2020 IL App (1st) 190565 No. 1-19-0565 Opinion Filed August 4, 2020
SECOND DIVISION
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT
In re COMMITMENT OF DERRICK ) MOODY ) Appeal from the Circuit Court of ) Cook County, Illinois, (The People of the State of Illinois, ) County Department, ) Criminal Division. Petitioner-Appellee, ) )No. 11 CR 80020 v. ) )The Honorable Derrick Moody, )Peggy Chiampas, )Judge Presiding. Respondent-Appellant).
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Justices Pucinski and Coghlan concurred in the judgment and opinion.
OPINION
¶1 This cause of action stems from proceedings initiated under the Sexually Violent Persons
Commitment Act (Act) (725 ILCS 207/1 et seq. (West 2018)), which identify individuals who
are dangerous due to mental disorders that would predispose them to sexual violence and forces
them into treatment for their own good and for the safety of society. After a bench trial, the
respondent, Derrick Moody, was found to be a sexually violent person and ordered committed
under the Act. On appeal, the respondent contends that the State failed to prove beyond a
reasonable doubt that he was a sexually violent person where it did not establish (1) that he No. 1-19-0565
currently suffers from a mental disorder that is either congenital or acquired that predisposes him
to acts of sexual violence, and (2) that this mental disorder creates a substantial probability that
he will commit more acts of sexual violence. The respondent further contends that the trial court
denied him his right to a fair trial when it prevented him from cross-examining the State’s two
expert witnesses about the methodology they used in determining whether the respondent’s
mental disorder was congenital or acquired. For the reasons that follow, we affirm.
¶2 I. BACKGROUND
¶3 The record before us reveals the following relevant facts and procedural history. On June
7, 1999, the respondent pleaded guilty to aggravated criminal sexual assault and was sentenced
to 30 years’ imprisonment in case No. 97 CR 4105. On October 13, 2011, shortly before the
respondent was scheduled to be released from prison, the State filed a petition to involuntarily
commit him pursuant to the Act. In support of the petition, the State relied on the report of its
expert, Dr. John Arroyo, who diagnosed the respondent with a paraphillic disorder using the
Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM-IV). In May 2013, the
fifth edition of the DSM was issued (DSM-V). In April 2015, Dr. Arroyo amended his 2011
evaluation to reflect the updated nomenclature of the DSM-V, diagnosing the respondent with
other specified paraphilic disorder, sexual interest in nonconsenting partners (OSPD nonconsent)
and other specified personality disorder, with antisocial features (antisocial personality disorder).
The State then amended their petition to reflect the updated diagnoses.
¶4 On October 29, 2018, the matter eventually proceeded to a bench trial. The State
presented testimony from two stipulated experts in the field of clinical forensic psychology, Dr.
Arroyo and Dr. Steven Gaskell.
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¶5 Dr. Arroyo first testified that he is a sex offender evaluator and clinical forensic
psychologist employed by Wexford Health Sources, Inc., to conduct sexually violent persons
evaluations pursuant to a contract with the Illinois Department of Corrections (IDOC). Since
December 2009, Dr. Arroyo has completed 156 sexually violent persons evaluations, during
which he has found less than half of the subjects (i.e. 76) to be sexually violent persons,
requiring commitment.
¶6 According to Dr. Arroyo, an evaluation of a sexually violent person usually begins with
an evaluator’s receipt of the subject’s master file, containing anything with the subject’s name,
including, police reports, criminal history, previous evaluations, disciplinary history, and medical
records. After a review of these materials, the evaluator generally attempts to conduct an
interview with the subject of the evaluation. Regardless of whether an interview takes place, the
evaluator then performs a risk assessment and writes his report.
¶7 Dr. Arroyo acknowledged that, in 2011, he was asked to evaluate the respondent to
determine whether he was a sexually violent person under the Act and that, after performing an
evaluation, he determined that respondent was. Dr. Arroyo testified that in coming to this
conclusion, he reviewed all the materials in the respondent’s master file, including his criminal
background, social history, and police, medical, disciplinary, and treatment records. Dr. Arroyo
further averred that he attempted to interview the respondent on August 17, 2011, at the Logan
Correctional Center, but that the respondent declined to participate, explaining that he had
already spoken to a prior evaluator and that he believed that the evaluation was just another “way
for the State to keep him locked up.”
¶8 Dr. Arroyo testified that he completed his initial evaluation report on August 23, 2011.
He updated that report on April 20, 2015, after the fifth edition of the DSM was published,
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updating “the names of the diagnoses that had previously been given,” based on the new
nomenclature. Both reports were introduced into evidence at trial.
¶9 Dr. Arroyo testified that in concluding that the respondent was a sexually violent person,
who requires commitment, he initially reviewed the respondent’s criminal history and, in
particular, his two prior felony convictions for sexually violent offenses. Dr. Arroyo testified
that, in 1991, the respondent pleaded guilty to attempted aggravated criminal sexual assault and
unlawful restraint in case number 91 CR 28304, for which he received a seven-year sentence.
According to Dr. Arroyo, in that case, the respondent attacked a cleaning lady in the Sears Tower
by grabbing the victim from behind, ripping her clothes off, and attempting to choke her with a
towel. The victim kicked the respondent and freed herself, but he again grabbed her, forced her
into a conference room, and choked her. The victim ultimately freed herself and fled to another
floor for help, where a witness saw her running in only a bra and underwear. The respondent was
found hiding under a desk with blood on his hands.
