{ "id": 3778100, "name": "In re DETENTION OF JOHN M. ERBE (The People of the State of Illinois, Plaintiff-Appellee, v. John M. Erbe, Defendant-Appellant)", "name_abbreviation": "People v. Erbe", "decision_date": "2003-11-13", "docket_number": "No. 4-02-0764", "first_page": "350", "last_page": "377", "citations": [ { "type": "official", "cite": "344 Ill. App. 3d 350" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "751 N.E.2d 1143", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "196 Ill. 2d 343", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 351244 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/ill-2d/196/0343-01" ] }, { "cite": "729 N.E.2d 531", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "534", "parenthetical": "\"The trial court is the proper forum to balance the mitigating and aggravating factors and make a reasoned decision as to the appropriate sentence\"" } ], "opinion_index": 0 }, { "cite": "313 Ill. App. 3d 280", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 186494 ], "year": 2000, "pin_cites": [ { "page": "282", "parenthetical": "\"The trial court is the proper forum to balance the mitigating and aggravating factors and make a reasoned decision as to the appropriate sentence\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/313/0280-01" ] }, { "cite": "754 N.E.2d 484", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "488" }, { "page": "488" } ], "opinion_index": 0 }, { "cite": "324 Ill. App. 3d 6", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 256273 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "11" }, { "page": "11" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/324/0006-01" ] }, { "cite": "647 N.E.2d 618", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "627", "parenthetical": "on cross-examination, counsel may probe the weaknesses in the bases of an expert's opinion as well as the general soundness of his opinion" } ], "opinion_index": 0 }, { "cite": "269 Ill. App. 3d 887", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 365852 ], "year": 1995, "pin_cites": [ { "page": "897", "parenthetical": "on cross-examination, counsel may probe the weaknesses in the bases of an expert's opinion as well as the general soundness of his opinion" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/269/0887-01" ] }, { "cite": "509 U.S. 579", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 355769 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "596" }, { "page": "484" }, { "page": "2798" } ], "opinion_index": 0, "case_paths": [ "/us/509/0579-01" ] }, { "cite": "574 N.E.2d 1345", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "1357" } ], "opinion_index": 0 }, { "cite": "215 Ill. App. 3d 413", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5293512 ], "year": 1991, "pin_cites": [ { "page": "432" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/215/0413-01" ] }, { "cite": "634 N.E.2d 1285", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "1288" } ], "opinion_index": 0 }, { "cite": "262 Ill. App. 3d 565", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2852366 ], "year": 1994, "pin_cites": [ { "page": "569" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/262/0565-01" ] }, { "cite": "672 N.E.2d 1321", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "1326", "parenthetical": "\" 1 \"[a]ny question concerning the specific procedures used by the company or expert goes to the reliability of the evidence and is properly considered by the jury in determining what weight to give to this evidence\" ' \" (emphasis in original" } ], "opinion_index": 0 }, { "cite": "284 Ill. App. 3d 695", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1260387 ], "year": 1996, "pin_cites": [ { "page": "702", "parenthetical": "\" 1 \"[a]ny question concerning the specific procedures used by the company or expert goes to the reliability of the evidence and is properly considered by the jury in determining what weight to give to this evidence\" ' \" (emphasis in original" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/284/0695-01" ] }, { "cite": "681 N.E.2d 1073", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "1077", "parenthetical": "in which this court set forth what a court may consider in determining the admissibility of evidence under Frye: (1) scientific publications and law review articles; (2) prior court decisions in Illinois and other jurisdictions; (3" } ], "opinion_index": 0 }, { "cite": "289 Ill. App. 3d 326", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 351021 ], "year": 1997, "pin_cites": [ { "page": "332", "parenthetical": "in which this court set forth what a court may consider in determining the admissibility of evidence under Frye: (1) scientific publications and law review articles; (2) prior court decisions in Illinois and other jurisdictions; (3" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/289/0326-01" ] }, { "cite": "118 S. Ct. 596", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1997, "opinion_index": 0 }, { "cite": "139 L. Ed. 2d 486", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1997, "opinion_index": 0 }, { "cite": "522 U.S. 1011", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11572712, 11572733, 11572694, 11572751 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/us/522/1011-02", "/us/522/1011-03", "/us/522/1011-01", "/us/522/1011-04" ] }, { "cite": "557 N.W.2d 171", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10695912 ], "year": 1996, "pin_cites": [ { "page": "189" } ], "opinion_index": 0, "case_paths": [ "/nw2d/557/0171-01" ] }, { "cite": "88 Cal. Rptr. 2d 437", "category": "reporters:state", "reporter": "Cal. Rptr. 2d", "year": 1999, "pin_cites": [ { "page": "440-41", "parenthetical": "concluding that a Rapid Risk Assessment score in the high-risk category, adjusted with appropriate clinical factors, supported a finding that the defendant was likely to engage in sexually violent behavior if released" } ], "opinion_index": 0 }, { "cite": "74 Cal. App. 4th 826", "category": "reporters:state", "reporter": "Cal. App. 4th", "case_ids": [ 245408 ], "year": 1999, "pin_cites": [ { "page": "831-32", "parenthetical": "concluding that a Rapid Risk Assessment score in the high-risk category, adjusted with appropriate clinical factors, supported a finding that the defendant was likely to engage in sexually violent behavior if released" } ], "opinion_index": 0, "case_paths": [ "/cal-app-4th/74/0826-01" ] }, { "cite": "127 Cal. Rptr. 2d 177", "category": "reporters:state", "reporter": "Cal. Rptr. 2d", "year": 2000, "pin_cites": [ { "parenthetical": "psychiatrist's prediction of future dangerousness is not subject to Frye, regardless of whether the psychiatrist used clinical or actuarial models" } ], "opinion_index": 0 }, { "cite": "57 P.3d 654", "category": "reporters:state_regional", "reporter": "P.3d", "year": 2000, "pin_cites": [ { "parenthetical": "psychiatrist's prediction of future dangerousness is not subject to Frye, regardless of whether the psychiatrist used clinical or actuarial models" } ], "opinion_index": 0 }, { "cite": "29 Cal. 4th 228", "category": "reporters:state", "reporter": "Cal. 4th", "case_ids": [ 777247 ], "year": 2000, "pin_cites": [ { "parenthetical": "psychiatrist's prediction of future dangerousness is not subject to Frye, regardless of whether the psychiatrist used clinical or actuarial models" } ], "opinion_index": 0, "case_paths": [ "/cal-4th/29/0228-01" ] }, { "cite": "102 Cal. Rptr. 2d 214", "category": "reporters:state", "reporter": "Cal. Rptr. 2d", "year": 2000, "pin_cites": [ { "page": "238" } ], "opinion_index": 0 }, { "cite": "85 Cal. App. 4th 508", "category": "reporters:state", "reporter": "Cal. App. 4th", "year": 2000, "pin_cites": [ { "page": "543" } ], "opinion_index": 0 }, { "cite": "653 N.W.2d 613", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 9313394 ], "year": 2002, "pin_cites": [ { "page": "619", "parenthetical": "in which the Iowa appellate court relied on R.S. in holding that the trial court properly admitted evidence regarding certain actuarial instruments, including the Static-99 and the Minnesota Screening Tool-Revised" } ], "opinion_index": 0, "case_paths": [ "/nw2d/653/0613-01" ] }, { "cite": "833 So. 2d 243", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9380131 ], "year": 2002, "pin_cites": [ { "page": "246", "parenthetical": "concluding that the trial court did not err by determining that the actuarial instruments used in that case were \"generally accepted in the relevant scientific community as part of the overall risk assessment for sexual predators\"" } ], "opinion_index": 0, "case_paths": [ "/so2d/833/0243-01" ] }, { "cite": "261 Wis. 2d 614", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 9098847 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "623", "parenthetical": "actuarial instruments used to assess the likelihood of reoffending were admissible in sexually-violent-person commitment proceeding, as instruments were commonly and reasonably relied upon by experts in the field of sex-offender risk assessment" }, { "page": "903", "parenthetical": "actuarial instruments used to assess the likelihood of reoffending were admissible in sexually-violent-person commitment proceeding, as instruments were commonly and reasonably relied upon by experts in the field of sex-offender risk assessment" } ], "opinion_index": 0, "case_paths": [ "/wis-2d/261/0614-01" ] }, { "cite": "20 P.3d 1022", "category": "reporters:state_regional", "reporter": "P.3d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "1023-24" }, { "page": "1024" }, { "page": "1025" } ], "opinion_index": 0 }, { "cite": "106 Wash. App. 1", "category": "reporters:state", "reporter": "Wash. App.", "case_ids": [ 240474 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "4" }, { "page": "4" }, { "page": "8" } ], "opinion_index": 0, "case_paths": [ "/wash-app/106/0001-01" ] }, { "cite": "N.J. Stat. Ann. \u00a7 30:4", "category": "laws:leg_statute", "reporter": "N.J. Stat. Ann.", "opinion_index": 0 }, { "cite": "731 N.E.2d 994", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "1002" } ], "opinion_index": 0 }, { "cite": "314 Ill. App. 3d 282", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 140023 ], "year": 2000, "pin_cites": [ { "page": "294" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/314/0282-01" ] }, { "cite": "743 N.E.2d 126", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "138", "parenthetical": "\"An abuse of discretion will be found only where the trial court's ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by the trial court\"" }, { "page": "138" } ], "opinion_index": 0 }, { "cite": "195 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 725355 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "20", "parenthetical": "\"An abuse of discretion will be found only where the trial court's ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by the trial court\"" }, { "page": "20" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/195/0001-01" ] }, { "cite": "763 N.E.2d 720", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "737" }, { "page": "737", "parenthetical": "\"In determining whether there has been an abuse of discretion, [a reviewing court] may not substitute [its] judgment for that of the trial court\"" } ], "opinion_index": 0 }, { "cite": "198 Ill. 2d 541", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 29951 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "568" }, { "page": "568" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/198/0541-01" ] }, { "cite": "201 Ariz. 321", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 255155 ], "weight": 4, "year": 2001, "pin_cites": [ { "page": "328" }, { "page": "89" }, { "page": "328" }, { "page": "89" } ], "opinion_index": 0, "case_paths": [ "/ariz/201/0321-01" ] }, { "cite": "776 N.E.2d 262", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "page": "281", "parenthetical": "the process of recording and downloading data from automobile crash sensors did not constitute a novel technique or method" } ], "opinion_index": 0 }, { "cite": "332 Ill. App. 3d 760", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1033947 ], "year": 2002, "pin_cites": [ { "page": "779", "parenthetical": "the process of recording and downloading data from automobile crash sensors did not constitute a novel technique or method" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/332/0760-01" ] }, { "cite": "767 N.E.2d 314", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 6, "year": 2002, "pin_cites": [ { "page": "324-25" }, { "page": "329", "parenthetical": "observing that the method of extrapolation does not involve a technique new to science that may instill a sense of false confidence because \"extrapolation by nature admits its fallibility - the lack of specific support to establish the existence of a known cause and effect relationship\"" }, { "page": "323-24" }, { "page": "323" }, { "page": "330" }, { "page": "323-24" } ], "opinion_index": 0 }, { "cite": "199 Ill. 2d 63", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 58941 ], "weight": 6, "year": 2002, "pin_cites": [ { "page": "78-79" }, { "page": "86-87" }, { "page": "76-78" }, { "page": "76" }, { "page": "88" }, { "page": "76-78" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/199/0063-01" ] }, { "cite": "786 N.E.2d 557", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "562", "parenthetical": "same holding, relying on Taylor" } ], "opinion_index": 0 }, { "cite": "338 Ill. App. 3d 669", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 25356 ], "year": 2003, "pin_cites": [ { "page": "675", "parenthetical": "same holding, relying on Taylor" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/338/0669-01" ] }, { "cite": "789 N.E.2d 865", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "878", "parenthetical": "same holding, reaffirming Taylor" } ], "opinion_index": 0 }, { "cite": "338 Ill. App. 3d 949", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 25391 ], "year": 2003, "pin_cites": [ { "page": "964", "parenthetical": "same holding, reaffirming Taylor" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/338/0949-01" ] }, { "cite": "206 Ill. 2d 641", "category": "reporters:state", "reporter": "Ill. 2d", "weight": 2, "year": 2003, "opinion_index": 0 }, { "cite": "782 N.E.2d 920", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 6, "year": 2002, "pin_cites": [ { "page": "930", "parenthetical": "holding that such actuarial instruments constitute a scientific methodology" }, { "page": "932", "parenthetical": "in which the Second District recently held that certain actuarial instruments did not satisfy the Frye standard" }, { "page": "923" }, { "page": "926" }, { "page": "931" }, { "page": "931" } ], "opinion_index": 0 }, { "cite": "335 Ill. App. 3d 965", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 637123 ], "weight": 6, "year": 2002, "pin_cites": [ { "page": "977", "parenthetical": "holding that such actuarial instruments constitute a scientific methodology" }, { "page": "979-80" }, { "page": "967" }, { "page": "972" }, { "page": "978" }, { "page": "978" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/335/0965-01" ] }, { "cite": "882 P.2d 747", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 6, "year": 1994, "pin_cites": [ { "page": "756-58" }, { "page": "776" }, { "page": "776" }, { "page": "776" }, { "page": "776" } ], "opinion_index": 0 }, { "cite": "125 Wash. 2d 24", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 437110 ], "weight": 6, "year": 1994, "pin_cites": [ { "page": "30-35" }, { "page": "69" }, { "page": "69" }, { "page": "68" }, { "page": "70" } ], "opinion_index": 0, "case_paths": [ "/wash-2d/125/0024-01" ] }, { "cite": "777 N.E.2d 994", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "997-98, 1002", "parenthetical": "by observing what a large number of reoffenders have had in common, one can compile a fist of risk factors" }, { "page": "1002" } ], "opinion_index": 0 }, { "cite": "333 Ill. App. 3d 906", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 487088 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "911, 916", "parenthetical": "by observing what a large number of reoffenders have had in common, one can compile a fist of risk factors" }, { "page": "916" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/333/0906-01" ] }, { "cite": "173 N.J. 134", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 983903 ], "weight": 6, "year": 2002, "opinion_index": 0, "case_paths": [ "/nj/173/0134-01" ] }, { "cite": "339 N.J. Super. 507", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 1259897 ], "weight": 20, "year": 2001, "pin_cites": [ { "page": "540" }, { "page": "92" }, { "page": "513" }, { "page": "75" }, { "page": "512" }, { "page": "74-75" }, { "page": "516" }, { "page": "77" }, { "page": "520" }, { "page": "79" }, { "page": "524-28" }, { "page": "81-84" }, { "page": "530" }, { "page": "85" }, { "page": "540-41" }, { "page": "92" }, { "page": "545" }, { "page": "95" } ], "opinion_index": 0, "case_paths": [ "/nj-super/339/0507-01" ] }, { "cite": "730 N.E.2d 628", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "636", "parenthetical": "counsel is not required to perform a futile act to avoid charges of ineffective assistance of counsel" } ], "opinion_index": 0 }, { "cite": "313 Ill. App. 3d 1011", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 186564 ], "year": 2000, "pin_cites": [ { "page": "1018", "parenthetical": "counsel is not required to perform a futile act to avoid charges of ineffective assistance of counsel" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/313/1011-01" ] }, { "cite": "701 N.E.2d 1063", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "1079" } ], "opinion_index": 0 }, { "cite": "183 Ill. 2d 366", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209962 ], "year": 1998, "pin_cites": [ { "page": "397" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0366-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 15, "year": 1984, "pin_cites": [ { "page": "687" }, { "page": "693" }, { "page": "2064" }, { "page": "689" }, { "page": "694-95" }, { "page": "2065" }, { "page": "689" }, { "page": "694" }, { "page": "2065" }, { "page": "694" }, { "page": "698" }, { "page": "2068" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "758 N.E.2d 492", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "502-03" }, { "page": "499", "parenthetical": "defendant under the Act submitted to the trial court's jurisdiction when he appeared and participated at his probable-cause hearing" } ], "opinion_index": 0 }, { "cite": "325 Ill. App. 3d 573", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 570162 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "586" }, { "page": "581" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/0573-01" ] }, { "cite": "293 F. 1013", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 11720199 ], "weight": 3, "year": 1923, "pin_cites": [ { "page": "1014" }, { "page": "1014", "parenthetical": "'[J]ust when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized'" } ], "opinion_index": 0, "case_paths": [ "/f/293/1013-01" ] }, { "cite": "788 N.E.2d 370", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "384" } ], "opinion_index": 1 }, { "cite": "338 Ill. App. 3d 224", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 25432 ], "year": 2003, "opinion_index": 1, "case_paths": [ "/ill-app-3d/338/0224-01" ] }, { "cite": "792 N.E.2d 438", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "444" } ], "opinion_index": 1 }, { "cite": "341 Ill. App. 3d 361", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5575092 ], "year": 2003, "pin_cites": [ { "page": "369-70" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/341/0361-01" ] }, { "cite": "526 N.E.2d 525", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1988, "pin_cites": [ { "page": "531" }, { "page": "532" }, { "page": "531" }, { "page": "532" } ], "opinion_index": 1 }, { "cite": "172 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5082878 ], "weight": 5, "year": 1988, "pin_cites": [ { "page": "9" }, { "page": "11" }, { "page": "10" }, { "page": "11-12" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/172/0001-01" ] }, { "cite": "343 Ill. App. 3d 1223", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3719447 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "1228" }, { "page": "1228-29" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/343/1223-01" ] }, { "cite": "786 N.E.2d 557", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 1 }, { "cite": "338 Ill. App. 3d 669", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 25356 ], "year": 2003, "opinion_index": 1, "case_paths": [ "/ill-app-3d/338/0669-01" ] }, { "cite": "789 N.E.2d 865", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 1 }, { "cite": "338 Ill. App. 3d 949", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 25391 ], "year": 2003, "opinion_index": 1, "case_paths": [ "/ill-app-3d/338/0949-01" ] }, { "cite": "782 N.E.2d 920", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 1 }, { "cite": "335 Ill. App. 3d 965", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 637123 ], "year": 2002, "opinion_index": 1, "case_paths": [ "/ill-app-3d/335/0965-01" ] }, { "cite": "293 F. 1013", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 11720199 ], "year": 1923, "pin_cites": [ { "page": "1014" } ], "opinion_index": 1, "case_paths": [ "/f/293/1013-01" ] } ], "analysis": { "cardinality": 2107, "char_count": 69421, "ocr_confidence": 0.758, "pagerank": { "raw": 2.586110828213935e-07, "percentile": 0.8176565506328748 }, "sha256": "c0a0ccadd299c21935ea4d50bd6cfb1998bf816e01d7aa962d542f9e68ca5e94", "simhash": "1:2da0edaa5f6f83d7", "word_count": 10833 }, "last_updated": "2023-07-14T15:11:26.904766+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re DETENTION OF JOHN M. ERBE (The People of the State of Illinois, Plaintiff-Appellee, v. John M. Erbe, Defendant-Appellant)." ], "opinions": [ { "text": "JUSTICE STEIGMANN\ndelivered the opinion of the court:\nFollowing a June 2002 bench trial, the trial court found defendant, John M. Erbe, to be a sexually violent person under the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 through 99 (West 2000)). Following an August 2002 dispositional hearing, the court ordered him committed to the Department of Human Services (DHS) for institutional care in a secure facility.\nDefendant appeals, arguing that (1) he received ineffective assistance of counsel when his initial appointed counsel (a) failed to challenge personal jurisdiction, and (b) moved to continue the probable-cause hearing; (2) the trial court abused its discretion by denying his motion for a Frye evidentiary hearing on the admissibility of evidence regarding actuarial instruments used by the State\u2019s experts in assessing defendant\u2019s risk of reoffending; (3) the court\u2019s finding that he was a sexually violent person was against the manifest weight of the evidence; and (4) the court abused its discretion by ordering him committed to institutional care in a secure facility. We affirm.