People v. Coan

• Decision Date: 29 June 2016
• Docket Number: No. 2–15–1036.,2–15–1036.
• Citation: 57 N.E.3d 1282,405 Ill.Dec. 184
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Wesley A. COAN, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

57 N.E.3d 1282

405 Ill.Dec. 184

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Wesley A. COAN, Defendant–Appellant.

No. 2–15–1036.

Appellate Court of Illinois, Second District.

June 29, 2016.

Jack C. Slingerland, of Slingerland & Clark, of Sycamore, for appellant.

Lisa Madigan, Attorney General (Carolyn E. Shapiro, Solicitor General, and Michael M. Glick, Assistant Attorney General, of counsel), and Daniel B. Lewin, of Quarles & Brady LLP, both of Chicago, for the People.

OPINION

Justice ZENOFF delivered the judgment of the court, with opinion.

¶ 1 On July 1, 1998, defendant, Wesley A. Coan, was adjudicated a sexually dangerous person under the Sexually Dangerous Persons Act (Act) ( 725 ILCS 205/1.01 et seq. (West 1998)). On September 18, 2012, defendant filed an application for recovery, in which he argued that he was no longer a sexually dangerous person and requested a discharge or a conditional release.

Following a trial on his application for recovery, a jury found that defendant was still a sexually dangerous person. We reverse and remand for a new trial.

¶ 2 I. BACKGROUND

¶ 3 On August 29, 1997, defendant was charged by information with aggravated criminal sexual abuse (720 ILCS 5/12–16(d) (West 1996)). In lieu of criminal prosecution, the State filed a petition to civilly commit him as a sexually dangerous person pursuant to the Act. Following a stipulated bench trial, defendant was adjudicated a sexually dangerous person and committed to the Illinois Department of Corrections (IDOC). This court affirmed the trial court's order of commitment. People v. Coan, 311 Ill.App.3d 296, 301, 244 Ill.Dec. 161, 724 N.E.2d 1049 (2000). Thereafter, defendant unsuccessfully applied for a conditional release and for recovery in 2006 and 2009, respectively.

¶ 4 On September 18, 2012, defendant applied for recovery under section 9 of the Act (725 ILCS 205/9 (West 2012) ). He amended the application in 2015. On June 15, 2015, a jury trial commenced on defendant's application.

¶ 5 The State called Dr. Deborah Nicolai, a licensed clinical psychologist, to testify. Dr. Nicolai testified that she conducted a sexually-dangerous-person evaluation of defendant for purposes of the trial, including a review of relevant documents and a three-hour interview of defendant. As part of her evaluation, Dr. Nicolai considered defendant's history of sexual offenses. Specifically, she testified that defendant was first convicted, in 1979, of aggravated incest. The factual basis for that conviction was that defendant engaged in oral and vaginal sex with his 11–year–old stepdaughter on numerous occasions. At the interview with Dr. Nicolai, defendant stated that the stepdaughter initiated the sexual contact.

¶ 6 Dr. Nicolai also testified that in 1981 defendant was convicted of indecent liberties after police found him engaging in oral sex with his 12–year–old stepson. He was on probation for his 1979 conviction at the time. Defendant told Dr. Nicolai that he was urinating in the cemetery where the act took place and that his stepson was helping him with the zipper on his pants. Dr. Nicolai further testified that, while defendant was released on bond for that offense, he fled to Florida. He was arrested in Florida, sent back to Illinois, and sentenced to 15 years' imprisonment.

¶ 7 Dr. Nicolai further testified that in 1990, while defendant was on parole for his 1981 conviction, he was arrested for and convicted of aggravated criminal sexual assault. On numerous occasions, defendant engaged in oral and anal sex with his girlfriend's 11–year–old son. On another occasion, defendant had all three of his girlfriend's sons (aged between 11 and 14 years) watch him engage in oral sex with their mother. He then instructed the boys to have sexual intercourse with their mother. Defendant told Dr. Nicolai that he had “passed out” and awoke to find the three boys having sex with their mother.

¶ 8 In 1997, while on parole for his 1990 conviction, defendant was charged with aggravated criminal sexual abuse. Dr. Nicolai testified that defendant fondled the breasts and buttocks of a 14–year–old girl. The victim was the daughter of one of defendant's former girlfriends. Defendant told Dr. Nicolai that the victim lied about the incident. That offense served as the basis for defendant's commitment as a sexually dangerous person.