¶ 10 Dr. Arroyo testified that after serving his sentence in that case, in 1997, the respondent
again pleaded guilty to aggravated criminal sexual assault, attempted murder, aggravated battery,
and robbery, in case number 97 CR 4105, for which he was sentenced to 30 years’
imprisonment. In that case, the respondent entered the Merchandise Mart looking for money.
After searching several floors, the respondent saw the female victim through an office door and
became aroused. He watched her “for a while” and began to rub his penis through his pants.
When the victim exited the office to throw out the trash, the respondent repeatedly punched her
in the face and choked her until she was unconscious. He then removed her pants and underwear,
rubbed his penis on her vagina, and digitally penetrated her.
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¶ 11 In addition to reviewing these felony convictions, Dr. Arroyo examined the respondent’s
arrest records from the 1980s and 1990s. According to these records, the respondent was
regularly detained for criminal trespass to property, many of which involved voyeurism in
women’s restrooms. Dr. Arroyo recalled that one arrest stemmed from the respondent lying on
the floor and looking at female victims under restroom stalls, while another resulted from the
respondent exposing himself in a women’s restroom.
¶ 12 Dr. Arroyo next testified that in concluding that the respondent was a sexually violent
person, he also reviewed the respondent’s treatment records. According to Dr. Arroyo, the
respondent did not participate in any sex offender treatment while in IDOC but first began such
treatment in 2011, when he was transferred to the Illinois Department of Human Services
(IDHS) Treatment and Detention Facility (TDF). While in treatment at TDF, the respondent
admitted that has victimized approximately 276 individuals of both genders (many while in
IDOC). Twelve of these incidents involved hands-on contact, and the remainder involved
voyeurism.
¶ 13 Based on the respondent’s criminal history and treatment records, Dr. Arroyo opined that
the respondent exhibited a pattern of escalating behavior, beginning with voyeurism and
progressing to violent sexual assault. As Dr. Arroyo explained, the respondent had disclosed
while he was in treatment that he initially “had some voyeuristic behaviors in his neighborhood,”
which were followed by “a separate section of voyeuristic behaviors that occurred downtown”
and that the respondent found to be riskier and more dangerous. According to Dr. Arroyo, after
this, the respondent additionally began “exposing himself” and then having “thoughts of pulling
women into the bushes while he was in the bushes masturbating.” The respondent subsequently
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“attempted to assault a victim” and ultimately “brutally assaulted, physically assaulted and
sexually assaulted a woman.”
¶ 14 Dr. Arroyo further opined that the respondent’s significant history of cocaine abuse
corelated to his lack of impulse control. While Dr. Arroyo acknowledged that the respondent had
a minimal disciplinary record in IDOC and only “a few” referrals to the behavioral committee at
TDF, he opined that IDOC’s disciplinary record did not reflect the respondent’s own admissions
of continued voyeurism while in prison and at most established that the respondent would do
well in a “highly structured secure environment.”
¶ 15 Based on his review of the respondent’s file, and using the nomenclature of the DSM-V,
Dr. Arroyo opined that, presently, the respondent suffers from three mental disorders: (1) OSPD
nonconsent, (2) antisocial personality disorder, and (3) voyeuristic disorder. Dr. Arroyo
explained that OSPD nonconsent presents as an intense and persistent sexual interest in
nonconsenting adults, which ultimately results in personal distress or causes harm to either the
individual suffering from the disorder or others. In addition, Dr. Arroyo explained that antisocial
personality disorder presents as a person’s pattern of disregard for, or violation of, the rights of
others, beginning at the age of 15 and manifesting in continued behaviors that show lack of
concern for others, demonstrate a lack of remorse, or that would be constitute grounds for arrest.
Finally, according to Dr. Arroyo, voyeuristic disorder presents as a persistent and intense sexual
arousal of an adult “by observing unsuspecting persons who are either nude, disrobing, or
engaged in sexual activity as manifested by a person’s urges, fantasies, or behaviors, and that the
person has acted on those urges or the urges or fantasies caused distress or impairment.”
¶ 16 Dr. Arroyo testified that he diagnosed the respondent with OSPD nonconsent because, as
evidenced by his prior criminal history and his treatment disclosures, the respondent has engaged
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in sexual activity with nonconsenting persons and has caused grave harm to them, as well as to
himself (by being incarcerated). Dr. Arroyo explained that he diagnosed the respondent with
voyeuristic disorder because the respondent has repeatedly engaged in voyeurism in the past and
has disclosed fantasies of engaging in continued voyeuristic behavior over a period of several
years. Finally, Dr. Arroyo testified that he diagnosed the respondent with antisocial personality
disorder because of the respondent’s history of (1) engaging in behaviors that were grounds for
arrest, (2) showing lack of concern for others, and (3) attempting to minimize his behavior while
in treatment at TDF.
¶ 17 In addition, Dr. Arroyo averred that all three of the respondent’s conditions are lifelong
and cannot be altered or resolved without treatment. He further explained that the disorders are
“congenital or acquired” conditions that affect the respondent’s emotional and volitional capacity
and predispose him to acts of sexual violence. Dr. Arroyo concluded that all three of the
respondent’s diagnoses are qualifying mental disorders under the Act.
