2019 IL App (1st) 180881
No. 1-18-0881
Opinion filed September 23, 2019
First Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
In re COMMITMENT OF EDWARD GAVIN, )
) Appeal from the
(The People of the State of Illinois, ) Circuit Court of
) Cook County.
Petitioner-Appellee, )
) No. 06 CR 80009
v. )
) Honorable
Edward Gavin, ) Steven G. Watkins,
) Judge, presiding.
Respondent-Appellant.) )
JUSTICE HYMAN delivered the judgment of the court, with opinion.
Justices Pucinski and Coghlan concurred in the judgment and opinion.
OPINION
¶1 In 2012 a Cook County jury found Edward Gavin to be a sexually violent person as
defined in the Sexually Violent Persons Commitment Act (SVP Act) (725 ILCS 207/1 et seq.
(West 2010)). We reversed and remanded for a new trial in light of improper statements the State
made during the trial. In re Commitment of Gavin, 2014 IL App (1st) 122918. On remand, after a
bench trial, Gavin was still categorized as a sexually violent person and ordered committed.
Gavin argues that the State failed to prove him a sexually violent person (SVP) beyond a
No. 1-18-0881
reasonable doubt on two grounds: (i) the State failed to prove that he currently suffers from a
mental disorder that predisposes him to acts of sexual violence, and (ii) the State failed to prove
that any mental disorder he does have creates a substantial probability that he will commit more
acts of sexual violence. Alternatively, Gavin argues that we should reverse and remand for a new
trial on two grounds: (i) the trial court committed error by equating the “substantially probable”
standard with a “more likely than not” standard, and (ii) the trial court erred by allowing the
State to elicit testimony that Gavin had a 100% chance of reoffending between his third and
fourth criminal offense. We disagree, and affirm.
¶2 Background
¶3 Our earlier opinion summarizes the evidence introduced at Gavin’s first trial. Gavin,
2014 IL App (1st) 122918, ¶¶ 5-8, 13-23. The State’s experts, Dr. Vasiliki Tsoflias and Dr.
Kimberly Weitl, gave substantially similar testimony at Gavin’s second trial. We go into some
detail, however, because Gavin’s first appeal did not raise the question of reasonable doubt and
the second trial, unlike the first, included a report and testimony from Gavin’s expert, Dr. Brian
Abbott.
¶4 Gavin’s Sexual Offenses
¶5 Aside from one certified statement of conviction for a 1988 case, the record contains no
documentary evidence setting out Gavin’s criminal history. But all three experts provided
consistent information about his offenses. We also explain the details of some of those offenses
because the underlying facts relate to the experts’ conclusions.
¶6 Gavin was convicted of an attempted rape when 17 years of age. The victim, also age 17,
entered an elevator in a Chicago Housing Authority (CHA) building. Once the elevator started
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moving, Gavin pushed the victim down, ripped her shirt open, and fondled her breasts. The
victim resisted and ran to a friend’s apartment. Gavin self-reported the incident to Dr. Weitl as
consensual sex inside the victim’s apartment. He self-reported to Dr. Abbott “that he had a
couple of drinks and saw the victim, he thought she looked good, and he couldn’t resist himself
and he acted out on his urges and touched her breasts.” Gavin received a sentence of two to six
years in the Department of Corrections.
¶7 On the same day as the attempted rape, in the same CHA building, Gavin got on the
elevator with a 14-year-old girl. When the girl tried to leave the elevator, Gavin pulled her back
in, stopped the elevator between floors, and “physically overpowered her and vaginally raped
her.” Somebody heard her screaming and called the police. Gavin self-reported to Dr. Weitl that
he and the victim had consensual sex in the elevator. To Dr. Abbott, Gavin reported “that he was
in the elevator with the victim, the elevator got stuck, he and the victim had consensual sex, and
that she stated that he raped her because when they got out of the elevator somebody saw him
and told her boyfriend.” Gavin received a sentence of four to six years in the Department of
Corrections.
¶8 While on parole for his earlier offenses, Gavin was convicted of an attempted rape at the
same CHA building; Gavin (now 21) grabbed the 15-year-old victim on the thirteenth floor of
the building and pulled her down to the ninth floor, where he attempted to sexually assault her.
People heard the victim screaming and called the police. When officers arrived they “had to
physically hit Mr. Gavin over the head with their guns in order to get him off the victim.” Gavin
gave an account to someone in the Department of Corrections in 1980 that differed substantially
from the official version. Great detail is not necessary, but Gavin essentially relayed that he and
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several of his friends had received permission from the victim’s boyfriend to take turns having
sex with her. Gavin reported to Dr. Abbott that the victim “had a reputation for sleeping with
many people” and claimed the victim only alleged rape because she did not want her mother to
find out about her sexual activity. Gavin received a 12-year sentence in the Department of
Corrections.
