THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. BRIAN A. VERCOLIO, Respondent-Appellant, 363 Ill. App. 3d 232

PRESIDING JUSTICE SCHMIDT delivered the opinion of the court: In 1994, the State petitioned the trial court to find the respondent, Brian A. Vercolio, to be a sexually dangerous person (SDP) (725 ILCS 205/0.01 (West 1994)). The court adjudged the respondent to be an SDP and ordered him to be civilly committed. In 2002, the respondent filed an application asking the trial court to find that he was recovered (725 ILCS 205/9 (West 2002)). At an evidentiary hearing, the court ruled that the proposed testimony of the State’s expert witness met the standard for admissibility in Frye v. United States, 293 F. 1013 (D.C.

Cir. 1923). At trial, a jury found that the respondent appeared no longer to be dangerous, but that it was impossible to determine with certainty under conditions of institutional care that he was fully recovered (725 ILCS 205/9 (West 2002)). Accordingly, the court ordered the respondent to be released under 53 enumerated conditions (725 ILCS 205/9 (West 2002)). On appeal, the respondent argues that the trial court erred by ruling that the expert’s proposed testimony met the Frye standard for admissibility because the expert relied on (1) the Minnesota Sex Offenders Screening Tool Revised (MnSOST-

R) and the Static-99 actuarial risk assessment tools; and (2) 25 variables that the expert had developed for assessing the risk of recidivism among sex offenders. The respondent also contends that seven of the conditions imposed by the court for his release are excessive. We affirm in part and remand with directions. BACKGROUND The record shows that the respondent was found to be an SDP because of numerous acts of exhibitionism. On March 27, 2002, the respondent filed his application asking the trial court to find that he was recovered.

On that date, the respondent also filed a demand that a sociopsychiatric report be prepared by the Department of Corrections (DOC) (see 725 ILCS 205/9 (West 2002)). At a hearing on May 31, 2002, the assistant State’s Attorney indicated that the report was being prepared for the DOC by Dr. Mark Carich, but that the parties had not yet received copies of it. The respondent’s court-appointed attorney stated that when the attorney received the report, he would file a motion requesting a Frye hearing.

The record supplied to this court does not include either a copy of Carich’s report or a copy of the respondent’s motion for a Frye hearing. The record, however, includes the transcript of the Frye hearing conducted by the trial court in several proceedings, beginning on September 20, 2002, and ending on April 14, 2003. Dr. Barry Leavitt testified for the State, and Dr. Terrence Campbell testified for the respondent. At the beginning of the hearing, the parties agreed to allow Campbell to testify first even though the State had the burden of going forward.

Campbell stated that he had reviewed Carich’s report and Leavitt’s evaluation of Carich’s report. Campbell also had prepared an evaluation of Carich’s report. Campbell testified that Carich had used 25 variables concerning treatment effectiveness to assess the respondent’s risk of sex offense recidivism. Carich also had employed the MnSOST-R and the Static-99 actuarial risk assessment tools. Campbell said that he used a 1998 study published by R. Karl Hanson and Monique T. Bussiere to assess Carich’s 25 variables.

Hanson and Bussiere had “identified] different risk factors and the extent to which those factors are correlated with previously convicted sexual offenders committing new sexual offenses after they are released from confinement.” Campbell criticized Carich’s use of the 1996 version of the Hanson and Bussiere study because it was not subjected to peer review in the literature, but the 1998 version was peer reviewed. Campbell testified about each of Carich’s 25 variables.

Concerning most of the variables, Campbell said that there was not a statistically significant correlation between the variables and a risk of recidivism, according to the 1998 Hanson and Bussiere study. Regarding other variables, Campbell stated that there was no support in peer-reviewed journals for using those variables to assess the risk of recidivism. Campbell said that one of Carich’s variables combined four of Hanson and Bussiere’s risk factors.

Campbell asserted that Hanson and Bus-siere had advised against combining their risk factors because “the correlations are too small” and “we don’t know about the intercorre-lations.” Campbell acknowledged that Leavitt’s report stated that the Association for the Treatment of Sexual Abuse (ATSA) recognizes the variables used by Carich. Campbell asserted, however, that the ATSA recognized Carich’s variables out of self-interest in promoting its professional agenda rather than on the basis of scientific data.

