                              No. 3--04--0451
_________________________________________________________________

                               IN THE

                               APPELLATE COURT OF ILLINOIS

                               THIRD DISTRICT

                               A.D., 2006

THE PEOPLE OF THE STATE         ) Appeal from the Circuit Court
OF ILLINOIS,                    ) of the 13th Judicial Circuit,
                                ) La Salle County, Illinois,
     Petitioner-Appellee,       )
                                )
     v.                         ) No. 94--CM--355
                                )
BRIAN A. VERCOLIO,              ) Honorable
                                ) H. Chris Ryan,
     Respondent-Appellant.      ) Judge, Presiding.
_________________________________________________________________

 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

Minnesota7 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


                                  2
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
                                                      1
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 "identifi[ed] 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

     1
         Neither Leavitt's evaluation nor Campbell's evaluation is

included in the record.




                                  3
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 Bussiere had

advised against combining their risk factors because "the

correlations are too small" and "we don't know about the

intercorrelations."

     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.




                                  4
     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 Campbell'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.


                                 5
 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

Carich'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.


                                6
     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


                                   7
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




                                              8
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

                                          9
exhibitionism, which was the basis for the respondent being found

to be an SDP.      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

                                         10
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.

      McDADE, J., concurs in part and dissents in part.




_________________________________________________________________



      JUSTICE McDADE concurring in part and dissenting in part:

_________________________________________________________________




                                        11
     Brian Vercolio was a flasher who was found to be sexually

dangerous even though his offenses were mere misdemeanors that in

no way met the statute=s definition of or guidelines for sexually

dangerous persons.   At issue in this case are the mental health

instruments used to test his "recovery" and the conditions

imposed on his release to an outside treatment residence.    The

majority has found that (1) the actuarial testing instruments

(MnSOST-R and Static-99 ) have been found by the Illinois Supreme

Court to meet the admissibility standard of Frye, (2) the Carich
25-Variable Test is generally accepted by experts in the relevant

field and thus meets the Frye standard, and (3) only one of the

seven conditions of release challenged by Vercolio is problematic

and should be reconsidered.    I agree with the first finding and

therefore concur with it.     I respectfully dissent, however, from

the other two findings and for the reasons stated would remand

the entire matter to the LaSalle County Circuit Court for
reconsideration.

         I.   Frye Challenges to the Testing Instruments

A.   MnSOST-R and Static-99

     As the majority has pointed out, the Illinois Supreme Court

has recently held that the MnSOST-R and the Static-99 actuarial

testing instruments meet the "general acceptance" standards for

admissibility under Frye.     In re Commitment of Simons, 213 Ill.

2d 523, 821 N.E.2d 1184 (2004).    The respondent=s Frye challenge

with regard to those instruments has been rendered moot by

Simons, and I concur with the majority=s decision in that regard.

                                  12
       The Simons court, in its holding, found that these testing

instruments were generally accepted testing methodologies and

could appropriately be admitted in court proceedings without

additional validation.           The court did not, however, hold that

their use was warranted or relevant in all cases.                        In the 2002

jury trial on Vercolio=s 1998 Application Showing Recovery, Dr.

Ijaz Jatala, psychiatrist for the Sexually Dangerous Persons

Program at Big Muddy, and Dr. Mark Carich, the "psychologist" for

that program, both testified that the Minnesota Sex Offender
Screening Tool, which showed Vercolio at high risk for re-

offending, was not geared for testing exhibitionists.                        Although

the test was admissible at Vercolio=s trial under Frye, I think

this issue should be remanded for a determination of its

applicability to the specific question of whether Vercolio is

likely to recommit the public nuisance misdemeanor of indecent

exposure (flashing).

B.     Carich=s 25 Variables

       I cannot agree with the majority that a showing that the acceptance of Carich=s

25 variables by a single group and the use of some but not all of the variables by others

satisfies Frye=s requirement that the particular methodology has gained general

acceptance in the field. I therefore respectfully dissent from that conclusion.

       As Simons makes clear, our standard for reviewing Frye determinations is no

longer abuse of discretion; our review is de novo.




                                            13
       As the majority points out, Simons makes clear that general acceptance does not

mean universal acceptance, acceptance by consensus, or acceptance by a majority of

experts in the field.

