delivered the opinion of the court:
Respondent, John Swanson, appeals from the trial court’s order finding him to be a sexually violent person pursuant to the provisions of the Sexually Violent Persons Commitment Act (the Act) (725 ILCS 207/1 et seq. (West 1998)). On appeal, respondent argues (1) the Act is unconstitutional under the United States Supreme Court’s recent decision in Kansas v. Crane,
In 1991 respondent pleaded guilty to the charge of aggravated criminal sexual assault and was sentenced to 18 years’ imprisonment. On April 7, 1999, respondent was released from prison on mandatory supervised release. On May 10, 1999, respondent was again incarcerated after he violated the terms of his parole by leaving the state. As a result of this violation, respondent’s date of discharge from the Illinois Department of Corrections (IDOC) for his aggravated criminal sexual assault conviction was recalculated to September 10, 1999.
On August 31, 1999, 10 days before respondent’s scheduled discharge, the State filed a petition to commit respondent pursuant to section 40 of the Act. 725 ILCS 207/40 (West 1998). The petition alleged that respondent had several mental disorders, including paraphilia, polysubstance dependence, severe antisocial personality disorder, and severe narcissistic personality disorder. The State alleged that respondent was dangerous to others because his mental disorders created a substantial probability that he would engage in future acts of sexual violence. Accompanying the petition, the State provided a mental health evaluation of respondent prepared by psychologist Dr. Jacqueline Buck.
On December 17, 1999, respondent filed two motions to dismiss the State’s petition. The first motion was predicated upon constitutional grounds and alleged that the Act’s definitions of the terms “mental disorder” and “sexually violent person” were overly broad and vague and violated his right to substantive due process. See 725 ILCS 207/5(b), (f) (West 1998). In the second motion, respondent argued that the State’s petition was untimely because it was not filed within 30 days of April 7, 1999, which was the date that respondent was first released on parole. See 725 ILCS 207/15(b) (West 1998). The trial court denied both motions.
On December 6, 2000, the trial court conducted a bench trial on the State’s petition. Dr. Jacqueline Buck, a clinical psychologist employed by the IDOC, testified on behalf of the State. Dr. Buck testified that she performed a psychological evaluation of respondent on July 23, 1999. Dr. Buck explained that the victim of respondent’s aggravated criminal sexual assault offense was a 14-year-old girl. Respondent, who was 26 years old at the time of the offense, threatened the victim with a knife and forced her to engage in an act of vaginal intercourse. Dr. Buck also detailed respondent’s other relevant sexual history, which included an incident where respondent, age 16, was found molesting his 6-year-old brother. Respondent also reported that he was repeatedly molested by a male teacher during the fifth, sixth, and seventh grades. Finally, respondent reported that he had raped at least six girls prior to his incarceration. Respondent’s criminal history included 9 felony convictions over a period of 19 years. However, respondent’s 1991 conviction of aggravated criminal sexual assault was his only conviction of a sexual offense.
Dr. Buck diagnosed respondent as having a sexual disorder known as “paraphilia, not otherwise specified, sexually attracted to nonconsenting persons.” Dr. Buck also diagnosed respondent as suffering from polysubstance dependence, severe antisocial personality disorder, and severe narcissistic personality disorder. Dr. Buck testified that respondent refused to participate in various sexual-offender treatment programs offered to him while he was in prison. Respondent also regularly used drugs throughout his life and while he was in prison. Although respondent received treatment in prison for his drug abuse, respondent continued to use drugs. Dr. Buck opined that it was substantially possible within a reasonable degree of psychological certainty that respondent would reoffend with acts of sexual violence.
On direct examination, the State asked Dr. Buck whether she had discussed respondent’s case with Dr. Agnes Jonas, another psychologist who had screened respondent for possible commitment prior to his supervised release in April 1999. Over respondent’s hearsay objection, the trial court permitted Dr. Buck to testify as follows:
“I wanted to consult with [Dr. Jonas] to understand why she did not refer or recommend an interview for [respondent], and given what I was looking at in the file, to be sure that my recommendation was based [on] solid data.
And [Dr. Jonas] expressed dismay that she had overlooked those many reports and strongly recommended that he indeed be interviewed this time.”
The State also called Dr. Phil Reidda, a clinical psychologist who had evaluated respondent in September and October 1999. Dr. Reidda opined that respondent was manipulative and lacked insight into his behavior. Dr. Reidda further opined respondent was at “a very high risk” to commit future acts of sexual violence. On cross-examination, defense counsel questioned Dr. Reidda about respondent’s religious beliefs. Dr. Reidda testified that respondent had told him that some aspects of sexual-offender treatment were “pornographic” and “against God’s word.” When Dr. Reidda requested that respondent take a penile plethysmography test, he initially refused on religious grounds. However, respondent subsequently agreed to take the auditory portion of the test.