¶ 18 Dr. Arroyo next testified that in his opinion the respondent was dangerous and
substantially likely to reoffend. In coming to this conclusion, Dr. Arroyo performed a risk
assessment that consisted of the Static-99R actuarial instrument, which is the most widely used
actuarial instrument in the scientific community to determine risk of reoffending. In addition, Dr.
Arroyo considered numerous dynamic risk and protective factors. Dr. Arroyo averred that the
respondent’s score of 10 on the Static-99R (which has a range from -3 to 12) placed him the
highest risk category, put him in the 99th percentile of individuals scored by that instrument, and
made the respondent seven times more likely to reoffend than a typical sex offender. Moreover,
according to Dr. Arroyo, the respondent’s probability of reoffending was exacerbated by
numerous dynamic risk factors, including his (1) intimacy deficiencies, (2) lack of concern for
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others, (3) deviate sexual interests, (4) substance abuse (which correlates to his lack of impulse
control), (5) lack of treatment while incarcerated in IDOC, and (6) antisocial personality
disorder.
¶ 19 Dr. Arroyo acknowledged that in coming to this conclusion, he considered several
protective factors, such as the respondent’s age, physical disability, and the respondent’s
successful completion of phase 2 of his treatment at TDF but found that none of these decreased
his risk of reoffending. Specifically, Dr. Arroyo explained that even though the respondent was
57 years old, the respondent’s age had already been considered as a factor in the Static-99R
analysis and did not warrant any further reduction of risk. Moreover, the respondent had no
medical condition that would prevent him from reoffending. Similarly, while the respondent
began treatment in TDF and completed phase 2 (the disclosure portion), Dr. Arroyo opined that
the treatment was not a protective factor because the respondent had only just begun phase 3
(which is the point at which the respondent begins developing a relapse prevention plan and
begins to examine his offense cycle).
¶ 20 On cross-examination, Dr. Arroyo acknowledged that the fact sheet for case number 97
CR 4105 noted that the respondent did not ejaculate and could not maintain an erection during
his offense. He also admitted that the respondent has never received a ticket for sexual
misconduct in IDOC or while at the TDF, that the respondent’s IDOC tickets never resulted in
him being placed in segregation, and that the respondent was on the highest behavioral status at
the TDF.
¶ 21 On cross-examination, Dr. Arroyo further acknowledged that under the SVP Act
“congenital” refers to a condition that one is born with, while “acquired” refers to a condition
that is acquired later in life. Dr. Arroyo admitted, however, that he could not specify whether the
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respondent’s mental disorders were congenital rather than acquired. The respondent’s counsel
asked if Dr. Arroyo had ordered any genetic testing to determine whether the respondent’s
disorders were congenital. The State objected, arguing that the question was irrelevant because
the Act does not require an expert to specify whether a condition is congenital or acquired, and
the trial court sustained the objection.
¶ 22 On cross-examination, Dr. Arroyo also admitted that the DSM-V itself acknowledges an
imperfect fit between clinical diagnoses and questions of law and warns that there is a risk that
the diagnostic information could be misused or misunderstood when it is used for forensic
purposes. He also admitted that a DSM-V neither implies a specific level of impairment nor
provides information about what caused the diagnosis. Finally, Dr. Arroyo admitted that a DSM-
V diagnosis does not offer any information about an individual’s control over his behavior and
that not all repeat sex offenders suffer from OSPD.
¶ 23 The State’s second witness, Dr. Steven Gaskell, next testified that he is a forensic
psychologist who contracts with IDHS to provide risk assessment evaluations in sexually violent
person cases.
¶ 24 Dr. Gaskell testified that, at the request of IDHS, he performed an evaluation of the
respondent and determined that the respondent was a sexually violent person requiring
commitment. Dr. Gaskell explained that he completed his initial evaluation in February 2012, but
amended his report in 2015 to update the nomenclature based on the new edition of the DSM-V
and to reevaluate his opinion based on the additional records in the respondent’s casefile from
the time of his original report. Both reports were introduced into evidence at trial.
¶ 25 Like Dr. Arroyo, Dr. Gaskell testified that, in performing his evaluation, he reviewed the
respondent’s entire file (including, inter alia, his medical, criminal, IDOC, and TDF records). In
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addition, Dr. Gaskell testified that he conducted a two-hour interview with the respondent on
January 31, 2012, at TDF.
¶ 26 During this interview, Dr. Gaskell asked the respondent about his two prior felony sex
offense convictions. According to Dr. Gaskell, the respondent tried to minimize both offenses.
For the 1991 sexual assault in the Sears Tower, the respondent denied any sexual nature to the
attack and told Dr. Gaskell that he took the victim by surprise and knocked her down, but that
she tried running away, so he grabbed her smock and it came off, which was why she was found
running half-clad in the building. With respect to the 1997 offense in the Merchandise Mart, the
respondent told Dr. Gaskell, that he had been “using cocaine a lot” and that he saw the woman
and became aroused. The respondent denied masturbating and instead said he “was fondling
himself,” which Dr. Gaskell stated, “seemed to be the same thing.” The respondent told Dr.
Gaskell that after “fondling himself,” he left but was thinking about the woman’s purse and
“that’s what brought him back to the scene.” The respondent said he then “had the altercation
where [he] hit [the victim], knocked her down, [and] fondled her,” but denied that he inserted his
finger into her vagina.
