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No. 2--02--1382

JUSTICE BYRNE delivered the opinion of the court:

The trial court found respondent, Alan Field, to be a sexually violent person pursuant to theSexually Violent Persons Commitment Act (the Act) (725 ILCS 207/1 et seq. (West 2000)) andordered him committed to a Department of Human Services (DHS) treatment facility indefinitely. Before the trial, the court granted respondent a hearing under Frye v. United States, 293 F. 1013(D.C. Cir.1923), to determine the admissibility of certain actuarial instruments the State's experts usedto predict the likelihood that respondent would reoffend. The court found the instruments admissibleand permitted the experts to testify to their results. On appeal, respondent contends that (1) the trialcourt abused its discretion in denying his motion to exclude the evidence under Frye and (2) trialcounsel was ineffective for failing to present evidence at the hearing to show that the instrumentswere unreliable and experimental. We affirm, concluding that the trial court committed harmlesserror in admitting the evidence of the actuarial instruments at trial.

FACTS

Respondent pleaded guilty to aggravated criminal sexual abuse and aggravated criminal sexualassault, and the trial court imposed concurrent five- and eight-year prison terms. On July 22, 1999,three days before respondent's scheduled mandatory supervised release, the State filed a petition tocommit respondent pursuant to section 40 of the Act (725 ILCS 207/40 (West 2000)). The petitionalleged that respondent suffered from the following mental disorders: (1) pedophilia, sexuallyattracted to females, nonexclusive type and (2) antisocial personality disorder. The State alleged thatrespondent was dangerous to others because his mental disorders created a substantial probability thathe would engage in future acts of sexual violence. The State supplemented the petition with a mentalhealth evaluation prepared by Dr. Marc Levinson, a clinical psychologist.

The trial court appointed the Boone County public defender's office as respondent's counseland Dr. Donald Pearson as respondent's clinical expert. On January 19, 2001, respondent moved tobar expert testimony regarding the results of certain actuarial instruments utilized to predict thelikelihood that respondent would reoffend. Respondent challenged the Hanson-Bussiere meta-analysis, the Rapid Risk Assessment of Sexual Offense Recidivism (RRASOR), the Static-99, and theMinnesota Sex Offender Screening Tool-Revised (MnSOST-R). Respondent argued that the validityand reliability of these tests have not been established and that the tests have not been accepted bythe scientific community. Respondent concluded that the tests failed to meet the standards foradmissibility set forth in Frye.

The trial court conducted a Frye hearing on January 25, 2001. Only one witness testified: Dr.Levinson, the State's expert who prepared the evaluation on which the petition was based. Dr.Pearson, respondent's expert, and Dr. Heaton, another State expert, were present, but neithertestified. We need not discuss the reliability of the MnSOST-R results because they were notintroduced at the subsequent hearing on the petition.

Dr. Levinson testified that meta-analysis refers to an actuarial instrument developed by Drs.Hanson and Bussiere. The instrument became available in 1996. In 1998, it was published in a peerreview journal, the Journal of Consulting and Clinical Psychology. Levinson opined that the meta-analysis is generally accepted in the field of assessing the risk of sex offender recidivism. Levinsonused the instrument as part of respondent's evaluation on May 27, 1999.

The meta-analysis is a table of 22 factors that statistically correlate with sexual offenserecidivism. The correlations are based on a survey of 61 studies completed from 1943 to 1995, whichinvolved approximately 29,000 sexual offenders in several countries. According to Levinson, eachof the 22 factors had been shown to be statistically significant in at least three of the studies. Levinson acknowledged on cross-examination that all assessment instruments are susceptible toreporting false positives and that the instruments are likely to be revised and improved over time.

Dr. Levinson also used the RRASOR to evaluate respondent. The instrument becameavailable in 1997 and was devised by the same Dr. Hanson who published the meta-analysis with Dr.Bussiere. The RRASOR is a list of 4 of the 22 meta-analysis factors that Dr. Hanson designated aseasily identifiable and reliable risk predictors. The RRASOR factors are (1) the number of priorcharges or convictions of sexual offenses; (2) the offender's age; (3) whether the sexual offenseincluded male victims; and (4) whether the offender has ever been married. The RRASOR wasstandardized with a sample of 500 offenders and then cross-validated with another sample todetermine whether the results were replicable and reliable. Dr. Levinson believed that the test wasconsidered reliable in the scientific community. He also stated that the RRASOR is widely used byprofessionals who evaluate recidivism risk in sex offenders.

