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                              Appellate Court                             Date: 2019.04.16
                                                                          12:42:12 -05'00'



                  People v. Gonis, 2018 IL App (3d) 160166



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           KENNETH D. GONIS, Defendant-Appellant.



District & No.    Third District
                  Docket No. 3-16-0166



Filed             December 13, 2018



Decision Under    Appeal from the Circuit Court of Grundy County, No. 14-CF-05; the
Review            Hon. Lance Peterson, Judge, presiding.



Judgment          Affirmed.


Counsel on        James E. Chadd, Peter A. Carusona, and Adam Weaver, of State
Appeal            Appellate Defender’s Office, of Ottawa, for appellant.

                  Jason Helland, State’s Attorney, of Morris (Patrick Delfino, David J.
                  Robinson, and Stephanie L. Raymond, of State’s Attorneys Appellate
                  Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE SCHMIDT delivered the judgment of the court, with
                  opinion.
                  Justices Holdridge and O’Brien concurred in the judgment and
                  opinion.
                                             OPINION

¶1       Defendant, Kenneth D. Gonis, appeals his conviction for criminal sexual assault.
     Defendant argues that the trial court erred in admitting into evidence the results of DNA
     paternity tests showing that there was a 99.9999% probability that he was the father of the
     victim’s children. Specifically, defendant contends that the probability of paternity percentage
     violated the presumption of innocence because it was calculated using a prior probability. We
     affirm.

¶2                                                FACTS
¶3       A grand jury charged defendant with criminal sexual assault (720 ILCS 5/12-13(a)(3)
     (West 2006)) in that he committed an act of sexual penetration with his daughter, T.G., when
     she was under 18 years of age. The indictment alleged that the offense occurred between
     October 1 and November 30, 2007, when T.G. was 16 years old. T.G. had two children, J.G.
     and A.G. J.G. was born when T.G. was 17 years old, and A.G. was born when T.G. was 19
     years old.
¶4       Defendant filed a motion to suppress the results of paternity tests performed on T.G.’s
     children. The motion argued that the tests were inconsistent with the presumption of innocence
     because a statistical formula used in the testing assumed a prior probability of paternity.
     Specifically, the motion alleged:
              “Assuming that the Northeastern Illinois Regional Crime Laboratory tested the DNA
              sample using widely accepted practices in the scientific community, said testing was
              conducted using a statistical mathematical formula. These formulae, as their basis,
              include a component to determine paternity which by its nature ‘assumes’ that sexual
              intercourse has in fact taken place.”
     The motion alleged that to allow such paternity test results would violate the presumption of
     innocence because “the state would be allowed to introduce statistical evidence presuming
     sexual intercourse, in order to prove an act of sexual intercourse.”
¶5       At the hearing on defendant’s motion to suppress, Kenneth Pfoser testified that he was the
     DNA technical leader of the Northeastern Illinois Regional Crime Laboratory. Pfoser’s office
     received written DNA profiles of defendant, T.G., J.G., and A.G. from the Illinois State Police
     Joliet forensic science laboratory. This laboratory requested that Pfoser “test that [T.G.] was
     the mother of the children as well as test against [defendant] to determine if he’s the alleged
     father of the children.”
¶6       Pfoser testified that DNA paternity testing had three components. The first component of
     the test involved an exclusion analysis where Pfoser entered the DNA profiles into a computer
     containing a statistical calculator. If there were any inconsistencies between the alleged father
     and the child, the computer would give a result of “0” for paternity index. The next stage
     involved the calculation of the paternity index, which was a formula used to determine “the
     likelihood that the assumed alleged father in question is in fact a father as opposed to a random
     individual that’s unrelated in the general population.”
¶7       Pfoser testified that the third component of DNA paternity testing converted the paternity
     index into a probability of paternity percentage using a statistical, mathematical formula called
     “Bayes’[s] Theorem.” Pfoser explained:

