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People v. Varner

August 09, 2000


Appeal from the Circuit Court of Lake County. No. 98-MR-441 Honorable Raymond J. McKoski, Judge, Presiding.

The opinion of the court was delivered by: Justice Rapp

Respondent, Herbert Varner, appeals from a jury verdict finding him to be a sexually violent person and the trial court's entry of a commitment order pursuant to the Sexually Violent Persons Commitment Act (the Act) (725 ILCS 207/1 et seq. (West 1998)). On appeal, respondent challenges the constitutionality of the Act. Respondent also contends that the trial court erred in ordering him committed to institutional care in a secure facility and that he was denied the effective assistance of counsel. We affirm.

On August 18, 1998, the State initiated proceedings to commit respondent indefinitely to the Department of Human Services (DHS) pursuant to the Sexually Violent Persons Commitment Act (725 ILCS 207/1 et seq. (West 1998)). Respondent was an inmate in the Department of Corrections (DOC) at the Sheridan Correctional Center and was scheduled for entry into mandatory supervised release on August 22, 1998, following the completion of his sentence for aggravated criminal sexual assault.

On August 20, 1998, the trial court held a hearing to determine whether there was probable cause to believe that respondent was a sexually violent person within the meaning of the Act. Based on evidence presented at the hearing, the trial court determined that probable cause existed and ordered respondent transferred to a DHS facility for evaluation to determine whether he was a sexually violent person. See 725 ILCS 207/30 (West 1998). Also on August 20, the State filed its demand for a jury trial pursuant to section 35(c) of the Act. 725 ILCS 207/35(c) (West 1998).

On October 1, 1998, the trial court ordered that a mental health expert selected by respondent, Dr. Eric Ostrov, evaluate respondent at the county's expense. On October 20, respondent filed a motion seeking the dismissal of the State's petition, alleging the unconstitutionality of the Act. Respondent alleged that the Act deprived him of substantive due process and violated prohibitions against double jeopardy and ex post facto laws. The trial court denied respondent's motion.

A jury trial commenced on January 25, 1999. Dr. Marc Levinson, a DOC psychologist, testified that he evaluated respondent for the probable cause hearing. Levinson stated that he reviewed the contents of the DOC "Master File." The Master File also contained respondent's presentence report, which revealed that in 1982 he was convicted of "annoying [sic], molesting a child," and that in 1992 respondent was convicted of aggravated criminal sexual assault for performing sexual acts on his four-year-old niece. Respondent's mental health records indicated that he had been offered and had declined an opportunity to participate in group sex offender therapy.

Levinson also conducted a personal interview with respondent on June 25, 1998. With regard to his 1982 conviction, respondent denied that he committed the charged conduct, which involved a 10-year-old child. Respondent suggested that the child could have been abused by her mother's boyfriend. Levinson observed that respondent's explanation was inconsistent with the explanation he gave to the author of his 1992 presentence report; at that time respondent averred that he committed the conduct in 1982 but that he did so in his sleep, having mistaken the child for his wife.

According to Levinson, respondent also denied committing the conduct resulting in his 1992 conviction. Respondent told Levinson that a man who was living with him and his wife at the time and who smoked marijuana and drank may have committed the crime. Levinson again noted that respondent's denial was inconsistent with the account set forth in his presentence report, in which respondent stated that he committed the conduct but did so while asleep, mistaking his niece for his wife.

Levinson also noted that a statement of facts contained in the Master File revealed that there were additional allegations made in 1992 that respondent had molested another niece and his daughter. Respondent denied having sexual involvement with any children.

Levinson outlined two types of sex offender treatment programs offered by the DOC. One program is a 24-hour residential program involving placement in a special housing unit where peer interaction and counselors are available continuously. The other program is an outpatient program offered to inmates residing in ordinary cell blocks, involving group therapy and usually involving weekly meetings. Respondent did not participate in either program. According to Levinson, respondent said that he did not need sex offender treatment because he had not committed any sex offenses against children. When asked how he would prevent future occurrences of sex offenses, respondent stated that he would stay away from all women and all situations involving children.

