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In re Detention of White

Court of Appeals of Illinois, First District, Fifth Division

September 16, 2016

In re THE DETENTION OF PHILLIP WHITE
v.
Phillip White, Respondent-Appellant. The People of the State of Illinois, Petitioner-Appellee,

         Appeal from the Circuit Court of Cook County, No. 12 CR 80003 The Honorable Thomas Byrne, Judge Presiding.

          JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Justice Reyes concurred in the judgment and opinion. Presiding Justice Gordon specially concurred, with opinion.

          OPINION

          LAMPKIN JUSTICE

         ¶ 1 Respondent Phillip White, who previously had been convicted of sexually violent offenses, was found by a jury to be a sexually violent person and committed to the Illinois Department of Human Services (IDHS). On appeal, White argues (1) his commitment was improper because the diagnosis by the State's experts of other specified personality disorder with antisocial features did not qualify as a mental disorder pursuant to the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 et seq. (West 2014)), (2) the trial court erroneously rejected his proposed special interrogatory and thereby deprived him of the opportunity to test the jury's general verdict, and (3) the State failed to prove beyond a reasonable doubt that he was a sexually violent person where he had not manifested any symptoms of the alleged mental disorder for 30 years.

         ¶ 2 For the reasons that follow, we affirm the judgment of the circuit court.

         ¶ 3 I. BACKGROUND

         ¶ 4 This appeal arises from White's jury trial, which found him to be a sexually violent person under the Act and committed him to the IDHS for control, care, and treatment in a secure facility until such time as he was no longer a sexually violent person. The experts who testified at the trial used White's documented history of criminal convictions in 1980, 1985, and 1991 in formulating their opinions.

         ¶ 5 Specifically, in April 1980, White pled guilty to attempted rape, armed robbery, and aggravated battery. According to the record, he followed a woman off an elevated train, grabbed her around her throat, hit her several times, and dragged her into an alley. He said, "you know what I want b***, " tore off her pants and panties, and attempted to place his penis into her vagina. The police arrived and caught White as he fled the scene.

         ¶ 6 In September 1985, White pled guilty to aggravated criminal sexual assault. At the time of the assault, he was on parole for the 1980 offenses for approximately one year. According to the record, White and a female acquaintance were walking in a park, and White asked her to join him as he picked up a package. They went together to an apartment building, but no one answered the door upon their arrival. They went downstairs to the basement, and White tried to kiss the woman, but she refused his advances. White then grabbed her by the neck, choked her, hit her, cut her lip, and forced her into the basement. He told her, "I'm going to give you something to believe [the gossip about me being a rapist], " and then he undressed her and raped her.

         ¶ 7 In September 1991, White was convicted after a bench trial of armed robbery. At the time of this robbery, he was on parole for the 1985 sexual assault offense for approximately one year. According to the record, White followed a woman and her six-year-old daughter off a bus. When they approached an alley, White took out a knife and pressed it to the woman's throat. He took her purse and then proceeded to drag her into the alley. He fled when bystanders intervened and was later arrested. He received a 35-year sentence for this offense.

         ¶ 8 During his incarceration, he had some minor disciplinary issues and received "tickets, " although never for sexual violations. In 1993, he was found to have two dagger-like weapons in his possession at the Illinois Department of Corrections (IDOC). He pled guilty to unlawful use of a weapon by a person in the custody of the IDOC and was sentenced to six years' imprisonment, to be added to his 35-year sentence for the armed robbery offense.

         ¶ 9 In February 2012, the State petitioned to commit White as a sexually violent person under the Act on the basis of two mental disorders: paraphilia, not otherwise specified, nonconsenting persons, and personality disorder, not otherwise specified, with antisocial features. White's diagnosis at that time was based on the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM). In July 2014, the State amended its petition, revising the alleged mental disorders to reflect the updated wording of the fifth edition of the DSM (DSM-5) for the alleged disorders, i.e., other specified paraphilic disorder, nonconsenting females in a controlled environment (hereinafter os-paraphilic disorder, nonconsenting females), and other specified personality disorder with antisocial features (hereinafter os-antisocial personality disorder).

         ¶ 10 In February 2015, a jury trial was held on the State's petition to commit White as a sexually violent person. Expert testimony established that the Act defined a mental disorder as a congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence. See 725 ILCS 207/5(b) (West 2014).

         ¶ 11 The expert testimony established that the term paraphilia denoted any intense and persistent sexual interest other than sexual interest in genital stimulation or prepatory fondling with a phenotypically normal, physically mature consenting human partner. Paraphilia could be focused on a particular object of desire, like nonconsenting women in this case. A paraphilic disorder was a paraphilia that caused distress or impairment to the individual or the satisfaction of which entailed personal harm or risk of harm to others. The category other specified paraphilic disorder applied to presentations of a paraphilic disorder that caused distress or impairment in a person's functioning, but did not meet the specific criteria for any of the eight disorders that were outlined in the DSM-5. The DSM-5's criteria for a diagnosis of other specified paraphilic disorder, nonconsenting females in a controlled environment, required an individual to have recurrent intense sexually arousing fantasies, urges, or behaviors involving nonconsenting persons that impaired the individual's life over a period of at least six months. Here, the term controlled environment referred to White's incarceration in the IDOC and whether the opportunities for his alleged paraphilic behavior to manifest itself were unavailable to him.