¶ 27 Dr. Gaskell further testified that during his interview with the respondent, he asked the
respondent about his substance abuse and any treatment that the respondent received in IDOC.
The respondent told Dr. Gaskell that for about a year and a half he participated in a substance
abuse program at IDOC but that he did not complete it. With respect to sex offender counseling,
the respondent told Dr. Gaskell that he refused any such treatment because he did not want that
“stigma” attached to him in IDOC.
¶ 28 Dr. Gaskell next testified that in coming to his conclusion that the respondent was a
sexually violent person, he considered the entirety of the respondent’s criminal history. Dr.
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Gaskell explained that prior to the commission of the two felony sex offenses, the respondent’s
criminal history reflected 8 nonsexual convictions (for criminal trespass to land, theft, and
battery) and at least 15 arrests that did not result in convictions. Like Dr. Arroyo, Dr. Gaskell
recalled that several of these minor convictions and arrests involved voyeuristic behavior.
Specifically, Dr. Gaskell averred that in 1985 the respondent was convicted of criminal trespass
to land and sentenced to a year of probation, for crawling under a stall in a downtown women’s
bathroom after having previously exposed himself to another woman in the same building. In
1987, he was again arrested for criminal trespass for entering a women’s restroom, and in 1990,
the same behavior resulted in a conviction for criminal trespass and a sentence of six months in
jail. Like Dr. Arroyo, Dr. Gaskell opined that the respondent’s criminal history reflected a
pattern of progressively more violent sexual behavior.
¶ 29 While Dr. Gaskell agreed that the respondent’s disciplinary records from IDOC, and
subsequently TDF, were “unremarkable,” he found one incident wherein the respondent wrote a
poem to a nurse relevant as reflective of the respondent’s continued inability to appreciate
boundaries.
¶ 30 Dr. Arroyo further found relevant that the respondent did not begin any sex offense
treatment until 201, when he transferred to TDF. According to Dr. Arroyo, even then the
respondent was initially reluctant to participate in therapy. According to the respondent’s
treatment records, the respondent began disclosure treatment (phase 2) in 2014, where he finally
“started taking some more responsibility for his actions,” and post-disclosure treatment (phase 3)
in 2018.
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¶ 31 Based on the aforementioned, just like Dr. Arroyo, Dr. Gaskell diagnosed the respondent
with OSPD nonconsent, antisocial personality disorder, and voyeuristic disorder. In addition, Dr.
Gaskell diagnosed the respondent with stimulant use disorder (specifically cocaine abuse).
¶ 32 Dr. Gaskell explained that he diagnosed the respondent with OSPD nonconsent because
the respondent had recurrent, intense sexually arousing fantasies, urges, or behaviors about
nonconsensual sex acts and had engaged in nonconsenting acts on multiple occasions, which
caused harm to others, and only some of which resulted in convictions. Most importantly, in
making his diagnosis, Dr. Gaskell found relevant that the respondent admitted in treatment that
he used force on seven victims, and that “his most sexually exciting fantasy would be to sexually
assault a woman.” The respondent also reported in treatment that 10 of his victims had been
children.
¶ 33 Dr. Gaskell further explained that he diagnosed the respondent with voyeuristic disorder
because the respondent demonstrated recurrent, intense sexually arousing fantasies, urges, or
behaviors over a six-month period involving looking at someone who was disrobing or naked
and had engaged in voyeuristic behavior on multiple occasions. Dr. Gaskell testified that the
respondent’s criminal history from 1985, 1990, and even 1997 showed a pattern of such
voyeurism. In addition, Dr. Gaskell explained that in treatment, the respondent has reported over
250 victims of his voyeurism, including numerous victims while in IDOC.
¶ 34 Dr. Gaskell also explained that he diagnosed the respondent with antisocial personality
disorder with narcissistic traits because the respondent had a history of behaviors that were
grounds for arrests and because he exhibited a grandiose sense of self-importance, a lack of
empathy, and a history of exploiting others for personal gain.
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¶ 35 According to Dr. Gaskell, all of the respondent’s medical disorders were “congenital or
acquired,” chronic, lifelong conditions that could only be managed with treatment.
¶ 36 Dr. Gaskell further testified that it was his opinion that the respondent was substantially
likely to commit future acts of sexual violence. In reaching this conclusion, Dr. Gaskell
performed a risk assessment using the Static-99R and the Static-2002R actuarial instruments. In
addition, he considered various applicable dynamic risk and protective factors. According to Dr.
Gaskell, the respondent’s score of 9 on the Static-99R, placed him in the highest risk category
and made him over seven times more likely than the average sex offender to reoffend. Dr.
Gaskell noted that only 0.02 percent of sex offenders score higher than the respondent. Similarly,
the respondent’s score of 7 on the Static-2002R placed him in the highest risk category and
meant that he was 3.62 times more likely to reoffend than the average sex offender. In addition,
Dr. Gaskell identified numerous dynamic risk factors that would increase the respondent’s
likelihood of reoffending, including, inter alia, (1) his deviant sexual interest in nonconsensual
partners, voyeurism, frotteurism, and children; (2) his antisocial personality disorder; (3) his
employment instability; (4) his hostility, general self-regulation problems, impulsiveness and
recklessness; (5) his substance abuse and intoxication during the commission of prior offenses;
and (6) his noncompliance with supervision. Dr. Gaskell testified that he found no protective
factors that reduced the respondent’s risk of reoffending.
