## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

In re Com m itm ent of Brown , 2012 IL App (2d) 110116

Appellate Court Caption In re COMMI TMENT OF ROBERT D. BROWN (T h e P eople of the State of I llinois
, Petitioner-Appellee
, v. Robert D. Br own, R espondentAppellant).

District & N o. Second District Docke t No. 2-11-0116

Filed J une 11, 2012

Held (Note : T

his syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) T h e denial of responde nt’s reque st for conditional rele ase from his commitment under the Sex ually Violent Persons Act was up h eld on appea l, where the evidenc e did not support his claim t hat he committ ed

no sexual infrac tions during his incar cer ation, he had no support sy stem other than a co n d i t i onal rele ase office r if he was place d on conditional rele ase, he minimi zed treatment without having availed himself of
treatment, and he ha d no employ ment skills.

Dec ision Under Review Appea l from the Circuit Court of L ake County
, No. 02-MR-65; the Hon. Christopher R. Stride and the Hon. F red F orema n, J udg es, pre siding.

J udg ment Affir med.Counsel on

Appea l Gillian E. Gosch, of Gainor & Gosch, P.C., of Waukeg an, for appellant.

L isa Madig an, At torney Gene ral, of Chicag o (Michae l A. Scodro, Solicitor Gene ral, and Michae l M. Glick and Erica R. Sey burn, Assistant Attorney s Gene ral, of c ounsel), for the People.

Panel J USTI CE Z ENOF F de livered the judgme nt of the cour t, with opinion.
J ustices Hutchinson and Hudson concur red in the judgme nt and opinion.

OP INION

¶ 1 Respondent, Robert D. Br own, was f ound by a jury to be a sexually violent pe rson and

was c ommitt ed to the Department of Human Servic es by the circ uit court of L ake County

. He a ppeals. F or the re asons that follow, we aff irm.

¶ 2 BA CKGROUND ¶ 3 On J anuar

y 16, 2002, the State filed a petition pursuant to the Sex ually Violent Persons Commi tment Act (Ac t) (725 I L CS 207/1 et seq. (West 2002)), alleg ing that responde nt was

a sexually violent person. The petition alleg ed that responde nt had been convicted o f t h e offe nse of ag gravated criminal sexual assault (I ll. Rev. Stat. 1989, ch. 38, ¶ 12-14) and was sentenc ed to 23 year s in the I llinois Depa rtment of Correc tions (DOC) in 1991, and had been convicted of rape (I ll. Rev. Stat. 1979, ch. 38, ¶ 11-1(a )) and was sentenc ed to 12 year s’ imprisonment in 1982. The petition further alleg ed that responde nt was schedule d for parole within 90 day s of t h e fi ling of the petition; that responde nt suffe red from eight mental disorders; and that responde nt was dang erous to others beca use his mental disorders cre ated

a substantial probability that he would eng ag e in acts of sexual violence. Attache d to the petition was a psycholog ical evaluation of responde nt conducte d by Dr. Anthony T. Schaab of DOC on October 9, 2001. Dr. Schaab conclude d that respond en t ’s m en t al disorders of
para philia and persona lity disorder with antisocial fea tures made it “substantially probable ” that responde nt would eng ag e in continued acts of sexual violence should he be rele ased into the community

. On J anuar y 18, 2002, the trial court h el d a probable cause hearing, afte r which it found probable cause and rema nded responde nt to th e co u n t y jail. The State and responde nt filed jury

demands. ¶ 4 For

rea sons not ge rmane to this appea l, the case was continued by agree ment for y ear s without a dispos i tion. On Fe bruar y 14, 2008, the State moved for an updated DOC

ev aluation, and on April 29, 2008, the State filed an amende d motion for a “cur re n t ” evaluation. In the amende d motion, the State alleg ed that Dr. S ch aab, who conducte d the initial DOC evaluation, had retire d from DOC and was preve nted by contra ct from testifying
at responde nt’s trial, thus ma kin g D r

. Sc h aab “unava ilable.” Respondent objected to a second

-2-DOC evaluation, arguing that a s e c o n d e v aluation “for the sole purpose of g athering evidenc e

ag ainst [respondent]” violated responde nt’s due proce ss rights. After a hearing, th e trial court gra nted the State’s motion, and Dr. J acque line N. Buc k of DOC conducte d a s ec o n d evaluation of re s p o n dent. On J une 5, 2009, the State was g iven leave to file its amende d petition for commitment pursuant to the Act, based upon Dr. Buc k’s finding that responde nt suffe red from para

philia, a mental disorder that p redisposed responde nt to commit acts of sexual viol ence