On cross-examination, respondent's counsel referred Dr. Levinson to a 1997 book entitled"Manual for Sexual Violence Risk 20, Guidelines for Assessing Risk of Sexual Violence." Dr.Levinson acknowledged that the book stated that there was no evidence that the RRASOR has"predictive validity with respect to sexual violence."

Dr. Levinson testified that the Static-99 is another actuarial instrument that he used toevaluate respondent on May 27, 1999. The Static-99 was developed by Drs. Hanson and Thornton,and it became available in 1999. It combines the RRASOR factors with a scale that Dr. Thorntondeveloped in England. The authors cross-validated the Static-99 scores with an independent datasample to show that the predictions were reliable across different samples. Dr. Levinson believed thatthe Static-99 slightly improved upon the RRASOR as to the correlation between the scores andrecidivism. He opined that the Static-99 is generally accepted in the community of professionals whoevaluate sex offenders for risk of recidivism.

The trial court found that the instruments were admissible under Frye, concluding that eachis generally accepted in the psychological community that deals with sex offenders. The court thenheard the petition to declare respondent sexually violent.

Dr. Levinson testified that he reviewed respondent's master file before the evaluation. Respondent told Dr. Levinson that he understood the purpose of the interview and knew that hecould decline to participate. Dr. Levinson based his evaluation on the Hare Psychopathy Checklist-Revised. Dr. Levinson learned that respondent had grown up in the Rockford area, attended publicschools, and graduated from high school after struggling academically. As an adult, respondent wasconsistently employed, and his parents were hard-working, responsible members of the community.

Respondent told Dr. Levinson that he committed his first sexual offenses at age 12. Respondent told another psychologist that he victimized approximately 30 children, but he told Dr.Levinson that he "directly offended [only 15 or 20] in a hands-on manner." The victims were girlsfrom 4 to 12 years old. Respondent was sexually aroused from fondling their vaginas. Respondentstated that he would "back off" if the girl resisted overtly.

Respondent was 42 years old when he was arrested in September 1994 for the first sexualoffense of which he was convicted: the aggravated criminal sexual abuse of two girls who were sevenand eight years old. Respondent placed his hands on their vaginas at least 10 times during severalvisits to their home. The presentence investigation report indicated that respondent acknowledgedthat he was sick and could not stop offending.

Respondent was arrested again in October 1995 for the aggravated criminal sexual assault ofa girl less than 12 years old. Respondent befriended her family and took the girl on outings over athree-year period. He was convicted of inserting his finger into the girl's anus.

Respondent had had two adult girlfriends and proposed marriage to each, but both declined. Respondent never married or formed a long-term commitment to a sexual partner of his own age. Respondent told Dr. Levinson that his decision not to marry was partially motivated by his fear thathe would molest daughters who might be born to the relationship.

Based on the Diagnostic and Statistical Manual of Mental Disorders (DSM IV), Dr. Levinsondiagnosed respondent as suffering from pedophilia, sexually attracted to females, nonexclusive type. Dr. Levinson also diagnosed respondent as having antisocial personality disorder, which ischaracterized by a pattern of disregard for social rules and conventions, and a long-standing historyof behavior that could be grounds for arrest. Dr. Levinson cited respondent's history of molestingchildren since the age of 12, his two arrests for driving under the influence (DUI) committed duringhis late teens and early twenties, and his juvenile arrests for sniffing glue and for breaking into afactory to steal soda and candy bars. Dr. Levinson did not diagnose respondent as alcohol orsubstance dependent, but he believed that respondent suffers from a mental disorder that affects hisemotional or volitional capacity and predisposes him to future sexual offenses. Respondent told Dr.Levinson that he had tried to stop his physical attraction to young people.