¶ 37 On cross-examination, Dr. Gaskell was asked whether the respondent’s disorders were
congenital. The State objected, and the trial court sustained the objection. Dr. Gaskell
subsequently testified that the respondent’s disorders were “congenital or acquired.” When asked
by the respondent’s counsel to explain how he knew this was the case, Dr. Gaskell responded,
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“What is the third option? If a person’s not born with it or they acquire it, what would be the
third option that it would not be one of those things?”
¶ 38 Following Dr. Gaskell’s testimony, the circuit court allowed certified copies of the
respondent’s convictions in case numbers 97 CR 4106 and 91 CR 28304 to be entered into
evidence.
¶ 39 After the State rested, the parties stipulated that if called to testify, TDF clinical therapist
Rebecca Houzenga would state that she was the respondent’s primary therapist at TDF between
2015 and 2018. She would further state that during the disclosure phase of his therapy at TDF,
the respondent told her that he once “voyeur-ed” a young girl under a bathroom stall while
attempting to look at her mother. The respondent estimated that the girl was 10 years old “in
order to take the greatest amount of responsibility for his actions,” and he did not disclose any
additional minor victims. Houzenga would state that when on August 4, 2017, she met with a
polygraph examiner, she never told him that the respondent stated that he had victimized 10
minors. When Houzenga later reviewed the results of the respondent’s polygraph, she noticed a
discrepancy between the respondent’s disclosure in therapy and a statement attributed to him
during the polygraph that “as an adult” he “victimized 10 minors.” Houzenga discussed the
polygraph report with the respondent and he denied disclosing to the polygraph examiner that he
had victimized 10 children. Houzenga later reviewed the results of the respondent’s subsequent
June 19, 2018, polygraph examination. During that polygraph, the respondent denied having
“engaged in any physical sexual contact with any minor,” and no deception was indicated. Based
on this, Houzenga concluded that the statement in the respondent’s August 4, 2017, polygraph
was an error on the part of either the respondent or the examiner.
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¶ 40 Following closing arguments, the trial court found that the respondent was a sexually
violent person under the Act. In doing so, the court specifically stated that it did not consider Dr.
Gaskell’s testimony that the respondent had admitted to sexually abusing children because the
stipulated testimony of Houzenga established that these statements were made in error. On
January 22, 2019, the circuit court denied the respondent’s motion for a new trial, and the parties
stipulated that the respondent had not made sufficient progress in treatment to be conditionally
released. The respondent now appeals.
¶ 41 II. ANALYSIS
¶ 42 A. Sufficiency of Evidence
¶ 43 On appeal, the respondent first contends that the evidence presented at trial was
insufficient to establish that he was a sexually violent person beyond a reasonable doubt. When
reviewing sufficiency of evidence claims, such as the one raised here by the respondent, we
consider whether “viewing the evidence in the light most favorable to the State, any rational trier
of fact could find the elements proved beyond a reasonable doubt.” In re Commitment of Fields,
2014 IL 115542, ¶ 20. Because as the trier of fact, the trial court is responsible for resolving
conflicts in the evidence and determining the credibility of the witnesses and the weight to be
given particular testimony, on appeal, we may not substitute our judgment for that of the trier of
fact and will not reverse its determination unless the evidence is so improbable or unsatisfactory
that it leaves a reasonable doubt. In re Detention of White, 2016 IL App (1st) 151187, ¶ 56.
¶ 44 To establish that the respondent was a sexually violent person under the Act, the State
had to prove beyond a reasonable doubt that (1) the respondent was convicted of a sexually
violent offense, (2) the respondent has a mental disorder, and (3) the mental disorder creates a
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“substantial probability” that he or she will engage in acts of sexual violence. 725 ILCS
207/15(b)(1)(A), (b)(4), (b)(5) (West 2018).
¶ 45 In the present case, the respondent does not, nor could he, dispute the State’s proof of the
first element, i.e., that he was convicted of at least one sexually violent offense. Rather, the
respondent contends that the State failed to prove that he has a mental disorder and that this
disorder makes it substantially more likely that he will engage in acts of sexual violence. We will
address each of the respondent’s contentions in turn.
¶ 46 1. Existence of Mental Disorder
¶ 47 The respondent first argues that the State failed to prove beyond a reasonable doubt that
he suffers from a mental disorder as defined under the Act. Referencing various isolated portions
of Dr. Gaskell and Dr. Arroyo’s testimonies, the respondent argues that in concluding that the
respondent has a mental disorder, the two experts gave only “canned opinions” that parrot the
language of the Act, without offering any bases for their ultimate conclusions. We disagree.
¶ 48 The Act defines a “ ‘[m]ental disorder’ ” as “a congenital or acquired condition affecting
the emotional or volitional capacity that predisposes a person to engage in acts of sexual
violence.” Id. § 5(b). While our supreme court “has not given us guidance as to what sort of
factual predicate suffices to establish the presence of a mental disorder,” in determining whether
the State has met its burden, our appellate courts have routinely relied on expert testimony, and
deferred to the factfinder’s determinations regarding an expert’s credibility. In re Commitment of
Gavin, 2019 IL App (1st) 180881, ¶ 36; see also Fields, 2014 IL 115542, ¶ 27; White, 2016 IL
App (1st) 151187, ¶¶ 58-62.