Rather the test is whether the methodology is relied upon by experts in the field and

whether that reliance is reasonable. 213 Ill. 2d at 530.

       In the present case, both the trial court and the majority appear to rest the

decision that Carich=s 25 variables are generally accepted in the field on the fact that Dr.

Leavitt and Dr. Campbell agreed that Carich=s actual test has been utilized by the

Association for the Treatment of Sexual Abuse (ATSA). That testimony does establish

that the variables are relied upon by some experts in the field. Dr. Leavitt also testified

that some of the variables, but not the test itself, are used by other experts. The

testimony of neither man establishes that the acceptance is general or that the reliance

is reasonable.

       Justice Thomas, writing for the Simons majority, has told us that we should

undertake a de novo review of "general acceptance" rulings pursuant to Frye because

">"[t]he question of general acceptance of a scientific technique, while referring to only

one of the criteria for admissibility of expert testimony, in another sense transcends that

particular inquiry, for, in attempting to establish such general acceptance for purposes

of the case at hand, the proponent will also be asking the court to establish the law of

the jurisdiction for future cases.">" Simons, 213 Ill. 2d at 531, quoting, [People v.] Miller,

173 Ill. 2d at 204 (McMorrow, J., concurring), quoting Jones v. United States, 548 A.2d

35, 40 (D.C. App. 1988). Justice Thomas has also, by his own thorough review,

demonstrated for us the kind of analysis that should be undertaken in a de novo review

                                              14
of the general acceptance and consequent admissibility of a scientific methodology.

The review undertaken by the majority considers only (1) that the ATSA uses Carich=s

25 variables and (2) an uncritical recitation of Dr. Leavitt=s endorsement of the variables

while apparently discounting Dr. Campbell=s criticism because "[h]e treated sex

offenders in the past, but does not currently treat sex offenders....he also does not

assess the risk of sex offender recidivism because he does not believe that such

assessments are accurate at this time." Slip opinion at page 5.

        Dr. Campbell testified and asserted in both of his reports that, because of his

reliance on questionable methodologies and his improper combination of certain

specified factors, Carich=s use of his variables "creates an alarming risk of misinforming

and misleading any legal proceeding considering Mr. Coop=s recidivism risk." While one

of his claims has clearly been rendered moot by the decision in Simons, not all of them

have.

        The supreme court observed in Donaldson v. CIPS Co., 199 Ill. 2d 63 (2002):

              "Simply stated, general acceptance does not require that the

              methodology be accepted by unanimity, consensus, or even

              a majority of experts. A technique, however, is not >generally

              accepted= if it is experimental or of dubious validity. Thus,

              the Frye rule is meant to exclude methods new to science

              that undeservedly create a perception of certainty when the

              basis for the evidence or opinion is actually invalid."

              Donaldson, 199 Ill. 2d at 78.



                                              15
That is the question we are called upon to address and resolve through our de novo

review of Carich=s 25 variables.

       Because I see no indication that either the trial court or the majority undertook

such a review and analysis and because our decision on this matter establishes general

acceptance of these variables as "the law of the jurisdiction for future cases" (Miller, 173

Ill. 2d at 204 (McMorrow, J., concurring), quoting Jones v. United States, 548 A.2d 35,

40 (D.C. App. 1988), and because our decision on this matter significantly impacts

future determinations on the recovery and possible permanent incarceration of persons

found sexually dangerous; I am compelled to dissent from the affirmance of the trial

court=s decision as being without error.

       In Vercolio=s prior recovery proceeding, the test devised by Dr. Carich was

comprised of only 15 factors. As with the Minnesota Sex Offender Screening Tool

discussed above, Dr. Jatala and Dr. Carich both testified that the 15-factor version of

the test was not geared for the exhibitionist. Even if the test was properly admitted

under Frye, I could find nothing to indicate that the additional 10 factors rendered the

test applicable to exhibitionists.

       Accordingly, I would, at the very least, remand the case for a hearing on the

applicability of the instruments to respondent=s particular type of offenses and on the

validity of any findings made pursuant to their use in Vercolio=s case.