         ¶ 12 According to the expert testimony concerning the DSM-5 diagnosis of os-antisocial personality disorder, the features indicative of a personality disorder predominate but do not meet the specific criteria of any of the personality disorders outlined in the DSM-5. A personality disorder affects an individual's characteristic way of thinking, managing his emotions, interacting with other people, or managing impulses. The term antisocial features meant the individual was willing to disregard the rights of others, violate rules, and social norms and continue to engage in criminal behaviors even after being sanctioned or incarcerated. Features indicative of this diagnosis include habitual criminal activities, violence, aggressiveness, and failure to take responsibility or demonstrate any remorse, empathy, or concern for the harm caused.

         ¶ 13 The State's evidence consisted of two expert witnesses in the area of forensic and clinical psychology, Drs. Allison Schechter and Edward Smith. Both doctors specialized in sex offender evaluations, had conducted a sex offender evaluation of White for the IDOC, and were qualified as experts in the areas of sex offender evaluation and risk assessment. They had reviewed documents from White's IDOC master file, which included police reports, witness reports, court documents, medical records, documents concerning White's disciplinary history, and other records. They also had reviewed White's criminal convictions from 1980, 1985, and 1991 and used that information to formulate their opinions. Although evaluators were required to ask the subject of the evaluation for an interview, such interviews were not necessary to make a diagnosis and an evaluation based on the subject's records only was complete and widely accepted when the subject chose not to participate in an interview. Drs. Schechter and Smith attempted to conduct clinical interviews with White, but he chose not to participate.

         ¶ 14 Dr. Schechter was a psychologist employed by Wexford Health Source, Inc., a private company that provided evaluation services for the IDOC. Although her 2012 report had been based on the fourth edition of the DSM, she updated that report in February 2014 using the DSM-5. She opined that White met the statutory criteria to be found a sexually violent person. She concluded, based on the facts of White's 1980 and 1985 convictions, that he suffered from both os-paraphilic disorder, nonconsenting females, and os-antisocial personality disorder. Furthermore, he had a girlfriend at the time of his 1980 and 1985 offenses and, thus, presumably had a consensual sexual outlet available to him. This indicated that White had a desire for sexual activity with nonconsenting women despite the availability of a consensual partner. Moreover, White was on parole for less than one year at the time of his 1985 offense, which suggested an inability to control his behavior. Dr. Schechter opined that White's convictions showed recurring and intense sexual arousal for a period of at least six months.

         ¶ 15 Dr. Schechter also considered White's 1991 armed robbery conviction in reaching her diagnoses. At the time of this robbery, White was on parole for about one year following the 1985 sex offense. Although the 1991 robbery was not a sexually violent offense for purposes of the Act, Dr. Schechter believed it was relevant to her diagnoses because it followed White's pattern of abducting an essentially lone woman in public and taking her to an isolated second location where he struggled with the victim. Because a witness had intervened in the 1991 incident, it was unknown whether it would have resulted in a sexual assault. According to Dr. Schechter, this pattern of behavior was consistent with the diagnoses of os-paraphilic disorder, nonconsenting females, and os-antisocial personality disorder. Dr. Schechter also opined that White's 1993 conviction for unlawful possession of a weapon in the IDOC was a further indication of his antisocial personality tendencies, i.e., difficulty complying with rules even in a controlled environment like prison.

         ¶ 16 Dr. Schechter testified that both os-paraphilic disorder, nonconsenting females, and os-antisocial personality disorder were congenital or acquired conditions that affected White's emotional or volitional capacity and predisposed him to commit future acts of sexual violence. A paraphilic disorder could be considered in remission if a person shows that he could be in the community for at least five years without demonstrating any of the associated behaviors. White's condition, however, could not be considered in remission because, regardless of his behavior while incarcerated, he was never out of prison for more than one year before reoffending. Dr. Schechter testified that her diagnoses for White of both os-paraphilic disorder, nonconsenting females, and os-antisocial personality disorder were mental disorders as defined by the Act.

         ¶ 17 On cross-examination, Dr. Schechter acknowledged that a diagnosis under the DSM-5 was not necessarily a mental disorder as defined by the Act. Further, she testified:

"Q. Is it your conclusion that the personality disorder you diagnosed in this case alone would be a mental disorder as defined by the [Act] or not?
A. Alone without the paraphilic disorder?
Q. Right.
A. If I had done an evaluation on a person that I only diagnosed with the personality disorder, I would not likely refer them for commitment.
Q. So is it fair to say that if somebody didn't find Mr. White suffered from other specified paraphilic disorder, that the personality disorder which you diagnosed him with would not be a mental disorder as defined by the [Act]?
A. That diagnosis alone, I would not refer somebody for commitment based on that diagnosis alone, no." On redirect ...

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