In reaching his conclusions, Dr. Levinson "looked particularly" at the 22 risk factors of themeta-analysis. Respondent exhibited seven factors: (1) admitted sexual offenses before his currentconvictions; (2) deviant sexual arousal from prepubescent girls; (3) sexual offenses against personsunrelated to him; (4) the absence of marriage to or cohabitation with an age-appropriate sexualpartner; (5) first offense at a very young age; (6) failure to complete a sex offender treatmentprogram; and (7) a personality disorder, particularly antisocial personality disorder. Dr. Levinsonopined that the meta-analysis indicated that it is "substantially probable" that respondent will engagein future sexual violence because he suffers from a mental disorder that predisposes him. "Substantially probable" means "much more likely than not."

On February 1, 2001, Dr. Heaton, another expert for the State, testified that he reviewedrespondent's records, administered psychological tests on August 9, 1999, and interviewedrespondent on August 21, 1999. Dr. Heaton concluded that respondent is self-centered, immature,needy, compliant, defensive, and impulsive. Respondent displays average intelligence, low self-esteem, and possibly an alcohol or substance abuse problem. Respondent admitted molestingnumerous children, and Dr. Heaton believed that respondent had limited relationships with adultwomen because he had suffered from erectile dysfunction since he was 25 or 26 years old. Dr.Heaton diagnosed respondent as suffering from pedophilia, sexually attracted to females,nonexclusive type, which meant that respondent would potentially pursue sexual relations with adultwomen. Dr. Heaton also diagnosed respondent with antisocial personality disorder, based onrespondent's glue sniffing, his DUI offenses, and his history of deceitful offenses against children. Dr.Heaton used the Hanson-Bussiere meta-analysis and the RRASOR in reaching his conclusions.

Dr. Heaton stated that respondent exhibited at least six of the Hanson-Bussiere meta-analysisrisk factors: (1) prior sexual offenses, (2) prior criminal record of any kind, (3) early onset of sexualoffending, (4) extrafamilial victims, (5) existence of any personality disorder, and (6) existence ofantisocial personality disorder, in particular. Dr. Heaton found that respondent exhibited two of thefour RRASOR risk factors: (1) prior sexual offenses, and (2) extrafamilial victims. In his August 23,1999, report, Dr. Heaton stated that there was a "substantial probability" that respondent wouldsexually reoffend. Since submitting the report, Dr. Heaton reviewed respondent's treatment progressnotes and spoke with respondent and the treatment providers. Dr. Heaton's opinion had not changed,because the risk factors persisted and nothing had been done that would significantly reducerespondent's risk of reoffending.

On cross-examination, Dr. Heaton acknowledged an article written by Drs. Hanson andBussiere in which they wrote that the penile plethysmograph test, which measures a person's sexualarousal to various stimuli, is the strongest predictor of recidivism among the meta-analysis factors. Dr. Heaton did not subject respondent to the test because respondent's history of erectile dysfunctionwould obscure the results. Dr. Heaton believed that respondent can control his conduct at a specificmoment, but that his fantasies and urges affect his ability to choose not to molest prepubescent girls.

Dr. Pearson, respondent's expert, testified that he evaluated respondent in March 2000. Respondent submitted to a penile plethysmograph test, during which he responded to mature womenbut not young children. Dr. Pearson ordered the test, but he did not know who administered it. Thetesters reported that they thought that respondent faked his response and that the results wereambiguous because respondent had an erection that did not dissipate.

Dr. Pearson administered several psychological tests, including the Bumby, the Bays, and theFreeman-Longo tests. The Bays test and respondent's record indicated that he posed a moderate riskof reoffending. Respondent fit the criteria for pedophilia, but Dr. Pearson could not be certain untilan accurate plethysmograph could be completed. Dr. Pearson did not use the RRASOR because itsvalidity and reliability were questioned in the profession. Dr. Pearson believed that respondentneeded help and supervision but could control his urges and behavior. On cross-examination, thedoctor characterized the risk of reoffending as "moderate to minimal."

The trial court found that the State had proved beyond a reasonable doubt that respondentwas a sexually violent person. After the court denied respondent's motion for a new trial and orderedhim committed to the DHS, respondent timely appealed.