\nI. BACKGROUND\nOn June 14, 2000, the State filed a petition under the Act, seeking to have defendant committed as a sexually violent person to DHS indefinitely. At that time, defendant was an inmate at the Centraba Correctional Center and was scheduled for entry into mandatory supervised release on June 20, 2000, following the completion of his sentence on 1988 convictions for home invasion (Ill. Rev. Stat. 1987, ch. 38, par. 12 \u2014 11) and aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12 \u2014 14(a)(1)). On that same day, the trial court entered an order of detention in which the court (1) set a probable-cause hearing for June 19, 2000; and (2) appointed McLean County pubbc defender Amy Davis to represent defendant.\nOn June 16, 2000, Davis filed a motion to continue the probable-cause hearing because she needed additional time to review the materials the State had filed with its petition. Davis then telephoned the trial court\u2019s secretary and indicated that she and the assistant Attorney General had agreed that the probable-cause hearing should be continued. The court informed counsel that it would reschedule that hearing if both parties agreed and requested that the attorneys agree upon a new hearing date. The assistant Attorney General later telephoned the court\u2019s secretary and indicated that the parties had agreed to reschedule the probable-cause hearing for June 26, 2000.\nAt the June 26, 2000, probable-cause hearing, defendant appeared with his appointed counsel. After considering the evidence presented, the trial court found probable cause existed and ordered defendant transferred to DHS for an evaluation, pursuant to section 30(c) of the Act (725 ILCS 207/30(c) (West 2000)).\nIn July 2000, defendant pro se filed a motion to dismiss the State\u2019s petition, abeging, inter alia, that (1) his probable-cause hearing was not held within 72 hours of the filing of the State\u2019s petition, as required by statute (725 ILCS 207/30(b) (West 2000)); and (2) he was not \u201cproperly served with process.\u201d That same day, defendant pro se filed a motion, seeking appointment of counsel other than a McLean County public defender, on the ground that Davis moved to continue the probable-cause hearing without his consent.\nAt a July 2000 hearing on defendant\u2019s motion seeking appointment of other counsel, Davis informed the trial court that she requested a continuance (1) because she had other matters to which she had to attend when she received the State\u2019s petition; and (2) in \u201can effort for [her] to be prepared for [the probable-cause] hearing.\u201d She acknowledged that because her office usually receives the State\u2019s petitions under the Act \u201cpretty much at the last minute,\u201d she routinely seeks to continue probable-cause hearings to allow time to carefully review the petitions. After considering the arguments, the trial court denied defendant\u2019s motion.\nIn January 2001, defendant filed a motion for a Frye evidentiary hearing (see Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)) to determine the admissibility of evidence regarding actuarial risk-assessment instruments used by the State\u2019s experts in assessing defendant\u2019s risk of reoffending. In February 2001, the trial court conducted a hearing on defendant\u2019s motion and took the matter under advisement. Later that month, the court denied the motion, upon finding that (1) the actuarial risk- assessment instruments did not constitute scientific evidence subject to the Frye standard; and (2) even if the instruments were subject to the Frye standard, they had been generally accepted in the relevant scientific community.\nFrom February 2001 through May 2002, the trial court granted several continuances. Also during that time, defendant pro se filed a petition for a writ of habeas corpus in which he raised some of the same issues raised in his July 2000 pro se motion to dismiss. In November 2001, the court dismissed defendant\u2019s petition for a writ of habeas corpus, and in May 2002, this court dismissed defendant\u2019s appeal from the November 2001 order.\nIn June 2002, the trial court conducted a hearing on defendant\u2019s pro se July 2000 motion to dismiss the State\u2019s petition. At that hearing, defendant was represented by a different appointed counsel, who adopted and argued defendant\u2019s motion. Although defendant\u2019s motion contained numerous allegations, defendant addressed only two allegations at the hearing \u2014 namely, that (1) his probable-cause hearing was not held within 72 hours of the filing of the State\u2019s petition, as required by statute (725 ILCS 207/30(b) (West 2000)); and (2) the trial court lacked jurisdiction because he was not \u201cproperly served with process.\u201d Defendant testified that he received the State\u2019s June 14, 2000, petition and the order of detention, which indicated that (1) the court had appointed a McLean County public defender to represent him; and (2) the probable-cause hearing was scheduled for June 19, 2000. However, he was not served with summons. He later learned that his probable-cause hearing was rescheduled for June 26, 2000. Defendant appeared at the June 26, 2000, probable-cause hearing, where he was represented by Davis. At that hearing, he attempted to tell the court that he had not been served with summons and had not asked for a continuance, but the court did not give him permission to speak. Defendant stated that he did not authorize Davis to file a motion to continue his probable-cause hearing. After considering the evidence and counsel\u2019s arguments, the trial court denied defendant\u2019s motion to dismiss.\nAt defendant\u2019s June 2002 bench trial, Dr. Jacqueline Buck, a clinical psychologist and special evaluator for the Illinois Department of Corrections (DOC), testified that she had reviewed defendant\u2019s DOC master file, which contained all of the court records related to defendant, including the written judgment of sentence, the presentence investigation reports, psychiatric and psychological evaluations, DOC records, and his criminal history.\nBuck\u2019s review of defendant\u2019s master file showed that when defendant was 11 years old and living in California, he began engaging in criminal activity, including grand theft auto and shoplifting. He also began running away, fighting at school, and on one occasion, he attacked a teacher. When he was 13 years old, he was expelled from school after raping a 12-year-old girl. Around that time, defendant\u2019s mother moved from California to McLean County, Illinois. Defendant stayed in California and lived either on the streets or with one of his former stepfathers. In 1974, defendant was declared an \u201cincorrigible juvenile\u201d and was placed in juvenile hall and, later, several group homes. Defendant admitted raping a young girl during that time.\nLater in 1974, when defendant was 15 years old, he moved to McLean County to live with his mother. He had been in McLean County for only three days when police arrested him for rape. They later released him to his mother. In 1975, defendant committed numerous offenses, including deviate sexual assault, armed robbery, home invasion, aggravated criminal sexual assault, and rape. In the rape case, he entered a woman\u2019s apartment, held a knife to her throat, and threatened to kill her. He raped her three times and forced her to perform oral sex on him. He then tied her up and left the apartment. A baby was in the room during the rape. (Buck acknowledged that in her report, she had mistakenly indicated that defendant had held a knife to the baby\u2019s throat.) Later in 1975, while incarcerated at the McLean County juvenile detention center, he sexually assaulted a male inmate and was charged with deviate sexual assault.\nBased on some of defendant\u2019s 1975 offenses, the State filed a petition seeking to have defendant declared a sexually dangerous person. He was later found to be sexually dangerous based on the 1975 rape offense. Defendant was initially sent to DOC\u2019s youth division, where he participated in treatment for a few months. A jury later convicted him as an adult for the 1975 rape (McLean County case No. 75 \u2014 CF\u2014 483), and the trial court sentenced him to 4 to 10 years in prison. Defendant was paroled in 1980.\nIn 1981, defendant was charged with rape, home invasion, and (attempt) burglary (McLean County case No. 81 \u2014 CF\u2014430). During this incident, he entered a woman\u2019s apartment, tied up the victim, and placed a sock in her mouth. He then removed the sock and tried to place his penis in her mouth. Defendant left after the victim convinced him that other people were in the apartment. A jury later convicted defendant of (attempt) burglary, and the trial court sentenced him to three years in prison.\nSometime following his 1983 parole in McLean County case No. 81 \u2014 CF\u2014430, defendant pleaded guilty to unlawful use of a weapon by a felon and was sentenced to five years in prison. In that case, defendant, armed with a gun, entered a woman\u2019s apartment. When the woman saw him, she ran from the apartment.\nIn 1988, defendant was convicted of aggravated criminal sexual assault and home invasion (McLean County case No. 88 \u2014 CF\u2014148), and the trial court sentenced him to 25 years in prison. In that case, he entered the apartment of three young women and forced one of the victims to have sex with him at knifepoint. He also dragged the knife across the victim\u2019s throat, stomach, and breasts and threatened to kill her. Defendant then tied up the victim and turned to a second victim, who fought him and screamed. Defendant ran from the apartment naked after the first victim freed herself and the third roommate woke up and telephoned police.\nDefendant\u2019s master file also showed that he began using drugs when he was 11 years old. Over the next five years, he used marijuana, cocaine, heroin, and amphetamines. During that time, he was diagnosed with polysubstance dependency. Several of defendant\u2019s criminal offenses involved alcohol or other drugs.\nDefendant\u2019s master file further showed that defendant admitted committing 11 or 12 rapes for which he was never apprehended. He blamed most of those rapes on his then-wife (to whom he was married from 1980 until 1988) because she would not engage in certain sexual activities. During his incarcerations, defendant had not participated in any sex-offender treatment.\nBuck attempted to interview defendant in April 2000; however, he refused to participate. Although Buck preferred to conduct clinical interviews, such an. interview was not necessary to formulate opinions regarding defendant.\nBased on her review of defendant\u2019s master file and other information, Buck diagnosed defendant with sexual sadism and severe antisocial personality disorder. Three criteria exist for the diagnosis of sexual sadism, and defendant satisfied all three. Seven criteria exist for the diagnosis of antisocial personality disorder, and the presence of any three warrant the diagnosis. Defendant satisfied six of the seven criteria. Buck described antisocial personality disorder as \u201ca violation of and disregard for the rights of others.\u201d Sexual sadism and antisocial personality disorder are the types of mental disorders that affect a person\u2019s emotional capacity and predispose a person to engage in fixture acts of sexual violence.