¶ 9 Dr. Nicolai ultimately opined that defendant still met the criteria to be found a sexually dangerous person. She diagnosed him with “ pedophilic disorder, sexually attracted to both, non-exclusive,” which is a chronic disorder. Defendant suffered from pedophilic disorder for a period of not less than one year prior to the filing of the petition. Based on his criminal history, she believed that defendant had criminal propensities to commit sexual offenses against children. Dr. Nicolai further testified that defendant failed to make progress in treatment. Defendant stopped attending treatment in 2008 and officially dropped the treatment program in 2009. He told Dr. Nicolai that 11 years of treatment was “enough” and that treatment was a “waste of time.”

¶ 10 Dr. Nicolai also testified that, in her opinion, there was a substantial probability that defendant would sexually reoffend if he were released. She conducted a risk assessment of him, using the Static–99 Revised (Static–99R). The Static–99R is an actuarial instrument derived from empirical studies that helps predict whether an individual who has been convicted of a sexual offense will reoffend. Although defendant's score on the Static–99R placed him in the “low-moderate” risk category, Dr. Nicolai testified that the Static–99R underestimated his risk. Specifically, defendant exhibited a plethora of “dynamic risk factors,” which are empirically derived factors that are associated with an increased risk of reoffending. Defendant's dynamic risk factors included: a sexually deviant interest in children; a lack of emotionally intimate relationships with adults; dysfunctional relationships; offense-supportive attitudes (attitudes that justify or excuse his offending behaviors); and resistance to rules and supervision. As to the last factor, Dr. Nicolai noted that all but one of defendant's offenses occurred while he was on probation or parole. Additionally, while committed as a sexually dangerous person, defendant had received 33 institutional inmate disciplinary reports and had been suspended from treatment four times.

¶ 11 Dr. Nicolai further testified that no “protective factors” applied to defendant. Protective factors are empirically derived factors that are associated with a decreased risk to sexually reoffend. She acknowledged that defendant was 74 years old at the time of trial and that he had certain medical infirmities. Nevertheless, Dr. Nicolai testified that age as a protective factor is related only to “not having a lot of time left to live.” Despite defendant's age and medical issues, there was no “indication that [defendant] wouldn't still have a long life ahead of him.”

¶ 12 After the State rested, defendant called Dr. Kirk Witherspoon, a licensed clinical psychologist, to testify. In anticipation of the trial, Dr. Witherspoon conducted a sexually-dangerous-person evaluation of defendant, which included a review of relevant records and a three-hour interview with defendant. Dr. Witherspoon testified to defendant's medical issues, which included: “advanced” diabetes ; high blood pressure ; high cholesterol; angina; and erectile dysfunction. Also, he was primarily confined to a wheelchair. Dr. Witherspoon ultimately opined that defendant did not suffer from a mental disorder and that his risk of reoffending was “zero to negligible.”

¶ 13 As to defendant's mental disorder, Dr. Witherspoon testified that pedophilic disorder “is and it isn't” chronic. The chronic component of the disorder depends on one's ability to function. Specifically, pedophilic disorder requires both an attraction to prepubescent persons and a level of harm to the afflicted individual or other people as a result of the individual's acting on that attraction. Dr. Witherspoon testified that defendant “historically” suffered from pedophilic disorder, but that the diagnosis no longer applied to him. Although defendant “may or may not” have still been sexually attracted to prepubescent persons, he did not have the ability, due to his age and medical infirmities, to act on his sexual attraction and thereby cause harm to himself or others.

¶ 14 In regard to the risk of reoffending, Dr. Witherspoon testified that the Static–99R is not an accurate risk-assessment predictor. Additionally, it was not “sound practice” to apply dynamic risk factors to modify the results of an actuarial assessment. Dr. Witherspoon testified that, due to defendant's age, it was inappropriate to apply any actuarial risk assessment to attempt to determine his risk of reoffending. Actuarial assessments are “normed” on persons between the ages of 17 and 70. Furthermore, old age and medical infirmity are two protective factors that would “override” an actuarial scheme that was “normed” on able bodies. To assess defendant's risk, Dr. Witherspoon thus looked only to the base rate of reoffending for persons who were defendant's age. Based upon defendant's age and medical infirmities, Dr. Witherspoon opined that defendant's risk of reoffending was “zero to negligible.” He also noted that treatment for pedophilic disorder might not affect an individual's risk of reoffending and that it “can become redundant to the point of ridiculousness.”

¶ 15 On cross-examination, Dr. Witherspoon acknowledged that defendant was 56 years old when he committed the 1997 offense. He also acknowledged that defendant might have been an “outlier” as to typical reoffending trends, because he had persisted longer in committing sexual offenses than most other offenders.

¶ 16 Following the close of evidence, the trial court instructed the jury as to the law. The State...