. ¶ 5 Respondent’s jury trial commence d on April 14, 2010. The State prese nted the following evidenc e. Dr. Buc k, a clinical psycholog ist under contra ct with DOC, rec eived a court order in J uly 2008 to examine responde nt, who ref used to cooper ate in the examination. Dr. Buc k then revie wed DOC rec ords, Depa rtment of Human Service s reco rds, and police repor ts perta ining to responde nt. Dr. Buc k’s rec ords revie w included Dr. Schaab’ s repor t. Dr. Buc k testified to the nature of responde nt’s sexually violent offense s and other rele vant criminal history
, which she co n s i d ered in her evaluation of responde nt. Dr. Buc k also considere d responde nt’s history

of fights with other inmates, and she testified that those fights did not happen when respondent was housed in a max imum security fac ility
, which indi cate d that his behavior was better in a highly structure d environment. Acc ordi n g t o Dr

. Buc k, sex offe nder treatme n t was available to responde nt while he was incarcer ated, but he did not follow up on its availability except for attendance at five ses s i o n s

. Eventually
, responde nt committed another sex offe nse while on parole

. Dr. Buc k attempted to interview responde nt ag ain 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 beingyoung and using drug s. Acc ording to Dr. Buc k, responde nt expressed remorse and empathy for his victims “on a superf

icial level.” Dr. Buc k testified that his remorse was g ear ed to “look what Ihave done to my self.” ¶ 6 Dr

. Bu ck o p i n ed t h at respondent suffe red from mental disorders–pa raphilia, major depre ssion, substance abuse in a controlled environment, and antisocial persona lity disorder. Dr. Buc k further opined that the mental disorder of para philia predisposed re s p o n d en t to commit acts of sexual violence, which made him dan ger o u s

. Dr. Buc k perf ormed a risk

as s es s m ent using various actua rial tools. Her opinion was that responde nt’s risk of reof fending was “quit e h i gh .” She highlighted that responde nt had not participated in sex offe nder treatment, that his belief that he would n o t reoffend was unfounded, and that he exhibi ted psychopathy

. She explained that psychopaths do not reduc e their criminal activity
as they g et ol der but continue to be as criminally oriented a

nd as violent and a g gressive as they have been in the past. Dr. Buc k opined t h at it was “substantially probable ” that responde nt would reoff

end. ¶ 7 Dr. Ray Quac kenbush, a licensed clin i ca l p s y ch o l o gi s t , perf ormed an evaluation of responde nt on behalf of the Depa rtment of Human Ser

v ic e s f o llowing the trial court’s finding of probable cause on the State’s petition to have responde nt found a sexually violent person. Dr. Quac kenbush did a rec ords revie w, including a review of Dr. Schaab’ s repor t. Dr. Quac kenbush then attempted to interview responde nt, who declined to speak with him. Dr. Quac kenbush testified i n detail to responde nt’s criminal offe nses, as evidenc ed in various police repor

ts. Acc ording to Dr. Quac kenbush, responde nt suffe red from a number of mental

-3-disorders, including para philia, substance abuse, and persona lity d i s o rder with antisocial features. Dr. Quac kenbush testified that para philia, which manifests itself in deviant sexual behavior
, is a perma

nent condition that require s treatment. Dr. Quac kenbush opined that the
para philia predisposed responde nt to commit future act s o f sexual violence. Dr. Quac kenbush testified that responde nt’s ref usal to submit to treatment and an incident in which responde nt exposed himself to fema le staff while incar cerated wer e signific ant. Using
actua rial tools, Dr. Qua ckenbush opine d that responde nt was ver y likely to reoff end. ¶ 8 Following a stipulation that the offen s es fo r wh i ch re s pondent was convicted a nd
sentenc ed to DOC wer e sexually violent offe nses, the State rested. Respondent prese nted the testimony o f Dr. Luis Rosell, a licensed clinical psycholog ist and fore nsic psycholog ist. Initially
, Dr. R osell was hired by the L ake County public defe nder’ s office to evaluate responde nt with respe ct to the State’s petition to have responde nt ci v i l l y comm itted as a sexually violent person. In his first repor t, dated November 24, 2002, Dr. Rosell diagnosed

res p o n d en t with para

philia. Howeve r, in later repor ts, Dr. Rosell resc inded that diagnosis based upon what he perc eived as a “contr oversy” over the use of the diagnosis. In addition to review ing r ecor ds, Dr. Rosell persona lly interviewe d responde nt on multipl e occ asions. Dr. Rosell opined that responde nt did not have para philia or that, if he did, at the time of trial he no longe r suffe red from that condition, beca use responde nt had not exhibi ted any deviant behavior s over the past 20 year s of incar cerat i o n