\nBuck also diagnosed defendant with \u201cpoly drug dependency without physiological dependency in a controlled environment,\u201d based on his long history of substance abuse. Buck explained that substance abuse was a factor in determining defendant\u2019s probability of reoffend-ing. Defendant had not participated in any substance abuse treatment.\nIn assessing defendant\u2019s probability of reoffending, Buck used three actuarial risk-assessment instruments, all of which were the subject of defendant\u2019s January 2001 motion for a Frye evidentiary hearing: (1) the Minnesota Sex Offender Screening Tool-Revised (Minnesota Screening Tool-Revised); (2) the Static-99; and (3) the Violence Risk Appraisal Guide. She also administered a personality inventory (the Hare Psychopathy Checklist-Revised) in evaluating defendant. Buck had received about 150 hours of specialized training geared to the proceedings under the Act, including the administration of actuarial risk- assessment instruments and other evaluation tools. Defendant\u2019s scores on the three actuarial risk-assessment instruments placed him in \u201cmembership with a group of sex offenders who did sexually reoffend at a fairly high rate.\u201d\nBuck described the Hare Psychopathy Checklist-Revised as a 20-item personality inventory. An individual who scores 30 or more on the Hare Psychopathy Checklist-Revised is classified as a psychopath. Those individuals \u201care two to four times as likely to reoffend with acts of violence when released to the community, as someone who scores lower than 25.\u201d A score of 30 is a \u201cconservative\u201d cutoff, and many research\u00e9rs use a score of 25 as a cutoff for psychopathy. Out of the 20 items on the Hare Psychopathy Checklist-Revised, Buck was able to score 18 in testing defendant. The remaining two items she marked as omissions because she did not have enough data. The inventory was designed to allow for omitted items to be scored. Before factoring in the two omissions, defendant\u2019s raw score totaled 29. After factoring in the omissions, his raw score totaled 32.2. Buck acknowledged that she used some of the same scoring factors on two different items of the Hare Psychopathy Checklist-Revised. She stated that such use of scoring factors involved \u201ca different way of looking at the behavior.\u201d Buck also acknowledged that she scored defendant as having a \u201cflat affect\u201d (meaning that he did not show emotion) based on five minutes of interaction.\nBased on (1) Buck\u2019s review of (a) defendant\u2019s master file, (b) the results of the Minnesota Screening Tool-Revised, the Static-99, and the Violence Risk Appraisal Guide, (c) defendant\u2019s score on the Hare Psychopathy Checklist-Revised, and (d) defendant\u2019s mental disorder diagnoses; and (2) Buck\u2019s clinical judgment, Buck opined that it was \u201csubstantially probable\u201d that defendant would sexually reoffend with acts of violence if he were released into the community. She also opined that defendant was at a higher risk of reoffending than the general prison population. Buck further opined that defendant had serious difficulty in controlling his behavior outside of a controlled environment.\nBuck acknowledged that (1) defendant\u2019s sex offenses occurred while he was in his teens and twenties; (2) he had been incarcerated since then; and (3) his behavior in prison over the last several years had been \u201cpretty good.\u201d Buck also acknowledged that defendant\u2019s failure to participate in sex-offender treatment did not increase his risk of reoffending. She further acknowledged that Carl Hanson, an authority in the field of sex- offender risk assessment, had stated in an article that the Violence Risk Appraisal Guide is a good predictor of general violence, but it has not been \u201cparticularly effective\u201d in predicting sex-offense reoffending. Buck described Hanson\u2019s comment as a vague \u201ccheap shot.\u201d\nBarry Leavitt, a clinical psychologist and special evaluator for DHS, testified that he reviewed defendant\u2019s DOC master file and Buck\u2019s report. In July 2000, he approached defendant to initiate a psychological evaluation, and defendant agreed to participate in psychological testing. Leavitt administered the following tests to defendant: (1) a general aptitude measure for adults, which provides a baseline for an individual\u2019s intellectual functioning; (2) the Mill\u00f3n Multiaxial Personality Inventory Assessment (Mill\u00f3n Assessment); and (3) the Minnesota Multiphasic Personality Inventory (Minnesota Inventory). The Mill\u00f3n Assessment and the Minnesota Inventory provide information regarding an individual\u2019s overall personality functioning. Defendant\u2019s score on the general aptitude measure for adults was in the \u201clow average range.\u201d\nWhen Leavitt approached defendant in August 2000 to conduct a clinical interview, defendant refused to participate. Leavitt stated that the preferred method for evaluating an individual involves a clinical interview. However, Leavitt was able to formulate an opinion regarding defendant based on other available information.\nLeavitt identified several \u201cstatic\u201d (unchanging) factors associated with an increased risk of reoffending, which defendant displayed. Those risk factors included the following: (1) refusal to participate in sex-offender treatment; (2) deviate sexual preferences; (3) multiple prior sex offenses; (4) offenses other than sex offenses; (5) early onset of sexually violent interests and behavior; (6) unrelated victims; (7) lack of motivation for treatment; (8) resistance to change; (9) anger problems; (10) low level of remorse; and (11) antisocial lifestyle.\nBased on his review of all available information, Leavitt diagnosed defendant with (1) sexual sadism; (2) polysubstance dependence without physiological dependence within a controlled environment; and (3) severe antisocial personality disorder. Sexual sadism and antisocial personality disorder are the types of mental disorders that affect a person\u2019s emotional capacity and predispose a person to engage in future acts of sexual violence.\nLeavitt used two actuarial risk-assessment instruments in evaluating defendant: (1) the Minnesota Screening Tool-Revised; and (2) the Static-99. The results of those actuarial risk-assessment instruments placed defendant in the category of highest risk of committing future acts of sexual violence. (As earlier stated, both of these instruments were challenged in defendant\u2019s January 2001 motion for a Frye evidentiary hearing.)\nBased on the available information, Leavitt opined that defendant \u201cpossesses an exceedingly high and substantial probability of re[ Offending at some time in the future.\u201d He also opined that defendant had serious difficulty controlling his sexually violent behavior.\nDefendant did not present any evidence on his own behalf.\nBased on the evidence presented, the trial court found that defendant was a sexually violent person.\nAt defendant\u2019s August 2002 dispositional hearing, Leavitt testified that he conducted a separate evaluation to identify defendant\u2019s treatment needs and the least-restrictive setting available to meet those needs. In forming his opinions, Leavitt reviewed the following sources of information: (1) defendant\u2019s past participation in sex-offender treatment; (2) defendant\u2019s motivation to participate in sex-offender treatment; (3) defendant\u2019s sex-offense history; (4) defendant\u2019s mental-health status; and (5) relevant risk factors.\nBased on his review of all available information, Leavitt opined that (1) defendant\u2019s mental-health status had not changed; (2) defendant was not motivated to seek sex-offender treatment; and (3) defendant remained at an \u201cexceedingly high risk\u201d of reoffending in a sexually violent manner. He also opined that defendant needed to be placed in a secure-care treatment setting. Leavitt explained that opinion as follows:\n\u201c[A]t the present time[,] [defendant] presents at an exceedingly high level of risk for reoffending, needs the structure and supervision and intensity and comprehensiveness of treatment that would be available in a secure[-]care treatment setting.\u201d\nLeavitt acknowledged that in his predispositional report, he mentioned a 1975 incident in which defendant allegedly held a knife to a baby\u2019s throat. That alleged incident suggested the level of violence to which defendant would resort to carry out his sexually violent behavior. However, Leavitt did not consider that alleged incident as significant in forming his opinions. (The record shows that it was defendant\u2019s brother who held a knife to a baby\u2019s throat in that incident, not defendant.) Leavitt also acknowledged that in forming his opinion regarding the best treatment option, he had considered the fact that no evidence existed that defendant had a proper support system. However, even if defendant had an active social-support network, that fact would not alter his opinion that defendant needed to be in a secure treatment setting. Leavitt further acknowledged that he had not interviewed defendant prior to completing his predisposi-tional report. He explained that (1) defendant had refused to participate in an August 2000 clinical interview; and (2) when he conducted his predispositional evaluation of defendant, he believed he had an abundance of information, which did not require him to again attempt to interview defendant.\nHollida Wakefield, a psychologist who primarily focused her practice on sex offenders, testified on defendant\u2019s behalf that she evaluated defendant twice \u2014 once to assess whether he was a sexually violent person and a second time to prepare a predispositional report. Based on her initial evaluation, Wakefield diagnosed defendant with (1) sexual sadism; (2) polysubstance dependence without physiological dependence within a controlled environment; and (3) antisocial personality disorder.\nDuring her second evaluation, Wakefield conducted a clinical interview of defendant, which indicated as follows. Defendant was \u201cunusually candid,\u201d took responsibility for his sex offenses, and expressed remorse. Defendant\u2019s motivation for sex-offender treatment in the \u201cJoliet program\u201d is \u201cquite low\u201d because he does not trust the treatment staff. (The record shows that the DHS secure-care treatment setting is located in Joliet.) Defendant\u2019s mother had expressed a desire to help him if he were released to the community, and his sister lived in Illinois and visited him. Because defendant\u2019s sexual sadism was not the severe type, he was \u201camenable to treatment.\u201d\nWakefield also administered the Hare Psychopathy Checklist-Revised in evaluating defendant. Defendant\u2019s score on that personality inventory totaled 25. Based on that score, Wakefield opined that defendant was not a psychopath. Following the trial court\u2019s February 2001 denial of defendant\u2019s motion for a Frye evidentiary hearing, defendant introduced Wakefield\u2019s testimony regarding several actuarial risk-assessment instruments, including the Minnesota Screening Tool-Revised, the Static-99, and the Violence Risk Appraisal Guide. Based on her administration of those instruments, Wakefield determined that defendant was at a high risk of reoffending.