¶9 After serving that sentence and again on parole, Gavin vaginally raped a cleaning lady at
a motel. After staring at her through a window, Gavin came into the room and “displayed a block
of wood and acted as if it was a gun,” raped her, and went through her purse looking for money.
Gavin self-reported to three doctors about this incident. The first time he reported he explained
that he had hired two prostitutes to have sex with him (we use the word “prostitute” because that
is the term used during the expert testimony; less stigmatizing modern parlance would be “sex
worker”). They left when they found out he did not have any money, and so he raped the maid in
anger. The second time he reported he explained that he had sex with the prostitutes but got mad
when they left, and so “his first thought was the maid and he found the maid and he raped her.”
The third time he reported he explained that he hired the two prostitutes but did not have sex
with them because he was experiencing erectile dysfunction. He got mad when the prostitutes
left and, still frustrated, “he found the maid and forced her to have sex with him.” Gavin received
a sentence of 15 years in the Department of Corrections.
¶ 10 Gavin’s In-Custody Discipline
¶ 11 Throughout his periods in custody, Gavin frequently found himself in trouble. On
December 29, 1984, while in custody at an unspecified facility, he received a sexual misconduct
ticket that carried a punishment of 30 days in segregation and a revocation of 30 days of good
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time credit. The details of Gavin’s actions leading to this ticket were unknown to the expert
witnesses.
¶ 12 During November 1989 and January 1990, Gavin received four sexual misconduct tickets
at the Illinois River Correctional Center. The first incident involved Gavin touching his genitals
while meeting with a female doctor. The second incident arose when Gavin told a female staff
member that he loved her after asking about her marital status and whether she would be in a
relationship with him. Next, Gavin exposed himself to a nurse and refused to put on a medical
gown while in the infirmary. The fourth incident occurred after Gavin again refused to cover up
while in the infirmary. This incident caused the Department of Corrections to transfer him to
Danville Correctional Center.
¶ 13 On August 27, 1991, while at Danville, Gavin committed another sexual misconduct
violation. Gavin went into the office of a female vocational counselor. After he disobeyed her
request to leave, she called security. Gavin threw the phone on the floor, then threw the
counselor on the floor and started to kiss her. She coaxed Gavin off of her and ran to the next
room. Gavin followed and again pushed her on the floor and started fondling her breasts.
Another correctional officer arrived but needed assistance to pull Gavin off of the vocational
officer. As a result of this attack, Gavin was transferred to Menard Correctional Center, a
maximum security facility. While he was at Menard, he received discipline for sexual
misconduct in May 2001, after staring at a female correctional officer to the point where it made
her uncomfortable.
¶ 14 Gavin also committed several rule violations while in temporary detention in the
Department of Human Services (DHS). In 2007, he was found in possession of marijuana and a
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bong. About a week later, authorities discovered he possessed three video tapes containing
pornography. When asked about the tapes, Gavin told a DHS counselor that he had an addiction
to pornography and could not promise he would not look at the tapes again. Gavin possessed
pornography again in 2013, this time 10 DVDs, 42 images, and a hard drive “that contained
more than 300 hours of pornography.” During another incident the same year, Gavin threatened a
DHS employee with a cane and then pushed the staff member, leading to other residents of the
DHS facility to make threats of their own.
¶ 15 Expert Conclusions
¶ 16 Dr. Tsoflias concluded, to a reasonable degree of psychological certainty, that a
substantial probability existed that Gavin will engage in future acts of sexual violence. She
recommended finding Gavin an SVP under the SVP Act, as she had recommended at Gavin’s
first trial.
¶ 17 Dr. Tsoflias diagnosed Gavin with “Other Specified Paraphilic Disorder,” specifically
“[s]exually attracted to non-consenting females.” She also diagnosed “Other Specified
Personality Disorder, with Antisocial Features.” To arrive at those diagnoses, she relied on the
Diagnostic and Statistical Manual 5 (DSM-5), which defines a paraphilia as “any intense and
persistent sexual interest other than sexual interest in genital stimulation or preparatory fondling
with phenotypically normal, physically mature, consenting human partners.” Paraphilic disorders
involve paraphilias that are “currently causing distress or impairment to the individual, or a[re]
pharaphilia[s] whose satisfaction has entailed personal harm, or risk o[f] harm, to others.”
Gavin’s diagnosis, “Other Specified Paraphilic Disorder,” describes “presentations in which
symptoms characteristic of a paraphilic disorder *** dominate, but do not meet the full criteria
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for any of the eight disorders specifically listed in the paraphilic disorders diagnostic class.”