. According to Dr. Rosell, it was not “substantially

probable ” that re spondent would eng ag e in futuresexually violent conduct. ¶ 9 Respondent testified in his own behalf

. He testified that he was 53 year s old. His mother

was a “prof

essional call g irl,” and his grandpa rents raised hi m until th ey d i ed
, afte r which responde nt was “in and out” of foster homes. Respondent admitted that he committed both offe nses for which he was sentenc ed to DOC. He testified that he had a “ca re- fre e attitude” then and that “nothing [m attere d] except for what [he] wanted.” Respondent testified that he had “re morse in [hi s] hear t.” He ex p l ai n ed t hat he was using drug s at the times of the offe nses. Respondent testified that he did not plan the sexual assaults, but he put himself in the wrong place s at the wrong times. When he was trappe d in a riot in Stateville, he saw that he had to respe ct o t h er s i f h e wanted respe ct. Acc ording to responde nt, he took a lot of classes “that are not on th e re co rd,” like an ange r m anag ement class. Respondent t estified that he came into contac t with women as a trustee in DOC and that he never sexually attacke d anyone. He d enied that he had exposed himself. He testified that Michae l J ordan

was his “mentor” and that he wanted a chanc e to put his life bac k t o get h er

. On crossexamination, responde nt admitted that he never rec eived sex offe nder treatment. He denied that he would bene fit from treatment. ¶ 10 The jury found responde nt to be a sexually violent pers o n

. Following a dispositional hearing, the trial court deter mined that conditional rele ase was inappropriate. After the trial court de nied re spondent’s motion to reconsider , responde nt filed a timely appea l.

¶ 11 ANALYSI S ¶ 12 Respondent raises three issues. First, he argues that the trial court err ed in a llowing the State to obtain Dr. Buck’s evaluation. S econd, he asserts that the State failed to prove him

-4-to be a sexually violent person beyond a rea sonable doubt. Third, he contends that the court

err ed whe n it failed to place him on conditional relea se. ¶ 13 The Act permits the State to extend the incar cer ation of criminal defe ndants beyond the time they would otherwise be rele ased if they are found to be “sexually violent persons.” In

re Detention of

Haye s , 321 I ll. App. 3d 178, 186 (2001). A “sexually violent person” is, inter alia
, one who has been convicted of a sexually violent offe nse and who is dang erous beca use he or she suffe rs from a mental disorder that makes it substantially probable that the person will eng ag e in acts of sexual violence. 725 I L CS 207/5(f) (West 2002); Haye s , 321 I ll. App. 3d at 186. After the State files a petition, the court must hold a hearing to deter mine whether probable cause exis ts to believe that the person is a sexually violent p er son. 725 I L CS 207/15(c) (West 2002); In re Detention o f W el s h
, 3 9 3 I ll. App. 3d 431, 445 (2009). I f the
court deter

mines that probable cause exis ts, it must order the individual to be taken into custody and transfe rre d t o an ap propriate fac ility for an evaluation as to whether the individual is a sexually violent person. 725 I L CS 207/30(b) (West 2002); W el s h
, 393 I ll. App. 3d at 445. At trial on the petition, the State must prove the petition’s alleg ations beyond

a rea sonable doubt. 725 I L CS 207/35(d) (West 2002); W elsh
, 393 I ll. App. 3d at 445. Section 35(b) of the Act provides in pa rt that the State may

prese nt expert testimony from both the DOC eva luator and the Depa rtment of Human Service s psycholog ist. 725 I L CS 207/35(b) (West 2002). ¶ 14 Her e, Dr. Schaab, a DOC psycholog ist, perf ormed the evalua t i o n o f re s p o n d ent t hat supported the State’s orig inal petition, and Dr. Schaab testified at the probable cause hearing. After the cour t found probable cause , the ca se re mained pending for a long pe riod of time. (The rec ord shows that responde nt’s case was consolidated with othe r simil ar case s for the
purpose of pretria l motions, which contributed to nume rous delay s.) During the passag e of time, Dr. Schaab retire d and moved out of state. The State moved to have Dr. Buc k, another DOC psycholog ist, furnish an evaluation, and responde nt objected on the ground that section 35(b) permits the State only one evaluation eac h from DOC and the Depa rtment of Human Service s. ¶ 15 On appea l, responde nt contends that the prac tical eff ect of allowing Dr. Buc k to evaluate him was that the State had t h e ad v an t age of three psycholog ists “to testify” at trial, while responde nt had one

