in maximum security, indicating that without such structure respondent would

not be law-abiding. That respondent had not sexually assaulted anywomen during his period

of incarceration was likely a result of the incarceration itself. Under these facts, we conclude

that a rational trier of fact could have found beyond a reasonable doubt that respondent was

a sexually violent person.

¶ 19 Respondent’s last argument is that the trial court erred when it failed to place respondent

on conditional release. Section 40(b)(2) of the Act provides that a person adjudicated as a

sexually violent person may be confined to receive institutional care in a secure facility or

released from confinement subject to conditions. In re Detention of Lenczycki, 405 Ill. App.

3d 1041, 1050 (2010). In making this determination, the trial court must consider: “(1) the

nature and circumstances of the behaviorthat was the basis of the allegation[s] in the petition

for adjudication as a sexually violent person; (2) the person’s mental history and present

mental condition; (3) where the person will live; (4) how the person will support himself or

herself; and (5) what arrangements are available to ensure that the person has access to and

will participate in necessary treatment.” (Internal quotation marks omitted.) Lenczycki, 405

Ill. App. 3d at 1050. The Act does not mandate that the trial court choose the “least

restrictive” alternative. Lenczycki, 405 Ill. App. 3d at 1051. Whether to grant conditional

release is matter of the trial court’s discretion. Lenczycki, 405 Ill. App. 3d at 1051.

¶ 20 Here, respondent’s sole argument for why the trial court abused its discretion in failing

to grant conditional release is that respondent committed no sexual infractions during his

period of incarceration, which is not accurate. The evidence showed that respondent was

disciplined for exposing himself. Respondent does not address the statutory factors.

Specifically, respondent does not address the two concerns raised by the trial court. The trial

court emphasized that respondent would have no support system other than a conditional

release officer should respondent be placed on conditional release. The trial court highlighted

that a successful support system is family, “people that are going through recovery with

[respondent].” The trial court concluded that such a support system “unfortunately for

[respondent] doesn’t exist.” The larger concern expressed bythe trial court was respondent’s

antipathytoward treatment. The trial court commented that respondent “minimized treatment

without ever having availed himself of that treatment.” The trial court termed it

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“provocative” that respondent “testified he doesn’t see anything beneficial there [in

treatment] for him.” Additionally, the evidence showed that respondent was 53 years old

with no employment skills. We cannot say that the trial court abused its discretion in denying

conditional release.

¶ 21 For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.

¶ 22 Affirmed.

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