Campbell testified that there were “major shortcomings” with Carich’s reliance on the MnSOST-R Campbell said that the only peer-reviewed

article that assessed the MnSOST-R had reported that the MnSOST-R did not realize an acceptable level of predictive accuracy. Campbell stated that the most comprehensive study of the Static-99 found that it moderately predicted recidivism risk. The study concluded that the Static-99 should not be used by itself to predict the risk of recidivism. On cross-examination, Campbell said that he specializes in forensic psychology with several subspecialties within that specialty. He treated sex offenders in the past, but does not currently treat sex offenders.

Campbell stated that he also does not assess the risk of sex offender recidivism because he does not believe that such assessments are accurate at this time. Leavitt testified that he was familiar with Camphell’s report concerning Carich’s report. Leavitt disagreed with Campbell’s reliance on the 1998 Hanson and Bussiere study to assess each of Carich’s 25 variables individually. Leavitt then discussed each of Carich’s 25 variables. He stated that the variables were supported by research in the professional literature and by the use of similar variables in recidivism risk assessment programs in other states.

Leavitt disagreed with Campbell’s characterization of the ATSA as a biased, self-interest group. He submitted that the ATSA was a group of specialists who are knowledgeable about the field of sex offender recidivism assessment. Leavitt said that the MnSOST-R and the Static-99 are actuarial risk assessment tools used by professionals in his field. He asserted that the debate about their use did not concern whether to use them but, rather, how they should be used. In

summary, Leavitt stated that Carich’s 25 variables, as well as the MnSOST-R and the Static-99, were accepted within the psychological community. At the conclusion of the hearing, the trial court ruled that Car-ich’s report met the standard for admissibility under Frye. The matter proceeded to a jury trial. The jury found that the respondent appeared no longer to be sexually dangerous, but that it was impossible to determine with certainty under conditions of institutional care that he was fully recovered. The trial court then ordered the respondent to be released subject to 53 enumerated conditions.

The respondent’s motion for a new trial was denied, and he appealed. ANALYSIS I. Frye A. MnSOST-R and Static-99 The respondent submits that the trial court erred by ruling that Carich’s use of the MnSOST-R and the Static-99 met the standard for admissibility under Frye. In In re Commitment of Simons, 213 Ill. 2d 523, 821 N.E.2d 1184 (2004), the Illinois Supreme Court ruled that the MnSOST-R and the Static-99 meet the standard for admissibility under Frye. Therefore, we need not consider this argument further. B.

Carich’s 25 Variables The respondent contends that the trial court erred by ruling that Carich’s reliance on 25 variables met the standard for admissibility under Frye. In Illinois, expert testimony is subject to admissibility under the standard first articulated in Frye. Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 767 N.E.2d 314 (2002). Under the Frye standard, scientific evidence is admissible only if the methodology or scientific principle upon which the expert’s opinion is based has gained general acceptance in that particular scientific field. Simons, 213 Ill. 2d 523, 821 N.E.2d 1184.

General acceptance, in this context, does not mean universal acceptance, acceptance by consensus, or acceptance by a majority of experts in the field. Simons, 213 Ill. 2d 523, 821 N.E.2d 1184. Instead, general acceptance means that the underlying methodology used to generate the expert’s opinion is reasonably relied upon by experts in the field. Simons, 213 Ill. 2d 523, 821 N.E.2d 1184. A trial court’s ruling concerning whether testimony is admissible under the Frye standard is subject to de novo review. Simons, 213 Ill. 2d 523, 821 N.E.2d 1184.

In this case, Campbell concluded that Carich’s 25 variables were not reliable for a variety of reasons. However, he testified that the ATSA recognizes the use of Carich’s variables in assessing the risk of sex offender recidivism, even though he disagreed with the ATSA for doing so. Leavitt also stated that Carich’s variables were accepted by the ATSA. He said that similar variables were used by other states in sex offender recidivism risk assessments. Leavitt concluded, therefore, that Carich’s variables are generally accepted within the field.

Because the trial court heard testimony that Carich’s variables are generally accepted within the field, we cannot say that the trial court erred as a matter of law by ruling that Carich’s proposed testimony, based on his report, met the Frye standard for admissibility. II. Excessive Conditions The respondent argues that the trial court imposed seven excessive conditions on his release. A respondent who has been adjudged to be an SDP may file an application with the trial court to find that he has recovered. 725 ILCS 205/9 (West 2002).