Gavin’s diagnosis “is not specifically listed in the DSM-5.”
¶ 18 Gavin’s “long-standing behavior for at least 16 years” supported Dr. Tsoflias’s diagnosis.
She pointed out that he “continually engaged in sexual assaults against nonconsenting women”
during which “[t]he pattern was the same in that he isolated the women, he overpowered them
physically, he physically assaulted them.” During Dr. Tsoflias’s testimony, the State asked what
Gavin’s risk of recidivism was between his third and fourth criminal offense. Dr. Tsoflias
responded: “So his risk at that point would have been, I could say that it was 100 percent because
he reoffended.” During defense counsel’s examination of Dr. Tsoflias, this exchange took place:
“Q. So you’re not saying that when he was released after his third offense
that his risk at that time was 100 percent, right?
A. No, I’m not saying that that was his static risk. I’m saying in hindsight,
looking backwards, it was 100 percent likely that he—it was 100 percent that he
offended.”
Dr. Tsoflias further noted evidence of nonconsenting paraphilia because Gavin had consenting
sexual partners available to him in the community “but he still chose to sexually assault different
women.”
¶ 19 Dr. Tsoflias also concluded that Gavin currently suffers from his paraphilia because
paraphilias like Gavin’s are “chronic in nature. They don’t just go away. So the fact that you
have a paraphilia indicates that you always have that paraphilia in terms of that sexual interest.
The intensity of the paraphilia may increase and decrease, but it’s not something that ever goes
away.” On cross-examination she explained that the DSM-5 only describes certain paraphilias
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that way but that, in “all [her] training, [she has] learned that parahilias are chronic and lifelong.”
She indicated that, because Gavin “acted out sexually while in prison” and “has been found to be
in possession of very high levels of pornography,” evidence exists that he remains “preoccupied
by sexuality, by sexual behavior towards women” and that this preoccupation is strong.
¶ 20 Gavin’s offending while in custody indicated an inability to control his sexual behavior
even when in a controlled environment. For example, Dr. Tsoflias drew a connection between
the incident where officers had to hit Gavin to get him off the victim and the incident at Danville
where a correctional officer and others had to remove Gavin from his victim. She concluded that
his in-custody behavior “shows his inability to control his urges and that at that point he is so
into what he’s—into the offense that he’s attempting to commit that even the presence of a
correctional officer will not stop him.”
¶ 21 Using various actuarial instruments, Gavin scored in a “well above average risk
category.” According to one of the instruments, this means Gavin “is 7.3 times more likely to
engage in sexual reoffending than the average sex offender.” According to the other instrument,
Gavin is “3.6 times as likely than the average sex offender” to engage in sexual acts. Dr. Tsoflias
also found that Gavin had several risk factors known as “dynamic risk factors,” which are factors
that can change through treatment. Gavin had a risk of sexual deviance—an interest in
sexualized violence. And he exhibited a lack of intimate relationships with adults and poor
cognitive problem solving. Finally, he resisted rules and supervision, as evidenced by his acting
out in both Department of Corrections and DHS custody.
¶ 22 Dr. Tsoflias explained the absence of protective factors, which, if present, decrease a
person’s risk to reoffend. Gavin had not been in the community for a significant time without
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reoffending, and while in custody, he had not completed cognitive behavioral treatment. Based
on life expectancy statistics, Gavin would have more than 15 years of opportunity to reoffend
once released based on his age of 58 and the average life expectancy of 76 years for the average
African American male. This was true despite Gavin’s many medical issues, as all of those
issues were being successfully managed with treatment.
¶ 23 Dr. Weitl agreed that Gavin “met the criteria as a sexually violent person as defined by
Illinois law.” Like Dr. Tsoflias, Dr. Weitl looked at Gavin’s criminal history and found evidence
of “nonconsensual behavior, forcing sex on females, using physical violence beyond what he
would have needed *** making statements that women are sexual objects, little less than human,
he can take sex if he wants to.” Dr. Weitl, referring to the incident with the maid at the hotel,
explained that Gavin’s actions indicated “it was the nonconsensual sex that was arousing to
him.” Dr. Weitl concluded that Gavin’s history, both in and out of custody, showed he (i) lacks
control; (ii) “can’t follow directives when he’s caught”; (iii) has little regard for women; and
(iv) minimizes, denies, and otherwise fails to take accountability for his actions.
¶ 24 Based on these observations, Dr. Weitl diagnosed Gavin with “other specified paraphilic
disorder with the qualifier nonconsent” and “antisocial personality disorder.” Dr. Weitl opined
that Gavin still suffers from this paraphilic disorder, as “this disorder doesn’t change” and these
types of paraphilias “can get stronger or weaker, but they don’t flip.” As part of her diagnosis,
Dr. Weitl said, “it’s inherent in the disorder that he’s predisposed *** to continue engaging in
nonconsecutive [sic] sexual behavior.”