\nWakefield opined that the most appropriate and least-restrictive alternative treatment option for defendant was outpatient treatment with appropriate safeguards. She based her opinion on the following factors: (1) defendant was no longer a disciplinary problem in prison; (2) his sex offenses were planned, which suggested that he could \u201cbe managed better than a person whose offenses are impulsive\u201d; (3) defendant was able to identify general situations that placed him at risk of reoffending; (4) defendant was motivated to not return to prison; and (5) defendant\u2019s family support system.\nWakefield acknowledged that she was not aware of any specific sex-offender treatment programs that met her suggested parameters for defendant. She also acknowledged that defendant\u2019s diagnosis of antisocial personality disorder meant that he was more likely to act impulsively and irresponsibly. She explained that although defendant\u2019s behavior had \u201cgreatly improved\u201d over the last few years, \u201cyou don\u2019t really know until he is out\u201d how he will behave. Wakefield further acknowledged that defendant had never participated in sex-offender or substance-abuse treatment.\nDenise Marshall, defendant\u2019s sister, testified that if defendant were released, she would provide support for him. Defendant had expressed remorse and shame regarding his sex offenses. Based on her conversations with defendant, she believed that he would participate in sex-offender or substance-abuse treatment.\nBased on the evidence presented, the trial court ordered defendant committed to DHS for institutional care in a secure facility. This appeal followed.\nII. ANALYSIS\nA. Defendant\u2019s Ineffective-Assistance-of-Counsel Claim Defendant first argues that he received ineffective assistance of counsel when Davis, his initial appointed counsel, (1) failed to appear at the June 19, 2000, probable-cause hearing and challenge personal jurisdiction based on the State\u2019s failure to serve him with summons, and (2) moved to continue the probable-cause hearing. We disagree.\nIn People v. Rainey, 325 Ill. App. 3d 573, 586, 758 N.E.2d 492, 502-03 (2001), this court held that defendants under the Act are entitled to effective assistance of counsel measured by the Strickland standard (see Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984)). To establish ineffective assistance of counsel, a defendant must first demonstrate that his counsel\u2019s performance was deficient in that \u201ccounsel made errors so serious that counsel was not functioning as the \u2018counsel\u2019 guaranteed the defendant by the [s]ixth [a]mendment.\u201d Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. In so doing, a defendant must overcome the strong presumption that the challenged action or inaction of counsel was the product of sound trial strategy and not of incompetence. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065. As the Strickland Court stated:\n\u201cJudicial scrutiny of counsel\u2019s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel\u2019s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel\u2019s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel\u2019s challenged conduct, and to evaluate the conduct from counsel\u2019s perspective at the time.\u201d Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.\nSecond, a defendant must demonstrate a reasonable probability that, but for defense counsel\u2019s deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. Both prongs of the Strickland test must be satisfied before a defendant can prevail on a claim of ineffective assistance of counsel. People v. Coleman, 183 Ill. 2d 366, 397, 701 N.E.2d 1063, 1079 (1998).\n1. Counsel\u2019s Failure To Challenge Personal Jurisdiction\nDefendant first contends that he received ineffective assistance of counsel when Davis failed to appear at the June 19, 2000, probable-cause hearing and challenge personal jurisdiction based on the State\u2019s failure to serve him with summons. We disagree.\nEven if Davis had appeared at the June 19, 2000, probable-cause hearing, objected to personal jurisdiction, and insisted on service of summons, it is not reasonably probable that the result of the probable-cause hearing would have been different. Had Davis insisted on proper service of summons, the trial court could have directed that technical service be then complied with in open court, and ordered that the preliminary hearing be held that same day, which still would have been within the 72-hour requirement of section 30(b) of the Act. See 725 ILCS 207/30(b) (West 2000). Thus, Davis may reasonably have concluded that appearing at the June 19, 2000, probable-cause hearing and objecting to personal jurisdiction would have gained her client nothing. See People v. Ivy, 313 Ill. App. 3d 1011, 1018, 730 N.E.2d 628, 636 (2000) (counsel is not required to perform a futile act to avoid charges of ineffective assistance of counsel).\n2. Counsel\u2019s Motion To Continue\nDefendant also contends that he received ineffective assistance of counsel when Davis moved to continue the June 19, 2000, probable-cause hearing. Specifically, he asserts that Davis\u2019s doing so was not a strategic decision because she sought continuances in all proceedings under the Act. We disagree.\nAt the July 2000 hearing on defendant\u2019s motion seeking appointment of other counsel, Davis acknowledged that because her office usually receives the State\u2019s petitions under the Act \u201cpretty much at the last minute,\u201d she routinely seeks to continue probable-cause hearings to allow time to carefully review the petitions. However, she also addressed the reasons she sought a continuance in this particular case \u2014 namely, (1) because she had other matters to which she had to attend when she received the State\u2019s petition; and (2) in \u201can effort for [her] to be prepared for [the probable-cause] hearing.\u201d\nUnder these circumstances, we conclude that defendant has failed to overcome the strong presumption that the challenged action of counsel was the product of sound trial strategy and not of incompetence.\n3. Defendant\u2019s Embedded Arguments\nAlthough not set forth in a separate argument section, defendant contends that (1) the trial court\u2019s June 14, 2000, appointment of counsel is \u201carguably void\u201d because \u201cit was entered at a time when the court did not have jurisdiction\u201d over defendant; and (2) he was denied due process and his statutory right to be present at all hearings when the trial court conducted an \u201cinformal hearing\u201d on Davis\u2019s motion to continue the probable-cause hearing. We disagree.\nThe trial court\u2019s June 14, 2000, appointment of counsel is not \u201carguably void\u201d because \u201cit was entered at a time when the court did not have jurisdiction\u201d over defendant, based on the State\u2019s failure to serve him with summons. When defendant appeared and participated at the June 26, 2000, probable-cause hearing, he waived objection to the court\u2019s personal jurisdiction over him. See Rainey, 325 Ill. App. 3d at 581, 758 N.E.2d at 499 (defendant under the Act submitted to the trial court\u2019s jurisdiction when he appeared and participated at his probable-cause hearing).\nNor do we agree with defendant that the trial court conducted an \u201cinformal hearing\u201d on Davis\u2019s motion to continue the probable-cause hearing. We are simply not persuaded that the two telephone calls from Davis and the assistant Attorney General, respectively, regarding the status of Davis\u2019s motion to continue, constituted a \u201chearing\u201d at which defendant had the right to be present, pursuant to the Act. See 725 ILCS 207/25(c) (West 2000).\nB. The Trial Court\u2019s Denial of Defendant\u2019s Motion for a Frye Hearing\nDefendant also argues that the trial court erred by denying his motion for a Frye evidentiary hearing to determine the admissibility of evidence regarding the actuarial instruments used by Buck and Leavitt in assessing defendant\u2019s risk of reoffending. We disagree.\n1. Applicability of the Frye Standard to Actuarial Risk-Assessment Instruments\na. Scientific Principle, Method, or Test\nInitially, we hold that the actuarial risk-assessment instruments used in this case do not purport to involve a scientific principle, method, or test to which Frye applies. See Frye, 293 E at 1014 (standard applies to deductions from a purportedly scientific principle, technique, or test). \u201cRather, they are simply actuarial tables \u2014 methods of organizing and interpreting a collection of historical data.\u201d In re Commitment of R.S., 339 N.J. Super. 507, 540, 773 A.2d 72, 92 (2001), aff\u2019d, 173 N.J. 134, 801 A.2d 219 (2002). Actuarial risk-assessment instruments, like those used in this case, were developed by observing those sex offenders who reoffend to determine which \u201crisk factors\u201d they have in common. See In re Detention of Isbell, 333 Ill. App. 3d 906, 911, 916, 777 N.E.2d 994, 997-98, 1002 (2002) (by observing what a large number of reoffenders have had in common, one can compile a fist of risk factors). One can then calculate the relative frequency with which sex offenders with those risk factors have reoffended and thus assess the probability that other sex offenders with the same risk factors will reoffend. Isbell, 333 Ill. App. 3d at 916, 777 N.E.2d at 1002. The actuarial instruments merely help the professional draw inferences from historical data or the collective experience of other professionals who have assessed sex offenders for risks of reoffending. In this regard, the instruments are akin to actuarial tables for life expectancy admitted as evidence to a jury for the determination of the gross amount awarded for future pain and suffering or used by an economic expert to determine the present cash value of a pension. Such instruments simply do not constitute a special scientific principle, method, or test to which Frye applies.\nWe find support for our holding in the Supreme Court of Washington\u2019s decision in State v. Russell, 125 Wash. 2d 24, 882 P.2d 747 (1994). In that case, the defendant had posed the bodies of his three murder victims (by placing a pinecone in each victim\u2019s hand and a book under each victim\u2019s arm, among other things). Russell, 125 Wash. 2d at 30-35, 882 P.2d at 756-58. To prove that the murderer of the three victims was probably the same person, the State\u2019s experts analyzed two computer databases consisting of \u201cforms, filled out by local law enforcement officers, listing the various characteristics of homicides in Washington and the nation.\u201d Russell, 125 Wash. 2d at 69, 882 P.2d at 776. On the basis of that analysis, the experts testified to \u201cthe rarity of posed murder victims.\u201d Russell, 125 Wash. 2d at 69, 882 P.2d at 776. The defendant argued that the testimony was inadmissible under Frye because the experts \u201cimproperly relied on unproven scientific methodologies in determining that the same person committed all three murders.\u201d Russell, 125 Wash. 2d at 68, 882 P.2d at 776. The Supreme Court of Washington disagreed, holding that Frye was \u201cclearly *** inapplicable\u201d because the computer programs were \u201cnothing more than sophisticated record-keeping systems.\u201d Russell, 125 Wash. 2d at 70, 882 P.2d at 776. Like the experts in Russell, Buck and Leavitt essentially drew an inference of probability from a sophisticated record-keeping system.