. T h e qu es t i on is whether section 35(b) of the Act restric ts the S tate to two evaluations. The primary objective in construing a statute is to asce rtain and g ive eff ect to the intent of the leg islature. W elsh
, 393 I ll. App. 3d at 445. The most reliable indicator of leg islative intent is the languag e of t h e s t atut e. W elsh
, 393 I ll. App. 3d at 445. Statutory languag e is to be g iven i t s plain and ordinary meaning

. W elsh
, 393 I ll. App. 3d at 445. Statutory construction presents a lega l question subject to de novo revie w. In re Detention of Hardin , 238 I ll. 2d 33, 40 (2010). ¶ 16 Section 35(b) g overns the trial on the State’s petition to ad j u d i ca te a sexually

violent person. It provides as follows:
“At the trial on the petition it shall be competent to introduce evidenc e of the commission by the responde nt of any number of crimes toge ther with whateve r punishments, if any , wer e imposed. The petitioner may present expe rt testimony fr o m b oth the Illinois

-5-Departme nt of Corr ec t ions evaluator and the Departme nt of Human Servic es psychologist .” (Empha sis added.) 725 IL CS 207/ 35(b) ( West 2002). The plain languag e of section 35(b) speaks to the testimony the State may prese nt at trial, not the number of evaluations it may obtain, by providing that the petitioner may prese nt expert testimony from bot h t h e DO C evaluator and the Depa rtment of Human Service s psycholog ist. Nothing in the languag e of this section or any other sectio n o f th e statute prohibits the State from obtaining more than two evaluations. Thus, responde nt’s argument that Dr. Schaab was not unavailable for trial is not pertinent. Be cause the statute did not limit the State to using Dr. Schaab’ s evaluation, the State was not oblige d to call Dr. Schaab as a witness even if he was available

. Fur thermore
, the State did not have three evaluators testify
at trial. Dr. Buc k testified that she revie wed Dr. Schaab’ s repor t, but in her direc t testimony Dr. Buc k did not elabor ate on any of Dr. Schaab’ s finding s. The only ref ere nces to Dr. Schaab’ s finding s wer e el i cited by defe nse counsel on cross-e x amination of the State’s witnesses. ¶ 17 Respondent relies o n In r e Detention of Kortte
, 317 I ll. App. 3d 111 (2000), for his
argument that due proce ss require d responde nt to have equal “expert ammunition” to prese nt to the jury

. Under the version of the Act then i n p l ac e, the responde nt in Kortte was prohibited from introducing any expert testimony in his own behalf beca use he had ref

used
to cooper ate with the State’s evaluation. Kortte
, 317 I ll. App. 3d at 116. This court declined
to hold the statute unconstitutional on its fac e, but held that a responde nt should be allowed
to counter the State’s evidenc e with evidenc e of “equa l quality .” Kortte
, 317 I ll. App. 3d at 1 18. In our case , responde nt prese nted the expert testimony of Dr. Rosell, who h ad t h e advant ag e o f multiple persona l interviews with responde nt, something the State’s experts did
not have. Thus, responde nt was not deprive d of evidenc e o f an “e qual quality” with the State’s evidenc e. Respondent admits this in his rea sonable-doubt argument, wh er e he maintains that Dr. Rosell was more cre dible than the State’s experts beca use Dr. Rosell had
persona l acc ess to responde nt. Respondent is now contending that Kortte require s something

more than equal quality
, that being equal quantity

. Howeve r, Kortte does not sta nd for that proposition. Moreove r, the Act did not restric t responde nt to one expert. Section 25(e) provides that a res p o n d en t may reta in “experts” or “prof essional persons” to perf orm an examination. 725 I L C S 2 0 7 /25(e) (West 2002). At no time did responde nt reque st the appointment of additional experts, a lthough he could have

. Acc ording ly
, the trial court did not err in a llowing Dr . Buc k to perfor m an additional eva luation of responde nt. ¶ 18 Respond e nt’s second argument is that the State failed to prove beyond a rea sonable doubt that he was a sex ually violent perso n

. Our standard of revie w i s whether
, afte r vi ewing all of the evidence in the l ight most favor able to the State, a ny rational trier

of fact could find that the elements have been proved beyond a rea sonable doubt. In re Detention of Titt lebach
, 3 2 4 I l l