                                                 -2-
                   “Bayes’[s] Theorem is essentially a basis for a likelihood ratio. Like I kind of
               described before, you’re basing it on two conflicting hypotheses or two conflicting
               assumptions. One is that the individual in question is in fact the father as opposed to a
               completely random unrelated individual could be the father.”
       Pfoser further explained:
               “[S]o you’re taking two, essentially two, calculations, one calculation is *** the prior
               probability or the assumed probability that the person in question is the father of the
               child and that is divided by the probability that some unrelated person within the same
               race group in the general population is the father of the child.”
¶8         Pfoser testified that the prior probability of paternity was set at 50%. Defense counsel
       asked whether Pfoser presumed that there was a prior probability of sexual intercourse when
       he presumed that there was a prior probability of paternity. Pfoser said no. Pfoser believed that
       the calculation presumed only that two contributing individuals had a child, which could be a
       result of sexual intercourse or artificial insemination.
¶9         After hearing arguments and considering the case law presented by the parties, the court
       denied the motion to suppress. The court noted that the case law provided a thorough
       understanding of the DNA evidence and “both sides of the argument.” The court stated that it
       would rely on the cases cited by the State, particularly Griffith v. State, 976 S.W.2d 241 (Tex.
       Ct. App. 1998). The court noted that the cases cited by the State explained why “the .5 number
       presumption that they start off with is actually just a truly neutral number. It assumes the same
       likelihood that the defendant was not the father of the child as it does that he would be the
       father of the child.”
¶ 10       The matter proceeded to a stipulated bench trial. The court admitted a video recording of an
       interview with T.G. into evidence. Stipulations regarding the testimony of T.G., her mother,
       two law enforcement officers, two employees of the crime laboratory, and Pfoser were also
       introduced into evidence. The stipulation regarding T.G.’s testimony stated defendant began
       sexually molesting T.G. when she was 5 or 6 years old and engaged in sexual intercourse with
       her from the time she was 11 years old until she was 20 years old. The stipulation stated that
       defendant had sexual intercourse with T.G. in October and November 2007, and she became
       pregnant with her first child, J.G.
¶ 11       The stipulation regarding Pfoser’s testimony stated that the parties stipulated to Pfoser’s
       testimony from the hearing on the motion to suppress. The stipulation also stated that Pfoser
       would testify that he analyzed DNA data submitted by the crime laboratory and conducted a
       calculation estimating the probability of paternity. Pfoser determined to a reasonable degree of
       scientific certainty that defendant could not be excluded as the father of J.G. or A.G. The
       stipulation stated that “[a] probability of paternity is the percent chance that an individual
       could be the biological parent as opposed to another random unrelated individual in the same
       racial group.” The stipulation further stated that Pfoser “was able to determine from his
       calculations that at least 99.9999% of the North American Caucasian/White men would be
       excluded as being the biological father of [J.G. and A.G.]” The stipulation stated that the
       probability that defendant was the biological father of J.G. and A.G. was 99.9999%.
¶ 12       The stipulation as to Pfoser’s testimony also stated that a copy of Pfoser’s laboratory report
       was attached to the stipulation. The laboratory report showed that defendant’s DNA matched
       the DNA of A.G. and J.G. at 15 loci. It appears that two different databases were used to
       determine the paternity index. Application of the first database resulted in paternity indexes of

                                                   -3-
       196,400,000 for J.G. and 26,860,000 for A.G. Application of the second database showed a
       paternity index of 193,700,000 for J.G. and 26,500,000 for A.G.
¶ 13       After considering the stipulated evidence, the court found defendant guilty. The court
       reasoned that there were “significant details” in the stipulated statement of T.G. that “len[t] to
       its believability.” The court also noted that the paternity tests results showed that T.G.
       conceived a child in roughly October 2007—when she was 16 years old—and that defendant
       was “99.999 percent likely” to be the father. The court sentenced defendant to 11 years’
       imprisonment.

¶ 14                                            ANALYSIS
¶ 15       Defendant argues that the court erred in denying his motion to suppress the results of the
       paternity tests “where the results were based on a 50 percent likelihood that sexual intercourse
       had occurred.” Defendant contends that the prior probability assumption used in paternity
       testing violated his presumption of innocence because it assumed that sexual intercourse
       occurred in order to prove that sexual intercourse occurred. We find that the court did not err in
       admitting the probability of paternity percentage because defendant failed to show that the use
       of a prior probability necessitated an assumption that he had sexual intercourse with T.G.