¶ 25 Dr. Weitl scored Gavin using the same actuarial instrument as Dr. Tsoflias and concluded
that Gavin is “about 5.2 times more likely to commit another sex offense when compared to the
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typical sex offender.” Dr. Weitl relied as well on other factors to determine Gavin’s likelihood to
reoffend, including his deviant sexual interest, “[g]eneral self-regulation problems,” intimacy
deficits, sexual preoccupation, substance use, antisocial lifestyle, additional personality disorder,
and lack of treatment. As with Dr. Tsoflias, Dr. Weitl said many of these factors could change
with treatment.
¶ 26 Gavin’s expert, Dr. Abbott, acknowledged Gavin’s criminal history. Based on that
history, he concluded that Gavin “formerly suffered from antisocial personality disorder” but
concluded that he no longer does. Dr. Abbott believed that Gavin’s antisocial personality
disorder better explains his earlier sexual offenses than any possible diagnosis for a paraphilic
disorder. Paraphilic coercive disorder “is a controversial diagnosis with little consensus as to
diagnostic criteria” and was rejected for inclusion in the DSM-5. Dr. Abbott concluded that
Gavin’s behavior since being incarcerated in 1996 no longer meets the diagnostic criteria for
antisocial personality disorder and so Gavin no longer suffers from it. Dr. Abbott’s report
ultimately concludes that Gavin does not currently suffer from a legally defined mental disorder.
¶ 27 According to Dr. Abbott, assuming Gavin had a mental disorder, Gavin did not present a
substantial probability to reoffend. Dr. Abbott disputed the utility of the actuarial instruments on
which Drs. Tsoflias and Weitl relied. But he used one of the same instruments and gave Gavin
the same score that the State’s experts gave him. Based on that score, Dr. Abbott gave Gavin a
26% chance of reoffending within five years. Dr. Abbott did not believe the science supported
consideration of either dynamic risk factors or protective factors, as Drs. Tsoflias and Weitl had
done. Dr. Abbott ultimately concluded that Gavin “does not meet the threshold of being much
more likely than not [to] engage in sexually violent conduct.”
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¶ 28 Trial Court Findings and Posttrial Litigation
¶ 29 After closing arguments, the trial court continued the case to consider the transcripts and
reports before ruling. The trial court then ruled, granting the State’s petition to find Gavin a
sexually violent person:
“All right. I’ve reviewed the transcripts and this Court does find that the
State has met its burden.
The respondent, he has been convicted of four acts under the statute, two
convictions for aggravated criminal—let’s see—attempt rape, rape, another
attempt rape, and aggravated criminal sexual assault. He has been diagnosed with
other specified paraphilic disorders, sexual attractive [sic] to nonconsenting
females in a controlled environment as well as other—and other specified
personality disorders with antisocial features. That’s from one physician—from
one forensic psychologist.
And my ruling is based on the credibility as well as the evidence. And
based on that diagnosis it is substantially probable that he is probable to commit
further acts of sexual violence. That’s a substantial probability. It basically means
more likely than not.
I did take into consideration the expert of—the testimony—the testimony
of expert Brian Abbott on behalf of the respondent.
Again my ruling is based on the credibility of these witnesses. And,
therefore, you have met your burden beyond a reasonable doubt.”
¶ 30 Gavin filed a motion for a new trial raising many contentions of error. Of relevance, he
argued that the trial court erred in admitting testimony that Gavin’s recidivism rate between his
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third and fourth offense was 100%. He added that the State failed to prove him a sexually violent
person beyond a reasonable doubt and that “[t]he trial court misapprehended the law with respect
to the risk of re-offense element of the cause of action.” The trial court denied Gavin’s motion
and ordered him committed to DHS custody until further order.
¶ 31 Analysis
¶ 32 Reasonable Doubt
¶ 33 To commit a person under the SVP Act, the State must prove three elements beyond a
reasonable doubt: (i) the person must have been convicted of a sexually violent offense, (ii) the
person must have a mental disorder, and (iii) the person’s mental disorder must create a
“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 2010). A “ ‘[m]ental disorder’ ” refers to “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). Gavin does not dispute the State’s proof of the first
element. Under the SVP Act, we review challenges to the sufficiency of the evidence considering
whether, viewing the evidence in a light most favorable to the State, any rational trier of fact
could have found the elements in the SVP Act proven beyond a reasonable doubt. In re
Commitment of Fields, 2014 IL 115542, ¶ 20.