\nb. Novelty\nEven assuming that the sort of actuarial instruments used by Buck and Leavitt involve a scientific principle, method, or test (see People v. Taylor, 335 Ill. App. 3d 965, 977, 782 N.E.2d 920, 930 (2002) (holding that such actuarial instruments constitute a scientific methodology), appeal denied, 206 Ill. 2d 641 (2003); see also In re Detention of Traynoff, 338 Ill. App. 3d 949, 964, 789 N.E.2d 865, 878 (2003) (same holding, reaffirming Taylor)-, In re Detention of Hargett, 338 Ill. App. 3d 669, 675, 786 N.E.2d 557, 562 (2003) (same holding, relying on Taylor)), those instruments do not involve the kind of \u201cnew\u201d or \u201cnovel\u201d scientific principle, method, or technique to which Frye applies. See Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 78-79, 767 N.E.2d 314, 324-25 (2002) (\u201cThe trial judge applies the Frye test only if the scientific principle, technique[,] or test offered by the expert to support his or her conclusion is \u2018new\u2019 or \u2018novel\u2019 noting that \u201ca scientific technique is \u2018new\u2019 or \u2018novel\u2019 if it is \u2018original or striking\u2019 or does \u2018not resembl[e] something formerly known or used.\u2019 [Citation.]\u201d); Websters Third New International Dictionary 1546 (1981) (defining \u201cnovel\u201d as \u201coriginal or striking in conception or style\u201d); see also Bachman v. General Motors Corp., 332 Ill. App. 3d 760, 779, 776 N.E.2d 262, 281 (2002) (the process of recording and downloading data from automobile crash sensors did not constitute a novel technique or method). Our society uses actuarial methods to predict human behavior all the time (for example, in liability insurance and economics). In addition, actuarial instruments similar to the ones used in this case have long been used in predicting recidivism by released prisoners. See D. Faigman, D. Kaye, M. Saks & J. Sanders, Modern Scientific Evidence: The Law and Science of Expert Testimony \u00a7 9 \u2014 2.1 (2d ed. 1997). For example, in 1928, the Illinois State Board of Parole published the results of what was apparently the first attempt to predict recidivism through actuarial data. See W. Grove & E Meehl, Comparative Efficiency of Informal (Subjective, Impressionistic) and Formal (Mechanical, Algorithmic) Prediction Procedures: The Clinical-Statistical Controversy, 2 Psych. Pub. Pol. & L. 293, 293 (1996). Further, the United States Parole Commission has used an actuarial risk-assessment instrument (the Salient Factor Score) since 1972 to predict recidivism and guide parole decisions. See E Hoffman, Twenty Years of Operational Use of a Risk Prediction Instrument: The United States Parole Commission\u2019s Salient Factor Score, 22 J. Grim. Just. 477, 477-78 (1994).\nFurther, such actuarial instruments do not concern a novel scientific principle, method, or test that may instill a sense of \u201cfalse confidence\u201d or carry a misleading sense of scientific \u201cinfallibility.\u201d See Donaldson, 199 Ill. 2d at 86-87, 767 N.E.2d at 329 (observing that the method of extrapolation does not involve a technique new to science that may instill a sense of false confidence because \u201cextrapolation by nature admits its fallibility \u2014 the lack of specific support to establish the existence of a known cause and effect relationship\u201d). In this regard, we agree with the Court of Appeals of Arizona, which held that the Frye standard did not apply to \u201cthe use of actuarial models by mental[-]health experts to help predict a person\u2019s likelihood of recidivism\u201d (State ex rel. Romley v. Fields, 201 Ariz. 321, 328, 35 P.3d 82, 89 (2001)) stating, in pertinent part, as follows:\n\u201cUnlike DNA and other types of \u2018scientific\u2019 evidence, these risk[-] assessment tools do not have an aura of scientific infallibility. *** [T]hey are subject to interpretation and their predictive value is far less than 100%.\u201d Fields, 201 Ariz. at 328, 35 P.3d at 89.\n2. General Acceptance of Actuarial Risk-Assessment Instruments Even assuming that the Frye standard applies, we agree with the trial court that the use of actuarial risk-assessment instruments is generally accepted by professionals who assess sex offenders for risk of reoffending.\nIn Donaldson, 199 Ill. 2d at 76-78, 767 N.E.2d at 323-24, the supreme court discussed the admission of expert testimony under the Frye standard, stating as follows:\n\u201cIllinois law is unequivocal: the exclusive test for the admission of expert testimony is governed by the standard first expressed in Frye v. United States, 293 E 1013 (D.C. Cir. 1923). [Citations.] The Frye standard, commonly called the \u2018general acceptance\u2019 test, dictates that scientific evidence is only admissible at trial if the methodology or scientific principle upon which the opinion is based is \u2018sufficiently established to have gained general acceptance in the particular field in which it belongs.\u2019 Frye, 293 F. at 1014.\nFirst, \u2018general acceptance\u2019 does not concern the ultimate conclusion. Rather, the proper focus of the general acceptance test is on the underlying methodology used to generate the conclusion. If the underlying methods used to generate an expert\u2019s opinion are reasonably relied upon by the experts in the field, the fact finder may consider the opinion \u2014 despite the novelty of the conclusion rendered by the expert. [Citations.]\nSecond, general acceptance of methodologies does not mean \u2018universal\u2019 acceptance of methodologies. *** \u2018In determining whether a novel scientific procedure is \u201cgenerally accepted\u201d in the scientific community, the issue is consensus versus controversy over a particular technique. *** Moreover, the mere existence of a dispute does not preclude a finding that the procedure is generally accepted.\u2019 [Citations; see] Frye, 293 F. at 1014 (\u2018[J]ust when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized\u2019). Simply stated, general acceptance does not require that the methodology be accepted by unanimity, consensus, or even a majority of experts. A technique, however, is not \u2018generally accepted\u2019 if it is experimental or of dubious validity.\u201d\nWe review Frye issues under an abuse of discretion standard. Donaldson, 199 Ill. 2d at 76, 767 N.E.2d at 323. \u201cIn determining whether there has been an abuse of discretion, [a reviewing court] may not substitute [its] judgment for that of the trial court, or even determine whether the trial court exercised its discretion wisely.\u201d Simmons v. Garces, 198 Ill. 2d 541, 568, 763 N.E.2d 720, 737 (2002); see also People v. Hall, 195 Ill. 2d 1, 20, 743 N.E.2d 126, 138 (2000) (\u201cAn abuse of discretion will be found only where the trial court\u2019s ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by the trial court\u201d).\nAlthough this court has affirmed a jury\u2019s finding that a defendant was a sexually violent person in a case in which the mental-health experts relied on an actuarial risk-assessment instrument to predict the defendant\u2019s risk of reoffending (see In re Detention of Walker, 314 Ill. App. 3d 282, 294, 731 N.E.2d 994, 1002 (2000)), this case presents this court with its first challenge to the admissibility of evidence regarding actuarial risk-assessment instruments in a sexually-violent-persons proceeding. However, other courts have addressed this issue, with virtually all holding that evidence regarding such actuarial instruments is admissible. Our research has shown only one reported decision in the United States that has barred the use of actuarial instruments to predict recidivism. See Taylor, 335 Ill. App. 3d at 979-80, 782 N.E.2d at 932 (in which the Second District recently held that certain actuarial instruments did not satisfy the Frye standard), appeal denied, 206 Ill. 2d 641 (2003). Having thoroughly examined all of those decisions, we find the decisions allowing evidence regarding such actuarial instruments to be more persuasive.\nThe New Jersey appellate court\u2019s decision in R.S., 339 N.J. Super. 507, 773 A.2d 72, affd, 173 N.J. 134, 801 A.2d 219, represents one of the well-researched and well-reasoned decisions on the issue. The defendant in R.S. had been convicted of sex crimes against prepubescent boys. R.S., 339 N.J. Super, at 513, 773 A.2d at 75. The State sought his commitment under the New Jersey Sexually Violent Predator Act (N.J. Stat. Ann. \u00a7 30:4 \u2014 27.24 through 30:4 \u2014 27.38 (West 2002)). R.S., 339 N.J. Super, at 512, 773 A.2d at 74-75. At a five-day evidentiary hearing on the admissibility of actuarial instrument results, a State expert testified that she had administered four actuarial risk-assessment instruments, including the Minnesota Screening Tool-Revised and the Rapid Risk Assessment of Sex Offender Recidivism (Rapid Risk Assessment). R.S., 339 N.J. Super, at 516, 773 A.2d at 77. Another State expert testified that a large number of research studies supported the use of actuarial instruments for determining the likelihood of recidivism. That psychologist explained that the original Minnesota Sex Offender Screening Tool was a clinically derived measure in which researchers took factors that research had shown as significant indicators for sexual recidivism and scored them, based on clinical judgment, to determine which were most significant. The researchers then refined the scale through factor analysis and validity studies to derive a more statistically valid approach, the Minnesota Screening Tool-Revised. The Minnesota Screening Tool-Revised had been validated and cross-validated with good results.\nThe State\u2019s expert further explained that the Rapid Risk Assessment was an empirically based instrument designed after a meta-analysis study by two prominent researchers in the field. (A meta-analysis study is one in which researchers look at several different studies at the same time and come up with a set of variables that are significant in all of them.) The Rapid Risk Assessment had been validated. The Static-99, which was the updated version of the Rapid Risk Assessment, was developed by a British researcher who combined the Rapid Risk Assessment with certain statistical instruments used in Britain and Canada. The Static-99 had been validated. The inter-rater reliability for the Minnesota Screening Tool-Revised, the Rapid Risk Assessment, and the Static-99 were all \u201cfairly high,\u201d with the Static-99 the best. R.S., 339 N.J. Super, at 520, 773 A.2d at 79.\nThe defendant\u2019s experts testified that the reliability of the instruments administered to the defendant was unknown. They also testified that (1) the Rapid Risk Assessment and the Minnesota Screening Tool-Revised had little to modest predictive value; and (2) the inter-rater reliability scores for the Minnesota Screening Tool-Revised were relatively acceptable. R.S., 339 N.J. Super, at 524-28, 773 A.2d at 81-84.\nOn this evidence, the trial court in R.S. determined that evidence regarding the actuarial instruments was admissible under Frye (R.S., 339 N.J. Super, at 530, 773 A.2d at 85), and the New Jersey appellate court affirmed the trial court\u2019s decision (R.S., 173 N.J. 134, 801 A.2d 219). In so holding, the appellate court concluded that the State had met its burden of proving that the use of actuarial instruments was generally accepted by professionals who assess sex offenders for risks of reoffending. R.S., 339 N.J. Super, at 540-41, 773 A.2d at 92. The appellate court also concluded that authoritative scientific and legal writings, along with the existence of numerous workshops held nationwide on the subject of risk assessment, established that actuarial instruments were \u201can accepted and advancing method of helping to assess the risk of recidivism among sex offenders.\u201d R.S., 339 N.J. Super, at 545, 773 A.2d at 95.