¶ 16                                        I. Standard of Review
¶ 17       Initially, the parties disagree on the applicable standard of review. The State contends that
       the case should be reviewed for abuse of discretion because it involves an evidentiary ruling.
       Defendant argues that this issue should be reviewed de novo because the issue is purely a
       question of law.
                    “ ‘Generally, evidentiary motions, such as motions in limine, are directed to the
               trial court’s discretion, and reviewing courts will not disturb a trial court’s evidentiary
               ruling absent an abuse of discretion.’ [Citation.] However, where the ruling on a
               motion in limine is based on an interpretation of law, our review proceeds de novo.”
               People v. Way, 2017 IL 120023, ¶ 18 (quoting People v. Harvey, 211 Ill. 2d 368, 392
               (2004)).
       The trial court’s ruling on the motion to suppress turned on the question of whether the prior
       probability figure used to calculate the probability of paternity violated the presumption of
       innocence. This is a legal question that we will review de novo. See id.

¶ 18                                     II. DNA Paternity Testing
¶ 19       Before addressing the substance of defendant’s argument, we will briefly discuss the
       three-step DNA paternity testing process described during Pfoser’s testimony and by the case
       law cited in the parties’ briefs. The three steps in the DNA paternity testing process include:
       (1) determining exclusion, (2) paternity index, and (3) probability of paternity. Ivey v.
       Commonwealth, 486 S.W.3d 846, 850 (Ky. 2016).
¶ 20       During the first step—determining exclusion—the DNA examiner determines whether the
       child and putative father have shared or common DNA. Id. Specifically, “a DNA examiner
       compares locations on the child’s and putative father’s DNA—frequently called loci.” Id. If
       the putative father’s DNA matches the child’s DNA at all of these loci, the putative father
       cannot be excluded as the child’s father. Id.

                                                    -4-
¶ 21        The second step, if the putative father is not excluded, is to calculate the paternity index. Id.
       at 850-51. “[T]he paternity index is the ratio of ‘the probability of the alleged father
       transmitting the alleles and the probability of selecting these alleles at random from the gene
       pool.’ ” Id. at 851 (quoting D.H. Kaye, The Probability of an Ultimate Issue: The Strange
       Cases of Paternity Testing, 75 Iowa L. Rev. 75, 89 (1989)). “The paternity index calculations
       utilize allele frequencies generated from established population databases, such as the FBI
       database.” Jessop v. State, 368 S.W.3d 653, 668 (Tex. Ct. App. 2012). “Paternity index is
       determined by multiplying together all of the allele frequencies (rate of occurrence) for each
       region tested.” Griffith, 976 S.W.2d at 243.
¶ 22        The paternity index is expressed as a number indicating the man is “that many more times
       likely to be the father than any other randomly selected male of his race.” Id. For example, “a
       paternity index of 388 means that it is [388] times more likely that a union of [the defendant]
       and [the mother] would produce a child with the observed set of markers than would a union of
       [the mother] and a set of alleles picked at random from men of [the defendant’s] race.”
       (Internal quotation marks omitted.) Ivey, 486 S.W.3d at 851-52.
¶ 23        The third step in paternity testing is calculating the probability of paternity. Id. at 852. This
       step “translates the paternity index into a percentage that is more understandable.” Butcher v.
       Commonwealth, 96 S.W.3d 3, 7 (Ky. 2002). This percentage is calculated using Bayes’s
       Theorem, which is a mathematical formula that “combines the paternity index and another
       value representing the prior probability that an event occurred.” Id. The prior probability
       “represents the social non-genetic evidence.” Jessop, 368 S.W.3d at 669. The prior probability
       is typically determined by considering “such factors as access to the mother, fertility, and date
       of conception.” Butcher, 96 S.W.3d at 7. However, “[i]n the context of criminal cases ***
       those using this formula to determine paternity typically insert a standard prior probability of .5
       regardless of any other factors.” Id.
¶ 24        The mathematical formula used to determine the probability of paternity is expressed as
       follows:


       Id.; Griffith, 976 S.W.2d at 243. The prior probability may be any number between zero and
       one. Ivey, 486 S.W.3d at 852. Inserting a prior probability of “1” would always result in a
       100% probability of paternity, and inserting a prior probability of “0” would always result in a
       0% probability of paternity. Thus, a prior probability of zero would mean that the putative
       father is definitely not the father, and a prior probability of one would mean that the putative
       father is definitely the father. Id. at 852 n.8.

