People v. Cole

No. 3--97--0136

_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1998

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 9th Judicial Circuit,
) Knox County, Illinois
Petitioner-Appellee, )
)
v. ) No. 96--CF--51
)
LELAND COLE, ) Honorable
) Harry Bulkeley
Respondent-Appellant. ) Judge, Presiding
_________________________________________________________________

JUSTICE HOLDRIDGE DELIVERED THE OPINION OF THE COURT:
_________________________________________________________________

Following a bench trial, the trial court found respondent,
Leland L. Cole, to be a "sexually dangerous person," as that term
is defined in section 1.01 of the Sexually Dangerous Persons Act
(725 ILCS 205/0.01 et seq. (West 1996) (the Act)). 725 ILCS
205/1.01 (West 1996). On appeal, respondent contends: (1) that
a clinical diagnosis of pedophilia cannot satisfy both the
"mental disorder" component of the definition of "sexually
dangerous person" and the other elements of the definition; and
(2) that the State failed to prove beyond a reasonable doubt that
respondent is a "sexually dangerous person." For the reasons
that follow, we affirm.
Initially, we note that this court granted the Office of the
State Appellate Defender (OSAD) leave to withdraw as counsel for
respondent. OSAD made its motion on the premise that section 10
of the State Appellate Defender Act (725 ILCS 105/10 (West 1996))
does not permit OSAD to represent clients in civil matters, such
as those under review here (725 ILCS 205/3.01 (West 1996)). The
State then filed a motion asking our supreme court to issue a
supervisory order directing this court to vacate its earlier
order and enter an order denying OSAD's motion for leave to
withdraw. The supreme court denied the State's motion.
In its brief, the State asks this court to reconsider the
decision to allow OSAD to withdraw in light of the supreme
court's recent resolution of a similar controversy in the Second
Judicial District. In that case, the Second District Appellate
Court denied OSAD's motion for leave to withdraw as counsel for a
respondent who was appealing his commitment as a "sexually
dangerous person." OSAD then asked the supreme court for a
supervisory order directing the appellate court to vacate its
earlier order and enter an order allowing OSAD's motion for leave
to withdraw. The supreme court denied OSAD's motion.
We must agree with the State that the supreme court has not
exercised its supervisory power consistently in addressing this
issue. However, in view of the late stage of this appeal and the
circuit court's appointment of competent appellate counsel to
represent respondent, the interest in judicial economy weighs
heavily in favor of reaching the merits of respondent's appeal
without further delay. Accordingly, the State's motion to
reconsider is denied.
We now turn to a review of the proceedings in the trial
court. At trial, T.L., a 10-year-old boy, testified that he
stayed overnight at his grandfather's home on several occasions
during July and August 1995. When he visited his grandfather,
T.L. would sleep on the living room floor. Respondent would
sleep on a couch in the living room. On four or five occasions,
respondent undid T.L.'s pants and sucked on his penis. During
these events, no one else was present except for T.L.'s grandfa-

ther who was asleep in the next room.
Milo L., T.L.'s father, testified T.L. spent several eve-

nings at his grandfather's home during July and August 1995. At
some point, however, T.L. refused to stay there. During the
autumn of 1995, T.L. began to protest that he did not want to go
to school. Once at school, T.L. would cry and ask to go home.
The school's principal allowed T.L. to call home every morning.
On some occasions, T.L. had to be picked up and taken home. Milo
asked T.L. what was wrong. T.L. told his father that he could
not tell him what was wrong. In February 1996, Milo asked T.L.
whether anyone had ever touched him "where they're not supposed
to." T.L. answered that someone had and identified respondent as
the person who had done so.
On the State's motion, the trial court took judicial notice
of respondent's prior sex offense convictions. In 1990, respon-

dent pleaded guilty to aggravated criminal sexual abuse for fon-

dling the penis of a boy under the age of 13 and was sentenced to
a five-year prison term. In 1985, respondent was convicted of
aggravated criminal sexual abuse for fondling the penis of a boy
under the age of 13 and placed on probation. In 1981, respondent
was convicted of contributing to the sexual delinquency of a
minor for fondling a boy under the age of 14 and sentenced to a
one-year prison term. In 1974, respondent was convicted of con-

tributing to the delinquency of a minor for fondling a boy under
the age of 14 and placed on probation.
Dr. Robert E. Chapman, a court-appointed psychiatrist,
testified on behalf of the State. In an interview with Chapman,
respondent denied any sexual activity with children. However, in
view of respondent's long history of molesting prepubescent
males, Chapman concluded that respondent is a "sexually dangerous
person." Specifically, Chapman found that respondent suffers
from pedophilia and anti-social personality disorder and that
respondent had suffered from these mental disorders for more than
one year prior to the filing of the State's petition.
Chapman testified he had evaluated respondent in 1990 as
part of an earlier attempt to commit respondent. In his 1990
evaluation, Chapman had concluded that he did not have sufficient
information to diagnose respondent as a pedophile. However,
respondent's conviction on the 1990 charges and his most recent
arrest provided Chapman with enough information to make a diagno-

sis of pedophilia. On cross-examination, Chapman admitted that
his diagnosis of pedophilia was based entirely on respondent's
history of committing sex offenses against young boys.
Dr. Anthony James Caterine, another court-appointed psychia-

trist, testified on behalf of the State. In an interview with
Caterine, respondent denied any sexual activity with children.
Respondent also refused to submit to a penile plethysmography
test, a test which can determine a male's principal sexual
preference by measuring changes in the circumference of the
penis.
Caterine concluded that respondent is a "sexually dangerous
person." In particular, Caterine diagnosed respondent as suffer-

