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In re Detention of Melcher

Court of Appeals of Illinois, First District, Second Division

December 17, 2013

Mark Melcher, Respondent-Appellant. The People of the State of Illinois, Petitioner-Appellee,

Rule 23 Order filed October 29, 2013

Rule 23 Order withdrawn December 3, 2013

Held [*]

The order committing respondent as a sexually violent person was upheld where respondent’s failure to make an adequate offer of proof forfeited his claim that he was improperly barred from presenting proposed lay witnesses as to his rehabilitation, he did not show how he was prejudiced by the State’s failure to include all of the diagnoses alleged at trial in the petition, the State’s experts were properly allowed to testify as to the diagnosis of paraphilia not otherwise specified, nonconsenting females, without a Frye hearing, respondent forfeited his claim that no dispositional hearing was held before the order of commitment was entered, and the evidence established beyond a reasonable doubt that he was a sexually violent person.

Appeal from the Circuit Court of Cook County, No. 10-CR-80011; the Hon. Michael McHale, Judge, presiding.

Law Office of Stephen F. Potts, of Des Plaines (Stephen F. Potts, of counsel), for appellant.

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and Michael M. Glick and Lindsay Beyer Payne, Assistant Attorneys General, of counsel), for the People.

Panel PRESIDING JUSTICE QUINN delivered the judgment of the court, with opinion. Justices Harris and Simon concurred in the judgment and opinion.



¶ 1 Following a jury trial, respondent Mark Melcher was found to be a sexually violent person (SVP) under the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 et seq. (West 2012)), then committed to the custody of the Illinois Department of Human Services (DHS). On appeal, respondent contends: (1) that he was denied the right to present a defense when the trial court barred him from calling lay witnesses; (2) that the State should not have been allowed to seek commitment for psychological diagnoses not alleged as mental disorders in its petition; (3) that the trial court erred in admitting testimony regarding the diagnosis of paraphilia not otherwise specified (PNOS), nonconsenting females, without a Frye hearing; (4) that the trial court erred by not holding a dispositional hearing; and (5) that the State failed to prove he was an SVP beyond a reasonable doubt. For the following reasons, we affirm.


¶ 3 On May 18, 2010, the State filed a petition alleging respondent to be a sexually violent person. The petition cited respondent's three prior convictions for aggravated criminal sexual assault and alleged that he suffered from "Paraphilia, Not Otherwise Specified, Mixed features, Non Consenting Persons." Counsel was appointed to represent respondent. On June 7, 2010, after a hearing, the trial court found probable cause to believe that respondent was a sexually violent person. The matter was then set for trial.

¶ 4 Prior to trial, the State filed a motion in limine to bar the testimony of six lay individuals listed as witnesses by respondent. Respondent claimed that these witnesses could testify to his "personal background, penitentiary background, likelihood to re-offend, religious conversion and mental condition." At a hearing on the State's motion, the court asked counsel for respondent how the testimony of these witnesses was relevant. Counsel argued that "these persons can talk about who [respondent] is now as a person and what changes that he's gone through in his personality and his conduct when he was incarcerated in the Department of [C]orrections." The court said, "Sounds like character evidence to me. How is it not character evidence or is it?" To which counsel replied, "I think that's what we're talking about, Judge. I think we're talking about [respondent] as a person and who he is or whether he has changed from the sexual predator that he was when he went into the Department of Corrections into a different person." Ultimately, the court granted the State's motion, noting that there was a "strong possibility" that the proposed testimony would confuse the jury and that counsel was "basically talking about character evidence and I don't think in this proceeding that character evidence is of a degree of relevance that should be admissible." The court informed counsel, however, that it would revisit its ruling in the event a lay witness could rebut a specific fact relied on by a witness.

¶ 5 Respondent filed a motion in limine before trial as well seeking to bar the State's experts from testifying about a diagnosis of "Paraphilia Not Otherwise Specified Sexually Attracted to Nonconsenting Females, Nonexclusive Type, " pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). He argued that PNOS nonconsent is not generally accepted as a valid diagnosis and cannot be applied in a manner that produces reliable results. The trial court disagreed and denied the motion, noting that "the DSM-IV does contain the diagnosis of paraphilia NOS." The court also cited the case of McGee v. Bartow, 593 F.3d 556 (7th Cir. 2010), stating, "that court while acknowledging there is a debate in the scientific community regarding this diagnosis felt that it has still gained enough acceptance in the scientific community that it is proper to be admitted as a diagnosis." Its ruling notwithstanding, the court informed the parties that counsel would be allowed "to cross on the debate within the scientific community if he so desires."