The trial court then holds a hearing on the application. 725 ILCS 205/9 (West 2002). At the conclusion of the hearing: “If the court finds that the person appears no longer to be dangerous but that it is impossible to determine with certainty under conditions of institutional care that such person has fully recovered, the court shall enter an order permitting such person to go at large subject to such conditions *** as *** will adequately protect the public.” 725 ILCS 205/9 (West 2002). We review a trial court’s decision concerning the conditional release of an SDP for abuse of discretion. People v.

Rogers, 215 Ill. App. 3d 575, 574 N.E.2d 1374 (1991). A trial court abuses its discretion only if its ruling is arbitrary, fanciful, or unreasonable, or where no reasonable person would take the view adopted by the court. People v. Donoho, 204 Ill. 2d 159, 788 N.E.2d 707 (2003). In this case, the trial court released the respondent subject to 53 enumerated conditions. On appeal, the respondent contends that conditions 13, 14, 21, 38, 39, 40, and 43 are excessive.

In conditions 13 and 14, he is required to submit to a polygraph and a phallometric assessment, respectively, “[i]f deemed appropriate by his treatment staff and/or his therapists.” Condition 21 prohibits the respondent to “posses/own [sic], review, or use pornography.” Similarly, condition 39 states that the respondent will “[n]either posses [sic] nor have under [his] control any material that is pornographic, sexually oriented, or sexually stimulating, or that depicts or alludes to adult sexual activity or depicts minors under the age of 18.” In condition 38, the respondent is prohibited from purchasing, possessing, or having in his body any alcohol or illegal drugs.

Condition 40 states that the respondent will “[n]ot patronize any business providing sexually stimulating or sexually oriented entertainment, nor utilize ‘900’ or adult telephone numbers or any other sex-related telephone numbers.” Condition 43 says that he will “[n]ot possess or have under [his] control certain specified items of contraband related to the incidence of sexual offending including video or still cameras or children’s toys.” Specifically, the respondent submits that conditions 13, 14, 21, 38, 39, 40, and 43 are not related to preventing exhibitionism, which was the basis for the respondent being found to be an SDE Furthermore, the respondent alleges that conditions 21, 39, 40, and 43 are vague because they do not sufficiently define terms such that the respondent is apprised of what conduct is prohibited.

First, we disagree with the respondent’s contention that conditions 21, 39, 40, and 43 are vague. The terms in these conditions are sufficiently specific such that a person of ordinary intelligence would know what conduct is prohibited. See People v. Greco, 204 Ill. 2d 400, 790 N.E.2d 846 (2003). We rule, however, that condition 39 must be amended. As condition 39 is currently drafted, the respondent may “[n] either posses [sic] nor have under [his] control any material that *** depicts minors under the age of 18.” In other words, the respondent is prohibited from possessing any photographs of minors whatsoever.

As examples, he is prohibited from possessing a newspaper that depicts a minor, a photograph of a minor relative, or a picture of himself as a child. We do not believe that the trial court intended such an unreasonable result. With regard to the respondent’s argument that conditions 13, 14, 21, 38, 39, 40, and 43 are not related to preventing exhibitionism, this court is not in a position to determine what conditions are related to preventing exhibitionism.

While some conditions might seem onerous, such as the prohibition against possessing a camera, we cannot say that the trial court’s conditions are arbitrary, fanciful, or unreasonable, or that no reasonable person would have imposed these conditions. Therefore, we hold that the trial court did not abuse its discretion by imposing conditions 13, 14, 21, 38, 39, 40, and 43. We point out that, by statute, the respondent may at any time file another application for the trial court to find that he is recovered. See 725 ILCS 205/9 (West 2002).

At such time as the respondent reapplies for a recovery finding, the trial court may review the conditions of the respondent’s release. CONCLUSION For the foregoing reasons, we affirm the order of the La Salle County circuit court finding that Carich’s proposed testimony met the standard for admissibility under Frye. We also affirm the court’s judgment releasing the respondent under 53 enumerated conditions. However, we remand the matter for the circuit court to amend condition 39. Affirmed in part and remanded with directions. LYTTON, J., concurs.

Neither Leavitt’s evaluation nor Campbell’s evaluation is included in the record.