. App. 3d 6, 11 (2001). Under the Act, the State is require d to prove that (1 ) responde nt had been convicted of a sexually violent offe nse; (2 ) h e would be discharg ed from DOC within 90 d ay s ; (3) he has a mental disorder; and (4) he is dang erous to others beca use the mental disorder cre ates a substantial probability that he will eng ag e in future acts of sexual violence. Titt lebach
, 324 I ll. App. 3d at 11. Her e, responde nt stipulated that he had b ee n co nvicted of sexually violent offe nses, and he did not challeng e that he would b e

-6-discharg ed within 90 day s. Respondent’s sole contention is that the State failed to prove that

he suffe red from a mental disorder that cre ated a substantial probability that he will eng ag e in future acts of sexual violence. Respondent relies solely on the testimony of his expert, Dr. Rosell, who i nitially diagnosed respondent with para philia but subsequently resci n d ed t he diagnosis. Respondent argues that par aphilia re quires that the pe rson suffe r from re curr ent and intense sexual urg es, fee lings, and behavior for a period of six months, a nd responde nt had been incarce rated for 20 year s without any evidenc e of deviant thoughts or behavior

. This a rgument ignor es the testimony of the State’s two psycholog ists and the evidenc e that

r e s p ondent had exposed himself while incar cer ated. Dr. Q u a c k e n b u s h te s ti f ie d th a t p a r a p h il ia is like diabetes; it does not g o awa y , although it can be controlled with treatment. The rec ord is clea r that responde nt ref

used to avail himself of sex offe nder treatment while incar cer ated. Dr. Buc k testified that responde nt is a p s y c h o path whose criminality would not diminis h with
ag e. Additionally
, the State prese nted evidenc e that responde nt e ng ag ed in f ights unless he

was confine d in maxi mum security
, indicating that without such structure responde nt would
not be law-a

biding. That responde nt had not sexually assaulted any women during his period of incar ceration was likely a result of the incar cer ation itself. Under these fac ts, we conclude that a rational trier of fac t could have found beyond a rea sonable doubt that responde nt was a sexually violent person. ¶ 19 Respondent’s last argument is that the trial court err ed when it failed to place responde nt

on conditional rele ase. Section 40(b)(2 ) o f t h e Ac t provides that a person adjudicate d as a sexually violent person may be confined t o rec eive inst itutional car e in a secure fac ility or rele ased from confine ment subject to conditions. In re Detention of Lenczyc ki
, 405 I ll. App. 3d 1041, 1050 (2010). In makingthis determination, the trial cour t must consider: “(1) the
nature and circ umstances of the behavior that was the basis of the alleg ation[s] in the petition for adjudication as a sexually violent p erson; (2) the person’ s mental history and prese nt mental condition; (3) wher e the person will live; (4) how the person will support himself or herse lf; and (5) what arr ang ements are available to ensure that the person has acc ess to and will participate in nece ssary treatment.” (Interna l quotation marks omitted.) Lenczyc ki
, 405 I l l. App. 3d at 1050. The Act does not mandate that the trial court choose th e “l ea s t restric tive” alternative. Lenczyc ki
, 405 I ll. App. 3d at 1051. Whether to grant conditional rele ase is matter

of the trial c ourt’s discre tion. Lenczyc ki , 405 I ll. App. 3d at 1051. ¶ 20 Her e, responde nt’s sole argument for why the trial court abused its discretion in failing
to grant condition al rele ase is that responde nt committed no sexual infrac tions during his period of incar cer ation, which is not acc urate

. The evid en ce showed that responde nt was disciplined for exposi ng h i mself. Respondent does not addre ss the statutory fac tors. Specifica lly
, responde nt does not addre ss the two conce rns raised by the trial court. The trial
court emphasized that responde nt would have no support sy stem other than a conditional rele ase office r should r e s p o n dent be place d on conditional rele ase. The trial court highlighted that a succe ssful support sy stem is family
, “people th at are g oing through rec overy with [respondent].” The trial court conclude d that such a s up p o rt sy stem “unfor tunately for [respondent] doesn’t exis t.” The larg er conce rn expressed by the trial court was responde nt’s

a ntip a th y to w a rd tre a tm e nt. The trial court commented that responde nt “minimiz ed treatment without ever having availed himself o f t h at t re atment.” The trial court termed it

-7-“provoc ative” that responde nt “testified he doesn’t see any thing b enef

icial there [i n treatment] for him.” Additionally
, the evidenc e showed that responde nt was 53 year s old with no employ

ment skills. We cannot say that the trial court abused its discretion in denying conditional rele ase. ¶ 21 For the fore g oing rea sons, the judgme nt of the circ uit court of L ake County is a ffirme d.

¶ 22 Affir

med.

-8-