¶ 34 Presence of Mental Disorder
¶ 35 Gavin argues that the State failed to prove that he presently suffers from a mental
disorder that predisposes him to sexual violence. He makes a threefold argument: (i) his conduct
while in DHS custody was insufficient to show the presence of a mental disorder, (ii) the State
engaged in “rampant speculation” because evidence suggesting paraphilic disorders are chronic
and lifelong amounts to no more than an “unfounded assertion,” and, (iii) even assuming
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paraphilic disorders to be chronic and lifelong, the State failed to prove that Gavin ever had a
mental disorder in the first place. The State responds that two experts relying on their training to
reach a conclusion does not amount to speculation. Nor is it our role to question the trial court’s
resolution of the competing testimony of its experts and Dr. Abbott.
¶ 36 The Illinois Supreme Court has not given us guidance as to what sort of factual predicate
suffices to establish the presence of a mental disorder. Instead, it has relied heavily on expert
testimony, deferring to the factfinder on expert credibility. See id. ¶¶ 21-27. We followed Fields
in In re Detention of White, 2016 IL App (1st) 151187, ¶¶ 58-62 (summarizing testimony and
affirming where respondent’s expert disagreed with two State experts on presence of mental
disorder). Gavin has provided us with no basis to depart from Fields or White.
¶ 37 Gavin argues that, under the SVP Act, “allegations of possessing pornography of an
unspecified type twice, pushing a staff member once, possessing marijuana once, and 2 to 3 other
rule violations” do not translate to proof of a current mental disorder. Gavin’s argument rests on
a narrow reading of the record. We find the following excerpt from Dr. Tsoflias’s testimony
illuminating:
“Paraphilias are chronic in nature. They don’t just go away. So the fact
that you have a paraphilia indicates that you always have that paraphilia in terms
of that sexual interest. The intensity of the paraphilia may increase and decrease,
but it’s not something that ever goes away. And the paraphilia doesn’t just have to
be acting out behaviors. It also speaks of having these thoughts and fantasies and
urges regarding the paraphilia.
And in Mr. Gavin’s case, he acted out sexually while in prison, which
speaks to the strength of his urges even though he’s in that controlled
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environment. And since that time, he has been found to be in possession of very
high levels of pornography, 300 hours of pornography on that hard drive, 10
DVDs of pornography, three VHS tapes of pornography, so—which is also
against the rules of the [Temporary Detention Facility].
And so it shows that he still has the strong sexual urges and just because
he hasn’t acted out in the way of sexually assaulting nonconsenting women, it’s
very possible because of the chronicity of the disorder that he may be having
these sexual fantasies when he’s viewing the pornography, masturbating to the
pornography. It shows that he’s still preoccupied by sexuality, by sexual behavior
towards women. So it shows that that disorder is still present today.”
Similarly, Dr. Weitl explained the significance of Gavin’s discipline in DHS custody,
particularly the pornography possession. She said it shows that Gavin was not learning from
consequences and refused to acknowledge that viewing pornography created a high-risk behavior
for him. For Dr. Weitl, possessing pornography, regardless of the type of pornography, shows
“that his urges are so strong that he’ll risk the consequence of the institution to have that in his
possession.” Possession of pornography, in Dr. Weitl’s opinion, also “fits right into” Gavin’s
“pattern [of] the sexual entitlement along with his objectifying females.”
¶ 38 In short, Drs. Tsoflias and Weitl did not base their diagnoses solely on Gavin’s discipline
in DHS custody; if they had, the State likely would be backed into a tricky evidentiary corner.
Rather, the experts testified that Gavin’s disciplinary history suggested that the mental disorder
that was already present had not abated or been successfully treated. We will say again, as we
said in White, that the State can satisfy its burden on an SVP petition even in the complete
absence of “sexually overt acts in the controlled environment of a prison.” Id. ¶ 60 (citing In re
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Detention of Welsh, 393 Ill. App. 3d 431, 455-56 (2009), and In re Detention of Lieberman, 379
Ill. App. 3d 585, 602 (2007)). Gavin sexually offended in Department of Corrections custody and
committed sex-based rule violations while in DHS custody; it was not unreasonable for the trial
court to credit the expert testimony that these behaviors showed evidence of a continuing mental
disorder.
¶ 39 Gavin’s remaining arguments as to the sufficiency of proof of his mental disorder ask us
to reweigh the evidence in his favor, a task we cannot undertake. See Fields, 2014 IL 115542,
¶ 27. Gavin calls describing paraphilic disorders as chronic and lifelong “rampant” speculation.
