No. 3--04--0451
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2006
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 13th Judicial Circuit,
) La Salle County, Illinois,
Petitioner-Appellee, )
)
v. ) No. 94--CM--355
)
BRIAN A. VERCOLIO, ) Honorable
) H. Chris Ryan,
Respondent-Appellant. ) Judge, Presiding.
_________________________________________________________________
PRESIDING JUSTICE SCHMIDT delivered the opinion of the court:
_________________________________________________________________
In 1994, the State petitioned the trial court to find the
respondent, Brian A. Vercolio, to be a sexually dangerous person
(SDP) (725 ILCS 205/0.01 (West 1994)). The court adjudged the
respondent to be an SDP and ordered him to be civilly committed.
In 2002, the respondent filed an application asking the
trial court to find that he was recovered (725 ILCS 205/9 (West
2002)). At an evidentiary hearing, the court ruled that the
proposed testimony of the State's expert witness met the standard
for admissibility in Frye v. United States, 293 F. 1013 (D.C.
Cir. 1923). At trial, a jury found that the respondent appeared
no longer to be dangerous, but that it was impossible to
determine with certainty under conditions of institutional care
that he was fully recovered (725 ILCS 205/9 (West 2002)).
Accordingly, the court ordered the respondent to be released
under 53 enumerated conditions (725 ILCS 205/9 (West 2002)).
On appeal, the respondent argues that the trial court erred
by ruling that the expert's proposed testimony met the Frye
standard for admissibility because the expert relied on (1) the
Minnesota7 Sex Offenders Screening Tool Revised (MnSOST-R) and
the Static-99 actuarial risk assessment tools; and (2) 25
variables that the expert had developed for assessing the risk of
recidivism among sex offenders. The respondent also contends
that seven of the conditions imposed by the court for his release
are excessive. We affirm in part and remand with directions.
BACKGROUND
The record shows that the respondent was found to be an SDP
because of numerous acts of exhibitionism. On March 27, 2002,
the respondent filed his application asking the trial court to
find that he was recovered. On that date, the respondent also
filed a demand that a sociopsychiatric report be prepared by the
Department of Corrections (DOC) (see 725 ILCS 205/9 (West 2002)).
At a hearing on May 31, 2002, the assistant State's Attorney
indicated that the report was being prepared for the DOC by Dr.
Mark Carich, but that the parties had not yet received copies of
it. The respondent's court-appointed attorney stated that when
the attorney received the report, he would file a motion
requesting a Frye hearing.
The record supplied to this court does not include either a
copy of Carich's report or a copy of the respondent's motion for
2
a Frye hearing. The record, however, includes the transcript of
the Frye hearing conducted by the trial court in several
proceedings, beginning on September 20, 2002, and ending on
April 14, 2003. Dr. Barry Leavitt testified for the State, and
Dr. Terrence Campbell testified for the respondent.
At the beginning of the hearing, the parties agreed to allow
Campbell to testify first even though the State had the burden of
going forward. Campbell stated that he had reviewed Carich's
report and Leavitt's evaluation of Carich's report. Campbell
1
also had prepared an evaluation of Carich's report.
Campbell testified that Carich had used 25 variables
concerning treatment effectiveness to assess the respondent's
risk of sex offense recidivism. Carich also had employed the
MnSOST-R and the Static-99 actuarial risk assessment tools.
Campbell said that he used a 1998 study published by R. Karl
Hanson and Monique T. Bussiere to assess Carich's 25 variables.
Hanson and Bussiere had "identifi[ed] different risk factors and
the extent to which those factors are correlated with previously
convicted sexual offenders committing new sexual offenses after
they are released from confinement." Campbell criticized
Carich's use of the 1996 version of the Hanson and Bussiere study
1
Neither Leavitt's evaluation nor Campbell's evaluation is
included in the record.
3
because it was not subjected to peer review in the literature,
but the 1998 version was peer reviewed.
Campbell testified about each of Carich's 25 variables.
Concerning most of the variables, Campbell said that there was
not a statistically significant correlation between the variables
and a risk of recidivism, according to the 1998 Hanson and
Bussiere study. Regarding other variables, Campbell stated that
there was no support in peer-reviewed journals for using those
variables to assess the risk of recidivism. Campbell said that
one of Carich's variables combined four of Hanson and Bussiere's
risk factors. Campbell asserted that Hanson and Bussiere had
advised against combining their risk factors because "the
correlations are too small" and "we don't know about the
intercorrelations."