On redirect examination, the State asked Dr. Reidda about the results of the plethysmography test. Dr. Reidda testified that respondent’s level of erectile response to auditory sexual depictions of forceful sex with a grammar-school-aged girl displayed deviant sexual arousal. On re-cross-examination, Dr. Reidda acknowledged that he did not know whether the test results included a margin of error.
Respondent called forensic psychologist Dr. Lyle Rossiter to testify on his behalf. Dr. Rossiter testified that he evaluated respondent in July 2000. Dr. Rossiter testified that respondent was alert and cooperative. Dr. Rossiter acknowledged that respondent had suffered from an antisocial personality disorder in his twenties. Dr. Rossiter opined that respondent had a “bona fide religious conversion,” which he had been able to use for psychotherapeutic purposes. Dr. Rossiter testified that respondent had made a legitimate effort to replace “the passion of his sociopathy with the passion of his religious investment.” Dr. Rossiter opined that respondent was not feigning his religious conversion.
On cross-examination, Dr. Rossiter acknowledged that, although he agreed with Dr. Buck’s diagnosis that respondent suffered from paraphilia, he disagreed with her diagnosis that respondent suffered from “severe” personality disorder. Rather, Dr. Rossiter viewed respondent’s personality disorder to have been “modified.” Dr. Rossiter agreed that, should respondent become disillusioned in his religious beliefs, a strong probability existed that respondent would reoffend.
Respondent testified on his own behalf. Respondent testified that he had been on a “journey” to become more like Christ and that he was “zealous about it.” Respondent testified that he had become a different and better person.
At the close of the evidence, the trial court found that the State had proved the allegations of its petition beyond a reasonable doubt. The trial court subsequently conducted a dispositional hearing and committed respondent to the custody of the Illinois Department of Human Services. Respondent filed a timely notice of appeal.
Respondent first contends that the Act is unconstitutional because it violates his rights to substantive due process. Relying on the recent United States Supreme Court decision in Kansas v. Crane,
Statutes are presumed constitutional; this court will uphold a statute’s constitutionality whenever reasonably possible, and any doubts will be resolved in favor of the law’s validity. In re Detention of Allen,
In Crane, the Supreme Court held that, in order to commit a sexual offender, the State is obligated to show that the individual has serious difficulty in controlling his or her behavior. Crane,
Here, although the Act does not explicitly mandate a determination regarding a respondent’s ability to control himself or herself, it does provide that the State must prove that the respondent suffers from a mental disorder that affects the respondent’s ability to control his or her conduct. See 725 ILCS 207/5(b) (West 1998). Therefore, to find a respondent sexually dangerous, the trier of fact must find that the State has proved that respondent was dangerous because he or she suffered from a mental disorder that made it substantially probable that he or she would engage in further acts of sexual abuse. See 725 ILCS 207/5(f) (West 1998). Accordingly, there is no need for the finder of fact to make additional findings regarding a respondent’s ability to control his or her conduct. See In re Detention of Trevino,
In the present case, there was no need for the trial court to make an additional finding that respondent had serious difficulty in controlling his behavior when it had already found that respondent had a “mental disorder” that affected his emotional or volitional capacity predisposing him to engage in acts of sexual violence. See 725 ILCS 207/5(b) (West 1998). We therefore conclude that, in accordance with Crane, the State proved beyond a reasonable doubt that respondent has serious difficulty in controlling his sexually violent behavior. For all of these reasons, we uphold the Act’s constitutionality.
Respondent’s next contention on appeal is that the trial court erred in denying his motion to dismiss the State’s petition based on timeliness grounds. Respondent argues that the Act required the State to file its petition within 90 days of his discharge or entry into mandatory supervised release or within the initial 30 days of his entry date into parole or mandatory supervised release. See 725 ILCS 207/15(b) (West 1998). Respondent argues that the State’s petition was untimely because it was not filed within 90 days of his first release on April 7, 1999, or within 30 days thereafter.
At the time in question, section 15 of the Act provided, in pertinent part, as follows:
“(b) A petition filed under this Section shall allege that all of the following apply to the person alleged to be a sexually violent person:
* * 3;
(2) The person is within 90 days of discharge or entry into mandatory supervised release from a Department of Corrections correctional facility for a sentence that was imposed upon a conviction for a sexually violent offense or for a sentence that is being served concurrently or consecutively with a sexually violent offense or is within the initial 30 days of the person’s entry date into parole or mandatory supervised release[.]” 725 ILCS 207/15(b) (West 1998).