Dr. Tsoflias acknowledged that the DSM-5 does not expressly state that paraphilic disorders are
chronic and lifelong, but she based her conclusion on her “knowledge [that] is amassed from all
of the training and education that [she’s] had over—through school through the past 10 years that
[she’s] been a clinician.” Dr. Weitl testified that paraphilic disorders are chronic in the sense
diagnosis looks “for a pattern of behavior” that follows a predictable course. She explained that
“unless something intervenes human nature says they are going to keep doing it.” Dr. Abbott
disagreed and concluded that paraphilic disorder toward nonconsenting persons is not a chronic
condition because “we have no science that they have ever looked at that disorder over a life
span.” He considered insufficient the “data about how it manifest[s] over a lifespan.” The trial
court expressly resolved the competing expert testimony by finding the State’s witnesses more
credible. We have no basis on which to question that determination, particularly given the
technical nature of the dispute between the experts.
¶ 40 Gavin’s final argument posits that he never had a mental disorder and that Drs. Tsoflias
and Weitl impermissibly relied on the mere fact of his previous convictions to come to the
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opposite conclusion. Again, we disagree. While the SVP Act forbids finding a mental disorder
solely on the basis of earlier convictions for sexual offenses (725 ILCS 207/35(e) (West 2010)),
that is not what Drs. Tsoflias and Weitl did. Both experts looked to the underlying conduct of the
criminal offenses that Gavin committed, as is proper. See White, 2016 IL App (1st) 151187, ¶ 59
(“experts are not prohibited from relying on the underlying behaviors manifested during prior
offenses in the diagnosis of a particular mental disorder”). They then described that conduct as
evidence of Gavin’s underlying attitudes towards women, sex, and the law.
¶ 41 More importantly, Drs. Tsoflias and Weitl relied on Gavin’s own descriptions of those
incidents to arrive at their conclusions. For instance, Dr. Tsoflias noted that Gavin (i) tended to
minimize his responsibility for his criminal acts, (ii) “tend[ed] to blame the victim,” and (iii) had
“cognitive distortions about women” that led him to believe that he was entitled to sex,
particularly from women who he perceives as “easy.” Our review of the record does not show, as
Gavin suggests, that the experts were so narrowly focused on the mere fact of the earlier
convictions. Rather, the experts reasonably relied on the conduct that underlay the convictions
and Gavin’s own attitudes about those crimes that he had in 2015. We acknowledge Dr. Abbott’s
differing opinion but decline to substitute our judgment for that of the trial court.
¶ 42 Substantial Likelihood to Reoffend
¶ 43 Gavin also 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 2010) (State must prove “[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.”).
As used in the SVP Act, “ ‘ “substantially probable” ’ ” means “ ‘ “much more likely than
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not” ’ ” that Gavin will commit acts of sexual violence as a result of his mental disorder. 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)).
¶ 44 Most of Gavin’s challenge, again, relies on an attempt to have us substitute our
judgments for the trier of fact’s judgment. He argues two things: (i) the State’s expert testimony
did not sufficiently link his risk to reoffend to any mental disorder he may have, and (ii) even if
the State adequately proved a causal link between Gavin’s mental disorder and risk to reoffend, it
failed to prove that the risk rose to the level of substantially probable.
¶ 45 We find that the State proved a link between Gavin’s mental disorder and his risk of
reoffending. Gavin claims that the State did no more than present evidence that Gavin had a
mental disorder and it was substantially probable that he would reoffend but that it failed to show
it was substantially probable he would reoffend because of a mental disorder. In support of his
position he cites an appeal from summary judgment in a medical malpractice case. See Hussung
v. Patel, 369 Ill. App. 3d 924, 933-34 (2007) (contemporaneous existence of act and injury does
not create factual dispute about proximate cause). We agree with the State—its experts did more
than testify that Gavin’s mental disorder and substantial probability of reoffending merely
existed at the same time.
¶ 46 Gavin begins by seeking to have us refine our definition of “substantially probable.” He
argues that “much more likely than not,” the definition that has been repeatedly endorsed by this
court since In re Detention of Bailey, 317 Ill. App. 3d 1072 (2000), lacks enough specificity.
Gavin urges that we modify the definition of “substantially probable” to mean “much more than
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50%” likely that he will reoffend. We have rejected a nearly identical argument as an improper
intrusion on the province of the factfinder. See In re Commitment of Haugen, 2017 IL App (1st)
160649, ¶¶ 24-25. We see no reason to depart from this precedent.
¶ 47 Gavin’s arguments use circular reasoning. He wants us to redefine the definition of
“much more likely than not” because it would “eliminate confusion” about the SVP Act’s
elements. Yet, at the same time, he argues that it is self-evident that “much more likely than not”
means “much more than 50%” because, as a matter of logic, these are the only outcomes of an
SVP petition—“either an individual is dangerous because his mental disorder makes it
substantially probable that he [or she] will reoffend, or he [or she] is not.” Gavin supposes we
need go no further in our definition than “much more likely than 50%” because the factfinder
will be able to interpret that standard in light of the facts of a particular case.