\nIn In re Detention of Strauss, 106 Wash. App. 1, 4, 20 P.3d 1022, 1023-24 (2001), the State filed a petition to have the defendant committed as a sexually violent person. In a pretrial motion, the defendant moved to exclude evidence regarding the results of certain actuarial risk-assessment instruments, including the Violence Risk Appraisal Guide and the Minnesota Screening Tool-Revised. After reviewing the parties\u2019 written arguments, the trial court denied the defendant\u2019s motion. Strauss, 106 Wash. App. at 4, 20 P.3d at 1024. The Washington appellate court affirmed the trial court\u2019s decision, upon concluding that the actuarial instruments were generally accepted within the relevant scientific community. The appellate court based its conclusion on (1) the expert testimony of both the State and the defendant; (2) the scientific literature; and (3) secondary legal authority. Strauss, 106 Wash. App. at 8, 20 P.3d at 1025.\nKeeping in mind that \u201cthe Frye standard does not demand unanimity, consensus, or even a majority to satisfy the general acceptance test\u201d (Donaldson, 199 Ill. 2d at 88, 767 N.E.2d at 330), we agree with R.S. and Strauss that the use of actuarial risk-assessment instruments is sufficiently established to have gained general acceptance by professionals who assess sex offenders for risks of reoffending. Accordingly, we hold that the trial court did not err by denying defendant\u2019s motion for a Frye hearing.\nIn so holding, we note that in addition to R.S. and Strauss, other appellate courts have accepted actuarial risk-assessment instruments in sexually-violent-persons proceedings. See In re Commitment of Lalor, 261 Wis. 2d 614, 623, 661 N.W.2d 898, 903 (App. 2003) (actuarial instruments used to assess the likelihood of reoffending were admissible in sexually-violent-person commitment proceeding, as instruments were commonly and reasonably relied upon by experts in the field of sex-offender risk assessment); Jackson v. State, 833 So. 2d 243, 246 (Fla. App. 2002) (concluding that the trial court did not err by determining that the actuarial instruments used in that case were \u201cgenerally accepted in the relevant scientific community as part of the overall risk assessment for sexual predators\u201d); In re Detention of Holtz, 653 N.W.2d 613, 619 (Iowa App. 2002) (in which the Iowa appellate court relied on R.S. in holding that the trial court properly admitted evidence regarding certain actuarial instruments, including the Static-99 and the Minnesota Screening Tool-Revised); Garcetti v. Superior Court, 85 Cal. App. 4th 508, 543, 102 Cal. Rptr. 2d 214, 238 (2000), rev\u2019d on other grounds sub nom. Cooley v. Superior Court, 29 Cal. 4th 228, 57 P.3d 654, 127 Cal. Rptr. 2d 177 (2000) (psychiatrist\u2019s prediction of future dangerousness is not subject to Frye, regardless of whether the psychiatrist used clinical or actuarial models); People v. Poe, 74 Cal. App. 4th 826, 831-32, 88 Cal. Rptr. 2d 437, 440-41 (1999) (concluding that a Rapid Risk Assessment score in the high-risk category, adjusted with appropriate clinical factors, supported a finding that the defendant was likely to engage in sexually violent behavior if released); In re Linehan, 557 N.W.2d 171, 189 (Minn. App. 1996), vacated on other grounds in Linehan v. Minnesota, 522 U.S. 1011, 139 L. Ed. 2d 486, 118 S. Ct. 596 (1997) (in which the appellate court rejected the defendant\u2019s argument that the State\u2019s expert improperly failed to use actuarial methods, upon concluding that the State\u2019s expert relied on base rate statistics; the appellate court also noted that enhanced accuracy can be achieved by combining actuarial methods with clinical judgment).\nAs earlier stated, our research has revealed only one reported decision in the United States concluding that actuarial risk-assessment instruments are inadmissible in sexually violent persons proceedings. In Taylor, 335 Ill. App. 3d at 967, 782 N.E.2d at 923, the trial court conducted a Frye evidentiary hearing on the admissibility of evidence regarding the Minnesota Screening Tool, the Minnesota Screening Tool-Revised, the Static-99, and the Rapid Risk Assessment. Following the Frye hearing, the trial court found that the actuarial instruments did not constitute scientific evidence subject to Frye, and even if they did, the instruments were generally accepted in the relevant scientific community. Taylor, 335 Ill. App. 3d at 972, 782 N.E.2d at 926. On appeal, the Second District reversed the trial court and concluded that the actuarial risk-assessment instruments \u201care still in the experimental stages\u201d and their validity has not been established. Taylor, 335 Ill. App. 3d at 978, 782 N.E.2d at 931. The Taylor court based its conclusion, in large part, on the following: (1) the lack of significant peer review of the instruments; (2) the existence of \u201csignificant controversy\u201d surrounding the instruments; and (3) the existence of \u201cfrequent scoring inconsistencies by different evaluators.\u201d Taylor, 335 Ill. App. 3d at 978, 782 N.E.2d at 931.\nWith respect to our colleagues in the Second District, we are not persuaded. Accepting arguendo the Taylor court\u2019s determination that significant peer review of the instruments does not exist, that factor alone should not render evidence regarding those instruments inadmissible under the Frye standard. See People v. Kirk, 289 Ill. App. 3d 326, 332, 681 N.E.2d 1073, 1077 (1997) (in which this court set forth what a court may consider in determining the admissibility of evidence under Frye: (1) scientific publications and law review articles; (2) prior court decisions in Illinois and other jurisdictions; (3) practical applications of the technique or method; and (4) testimony or affidavits of experts regarding (a) the acceptance of the technique or method within the relevant scientific community, and (b) the attitudes of their fellow scientists); see also 1 J. Strong, McCormick on Evidence \u00a7 203, at 726 (5th ed. 1999) (and cases cited therein).\nNor should the mere fact that the actuarial instruments are controversial render them inadmissible under Frye. Any approach to predicting human behavior will be controversial \u2014 and frequently criticized \u2014 because the task is so complex and daunting. Yet, the law requires such predictions. If a psychiatrist or psychologist can predict a sex offender\u2019s likelihood of reoffending on the basis of a clinical examination, no logical reason exists why such a professional cannot at least consider actuarial instruments, which the profession widely uses and which are less subjective than unaided clinical judgment.\nLast, the Taylor court\u2019s concern with \u201cfrequent scoring inconsistencies by different evaluators\u201d goes to the expert\u2019s application of the actuarial instruments, not to their general acceptance. Questions concerning an expert\u2019s application of a technique go to the weight of the evidence rather than its admissibility. Donaldson, 199 Ill. 2d at 76-78, 767 N.E.2d at 323-24; see also People v. Pope, 284 Ill. App. 3d 695, 702, 672 N.E.2d 1321, 1326 (1996) (\u201c 1 \u201c[a]ny question concerning the specific procedures used by the company or expert goes to the reliability of the evidence and is properly considered by the jury in determining what weight to give to this evidence\u201d \u2019 \u201d (emphasis in original), quoting People v. Johnson, 262 Ill. App. 3d 565, 569, 634 N.E.2d 1285, 1288 (1994), quoting People v. Lipscomb, 215 Ill. App. 3d 413, 432, 574 N.E.2d 1345, 1357 (1991)); M. Graham, Cleary & Graham\u2019s Handbook of Illinois Evidence \u00a7 702.4, at 629 (7th ed. 1999) (questions raised with respect to the actual procedures employed to conduct the particular scientific process, technique, or test are properly considered by the trier of fact as going to the weight of the evidence).\nAs a final matter, we note that traditional methods, such as cross-examination and rebuttal witnesses, offered defendant the opportunity to challenge Buck\u2019s and Leavitt\u2019s opinions in the proper forum \u2014 that is, during trial in front of the trier of fact. As the Supreme Court stated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596, 125 L. Ed. 2d 469, 484, 113 S. Ct. 2786, 2798 (1993), \u201c[vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.\u201d See also Halleck v. Coastal Building Maintenance Co., 269 Ill. App. 3d 887, 897, 647 N.E.2d 618, 627 (1995) (on cross-examination, counsel may probe the weaknesses in the bases of an expert\u2019s opinion as well as the general soundness of his opinion). The record shows that defendant conducted a vigorous cross-examination of both Buck and Leavitt.\nC. Sufficiency of the Evidence\nDefendant next argues that the trial court\u2019s finding that he was a sexually violent person was against the manifest weight of the evidence. Specifically, he contends that reasonable doubt was created by (1) Buck\u2019s acknowledgment that in administering and scoring the Hare Psychopathy Checklist-Revised, (a) she added 3.2 points to defendant\u2019s score because she lacked information on two of the scoring factors, (b) she used the same scoring factor on two different items, and (c) she scored defendant as having a flat affect based on five minutes of interaction; and (2) Leavitt\u2019s failure to base his opinion on a clinical interview of defendant. We disagree.\nSection 5(f) of the Act defines a \u201csexually violent person\u201d as an individual who has \u201cbeen convicted of a sexually violent offense *** and who is dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence.\u201d 725 ILCS 207/5(f) (West 2000). The State must prove the allegations of its petition beyond a reasonable doubt. 725 ILCS 207/35(d)(l) (West 2000). On review, we ask only whether, after viewing the evidence in the fight most favorable to the State, any rational trier of fact could find the elements proved beyond a reasonable doubt. In re Detention of Tittlebach, 324 Ill. App. 3d 6, 11, 754 N.E.2d 484, 488 (2001).\nDefendant\u2019s claims regarding the alleged infirmities of Buck\u2019s and Leavitt\u2019s opinions simply attack the weight of the evidence and the credibility of those witnesses. In reviewing a challenge to the sufficiency of the evidence, it is not the function of this court to reweigh the evidence. \u201cRather, the trier of fact is charged with evaluating the credibility of the witnesses, resolving conflicts in the evidence, and deciding what reasonable inferences to draw from the evidence.\u201d Tittlebach, 324 Ill. App. 3d at 11, 754 N.E.2d at 488.\nMoreover, Buck\u2019s opinion was not based solely on the Hare Psychopathy Checklist-Revised. Instead, her opinion was based on (1) a review of defendant\u2019s master file, which included prior mental-health evaluations by DOC personnel; (2) actuarial risk-assessment instruments; and (3) defendant\u2019s mental-disorder diagnoses.\nNor are we persuaded that Leavitt\u2019s failure to consider a clinical interview of defendant in forming his opinion (because defendant refused to be interviewed) raises reasonable doubt as to the verdict. Leavitt\u2019s opinion was based on (1) a review of defendant\u2019s master file, which included prior mental-health evaluations by DOC personnel; (2) actuarial risk-assessment tools; and (3) defendant\u2019s mental-disorder diagnoses. Clearly, a defendant\u2019s refusal to submit to a clinical interview by the State\u2019s expert cannot \u2014 by itself \u2014 raise reasonable doubt as to the trier of fact\u2019s verdict.