Although the term “discharge” is not defined in the Act, Illinois courts have construed the term to mean “ ‘the final termination of a commitment to the [IDOC].’ [Citations.]” (Emphasis in original.) In re Detention of Gardner,
The procedural posture of this case is similar to that at issue in Gardner. In that case, the defendant was convicted in February 1995 of aggravated criminal sexual abuse. Gardner,
The reviewing court in Gardner held that the State’s petition was filed within the proper time requirements provided for in section 15 of the Act. Gardner,
In light of this authority, we conclude that the State’s petition in this case was timely filed. Although respondent had been released from prison on mandatory supervised release on April 7, 1999, he had not been “discharged” at this time and remained in the constructive custody of the IDOC. After respondent violated the terms of his mandatory supervised release, he was again incarcerated and his release date for his sentence for aggravated criminal sexual assault was recalculated to September 10, 1999. Because respondent’s commitment to the IDOC has not been finally terminated, the State’s August 31, 1999, petition was timely filed within 90 days of respondent’s date of discharge as required by section 15(b)(2) of the Act. See Allen,
Respondent’s next contention on appeal is that the trial court abused its discretion in permitting Dr. Buck to testify regarding her conversation with Dr. Jonas concerning respondent’s case. As noted earlier, Dr. Buck testified that Dr. Jonas was “dismayed” that she had overlooked certain psychological reports concerning respondent. Respondent argues that this testimony was inadmissible hearsay because it was not a basis of Dr. Buck’s opinions.
The admissibility of evidence is a matter for the trial court’s discretion, and a trial court’s evidentiary rulings will not be disturbed on appeal absent an abuse of discretion. People v. Hoffstetter,
The state of the law governing this issue is well settled. An expert may rely on reports made by others to formulate an opinion as long as other experts in the field reasonably rely on such materials. People v. Anderson,
In this case, Dr. Jonas’s hearsay statement would be admissible only if it was a basis of Dr. Buck’s opinions regarding respondent’s psychological condition. Although Dr. Buck testified that she relied upon Dr. Jonas’s statement in formulating her opinions about respondent, a review of the statement at issue demonstrates that the statement had nothing to do with respondent’s psychological condition. Dr. Jonas’s comment that she was “dismayed” that she had overlooked certain psychological reports lacked relevance to the case, as it did not provide any information as to respondent’s psychological condition. Rather, the comment simply indicated that Dr. Jonas was disappointed with her own job performance. As such, the comment could not form a basis of Dr. Buck’s opinions concerning respondent.
In support of the trial court’s ruling, the State cites Smith v. Broscheid,
However, not every erroneous admission of evidence requires reversal. People v. Rozo,
Respondent’s final contention on appeal is that he was deprived of his right to the effective assistance of counsel when his attorney failed to object to the introduction of the results from his penile plethysmography test. Respondent argues that plethysmography evidence is unreliable and has not been accepted by the mental health community. Respondent concludes that the evidence was highly prejudicial and affected the outcome of his trial.
The right to the effective assistance of counsel is guaranteed by both the United States and Illinois Constitutions. U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8. To prevail on a claim of the ineffective assistance of counsel, a defendant must establish that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s errors were so serious as to deprive the defendant of a fair trial. Strickland v. Washington,
Dr. Reidda testified that a penile plethysmography test is performed by placing a circular gauge over the base of the subject’s penis. Once the gauge is attached to the penis, the subject is given various audio and video sexual stimuli involving children and adults of both sexes. If the subject becomes aroused by the stimuli, the gauge expands when the penis becomes engorged with blood, and the growth of the penis is measured by a recording device attached to the gauge. The subject’s responses to these various stimuli are measured and scored. As noted above, Dr. Reidda testified that the level of respondent’s erectile responses to auditory sexual depictions of forceful sex with a grammar-school-aged girl displayed deviant sexual arousal.
Our research has uncovered no Illinois case addressing the reliability or admissibility of penile plethysmography tests. Courts in other jurisdictions that have considered this question have come to varying conclusions. Some courts have concluded that plethysmography tests are reliable and have been accepted by the scientific community. See Berthiaume v. Caron, 142 E3d 12, 17 (1st Cir. 1998); Walrath v. United States,
In light of the fact that the scientific validity of plethysmography tests has not been considered in Illinois, we believe that defense counsel should have objected to the admissibility of the test results and requested the trial court to conduct a hearing pursuant to Frye v. United States,
However, even if respondent’s trial counsel was deficient for failing to object to the testimony concerning the results of the plethysmography, we nonetheless conclude that respondent cannot establish that the result of the proceeding would have been different if defense counsel had objected to the evidence. As already noted, even without the testimony, the other evidence overwhelmingly showed that respondent was a sexually violent person. In making its findings, the trial court relied upon this other evidence and did not indicate that it had placed any weight upon the plethysmography test results. Additionally, the prejudicial impact of the evidence was reduced because the case was tried before the bench as opposed to a jury. See People v. Brink,
For the foregoing reasons, we affirm the judgment of the circuit court of Du Page County.
Affirmed.
BOWMAN and RAPALA, JJ concur.