¶ 48 We reject this argument for two reasons. Assuming it is a foregone conclusion that
“much more likely than not” means “much more likely than 50%,” we fail to see how a specific
percentage further aids the trier of fact. Presumably, if it is as straightforward as Gavin presents,
a reasonable trier of fact can apply the existing standard in the way Gavin hopes it will. We fail
to see how altering the definition to “much more likely than 50%” assists the factfinder. Is 60%
much more likely than 50%? What about 70%? 76%? Reducing “much more likely than not” to a
percentage incorporates new and unnecessary complications. This, in part, explains why we do
not permit trial courts to define “reasonable doubt” to juries. See People v. Downs, 2015 IL
117934, ¶¶ 6-7, 24-32 (affirming trial court’s answer to jury that reasonable doubt “ ‘is your duty
to define’ ” after jury asked: “ ‘What is your definition of reasonable doubt, 80%, 70%,
60%?’ ”).
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No. 1-18-0881
¶ 49 The remainder of Gavin’s argument catalogs the disputes between Drs. Tsoflias and
Weitl and Dr. Abbott on the meaning of the actuarial instruments and the impact of the dynamic
risk factors and protective factors. Gavin’s brief details those differences. We need not repeat
them because Gavin’s argument attempts to have us retry him, which, to repeat, is not our role.
See Fields, 2014 IL 115542, ¶ 27.
¶ 50 We also reject Gavin’s primary point that the State’s experts never linked their finding of
a mental disorder to Gavin’s likelihood to reoffend. Dr. Tsoflias made the connection in her
initial testimony: “They have to be diagnosed with a mental disorder and they have to show that
due to that mental disorder, it is substantially probable that they will engage in future acts of
sexual violence.” (Emphasis added). Dr. Weitl’s testimony reveals the same understanding.
When reading the experts’ conclusions in their proper context, we find the record shows their
determinations about Gavin’s likelihood to reoffend eminently linked to their conclusions that he
had a mental disorder.
¶ 51 We affirm the trial court’s conclusion that the State proved the allegations in its SVP
petition beyond a reasonable doubt.
¶ 52 The Trial Court’s Application of the Legal Standard
¶ 53 Gavin next argues that we should remand for a new trial because the trial court applied an
incorrect legal standard to find him an SVP under the SVP Act. Gavin reads the trial court’s
statement that he was “more likely than not” to reoffend as evidence that the court misapplied the
law, which requires him to be “much more likely than not” to reoffend. The State responds that
Gavin forfeited the argument and that, regardless, we should not find error in one isolated
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No. 1-18-0881
statement by the trial court. Reviewing this issue de novo, Reliable Fire Equipment Co. v.
Arredondo, 2011 IL 111871, ¶ 13, we agree with the State.
¶ 54 The State correctly argues forfeiture. Gavin did not object during the trial court’s
recitation of its findings. See Haugen, 2017 IL App (1st) 160649, ¶ 31 (to preserve claim litigant
must make both timely objection and include alleged error in motion for new trial). In our
opinion in Gavin’s first appeal, we held that the criminal plain error rule applies to SVP
proceedings. Gavin, 2014 IL App (1st) 122918, ¶ 55. The first step of any plain error inquiry
asks whether an error occurred (id. ¶ 56), and should no error be found, we need go no further.
¶ 55 We presume the trial court knows the law and applies it properly, absent affirmative
evidence to the contrary. People v. Virella, 256 Ill. App. 3d 635, 638 (1993). There must be
“strong affirmative evidence” to rebut the presumption, and “[t]he decision of the circuit court
will not be reversed based on an isolated statement.” People v. Weston, 271 Ill. App. 3d 604, 616
(1995). Significantly, immediately before the trial court said “more likely than not,” it repeated
the proper standard of “substantially probable” twice. Defining the term “ ‘substantially
probable’ ” to mean “ ‘much more likely than not’ ” was no more than a demonstration that the
phrase “ ‘substantially probable’ ” was easily understood and did not require guesses as to its
meaning or application. Bailey, 317 Ill. App. 3d at 1086. In other words, the court’s ease in
defining “ ‘substantially probable’ ” was evidence that the term was not vague. Id. Our review of
the entire record, along with the trial court’s statements, assures us that the court understood that
there had to be a substantial probability that Gavin was likely to reoffend. The court’s statement
as to the synonymic phrase for “substantial probability” does not shake that assurance.