                           II. Challenged Conditions of Release

       Even though, based on the statute=s definition, Vercolio is not and never has

been sexually dangerous, he has been incarcerated in the Department of Corrections

for 12 years for a crime punishable by up to 365 days. Although the testimony of the

                                            16
mental health experts at trial was that he has not committed an exhibitionist act during

the past four or five years of his incarceration, the opinion of those same experts,

grounded in the tests discussed above, denied him a finding of complete recovery. The

trial judge is to be commended for not wholly accepting Dr. Carich=s assessment that

Vercolio is "still" sexually dangerous and for allowing him the opportunity for conditional

release.

       Pursuant to the plan submitted by the State, Vercolio=s release from Big Muddy is

predicated on his perfect compliance with 53 conditions. 2 Upon the "technical violation"

of any of these conditions, his discharge can be revoked and he can be returned to

prison. Condition #3 warns him that "[s]uch technical violations include but are not

limited to the terms contained on attachment <A< (the Certificate of Compliance stating

the 53 conditions) or the Rules and Regulations of <Chap House/Jessie House/Upper

room Participants= attached as Attachment <B<." (Emphasis added.) It thus appears that

the State has constructed 78 specific conditions and an unspecified number of potential

additional conditions of an unspecified nature, any one of which can trip up respondent

and send him back to prison. Viewed in this context, his concern with such traps for the


       2
     Conditions 2 and 51 incorporate as additional conditions
the 25 rules and regulations of his residence during the term of
his conditional release, bringing the total to at least 78. This
does not include the requirements of the Illinois Sex Offender
Registration Act (#49) or all other special conditions that the
IDOC and its parole unit may impose (#50).




                                            17
unwary as conditions unrelated to his type of crime and conditions that prohibit conduct

that is vague or undefined can be readily understood.

       The purpose of conditional release is to determine whether the respondent can

refrain, outside of institutional confines, from re-engaging in the conduct for which he

has been incarcerated or, in other words, whether he has been cured. The statute also

charges the court with imposing conditions that will adequately protect the public. 725

ILCS 205/9 (West 2002). It seems to me that a necessary element in a system for

fulfilling this dual purpose is the development and imposition of conditions related to a

respondent=s particular crime, not a compilation of generic conditions applicable to

anyone conditionally released from the Department of Corrections..

       Vercolio complains specifically about conditions 13, 14, 21, 38, 39, 40 and 43.

The majority declines to invalidate any but one (#39) of the challenged conditions.

       As mentioned earlier, Vercolio was an exhibitionist -- a flasher. There is no

evidence that he abused alcohol or drugs and, indeed, he denies any such conduct.

Nor is there evidence that he used a home computer, camera, telephone, post office

box, family pictures or children=s toys in the commission of his particular type of crime. I

agree with the majority that this court is not in a position to determine what conditions

are related to preventing exhibitionism. We can, however, say that some of them

clearly appear to be unrelated and can remand for an additional assessment by the

court focused on that particular question.



       With regard to respondent=s claim of vagueness, I think there is merit in his

objections. No. 21 prohibits his possession, review or use of "pornography in any

                                             18
fashion (written, printed stories or pictures, photographs, internet sites, telephone

services, etc.)" The paragraph concludes: "This would include any materials depicting

adults, adolescents, or children by the above listed means." This appears to me to be

so broad and so ambiguous that one could inadvertently violate the condition without

any intent to transgress.

       Paragraph 39 prohibits possession of any material that, inter alia, is "sexually

stimulating" or "alludes to adult sexual activity..." Almost any book or movie available

for non-deviant adult consumption on the market today would violate one or both of

those proscriptions. Similarly paragraph 40 would appear to prohibit respondent from

patronizing book stores, libraries, video stores, or other businesses which sell books

and movies as part of a broader inventory -- such as WalMart or Target. Finally,

paragraph 43 bars possession of "contraband related to the incidence of sexual

offending." For Vercolio, the only item relating to the incidence of his sexual offending is

his own sexual apparatus. One could legitimately question whether he could

reasonably be expected to even know all of the items of contraband that might be

comprehended within the proscription. Moreover, it is unstated and therefore unclear

where "certain ... items" are actually "specified."

       Requiring further evaluation of the appropriateness of the conditions by the trial

court seems quite reasonable to me since I would, for the reasons previously stated,

remand the case for further consideration on the Frye issues in any event.




                                             19