¶ 25               III. Prior Probability of Paternity and the Presumption of Innocence
¶ 26       Defendant does not take issue with the admissibility of the first two steps of the paternity
       testing process. Rather, defendant argues that the probability of paternity percentage should
       not have been admitted into evidence because the prior probability figure used in that equation
       violated the presumption of innocence. Specifically, defendant argues that the prior probability
       figure encompasses an assumption that sexual intercourse occurred between defendant and
       T.G.



                                                     -5-
¶ 27        “[N]o rule is more firmly settled than that a defendant in a criminal case is not bound to
       prove himself innocent, but the State must prove him guilty beyond a reasonable doubt, the
       defendant being presumed innocent.” People v. Magnafichi, 9 Ill. 2d 169, 174 (1956); see also
       People v. Weinstein, 35 Ill. 2d 467, 469-70 (1966) (“It is a fundamental doctrine of our system
       of criminal jurisprudence that the law presumes the innocence of an accused until he is proved
       guilty beyond a reasonable doubt.”); People v. Cameron, 2012 IL App (3d) 110020, ¶ 27 (“The
       defendant is presumed innocent throughout the course of the trial and does not have to prove
       his innocence, testify, or present any evidence.”).
¶ 28        We find that the admission of the probability of paternity percentage calculated using
       Bayes’s Theorem did not violate the presumption of innocence. Defendant’s argument that the
       prior probability figure used in Bayes’s Theorem assumed that he had sexual intercourse with
       T.G. is not supported by the record. While Pfoser testified that Bayes’s Theorem assumed that
       two contributing individuals created a child, nothing in Pfoser’s testimony indicated that
       Bayes’s Theorem necessarily assumed that defendant had sexual intercourse with T.G. Pfoser
       testified that Bayes’s Theorem was a likelihood ratio based on two competing hypotheses:
       (1) defendant was the father, or (2) a random, unrelated individual was the father. Pfoser stated
       that Bayes’s Theorem took “the assumed probability that the person in question is the father of
       the child” and divided it “by the probability that some unrelated person within the same race
       group in the general population is the father of the child.” Thus, Pfoser’s testimony indicated
       that Bayes’s Theorem posited that either defendant or an individual other than defendant could
       have been the father of T.G.’s children. Logically, since Bayes’s Theorem allowed for the
       possibility that defendant may not be the father of T.G.’s children, it did not assume that
       defendant necessarily had sexual intercourse with T.G.
¶ 29        While the question of whether the use of a prior probability in the calculation of the
       probability of paternity violates the presumption of innocence in a criminal case is an issue of
       first impression in Illinois, we find the support for our holding in the opinion of the Court of
       Appeals of Texas in Griffith, 976 S.W.2d 241. In Griffith, the defendant argued that the trial
       court erred in denying his motion to suppress the admission of the probability of paternity
       statistic at trial because the calculation was based on a presumption of guilt. Id. at 242. The
       Griffith court held that “the use of a probability of paternity statistic based on Bayes’ Theorem
       in a criminal proceeding does not violate the presumption of innocence.” Id. at 247. The
       Griffith court reasoned: “The probability of paternity *** is merely a way of expressing and
       interpreting the actual DNA test results. Thus, the statistic itself does nothing to shift the
       burden of going ahead to the defendant.” Id. at 249. The Griffith court rejected the defendant’s
       argument that the prior probability used in calculating probability of paternity assumed that the
       defendant had sexual intercourse with the victim. Id. at 248. The court reasoned: “Logically,
       the prior probability assumes intercourse could have occurred and thus the putative father
       could be the actual father, but the statistic does not necessarily assume intercourse did occur.”
       (Emphases in original.) Id.
¶ 30        We find the reasoning set forth in Griffith to be persuasive. We note that other courts have
       reached the same holding as in Griffith. See Butcher, 96 S.W.3d at 9; Jessop, 368 S.W.3d at
       677-78.
¶ 31        In reaching our holding, we reject defendant’s reliance on State v. Hartman, 426 N.W.2d
       320 (Wis. 1988). In Hartman, the court held that the use of a prior probability figure violated
       the presumption of innocence because it assumed that sexual intercourse occurred in order to

