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In re Commitment of Franklin4/1/2004
agent testified about these numerous incidents involving the defendant. With regard to his juvenile record, the agent testified that at the ages of fifteen and sixteen the defendant had three contacts with the criminal justice system on various occasions for uncontrollable conduct, loitering, escape from custody, obstructing an officer, running away, uncontrollable and disorderly conduct, and fleeing and fornication.
. With regard to his adult record, the agent testified about a battery conviction in which the defendant struck his girlfriend in the face with his fist and with his cleated shoe, and that the defendant had stolen a car from a friend. The agent also testified that the defendant's probation had been revoked for theft of some jewelry and a purse snatching incident in which he punched a female victim in order to take her purse.
. The agent further testified about conduct reports the defendant received while he was incarcerated. She testified that the defendant had received 107 minor reports and 19 major reports. The 126 conduct reports are mostly unspecified in the Department of Corrections reports admitted into evidence. The agent testified that these conduct reports included violations for attempted battery, battery, disruptive conduct, threats, disobeying orders, disrespect, and one attempted escape. According to the probation and parole agent many of the conduct reports were related to hygiene problems and abnormal behavior related to the defendant's schizophrenia.
B
. The majority opinion contends that this evidence of the defendant's prior non-sexual misconduct was relevant, relying on the testimony of the State's and the defendant's expert witnesses, Doctors Doren and Lodl respectively.
. According to the majority opinion, " ven though all of the past examples of uncontrolled conduct did not relate to sexual acts, they were relevant to [the defendant's] diagnoses of paraphilia and of schizophrenia . . . ." Evidence of the defendant's prior non-sexual misconduct was, according to the majority opinion, relevant because both experts used risk assessment tools that considered the prior non-sexual conduct of the defendant.
. The majority opinion asserts that the State "tied [the parole and probation agent's] testimony to that of Dr. Dennis Doren," who "opined that since Franklin was a juvenile he has had difficulties controlling his behavior and that this lack of control is a feature of his paraphilia." These characterizations of the relevance of the defendant's prior non-sexual misconduct are not substantiated by Dr. Doren's or Dr. Lodl's testimony to the jury at trial, nor by the State's or the defendant's closing arguments. Neither of the experts drew a link between the defendant's "uncontrolled behavior" and sexually violent behavior.
. Dr. Doren and Dr. Lodl apparently relied on the defendant's prior non-sexual criminal history when using sex offender risk assessment tools in evaluating the defendant. An expert's reliance on various facts and materials is not dispositive of the question of whether such facts and materials are admissible evidence. Expert witnesses are allowed to base their testimony on evidence that is otherwise inadmissible and not properly considered by the jury. Defense counsel objected to the jury's consideration of the defendant's prior acts of misconduct, not to the expert witnesses' consideration of such acts in forming their medical opinions.
. The majority opinion makes much of these tools, arguing that "as the record in this case shows, the standard risk assessment for sexual offenders takes into account all past violations of the law in attempting to evaluate th
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