\nReviewing the record before us in accordance with the appropriate standard of review, we conclude that any rational trier of fact could have found beyond a reasonable doubt that defendant was a sexually violent person.\nD. Commitment to a Secure Facility\nLast, defendant argues that the trial court abused its discretion by committing him to institutional care in a secure facility. Specifically, he contends that the court\u2019s decision was based on Leavitt\u2019s opinion, which was of \u201cquestionable validity\u201d because other evidence contradicted some of the factors upon which Leavitt relied in forming his opinion. We disagree.\nSection 40(b)(2) of the Act directs the trial court to order that a person found to be a sexually violent person either be (1) committed to institutional care or (2) conditionally released. In making this determination, the court must consider (1) the nature and circumstances of the behavior that was the basis of the allegations in the State\u2019s petition; (2) the person\u2019s mental history and present mental condition; (3) where the person will live; (4) how the person will support himself; and (5) what' arrangements are available to ensure that the person has access to, and will participate in, necessary treatment. See 725 ILCS 207/40(b)(2) (West 2000).\nAs in other cases where trial courts are called upon to weigh enumerated factors and evaluate evidence and witness credibility to reach a fair and just result, we will review the trial court\u2019s decision to commit defendant to a secure facility under an abuse of discretion standard. See People v. Bell, 313 Ill. App. 3d 280, 282, 729 N.E.2d 531, 534 (2000) (\u201cThe trial court is the proper forum to balance the mitigating and aggravating factors and make a reasoned decision as to the appropriate sentence\u201d), rev\u2019d on other grounds, 196 Ill. 2d 343, 751 N.E.2d 1143 (2001). \u201cAn abuse of discretion will be found only where the trial court\u2019s ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by the trial court.\u201d Hall, 195 Ill. 2d at 20, 743 N.E.2d at 138.\nThe record shows that the trial court was presented with evidence on all of the relevant factors, and the court\u2019s comments from the bench indicate that it considered all of those factors. In light of all of the evidence before the trial court, we conclude that its commitment order was not an abuse of discretion.\nIn so concluding, we note that defendant\u2019s challenges to Leavitt\u2019s testimony attack Leavitt\u2019s credibility and the weight of the evidence. However, as stated above, the duty of evaluating the evidence and witness credibility properly lies with the trial court, not this court. See Simmons, 198 Ill. 2d at 568, 763 N.E.2d at 737 (\u201cIn determining whether there has been an abuse of discretion, [a reviewing court] may not substitute [its] judgment for that of the trial court\u201d).\nIII. CONCLUSION\nFor the reasons stated, we affirm the trial court\u2019s judgment.\nAffirmed.\nTURNER, J., concurs.", "type": "majority", "author": "JUSTICE STEIGMANN" }, { "text": "PRESIDING JUSTICE MYERSCOUGH,\ndissenting:\nI respectfully dissent from the portion of the majority\u2019s opinion denying defendant\u2019s motion for a Frye evidentiary hearing to determine the admissibility of evidence on actuarial instruments used by Buck and Leavitt in assessing defendant\u2019s risk of reoffending.\nI concurred in the opinion of In re Detention of Bolton, 343 Ill. App. 3d 1223 (2003), which held that \u201cthe psychological or psychiatric testimony of an expert predicated upon actuarial instruments is scientific evidence subject to Frye.\u201d Bolton, 343 Ill. App. 3d at 1228. We concluded that \u201c[tjhere is a danger that actuarial instruments may intrude upon the proper functioning of the jury, that they may instill a false confidence or carry a misleading sense of scientific infallibility.\u201d Bolton, 343 Ill. App. 3d at 1228-29.\nOur decision in Bolton requiring a Frye hearing is consistent with the three reported cases in Illinois discussing admissibility of actuarial tests relied upon by experts testifying on the detention of sexually violent persons: Taylor, 335 Ill. App. 3d 965, 782 N.E.2d 920, Hargett, 338 Ill. App. 3d 669, 786 N.E.2d 557, and Traynoff, 338 Ill. App. 3d 949, 789 N.E.2d 865.\nThe fundamental dispute between this case and Bolton is that the majority in this case views any test used by a psychologist as neither scientific nor novel. In my opinion, the various tests are presented as a scientific principle, technique, or test offered as independent support of the expert\u2019s subjective opinion.\nIn this case, for example, the State\u2019s expert relied on specific numerical results from tests and testified as to the significance of those numbers. The majority concludes this is not scientific. I am confounded that the majority goes to great lengths to establish that these tests are not scientific and, therefore, should be admitted without the scrutiny of the Frye test.\nA prime example of the important role played by a Frye test is found in People v. Ferguson, 172 Ill. App. 3d 1, 526 N.E.2d 525 (1988). There, the trial court admitted testimony from a \u201cshoe[-]print[-] identification\u201d expert who claimed that each person made a unique impression in the wear patterns of the sole of the shoe, which led her to conclude the defendant was responsible for the shoe print left at the crime scene beyond a reasonable doubt. The appellate court concluded that this testimony failed the Frye test in that the expert\u2019s theory lacked \u201cgeneral acceptance.\u201d Ferguson, 172 Ill. App. 3d at 9, 526 N.E.2d at 531. Moreover, as in this case, reliance was placed upon decisions from foreign jurisdictions to establish admissibility of the evidence. Ferguson, 172 Ill. App. 3d at 11, 526 N.E.2d at 532.\nFinally, despite the fact that the expert in Ferguson was the only known shoe-print expert, the trial court found that her testimony was based upon \u201c \u2018scientific standards of measurement, uniqueness!,] and a relationship between individuals that can be differentiated.\u2019 \u201d Ferguson, 172 Ill. App. 3d at 10, 526 N.E.2d at 531. The appellate court, though reversing the trial court\u2019s finding of admissibility, did conclude that Frye analysis looks not just at the results, but the entire theory to determine whether it is a scientific principle, technique, or test of general acceptance.\n\u201cFrye identifies the \u2018thing from which the deduction is made\u2019 as a \u2018scientific principle or discovery.\u2019 (Frye, 293 F. at 1014.) We construe the \u2018thing from which the deduction is made\u2019 in the instant action as not simply scientific standards of measurement, but rather [the expert\u2019s] theory that shoe wear patterns are unique and an identification can be made by comparing them.\u201d Ferguson, 172 Ill. App. 3d at 11-12, 526 N.E.2d at 532.\nIn this case, that means examination beyond the questions of \u201cIs this an actuarial test?\u201d or \u201cIs the actuarial test being used by many psychologists?\u201d The question becomes the following: \u201cWhat is the theory upon which the tests base their prediction of future behavior\u2014 the method of selecting factors, the determination of the numeric scale, the revision of testing instruments, et cetera?\u201d\nAccording to the majority here, these tests are \u201c[actuarial risk-assessment instruments *** developed by observing those sex offenders who reoffend to determine which \u2018risk factors\u2019 they have in common.\u201d 344 Ill. App. 3d at 364. Moreover, the dissent in Bolton asserted that these tests were merely \u201can inference of probability from a sophisticated record-keeping system.\u201d Bolton, slip op. at 16-17 (Appleton, J., dissenting). However, absent a Frye hearing, there is insufficient information in the record of this case to draw such a conclusion.\nWe concluded in People v. Canulli, 341 Ill. App. 3d 361, 369-70, 792 N.E.2d 438, 444 (2003), that an appellate court cannot make such a determination absent a full Frye evidentiary hearing held and recorded by the trial court:\n\u201c \u2018[T]he proponent *** must prove general acceptance, by surveying scientific publications, judicial decisions, or practical applications, or by presenting testimony from scientists as to the attitudes of their fellow scientists.\u2019 [Citations.] However, \u2018[u]nless the question of general acceptance has been thoroughly and thoughtfully litigated in the previous cases, *** reliance on judicial practice is a hollow ritual.\u2019 [Citation.]\u201d\nNone of these tests \u2014 the Static-99, the Minnesota Screening Tool\u2014 Revised, or the Violence Risk Appraisal Guide \u2014 have been specifically examined by the trial court in this case. The majority opinion herein relies upon opinions from other states, while rejecting the opinions in Illinois.\nBut, primarily, I dissent because each of these individual tests, though collectively referred to as \u201cactuarial,\u201d is, in fact an independent evaluative process that should be subject to the scientifically rigorous review that Frye contemplates. While they may have begun as a diagnostic tool for use by psychologists in making a diagnosis, they are, as in this case, being presented in court as independent evidentiary validation of expert opinions. The numerical score and the categorization of the score from each test is presented as a definitive truth that the expert need only recognize and relay to the jury, such as a machine might analyze physical data in an objective and infallible manner.\nIn this sense, they are no different than the plethysmograph test designed to measure changes in the circumference of the penis when exposed to video or audio stimuli (see In re Detention of Hughes, 338 Ill. App. 3d 224, 788 N.E.2d 370 (2003)) to determine whether the respondent was a sexually dangerous person. The court in Hughes concluded that it was error to allow the expert to base his opinion on the results of the plethysmograph, absent a Frye determination and any prior determination in any reported case in Illinois. Hughes, 338 Ill. App. 3d at 241, 788 N.E.2d at 384.\nIn Frye, the court determined that a test described as the \u201csystolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.\u201d Frye, 293 E at 1014. One cannot help but conclude that, given the widespread use of lie-detector tests today, such tests would be admitted under the same arguments that the majority uses in this opinion.", "type": "dissent", "author": "PRESIDING JUSTICE MYERSCOUGH," } ], "attorneys": [ "David W Butler (argued), of Bloomington, for appellant.", "Lisa Madigan, Attorney General, of Chicago (Gary S. Feinerman, Solicitor General, and Lisa Anne Hoffman, Karen Kaplan, and Robert John Kane (argued), Assistant Attorneys General, of counsel), for the People." ], "corrections": "", "head_matter": "In re DETENTION OF JOHN M. ERBE (The People of the State of Illinois, Plaintiff-Appellee, v. John M. Erbe, Defendant-Appellant).\nFourth District\nNo. 4-02-0764\nArgued June 25, 2003.\nOpinion filed November 13, 2003.\nMYERSCOUGH, PJ., dissenting.\nDavid W Butler (argued), of Bloomington, for appellant.\nLisa Madigan, Attorney General, of Chicago (Gary S. Feinerman, Solicitor General, and Lisa Anne Hoffman, Karen Kaplan, and Robert John Kane (argued), Assistant Attorneys General, of counsel), for the People." }, "file_name": "0350-01", "first_page_order": 368, "last_page_order": 395 }