                                                   -6-
       prove that sexual intercourse occurred. Id. at 326. The Hartman court noted that a 50% prior
       probability “assumes a 50 percent likelihood that the defendant is the father, and a 50 percent
       likelihood that a randomly selected man is the father.” Id. The Hartman court reasoned: “In
       other words, the probability of paternity is calculated based upon the assumption ‘that the
       mother and putative father have engaged in sexual intercourse at least once during the period of
       possible conception.’ ” Id. (quoting In re Paternity of M.J.B., 425 N.W.2d 404, 409 (Wis.
       1988)). This reasoning is illogical. An assumption that there is a 50% likelihood that a
       defendant was the father of the child in question and a 50% likelihood that another man was the
       father of the child does not necessitate an assumption that the defendant had sexual intercourse
       with the mother at least once during the possible period of conception. Indeed, it allows for the
       possibility that the defendant did not have sexual intercourse with the mother at all. The 0.5
       figure used simply allows for the equal possibility that defendant or some other male of the
       same race had intercourse with the mother.
¶ 32       We also reject defendant’s reliance on State v. Skipper, 637 A.2d 1101 (Conn. 1994).
       Unlike the Hartman court, the Skipper court acknowledged that Bayes’s Theorem did not
       assume that the defendant necessarily had sexual intercourse with the victim. Id. at 1106-07.
       Nevertheless, the Skipper court held that the probability of paternity statistic was inconsistent
       with the presumption of innocence because it was based on an “assumption that there is a
       substantial possibility that the defendant had intercourse with the victim.” Id. at 1107. The
       Skipper court reasoned:
                “[W]hen the probability of paternity statistic is introduced, an assumption is required to
                be made by the jury before it has heard all of the evidence—that there is a quantifiable
                probability that the defendant committed the crime. In fact, if the presumption of
                innocence were factored into Bayes’ Theorem, the probability of paternity statistic
                would be useless. If we assume that the presumption of innocence standard would
                require the prior probability of guilt to be zero, the probability of paternity in a criminal
                case would always be zero because Bayes’ Theorem requires the paternity index to be
                multiplied by a positive prior probability in order to have any utility. [Citation.] ‘In
                other words, Bayes’ Theorem can only work if the presumption of innocence
                disappears from consideration.’ ” Id. at 1107-08 (quoting Randolph N. Jonakait, When
                Blood Is Their Argument: Probabilities in Criminal Cases, Genetic Markers, and,
                Once Ag , B s’ Th            m, 1983 U. Ill. L. Rev. 369, 408 (1983)).
¶ 33       We disagree with the Skipper court’s position that the presumption of innocence would
       require the prior probability of paternity to be set at zero. As the Griffith court noted, “[a] zero
       prior probability does not simply presume a defendant is innocent. Rather, a zero probability,
       in fact presumes that it was impossible for the defendant to be the father.” (Emphasis in
       original.) Griffith, 976 S.W.2d at 249. While the presumption of innocence requires the finder
       of fact to assume that a defendant is innocent unless the State has proven otherwise, we agree
       with the Griffith court that it does not require the fact finder to assume that it was impossible
       for the defendant to commit the offense. See id.
¶ 34       Finally, we need not reach the issue of whether a 50% prior probability is a neutral number
       in deciding this appeal. We note that the cases cited by the parties are divided on this issue. See
       id. at 248 (holding that a prior probably of 0.5 was neutral); Jessop, 368 S.W.3d at 675-76
       (same); Butcher, 96 S.W.3d at 9. But see Ivey, 486 S.W.3d at 855 (stating in dicta that “the
       notion that [a 50% prior probability] is neutral is demonstrably false”). Here, defendant does

                                                     -7-
       not argue that a different prior probability should have been used in calculating the probability
       of paternity. Rather, he argues that the use of any prior probability has no place in criminal law
       because it violates the presumption of innocence. We have rejected this argument. Indeed, the
       use of a low prior probability in calculating the probability of paternity would be of little aid to
       defendant. For example, if a prior probability of 0.00001 (.001%) rather than 0.5 (50%) were
       used, the probability of paternity for each child would still exceed 99%.

¶ 35                                        CONCLUSION
¶ 36      For the foregoing reasons, the judgment of the trial court is affirmed.

¶ 37      Affirmed.




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