Campbell acknowledged that Leavitt's report stated that the
Association for the Treatment of Sexual Abuse (ATSA) recognizes
the variables used by Carich. Campbell asserted, however, that
the ATSA recognized Carich's variables out of self-interest in
promoting its professional agenda rather than on the basis of
scientific data.
Campbell testified that there were "major shortcomings" with
Carich's reliance on the MnSOST-R. Campbell said that the only
peer-reviewed article that assessed the MnSOST-R had reported
that the MnSOST-R did not realize an acceptable level of
predictive accuracy.
4
Campbell stated that the most comprehensive study of the
Static-99 found that it moderately predicted recidivism risk.
The study concluded that the Static-99 should not be used by
itself to predict the risk of recidivism.
On cross-examination, Campbell said that he specializes in
forensic psychology with several subspecialties within that
specialty. He treated sex offenders in the past, but does not
currently treat sex offenders. Campbell stated that he also does
not assess the risk of sex offender recidivism because he does
not believe that such assessments are accurate at this time.
Leavitt testified that he was familiar with Campbell's
report concerning Carich's report. Leavitt disagreed with
Campbell's reliance on the 1998 Hanson and Bussiere study to
assess each of Carich's 25 variables individually. Leavitt then
discussed each of Carich's 25 variables. He stated that the
variables were supported by research in the professional
literature and by the use of similar variables in recidivism risk
assessment programs in other states.
Leavitt disagreed with Campbell's characterization of the
ATSA as a biased, self-interest group. He submitted that the
ATSA was a group of specialists who are knowledgeable about the
field of sex offender recidivism assessment.
Leavitt said that the MnSOST-R and the Static-99 are
actuarial risk assessment tools used by professionals in his
field. He asserted that the debate about their use did not
concern whether to use them but, rather, how they should be used.
5
In summary, Leavitt stated that Carich's 25 variables, as well
as the MnSOST-R and the Static-99, were accepted within the
psychological community.
At the conclusion of the hearing, the trial court ruled that
Carich's report met the standard for admissibility under Frye.
The matter proceeded to a jury trial. The jury found that the
respondent appeared no longer to be sexually dangerous, but that
it was impossible to determine with certainty under conditions of
institutional care that he was fully recovered.
The trial court then ordered the respondent to be released
subject to 53 enumerated conditions. The respondent's motion for
a new trial was denied, and he appealed.
ANALYSIS
I. Frye
A. MnSOST-R and Static-99
The respondent submits that the trial court erred by ruling
that Carich's use of the MnSOST-R and the Static-99 met the
standard for admissibility under Frye.
In In re Commitment of Simons, 213 Ill. 2d 523, 821 N.E.2d
1184 (2004), the Illinois Supreme Court ruled that the MnSOST-R
and the Static-99 meet the standard for admissibility under Frye.
Therefore, we need not consider this argument further.
B. Carich's 25 Variables
The respondent contends that the trial court erred by ruling
that Carich's reliance on 25 variables met the standard for
admissibility under Frye.
6
In Illinois, expert testimony is subject to admissibility
under the standard first articulated in Frye. Donaldson v.
Central Illinois Public Service Co., 199 Ill. 2d 63, 767 N.E.2d
314 (2002). Under the Frye standard, scientific evidence is
admissible only if the methodology or scientific principle upon
which the expert's opinion is based has gained general acceptance
in that particular scientific field. Simons, 213 Ill. 2d 523,
821 N.E.2d 1184. General acceptance, in this context, does not
mean universal acceptance, acceptance by consensus, or acceptance
by a majority of experts in the field. Simons, 213 Ill. 2d 523,
821 N.E.2d 1184. Instead, general acceptance means that the
underlying methodology used to generate the expert's opinion is
reasonably relied upon by experts in the field. Simons, 213 Ill.
2d 523, 821 N.E.2d 1184. A trial court's ruling concerning
whether testimony is admissible under the Frye standard is
subject to de novo review. Simons, 213 Ill. 2d 523, 821 N.E.2d
1184.
In this case, Campbell concluded that Carich's 25 variables
were not reliable for a variety of reasons. However, he
testified that the ATSA recognizes the use of Carich's variables
in assessing the risk of sex offender recidivism, even though he
disagreed with the ATSA for doing so.