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No. 1-18-0881
¶ 56 Even if we found error in applying the standard, remand would be unnecessary. Gavin
cites our supreme court’s decision in Reliable Fire Equipment Co. v. Arredondo, 2011 IL
111871, and contends that misapplication of the correct legal test requires a remand for a new
trial. Reliable, though, is distinguishable. In Reliable, the entire trial court proceeding had been
governed by the then-prevailing law in the Second District. See id. ¶ 46 (“the parties presented
their evidence and fashioned their arguments based on the appellate court’s rigid and preclusive
*** test”). The supreme court in Reliable modified the appellate court’s test. Id. ¶ 43. Because
the parties had oriented their litigation strategies around a test that our supreme court refashioned
on appeal, remand was necessary to allow the parties to provide supplemental evidence and
argument. Id. ¶ 46. By contrast, here, the parties prepared for trial and questioned the witnesses
with the correct standard. And we do not discern prejudice from the trial court’s misstatement.
See In re Detention of Traynoff, 358 Ill. App. 3d 430, 441 (2005) (requiring showing of prejudice
from misstatement). Accordingly, the State presented sufficient evidence to prove Gavin an SVP
under the correct standard (“much more likely than not”).
¶ 57 Evidentiary Error
¶ 58 Gavin’s final argument disputes the trial court’s admission of Dr. Tsoflias’s testimony
that, in hindsight, Gavin’s likelihood of reoffending in between his third and fourth criminal
offense was 100%. Gavin argues the trial court’s concern with Gavin’s present-day likelihood of
recidivism was irrelevant. The State responds that the evidence revealed that the actuarial tables
are only estimates that will be shown to be either over- or under-estimates in hindsight. The State
adds that it was relevant to show Gavin’s increasing risk over time. Alternatively, the State
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No. 1-18-0881
argues that Gavin was not prejudiced. We agree with Gavin that the evidence was irrelevant but
agree with the State that the error was not prejudicial.
¶ 59 The admission of evidence falls within the discretion of the trial court; we will not
reverse absent a showing of an abuse of discretion. In re Detention of Melcher, 2013 IL App
(1st) 123085, ¶ 42. Gavin argues the trial court erred because evidence of his past recidivism rate
was irrelevant. Evidence is relevant if it has “ ‘any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than it
would be without the evidence.’ ” Id. (quoting Ill. R. Evid. 401 (eff. Jan. 1, 2011)).
¶ 60 To determine relevancy, we must be precise in the description of the evidence. We have
little trouble concluding that Gavin committed a fourth sexual offense and committed that
offense while on parole for the third, which relates to the question of his likelihood to reoffend.
We fail to see, however, the relevance of describing the likelihood that Gavin would commit his
fourth offense in statistical terms. Looking back one could say that the likelihood that the action
took place is 100%. But Gavin’s recross-examination of Dr. Tsoflias reveals the futility of
describing past events in this way. Dr. Tsoflias admitted that Gavin’s commission of his fourth
offense, while a statistical guarantee in hindsight, was not a guarantee at the time of his release
from prison for this third offense. In other words, the fact that he was 100% likely to reoffend in
hindsight had nothing to do with understanding his likelihood to reoffend at the time he was
released.
¶ 61 But we do not agree that the error prejudiced Gavin. Dr. Tsoflias’s initial answer to the
State’s question occupies one sentence of trial transcript spanning hundreds of pages. Gavin’s
counsel went on to clarify Dr. Tsoflias’s answer, eliciting this:
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No. 1-18-0881
“Q. So you’re not saying that when he was released after his third offense
that his risk at that time was 100 percent, right?
A. No, I’m not saying that that was his static risk. I’m saying in hindsight,
looking backwards, it was 100 percent likely that he—it was 100 percent that he
offended.”
As we have said, the likelihood of occurrence for every action that took place in the past is
100%. Dr. Tsoflias’s clarification that the 100% figure did not represent Gavin’s risk at the time
he was released for his third offense clarifies the initial testimony.
¶ 62 Although we conclude that the trial court erred in admitting Dr. Tsoflias’s testimony
regarding the 100% likelihood that Gavin would reoffend between his third and fourth offenses,
Gavin’s counsel eliminated any possibility of prejudice.
¶ 63 Affirmed.
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No. 1-18-0881
No. 1-18-0881
Cite as: In re Commitment of Gavin, 2019 IL App (1st) 180881
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 06-CR-
80009; the Hon. Steven G. Watkins, 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 Evan B. Elsner,
Appellee: Assistant Attorneys General, of counsel), for the People.
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In re Commitment of Gavin
Court: Appellate Court of Illinois
Date filed: 2019-09-23
Citations: 2019 IL App (1st) 180881
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