¶ 49 In the present case, the State presented unrebutted testimony from two experts that the
respondent has a mental disorder as defined by the Act. Both Dr. Gaskell and Dr. Arroyo
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diagnosed the respondent with OSPD nonconsent, antisocial personality disorder, and voyeuristic
disorder. Both experts provided clinical definitions of the three mental disorders and explained
why they diagnosed the respondent with these disorders. Both explained that their conclusions
were based upon the respondent’s records and his admissions while in treatment and outlined
how the facts of the respondent’s life and the circumstances of his repeated sexual offenses
supported their diagnoses. Both Dr. Arroyo and Dr. Gaskell testified that the respondent admitted
to having over 250 victims of both genders, including 12 “hands on victims.” Both evaluators
also testified that the respondent’s offenses escalated from peeping and exposure in women’s
restrooms to an attempted sexual assault and, ultimately, to a brutal attack and completed sexual
assault. Both testified that despite repeated arrests and incarceration, the respondent continued
his behavior, unable to control his urges and harming both himself and others, while minimizing
his conduct. Dr. Gaskell also testified that the respondent admitted in treatment that “his most
enticing sexual fantasy would be to sexually assault a woman.” Under this record, taking the
evidence in the light most favorable to the State, we find that a rational factfinder could find
beyond a reasonable doubt that the respondent suffers from “a congenital or acquired condition
affecting the emotional or volitional capacity that predisposes” him “to engage in acts of sexual
violence.” 725 ILCS 207/5(b) (West 2018).
¶ 50 The respondent’s argument to the contrary is nothing more than a request that this court
reweigh the experts’ testimony and credibility, a task we, as the reviewing court, simply “cannot
undertake.” Gavin, 2019 IL App (1st) 180881, ¶ 39.
¶ 51 The respondent’s reliance on People v. Murray, 2019 IL 123289, in this vein, is
misplaced. In that case, the defendant, a member of the Latin Kings, was convicted of possession
of a firearm by a street gang member, which required proof that he was a member of a group that
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engages in a pattern of criminal activity. Id. ¶ 22. The State presented testimony from a police
officer, who testified that he was familiar with the Latin Kings and summarily opined that the
Latin Kings were a street gang under the terms of the relevant statute. Id. ¶ 26. The officer did
not testify about any criminal activity committed by the gang. Id. ¶ 27.
¶ 52 In reversing the defendant’s conviction on sufficiency of evidence grounds, our supreme
court held that the State had failed to provide sufficient evidence that the Latin Kings engaged in
a pattern of criminal activity. Id. ¶ 53.
¶ 53 Contrary to Murray, which involved an expert who testified as to the types of information
underlying his opinion without testifying as to the connection between that information and his
summary opinion, both Dr. Arroyo and Dr. Gaskell extensively testified that the pattern of
respondent’s behavior documented in the records they reviewed led directly to their diagnoses.
The two experts did not render summary opinions on a requisite element based merely on
unexplained personal familiarity. Accordingly, Murray is inapposite.
¶ 54 The respondent alternatively argues that the evidence was insufficient to prove that he
suffers from a mental disorder because, contrary to the plain language of the statute, the State
failed to specify whether he suffered from a condition that was either “congenital or acquired”
and then prove to which of these two categories his mental disorder belongs. For the reasons that
follow, we disagree.
¶ 55 At the outset, we note that to the extent that the respondent is asking us to interpret the
Act in ruling upon this issue, that question is one of law, which is subject to de novo review.
White, 2016 IL App (1st) 151187, ¶ 44; see also In re Detention of Hardin, 238 Ill. 2d 33, 40
(2010); In re Commitment of Trulock, 2012 IL App (3d) 110550, ¶ 36. The fundamental rule of
statutory construction is to ascertain and give effect to the intent of the legislature. White, 2016
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IL App (1st) 151187, ¶ 45; see also People v. Dabbs, 239 Ill. 2d 277, 287 (2010). The most
reliable indicator of that intent is the plain and ordinary meaning of the statutory language itself.
White, 2016 IL App (1st) 151187, ¶ 45; Dabbs, 239 Ill. 2d at 287. In determining the plain
meaning of statutory terms, a court should consider the statute in its entirety and keep in mind
the subject the statute addresses and the apparent intent of the legislature in enacting that statute.
White, 2016 IL App (1st) 151187, ¶ 45; Dabbs, 239 Ill. 2d at 287. If the statutory language is
clear and unambiguous, it must be applied as written, without resorting to further aids of
statutory construction. White, 2016 IL App (1st) 151187, ¶ 45; Dabbs, 239 Ill. 2d at 287. A court
may not depart from the plain language of the statute and read into it exceptions, limitations, or
conditions that are not consistent with the express legislative intent. White, 2016 IL App (1st)
151187, ¶ 45; see also Town & Country Utilities, Inc. v. Illinois Pollution Control Board, 225 Ill.
2d 103, 117 (2007).
¶ 56 Contrary to the respondent’s contention, the Act does not require the State to prove with
specificity whether the respondent’s mental disorder is “congenital or acquired.” As already
noted above, the Act defines a 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.” 725 ILCS 207/5(b) (West 2018). Because the statute does not define either
“congenital” or “acquired,” the terms must be given their plain and ordinary meaning. People v.