¶ 6 Respondent's jury trial was held in late August 2012. At that trial, the State called Dr. Raymond Wood as an expert in the field of clinical and forensic psychology, specifically in the areas of sex offender evaluations, diagnosis, and treatment. Dr. Wood conducted a clinical evaluation of respondent to determine whether he was an SVP and prepared a report dated August 19, 2010.

¶ 7 Dr. Wood initially testified to the details of respondent's criminal history. He testified that respondent's first sexual offense occurred in 1986. In that incident, respondent accosted a 17-year-old female as she was walking to the McDonald's where she worked, dragged her into a wooded area, and attempted intercourse and oral sex. She eventually escaped when respondent walked away, possibly to urinate. Later, she went back to the scene looking for some missing items and found respondent's wallet. Respondent was arrested and gave a statement to police in which he attributed his actions to intoxication.

¶ 8 While out on bond for that offense, respondent committed two additional offenses. In October 1986, a woman returned to her car after shopping in a White Hen Pantry, looked in the backseat, and saw respondent lying on the floor facedown. She went back into the store and called police, and respondent got out of her car and drove off in another car. He was arrested by police, who observed his car straddling lanes, weaving, and hitting a curb.

¶ 9 In February 1987, at the age of 30, respondent was arrested for another sexual assault. In that case, a 20-year-old victim was in her car after work with the door closed when respondent got in and told her to "shut up." After a struggle, he told her that "he would not hurt her if she would just put her arms around him." Respondent then fondled her breasts, pulled down her underwear, and inserted his fingers into her vagina. The victim later convinced respondent that she needed to get in the backseat, at which point she escaped and began to scream for help. A witness heard the scream, chased respondent, and was able to hold him until police arrived.

¶ 10 Respondent pleaded guilty to the first sexual assault and the one in February 1987 and received seven-year sentences in both cases. Dr. Wood testified that he spoke with respondent about these offenses and that respondent attributed them to his intoxication.

¶ 11 Respondent was paroled in May 1990. On July 15, 1990, respondent kidnapped a seven-year-old child from her home and sexually assaulted her in a field. He pleaded guilty to three counts of aggravated criminal sexual assault, home invasion, and aggravated kidnapping, and was sentenced to concurrent, respective terms of 40, 40, and 15 years' imprisonment. Dr. Wood testified that prior to that incident, the Alsip police department was also investigating a similar incident in which respondent had attempted to lure an eight-year-old into the woods under the pretext of looking at "Sacadias." Additionally, on July 20, 1990, the Midlothian police department received a report from a 35-year-old woman that respondent had grabbed her arm when she tried to leave his home. Dr. Wood spoke with respondent about these three incidents, and respondent said that the incident on July 20, 1990, "was 90 percent made up by the police and that the victim colluded with them in that." He admitted to the incident on July 15, 1990, however, and again attributed his actions to drinking.

¶ 12 Dr. Wood testified that respondent has reported 172 victims: including 12 sexual assaults, 11 attempted sexual assaults, and incidents of voyeurism and frottage. He has also reported once wrapping a belt around his victim's throat, as well as an uncharged offense where he hid in a woman's car, had her drive to another location, and sexually assaulted her. Dr. Wood noted that, since 1992, respondent has received 32 disciplinary reports while in the Illinois Department of Corrections (IDOC): 21 for minor rule infractions and 11 for major rule infractions.

¶ 13 Dr. Wood testified that respondent has a history of alcohol and cannabis abuse for which he has previously received substance abuse treatment. Dr. Wood also testified that respondent has not attended any sex offender treatment in the community or in IDOC. He is now in sex offender treatment at the treatment and detention facility and he is at phase two of a five-phase treatment plan. Dr. Wood testified that completion of sex offender treatment is important because it helps reduce recidivism and that no other methods or processes reliably decrease the risk of an SVP.

¶ 14 In June 2010, Dr. Wood administered three psychological tests to respondent, including the second version of the Minnesota Multiphasic Personality Inventory (MMPI-2), and the second version of the Multiphasic Sex Inventory (MSI-2). The MMPI-2 indicated that respondent "was very engaged in image management" and "wanted to present himself as an almost impossibly good individual." The MSI-2 similarly indicated "a fake good profile, " i.e., respondent "was attempting to put an improbably better foot forward." These results suggested to Dr. Wood that respondent had sexual interest and arousal to children and that he "could not admit or would not admit that he had attempted to manipulate a child for sexual purposes." Dr. Wood testified that respondent had "beliefs and attitudes that were ...

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