Leavitt also stated that Carich's variables were accepted by
the ATSA. He said that similar variables were used by other
states in sex offender recidivism risk assessments. Leavitt
concluded, therefore, that Carich's variables are generally
7
accepted within the field. Because the trial court heard
testimony that Carich's variables are generally accepted within
the field, we cannot say that the trial court erred as a matter
of law by ruling that Carich's proposed testimony, based on his
report, met the Frye standard for admissibility.
II. Excessive Conditions
The respondent argues that the trial court imposed seven
excessive conditions on his release.
A respondent who has been adjudged to be an SDP may file an
application with the trial court to find that he has recovered.
725 ILCS 205/9 (West 2002). The trial court then holds a hearing
on the application. 725 ILCS 205/9 (West 2002). At the
conclusion of the hearing:
"If the court finds that the person appears no longer
to be dangerous but that it is impossible to determine
with certainty under conditions of institutional care
that such person has fully recovered, the court shall
enter an order permitting such person to go at large
subject to such conditions *** as *** will adequately
protect the public." 725 ILCS 205/9 (West 2002).
We review a trial court's decision concerning the
conditional release of an SDP for abuse of discretion. People v.
Rogers, 215 Ill. App. 3d 575, 574 N.E.2d 1374 (1991). A trial court abuses its
discretion only if its ruling is arbitrary, fanciful, or unreasonable, or where no reasonable
8
person would take the view adopted by the court. People v. Donoho, 204 Ill. 2d 159,
788 N.E.2d 707 (2003).
In this case, the trial court released the respondent
subject to 53 enumerated conditions. On appeal, the respondent
contends that conditions 13, 14, 21, 38, 39, 40, and 43 are
excessive. In conditions 13 and 14, he is required to submit to
a polygraph and a phallometric assessment, respectively, "[i]f
deemed appropriate by his treatment staff and/or his therapists."
Condition 21 prohibits the respondent to "posses/own [sic],
review, or use pornography." Similarly, condition 39 states that
the respondent will "[n]either posses [sic] nor have under [his]
control any material that is pornographic, sexually oriented, or
sexually stimulating, or that depicts or alludes to adult sexual
activity or depicts minors under the age of 18."
In condition 38, the respondent is prohibited from
purchasing, possessing, or having in his body any alcohol or
illegal drugs. Condition 40 states that the respondent will
"[n]ot patronize any business providing sexually stimulating or
sexually oriented entertainment, nor utilize '900' or adult
telephone numbers or any other sex-related telephone numbers."
Condition 43 says that he will "[n]ot possess or have under [his]
control certain specified items of contraband related to the
incidence of sexual offending including video or still cameras or
children's toys."
Specifically, the respondent submits that conditions 13, 14,
21, 38, 39, 40, and 43 are not related to preventing
9
exhibitionism, which was the basis for the respondent being found
to be an SDP. Furthermore, the respondent alleges that
conditions 21, 39, 40, and 43 are vague because they do not
sufficiently define terms such that the respondent is apprised of
what conduct is prohibited.
First, we disagree with the respondent's contention that
conditions 21, 39, 40, and 43 are vague. The terms in these
conditions are sufficiently specific such that a person of
ordinary intelligence would know what conduct is prohibited. See
People v. Greco, 204 Ill. 2d 400, 790 N.E.2d 846 (2003).
We rule, however, that condition 39 must be amended. As
condition 39 is currently drafted, the respondent may "[n]either
posses [sic] nor have under [his] control any material that ***
depicts minors under the age of 18." In other words, the
respondent is prohibited from possessing any photographs of
minors whatsoever. As examples, he is prohibited from possessing
a newspaper that depicts a minor, a photograph of a minor
relative, or a picture of himself as a child. We do not believe
that the trial court intended such an unreasonable result.
With regard to the respondent's argument that conditions 13,
14, 21, 38, 39, 40, and 43 are not related to preventing
exhibitionism, this court is not in a position to determine what
conditions are related to preventing exhibitionism. While some
conditions might seem onerous, such as the prohibition against
possessing a camera, we cannot say that the trial court's
conditions are arbitrary, fanciful, or unreasonable, or that no reasonable person
10
would have imposed these conditions. Therefore, we hold that the trial
court did not abuse its discretion by imposing conditions 13, 14,
21, 38, 39, 40, and 43.
