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In re Commitment of Gavin

Court of Appeals of Illinois, First District, First Division

September 23, 2019

Edward Gavin, Respondent-Appellant. The People of the State of Illinois, Petitioner-Appellee,

          Appeal from the Circuit Court of Cook County. No. 06 CR 80009 Honorable Steven G. Watkins, Judge, presiding

          Attorneys for Appellant: Michael R. Johnson, Kate E. Levine, and Ian C. Barnes, of Johnson & Levine LLC, of Chicago, for appellant.

          Attorneys for Appellee: Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, Solicitor General, and Michael M. Glick and Evan B. Elsner, Assistant Attorneys General, of counsel), for the People.

          JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Pucinski and Coghlan concurred in the judgment and opinion.


          HYMAN, JUSTICE.

         ¶ 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 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 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 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 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 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 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 ...

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