ing from pedophilia. Caterine explained that respondent met the
criteria for pedophilia outlined in the latest Diagnostic and
Statistical Manual of Mental Disorders (DSM IV). Caterine set
forth the following as the DSM IV criteria for pedophilia: (1)
over a period of at least six months, the subject has had recur-

rent, intense sexually arousing fantasies, sexual urges, or
behaviors involving sexual activity with a prepubescent child or
children (generally age 13 years or younger); (2) the fantasies,
sexual urges, or behaviors cause clinically significant distress
or impairment in social, occupational, or other important areas
of functioning; and (3) the subject is at least 16 years of age
and at least five years older than the child who is the subject
of the fantasies, urges, or behaviors. In applying these crite-

ria to respondent, Caterine concluded that the similarities among
respondent's sex offenses demonstrated a long-term pattern of
behavior involving sexual activity with prepubescent males. In
addition, respondent's legal problems stemming from his sexual
activity with young males, including a five-year term of impris-

onment, satisfied the second DSM IV criterion.
Dr. Richard L. Grant, a licensed psychiatrist, testified on
behalf of respondent. In his interview with Grant, respondent
denied ever engaging in any sexual activity with children. Grant
agreed with Chapman and Caterine that respondent has propensities
to commit sex offenses against children, but disagreed that
respondent suffers from a mental disorder which would permit him
to be classified as a "sexually dangerous person."
With respect to whether respondent suffers from a mental
disorder, Grant disagreed with Caterine's application of the DSM
IV criteria for pedophilia. According to Grant, repeated sexual
activity with prepubescent children is not sufficient to support
a diagnosis of pedophilia. Grant opined that a pedophile's
principal object of sexual arousal is the prepubescent child. In
view of respondent's denial of such arousal and the lack of a
penile plethysmography result, Grant concluded that it was impos-

sible to determine that children are the principal object of
respondent's sexual desire. In addition, Grant asserted that
incarceration resulting from sexual activity with children is not
the kind of impairment contemplated by the second DSM IV criteri-

on for pedophilia.
At the close of evidence, the trial court found respondent
to be a "sexually dangerous person" under the Act and committed
him to the Department of Corrections.
On appeal, respondent contends that his history of sex
offenses against young boys cannot satisfy the "mental disorder"
component of the definition of "sexually dangerous person," while
also meeting the second and third prongs of the definition.
Under the Act, a "sexually dangerous person" is a person
who: (1) has suffered from a "mental disorder" for at least one
year; (2) has criminal propensities to the commission of sex
offenses; and (3) has demonstrated propensities toward acts of
sexual assault or sexual molestation of children. 725 ILCS
205/1.01 (West 1996).
The evidence adduced at trial clearly shows that the State's
experts based their opinions primarily, if not entirely, on
respondent's long history of legal troubles related to his
commission of sex acts with young boys. The State's experts
agreed that this history supports a diagnosis of pedophilia and
that respondent has suffered from this disorder for more than one
year before the filing of the State's petition in this matter.
It is also clear that this same history of sex offenses against
prepubescent males meets the second and third prongs of the Act's
definition of "sexually dangerous person."
However, respondent does not explain why it is impermissible
for his criminal history to support both a psychiatric diagnosis
(pedophilia) and a legal conclusion (sexually dangerous person).
Respondent does not identify any right, whether it be constitu-

tional, statutory or otherwise, which has been denied to him.
Moreover, contrary to respondent's contention, the Act's
"mental disorder" requirement is not rendered superfluous because
a pattern of criminal behavior is the sole support for the
diagnosis of a mental disorder. The "mental disorder" require-

ment may be satisfied by a number of means other than criminal
conduct. A qualified psychiatrist could diagnose a "mental
disorder" based on an interview, standardized testing, a physical
test like penile plethysmography, or some combination of these
indicators. In short, because the "mental disorder" element may
be established by means other than criminal conduct, the fact
that it is estabished by a pattern of criminal conduct in this
case does not render the requirement a nullity. See People v.
Cochran, 167 Ill. App. 3d 830, 522 N.E.2d 261 (1988) (statutory
language awarding good-time credit to insanity acquittees is not
rendered superfluous merely because an insanity acquittee may be
committed for a term of natural life and good-time credit is not
permitted for a life sentence--the credit is still available to
insanity acquittees who have not been committed for natural
life). Accordingly, we hold that the same evidence which sup-

ports a psychiatric diagnosis of a mental disorder may also meet
the remaining elements of the Act's definition of "sexually
dangerous person."
Next, respondent maintains that the State failed to prove
beyond a reasonable doubt that he is a "sexually dangerous
person."
Under the Act, the State has the burden of proving beyond a
reasonable doubt that a respondent is a "sexually dangerous
person." 725 ILCS 205/3.01 (West 1996). A reviewing court will
not disturb a trial court's finding that the respondent is a
"sexually dangerous person" unless the evidence is so improbable
as to raise a reasonable doubt. People v. Allen, 107 Ill. 2d 91,
481 N.E.2d 690 (1985).
Two qualified, licensed psychiatrists agreed that respondent
suffers from pedophilia. Court records and evidence adduced at
trial demonstrated that respondent has engaged in at least five
episodes of sexual conduct with prepubescent boys since 1974.
The trial court heard the testimony of the latest victim and his
father. The trial court was in the best position to observe the
demeanor of these witnesses and assess their credibility.
Accordingly, this court will not disturb the trial court's
finding that respondent is a "sexually dangerous person."
For the foregoing reasons, the judgment of the circuit court
of Knox County is affirmed.
Affirmed.
HOMER, P.J., and LYTTON, J., concurred.