We point out that, by statute, the respondent may at any
time file another application for the trial court to find that he
is recovered. See 725 ILCS 205/9 (West 2002). At such time as
the respondent reapplies for a recovery finding, the trial court
may review the conditions of the respondent's release.
CONCLUSION
For the foregoing reasons, we affirm the order of the
La Salle County circuit court finding that Carich's proposed
testimony met the standard for admissibility under Frye. We also
affirm the court's judgment releasing the respondent under 53
enumerated conditions. However, we remand the matter for the
circuit court to amend condition 39.
Affirmed in part and remanded with directions.
LYTTON, J., concurs.
McDADE, J., concurs in part and dissents in part.
_________________________________________________________________
JUSTICE McDADE concurring in part and dissenting in part:
_________________________________________________________________
11
Brian Vercolio was a flasher who was found to be sexually
dangerous even though his offenses were mere misdemeanors that in
no way met the statute=s definition of or guidelines for sexually
dangerous persons. At issue in this case are the mental health
instruments used to test his "recovery" and the conditions
imposed on his release to an outside treatment residence. The
majority has found that (1) the actuarial testing instruments
(MnSOST-R and Static-99 ) have been found by the Illinois Supreme
Court to meet the admissibility standard of Frye, (2) the Carich
25-Variable Test is generally accepted by experts in the relevant
field and thus meets the Frye standard, and (3) only one of the
seven conditions of release challenged by Vercolio is problematic
and should be reconsidered. I agree with the first finding and
therefore concur with it. I respectfully dissent, however, from
the other two findings and for the reasons stated would remand
the entire matter to the LaSalle County Circuit Court for
reconsideration.
I. Frye Challenges to the Testing Instruments
A. MnSOST-R and Static-99
As the majority has pointed out, the Illinois Supreme Court
has recently held that the MnSOST-R and the Static-99 actuarial
testing instruments meet the "general acceptance" standards for
admissibility under Frye. In re Commitment of Simons, 213 Ill.
2d 523, 821 N.E.2d 1184 (2004). The respondent=s Frye challenge
with regard to those instruments has been rendered moot by
Simons, and I concur with the majority=s decision in that regard.
12
The Simons court, in its holding, found that these testing
instruments were generally accepted testing methodologies and
could appropriately be admitted in court proceedings without
additional validation. The court did not, however, hold that
their use was warranted or relevant in all cases. In the 2002
jury trial on Vercolio=s 1998 Application Showing Recovery, Dr.
Ijaz Jatala, psychiatrist for the Sexually Dangerous Persons
Program at Big Muddy, and Dr. Mark Carich, the "psychologist" for
that program, both testified that the Minnesota Sex Offender
Screening Tool, which showed Vercolio at high risk for re-
offending, was not geared for testing exhibitionists. Although
the test was admissible at Vercolio=s trial under Frye, I think
this issue should be remanded for a determination of its
applicability to the specific question of whether Vercolio is
likely to recommit the public nuisance misdemeanor of indecent
exposure (flashing).
B. Carich=s 25 Variables
I cannot agree with the majority that a showing that the acceptance of Carich=s
25 variables by a single group and the use of some but not all of the variables by others
satisfies Frye=s requirement that the particular methodology has gained general
acceptance in the field. I therefore respectfully dissent from that conclusion.
As Simons makes clear, our standard for reviewing Frye determinations is no
longer abuse of discretion; our review is de novo.
13
As the majority points out, Simons makes clear that general acceptance does not
mean universal acceptance, acceptance by consensus, or acceptance by a majority of
experts in the field.
Rather the test is whether the methodology is relied upon by experts in the field and
whether that reliance is reasonable. 213 Ill. 2d at 530.
In the present case, both the trial court and the majority appear to rest the
decision that Carich=s 25 variables are generally accepted in the field on the fact that Dr.
Leavitt and Dr. Campbell agreed that Carich=s actual test has been utilized by the
Association for the Treatment of Sexual Abuse (ATSA). That testimony does establish
that the variables are relied upon by some experts in the field. Dr. Leavitt also testified
that some of the variables, but not the test itself, are used by other experts. The
testimony of neither man establishes that the acceptance is general or that the reliance
is reasonable.