McChriston, 2014 IL 115310, ¶ 15 (“When the statute contains undefined terms, it is entirely
appropriate to employ a dictionary to ascertain the plain and ordinary meaning of those terms.”
(Internal quotation marks omitted.)). The Merriam-Webster dictionary defines “congenital” as
“existing at or dating from birth,” “constituting an essential characteristic: INHERENT,”
“acquired during development in the uterus and not through heredity” and “being such by
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nature.” Merriam-Webster Online Dictionary, https://www.merriam-
webster.com/dictionary/congenital (last visited July 23, 2020) [https://perma.cc/8SMM-V65P].
The dictionary defines “acquired” in the context of a disease or a medical condition as
“developed after birth: not congenital or hereditary.” Merriam-Webster Online Dictionary,
https://www.merriam-webster.com/dictionary/acquired (last visited July 23, 2020)
[https://perma.cc/6D3Z-K3SA]. As is evident from their plain and ordinary meaning, the two
terms are antonyms.
¶ 57 Reading the terms as such, the most natural reading of the statute is that a mental disorder
is any condition affecting the emotional or volitional capacity that predisposes a person to
engage in acts of sexual violence, whether congenital or not. Contrary to the respondent’s
position, this reading does not render the phrase “congenital or acquired” meaningless. Rather, it
acknowledges the intent of the legislature to focus commitment proceedings on persons who
have a mental condition that predisposes them towards sexual violence, regardless of the
underlying source of that condition. As such, contrary to the respondent’s position, the
legislature did not intend to require the State to prove the additional element of “congenital or
acquired.” Rather, it intended to provide the State with a means of protecting society from
individuals, whose conditions affect their emotional or volitional capacity in a way that
predisposes them to engage in acts of sexual violence, regardless of the precise origin of those
diagnosed conditions. See In re Detention of Lieberman, 201 Ill. 2d 300, 319 (2002) (purpose of
Act is “to keep our communities safe from predatory sex offenders who pose an ongoing threat
to our citizens”).
¶ 58 In making his argument to the contrary, the respondent cites to no case law that applies
his interpretation of the Act. Nor could he, since in the more than 20 years since the passage of
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the Act, our courts have entertained sufficiency of evidence challenges without any discussion of
whether a respondent’s mental disorders were specifically congenital or acquired. See, e.g.,
Fields, 2014 IL 115542, ¶¶ 21-27; Gavin, 2019 IL App (1st) 180881, ¶¶ 32-41. Since we see no
difference in the threat posed by an individual who is diagnosed with a congenital rather than an
acquired mental disorder, or vice versa, and the respondent cannot point to any, we see no reason
to depart from our prior precedent, and reject the respondent’s invitation to depart from the plain
language of the statute.
¶ 59 Therefore, since both experts here testified that the respondent has a “congenital or
acquired” condition that affects his emotional or volitional capacity in a way that predisposes
him to acts of sexual violence, we find that the evidence was sufficient to establish the second
element of a claim under the Act.
¶ 60 2. Substantial Risk of Reoffending
¶ 61 The respondent next challenges the sufficiency of the State’s evidence to prove that his
mental disorder created a substantial probability that he would reoffend. See 725 ILCS
207/15(b)(5) (West 2018) (the third element requires the State to prove that “[t]he person is
dangerous to others because the person’s mental disorder creates a substantial probability that he
or she will engage in acts of sexual violence”). The respondent contends that the State’s experts
relied on speculation and did not sufficiently link his risk of reoffending to any mental disorder
and that even if the State adequately proved a causal link between his mental disorder and risk to
reoffend, it failed to prove that the risk rose to the level of substantially probable. We disagree.
¶ 62 At the outset, we note that our courts have repeatedly held that as used in the Act,
“ ‘ “ ‘substantially probable’ ” ’ ” means “ ‘ “ ‘much more likely than not’ ” ’ ” that the
respondent will commit acts of sexual violence as a result of his mental disorder. In re
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Commitment of Gavin, 2019 IL App (1st) 180881, ¶ 43 (quoting In re Commitment of Haugen,
2017 IL App (1st) 160649, ¶ 24, quoting In re Commitment of Curtner, 2012 IL App (4th)
110820, ¶ 37, and In re Detention of Bailey, 317 Ill. App. 3d 1072, 1086 (2000)).
¶ 63 In the present case, both Dr. Arroyo and Dr. Gaskell testified that after performing an
actuarial risk assessment and considering numerous dynamic risk and protective factors, they
concluded that, because of his mental disorders, the respondent was substantially probable to
engage in future acts of sexual violence. Both experts scored the respondent in the highest risk
category of the Static-99R actuarial test, concluding that statistically he was more than seven
times as likely to reoffend than an average sex offender. Dr. Gaskell additionally utilized the
Static-2002R actuarial instrument, according to which the respondent’s score again placed him in
the highest risk category, predicting that he was 3.62 times more likely to reoffend than the
average sex offender. Both experts further testified that the respondent’s probability to reoffend
was exacerbated by the presence of numerous empirical risk factors, including the respondent’s
(1) lack of concern for others, (2) deviant sexual interest, (3) lack of treatment while in IDOC,
(4) antisocial personality disorder, (5) hostility, (6) impulsiveness, (7) recklessness,
(8) employment instability, and (9) substance abuse. In addition, neither expert found any
protective factors that mitigated the respondent’s risk to reoffend. Taking this evidence in the
light most favorable to the State, we are compelled to conclude that a rational trier of fact could
find beyond a reasonable doubt that respondent was substantially probable to commit future acts
of sexual violence under the Act.