ANALYSIS

Respondent initially contends that the trial court abused its discretion in permitting the State'sexperts to testify about certain actuarial instruments they used to predict the likelihood thatrespondent would reoffend. The State responds that the instruments are not subject to a Fryeanalysis, and that, even if Frye applies, the State established the instruments' admissibility.

In Illinois, the admission of expert testimony is governed by the Frye standard: whether themethodology or scientific principle upon which the opinion is based is sufficiently established to havegained general acceptance in the particular field in which it belongs. Donaldson v. Central IllinoisPublic Service Co., 199 Ill. 2d 63, 77 (2002). General acceptance of a methodology does not requireuniversal acceptance, and the Frye test applies only if the scientific principle, technique, or test offeredby the expert to support his or her conclusion is "new" or "novel." Donaldson, 199 Ill. 2d at 78-79. General acceptance and reliability are not two separate questions. The determination of the reliabilityof an expert's methodology is naturally subsumed by the inquiry into its general acceptance in thescientific community. Donaldson, 199 Ill. 2d at 81.

This court has held that the actuarial instruments at issue in this case are scientificmethodologies that are admissible only if they pass the Frye test. In re Commitment of Lourash, 347Ill. App. 3d 680, 686, (2004) (Hanson-Bussiere meta-analysis and MnSOST-R); In re Detention ofTraynoff, 338 Ill. App. 3d 949, 964 (2003) (RRASOR, Static-99, and MnSOST-R); People v. Taylor,335 Ill. App. 3d 965, 977 (2002) (RRASOR and Static-99). In Taylor, we concluded that theactuarial instruments, which supplemented and went beyond the experts' "clinical judgment, training,and expertise," qualified as scientific methodologies that are admissible only if generally accepted inthe relevant scientific community. Taylor, 335 Ill. App. 3d at 977. We held that the State had notmet its burden (Taylor, 335 Ill. App. 3d at 978), but we acknowledged that in a future case, the Statemight be able to prove that the actuarial instruments meet the Frye criteria. Taylor, 335 Ill. App. 3dat 980.

We decline the State's invitation to reconsider Taylor and its progeny and to hold that theactuarial instruments are not subject to the Frye test. The Third District and at least one panel of theFourth District have adopted our reasoning (see In re Detention of Hargett, 338 Ill. App. 3d 669, 675(2003) (Third District); In re Detention of Bolton, 343 Ill. App. 3d 1223, 1229 (2003) (FourthDistrict)). However, other panels of the Fourth District have departed from Taylor. See In reCommitment of Stevens, 345 Ill. App. 3d 1050 (2004); In re Detention of Erbe, 344 Ill. App. 3d 350(2003). In the interest of stare decisis, we adhere to our earlier holdings, noting that the supremecourt is poised to resolve the split in authority (see People v. Simons, No. 5--02--0579 (2003)(unpublished order under Supreme Court Rule 23), leave to appeal granted, No. 97026 (December3, 2003)).

We next address respondent's contention that the State failed to meet its burden of provingthat the RRASOR and the Static-99 instruments had achieved general acceptance in the scientificcommunity. We note that, on appeal, respondent does not challenge the admission of the Hanson-Bussiere meta-analysis evidence. Like in this case, the trial court in Taylor granted the respondenta Frye hearing during which the State's experts opined that the RRASOR and the Static-99 weregenerally accepted in the professional community. The evidence in Taylor indicated that theRRASOR and the Static-99 had been the subject of only one article in a peer review journal, and oneexpert asserted that the Static-99 had been cross-validated by other researchers. Because the Statefailed to offer "evidence of any significant peer review of the validity and reliability of [the]instruments," this court concluded that the RRASOR, the Static-99, the MnSOST, and the MnSOST-R were still in experimental stages and that the validity of the instruments had not been established. Taylor, 335 Ill. App. 3d at 978.