Levinson diagnosed respondent as suffering from pedophilia and personality disorder. Levinson based his diagnoses on the Diagnostic Statistical Manual of Mental Disorders (DSM). The criteria set forth by DSM for diagnosing pedophilia are (1) that over a period of at least six months the individual has exhibited urges, fantasies, or behaviors of a sexually arousing nature involving prepubescent children; (2) that those urges, fantasies, or behavior cause significant personal distress or impairment in occupational or social functioning; and (3) that the individual is either at least 16 years old or at least 5 years older than the children involved.

Levinson opined that all three criteria were met in this case. First, Levinson noted that the 1982 and 1992 convictions were based on events that occurred more than six months apart. Second, the 1992 prosecution contributed to respondent's incarceration, the end of his marriage, the estrangement from his daughter, the loss of friendships, and the loss of ability to communicate with others concerning his experiences. The third criterion was met because at the time of the 1982 offense respondent was in his early 20s and the child was about 10 years old and at the time of the second offense respondent was in his late 20s and the child was 4 years old.

Levinson also explained his diagnosis of a personality disorder of a type not specifically defined in the DSM. Levinson stated his professional opinion that there is a substantial probability that respondent will engage in acts of sexual violence in the future if he is released. Levinson said his assessment of respondent included the consideration of recognized recidivist factors. Those factors included that respondent had a prior conviction of a sexual offense, his victims included a non-relative, his relationship with his mother had negative aspects, he was relatively young when he committed his first offense, he has a personality disorder, he has impulse and anger control problems, and he had refused sex offender treatment when offered. Levinson stated that, in his professional opinion, respondent's mental disorders increased the likelihood that he will offend again.

On cross-examination, Levinson acknowledged that not every child molester is a pedophile. Levinson also acknowledged that respondent had requested individual sex offender counseling and treatment while incarcerated but was turned down. When questioned about the criteria for pedophilia, Levinson stated that two occurrences were enough to satisfy the criteria.

Levinson also opined that respondent should, at least initially, be placed in a residential program for sex offender treatment. Levinson conceded that such a program would be similar to the residential programs provided by the DOC, but he acknowledged that the DOC did not assign respondent to a residential program during his incarceration.

Dr. Paul Heaton, a clinical psychologist employed by a group that contracts with DHS to perform evaluations for purposes of the Act, evaluated respondent on three occasions in 1998. Respondent told Heaton that his wife tried to get his daughter to charge him with sexual abuse to ensure that she would get custody of their daughter. Respondent denied ever abusing his daughter.

With regard to the 1982 case, respondent told Heaton that he pleaded guilty in order to avoid prison and that he was asleep when the abuse occurred and knew nothing about it. Heaton said that respondent's account was inconsistent with the fact that respondent had "groomed" the victim by sending her "love notes" and gifts before abusing her.

Using the same criteria as Dr. Levinson, Heaton diagnosed respondent as suffering from pedophilia. Heaton stated that recidivist risk factors present in this case were that respondent had child behavioral problems, a history of alcohol abuse, two prior sex offense convictions, anger problems, a victim who was not a relative, an elevated paranoia score, and a low motivation for treatment. Heaton opined that there was a substantial probability that respondent would reoffend due to his mental disorder.

On cross-examination, Heaton acknowledged that respondent's 1982 conviction was a misdemeanor. Heaton also opined that two incidents six years apart met the recurrent pedophilia criteria. Heaton acknowledged that respondent had requested and was denied individual counseling by DOC. Heaton opined that respondent should be placed in a secure locked facility and subjected to group therapy treatment. When asked by defense counsel about biological treatment such as the drug Depo Provera, Heaton stated that he viewed this approach as experimental and said that it was too soon to tell whether such drugs would be effective long term.

Dr. Eric Ostrov, a clinical psychologist and lawyer, testified for respondent. Respondent told Ostrov that he must have committed the offenses of which he was convicted but that he was not conscious of having done so. Ostrov opined that respondent did commit the crimes but cannot psychologically afford to admit it. Ostrov stated that respondent is not necessarily a pedophile. He opined that two isolated occurrences separated by several years did not meet the recurrent-sex-offenses requirement. According to Ostrov, one can be a child molester without being a pedophile.

Ostrov also assessed respondent in terms of recognizing recidivist risk factors. The factors found included that respondent had more than one conviction of a sex offense, one victim was a neighbor, he was young when ...

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