Justice Thomas, writing for the Simons majority, has told us that we should
undertake a de novo review of "general acceptance" rulings pursuant to Frye because
">"[t]he question of general acceptance of a scientific technique, while referring to only
one of the criteria for admissibility of expert testimony, in another sense transcends that
particular inquiry, for, in attempting to establish such general acceptance for purposes
of the case at hand, the proponent will also be asking the court to establish the law of
the jurisdiction for future cases.">" Simons, 213 Ill. 2d at 531, quoting, [People v.] Miller,
173 Ill. 2d at 204 (McMorrow, J., concurring), quoting Jones v. United States, 548 A.2d
35, 40 (D.C. App. 1988). Justice Thomas has also, by his own thorough review,
demonstrated for us the kind of analysis that should be undertaken in a de novo review
14
of the general acceptance and consequent admissibility of a scientific methodology.
The review undertaken by the majority considers only (1) that the ATSA uses Carich=s
25 variables and (2) an uncritical recitation of Dr. Leavitt=s endorsement of the variables
while apparently discounting Dr. Campbell=s criticism because "[h]e treated sex
offenders in the past, but does not currently treat sex offenders....he also does not
assess the risk of sex offender recidivism because he does not believe that such
assessments are accurate at this time." Slip opinion at page 5.
Dr. Campbell testified and asserted in both of his reports that, because of his
reliance on questionable methodologies and his improper combination of certain
specified factors, Carich=s use of his variables "creates an alarming risk of misinforming
and misleading any legal proceeding considering Mr. Coop=s recidivism risk." While one
of his claims has clearly been rendered moot by the decision in Simons, not all of them
have.
The supreme court observed in Donaldson v. CIPS Co., 199 Ill. 2d 63 (2002):
"Simply stated, general acceptance does not require that the
methodology be accepted by unanimity, consensus, or even
a majority of experts. A technique, however, is not >generally
accepted= if it is experimental or of dubious validity. Thus,
the Frye rule is meant to exclude methods new to science
that undeservedly create a perception of certainty when the
basis for the evidence or opinion is actually invalid."
Donaldson, 199 Ill. 2d at 78.
15
That is the question we are called upon to address and resolve through our de novo
review of Carich=s 25 variables.
Because I see no indication that either the trial court or the majority undertook
such a review and analysis and because our decision on this matter establishes general
acceptance of these variables as "the law of the jurisdiction for future cases" (Miller, 173
Ill. 2d at 204 (McMorrow, J., concurring), quoting Jones v. United States, 548 A.2d 35,
40 (D.C. App. 1988), and because our decision on this matter significantly impacts
future determinations on the recovery and possible permanent incarceration of persons
found sexually dangerous; I am compelled to dissent from the affirmance of the trial
court=s decision as being without error.
In Vercolio=s prior recovery proceeding, the test devised by Dr. Carich was
comprised of only 15 factors. As with the Minnesota Sex Offender Screening Tool
discussed above, Dr. Jatala and Dr. Carich both testified that the 15-factor version of
the test was not geared for the exhibitionist. Even if the test was properly admitted
under Frye, I could find nothing to indicate that the additional 10 factors rendered the
test applicable to exhibitionists.
Accordingly, I would, at the very least, remand the case for a hearing on the
applicability of the instruments to respondent=s particular type of offenses and on the
validity of any findings made pursuant to their use in Vercolio=s case.
II. Challenged Conditions of Release
Even though, based on the statute=s definition, Vercolio is not and never has
been sexually dangerous, he has been incarcerated in the Department of Corrections
for 12 years for a crime punishable by up to 365 days. Although the testimony of the
16
mental health experts at trial was that he has not committed an exhibitionist act during
the past four or five years of his incarceration, the opinion of those same experts,
grounded in the tests discussed above, denied him a finding of complete recovery. The
trial judge is to be commended for not wholly accepting Dr. Carich=s assessment that
Vercolio is "still" sexually dangerous and for allowing him the opportunity for conditional
release.
Pursuant to the plan submitted by the State, Vercolio=s release from Big Muddy is
predicated on his perfect compliance with 53 conditions. 2 Upon the "technical violation"
of any of these conditions, his discharge can be revoked and he can be returned to
prison. Condition #3 warns him that "[s]uch technical violations include but are not
limited to the terms contained on attachment People v. Vercolio
Combined Opinion