At the Frye hearing in this case, Dr. Levinson broadly opined that the RRASOR and theStatic-99 had gained general acceptance among psychologists who evaluate the risk of sex offenders'recidivism. He testified that the authors of the RRASOR standardized the instrument with a sampleof 500 offenders and then cross-validated it with another sample. Dr. Levinson also stated that theauthors of the Static-99 cross-validated scores from that instrument with an independent data sampleto show that the predictions were reliable across different samples. However, the State offered noevidence of peer review of either the RRASOR or the Static-99. Moreover, during the cross-examination of Dr. Levinson, respondent's counsel introduced a 1997 text stating that there was noevidence of the RRASOR's predicative validity. In agreement with Taylor, we conclude that the Statefailed to establish that the RRASOR and Static-99 had gained general acceptance in the psychologicalcommunity that evaluates the risk of sex offenders' recidivism.

However, the erroneous admission of the actuarial instruments will not require a reversal ifthe error was harmless beyond a reasonable doubt. Lourash, 347 Ill. App. 3d at 687. In Lourash,the State's experts opined at trial that the respondent, a sex offender, was substantially likely toreoffend. The experts cited the Hanson-Bussiere meta-analysis, the Static-99, and the MnSOST-R,and we held that the trial court erred in denying the respondent a Frye hearing to evaluate theinstruments. However, we further concluded that the error was harmless because, even if therespondent had prevailed at a Frye hearing, the result of the proceedings would have been the samebecause the instruments were not "crucial" to the expert's conclusion, and the evidence based onundisputed scientific methodologies amply supported the conclusion. Lourash, 347 Ill. App. 3d at687.

Dr. Levinson testified that he diagnosed respondent with antisocial personality disorder andpedophilia, sexually attracted to females, nonexclusive type. Dr. Levinson also relied upon theHanson-Bussiere meta-analysis, which is an actuarial instrument that respondent does not challenge. Dr. Levinson opined that respondent exhibited 7 of the 22 meta-analysis factors: (1) admission ofsexual offenses before his current convictions; (2) deviant sexual arousal from prepubescent girls; (3)sexual offenses against persons unrelated to him; (4) the absence of marriage to or cohabitation withan age-appropriate sexual partner; (5) first offense at a very young age; (6) failure to complete a sexoffender treatment program; and (7) a personality disorder, particularly antisocial personalitydisorder. Respondent admitted a 30-year pattern of molestation during which he fondled the vaginasof 15 to 20 girls who were 4 to 12 years old at the time. Respondent's presentence investigationreport indicated that he told a psychologist that he knew he was sick and could not help offending. On redirect examination, Dr. Levinson stated that, in addition to the meta-analysis, he relied upon allof his experience in interviewing respondent and evaluating his clinical history.

Dr. Heaton also diagnosed respondent with pedophilia and antisocial personality disorder, andthe doctor identified six meta-analysis factors indicating that respondent was very likely to reoffendif released. Moreover, respondent's own expert admitted that respondent fit the criteria for pedophiliaand that he presented a minimal to moderate risk of reoffending. Therefore, we hold that, althoughthe trial court erroneously admitted evidence regarding the RRASOR and the Static-99, the error washarmless beyond a reasonable doubt because the evidence unrelated to those instruments supportedthe opinions of the State's experts. See Lourash, 347 Ill. App. 3d at 687.

Finally, respondent argues that his trial counsel was ineffective for failing to present evidenceat the Frye hearing to show that the RRASOR and the Static-99 were unreliable and experimental. To prevail on a claim of ineffective assistance of counsel, a defendant must show both that (1)counsel's performance was deficient, and (2) the deficient performance prejudiced the defendant suchthat he was deprived of a fair trial. In re Detention of Hughes, 346 Ill. App. 3d 637, 646 (2004). Thefailure to satisfy either prong of the test precludes a finding of ineffective assistance of counsel. Hughes, 346 Ill. App. 3d at 646. We agree with respondent that the instruments were inadmissible. However, we need not address his claim of ineffective assistance of counsel because we alsoconclude, for the reasons already stated, that the admission of the instruments was harmless, andtherefore respondent was not prejudiced by his attorney's failure to better challenge their admissibility.

For the preceding reasons, the judgment of the circuit court of Boone County is affirmed.

Affirmed.

HUTCHINSON and GILLERAN JOHNSON, JJ., concur.