¶ 64 The respondent’s argument that the State failed to prove that his disorders caused his
substantial probability to reoffend is meritless. In Gavin, 2019 IL App (1st) 180881, ¶¶ 45, 50,
this court rejected an identical argument, noting that the experts in that case had demonstrated an
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understanding of the third element required to commit an individual as a sexually violent person
under the Act. Specifically, in Gavin, the court found that one of the experts had testified that to
prove someone is a sexually violent person, the State had “to show that due to that mental
disorder, it is substantially probable that they will engage in future acts of sexual violence.”
(Emphasis and internal quotation marks omitted.) Id. ¶ 50. The court in Gavin concluded that
when viewed in context, the experts’ testimony sufficiently linked the respondent’s likelihood to
reoffend to his diagnoses. Id. Here, both Dr. Arroyo and Dr. Gaskell testified that they were
aware of the elements of the Act and opined that under the Act the respondent was a sexually
violent person. Moreover, Dr. Arroyo was specifically asked if the respondent’s mental disorders
made him substantially probable to commit future acts of sexual violence, and he answered in the
affirmative. Accordingly, the expert’s testimony clearly linked the respondent’s substantial
probability of reoffending to his mental disorders. See id. ¶¶ 45, 50 (holding that the evidence
was sufficient to support a finding that the offender’s mental disorder created a substantial
probability that he would reoffend, as required for offender to be committed as a sexually violent
person, where two psychological experts who testified in State’s case framed their conclusions
about the offender’s likelihood to reoffend as results of the offender’s paraphilic disorder and
antisocial personality disorder).
¶ 65 B. Cross-Examination
¶ 66 On appeal, the respondent next contends that he was denied a fair trial when the trial
court prevented him from cross-examining the State’s experts regarding the methodology they
used in determining whether his mental disorders were congenital or acquired. Specifically, the
respondent complains that on cross-examination, Dr. Arroyo acknowledged that he could not
state whether the respondent’s conditions were congenital or acquired. Defense counsel then
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followed up by asking whether Dr. Arroyo had ordered any genetic or other testing to determine
to which category the disorders belonged, but the trial court sustained the State’s objection to
that question. The respondent complains that the trial court sustained a similar objection to
defense counsel’s questioning of Dr. Gaskell regarding how he knew whether the condition was
genetic or acquired. According to the respondent, the trial court’s rulings prevented him from
exploring the weaknesses in the experts’ opinions that he had a mental disorder. We disagree.
¶ 67 It is well-established that the scope-of cross examination is an evidentiary ruling that is
within the sound discretion of the trial court. In re Detention of Lieberman, 379 Ill. App. 3d 585,
605 (2007); see also People v. Caffey, 205 Ill. 2d 52, 89 (2001); People v. Arze, 2016 IL App
(1st) 131959, ¶ 113. Accordingly, such a ruling will not be reversed unless the trial court has
abused its discretion, resulting in manifest prejudice to the respondent. Lieberman, 379 Ill. App.
3d at 605; Caffey, 205 Ill. 2d at 89; Arze, 2016 IL App (1st) 131959, ¶ 113.
¶ 68 Evidence is admissible only if it is relevant. Ill. R. Evid. 402 (eff. Jan.1, 2011). Relevant
evidence is evidence that has a tendency to make the existence of any material fact more or less
probable than it would be without the evidence. People v. Green, 339 Ill. App. 3d 443, 453-54
(2003).
¶ 69 As already explained above, under the plain language of the Act, the State was not
required to prove whether the respondent’s mental condition was specifically congenital or
acquired. Rather, it was required to prove only that the respondent suffered from a mental
disorder, regardless of its origin. Since the specific time of the respondent’s acquisition of his
mental disorder was not a material fact, it was irrelevant, and the trial court properly barred
defense counsel from this line of inquiry
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¶ 70 Moreover, even if the trial court’s evidentiary ruling was erroneous, reversal is not
mandated because the respondent cannot establish that he was manifestly prejudiced. The record
reveals that the trial court was aware that neither expert could specify whether the disorder was
genetic or acquired after birth. Specifically, Dr. Arroyo admitted that he was unable to determine
when the respondent acquired the disorder. Dr. Gaskell similarly explained that he concluded
that the respondent’s condition was either congenital or acquired because logically it had to be
one or the other, since there was no third option. Despite sustaining the State’s objection to the
cross-examination, the trial court was aware of the testimony that would have been offered by
the two experts on this issue. Therefore, the respondent suffered no manifest prejudice. See Arze,
2016 IL App (1st) 131959, ¶ 113.
¶ 71 III. CONCLUSION
¶ 72 Accordingly, for all the aforementioned reasons, we affirm the judgment of the circuit
court.
¶ 73 Affirmed.
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No. 1-19-0565
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 11-CR- 80020; the Hon. Peggy Chiampas, Judge, presiding.
Attorneys Michael R. Johnson, Kate E. Levine, and Ian C. Barnes, of for Johnson & Levine LLC, of Chicago, for appellant. Appellant:
Attorneys Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, for Solicitor General, and Michael M. Glick and Nicholas Moeller, Appellee: Assistant Attorneys General, of counsel), for the People.