AI Case Brief
Generate an AI-powered case brief with:
📋Key Facts
⚖️Legal Issues
📚Court Holding
💡Reasoning
🎯Significance
Estimated cost: $0.10–$0.50 per brief, depending on opinion length and retries
Full Opinion
2025 IL App (1st) 232214-U
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
FIRST DIVISION
September 22, 2025
Nos. 1-23-2214 and 1-24-1360 (cons.)
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
) Appeal from the
) Circuit Court of
In re COMMITMENT OF ANDRE WINSTON ) Cook County
)
) No. 12 CR 80014
(The People of the State of Illinois, Petitioner-Appellee, v. )
Andre Winston, Respondent-Appellant). ) The Honorable
) James B. Novy,
) Judge Presiding.
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court.
Justices Lavin and Cobbs concurred in the judgment.
ORDER
¶1 Held: The appellate court affirms the trial court’s judgment entered upon a jury trial finding
respondent to be a sexually violent person and the trial court’s order committing him to
institutional care in a secure facility.
¶2 Respondent Andre Winston appeals from the judgment of the trial court entered upon a jury’s
determination that he was a sexually violent person in proceedings under the Sexually Violent
Persons Commitment Act (725 ILCS 207/1 et seq. (West 2022)). Respondent argues that the
evidence presented by the State at trial was insufficient to prove beyond a reasonable doubt that
he was a sexually violent person. He also raises multiple arguments that errors occurred at his trial
Nos. 1-23-2214 and 1-24-1360 (cons.)
involving evidentiary rulings, closing arguments, and jury instructions. Finally, he raises several
challenges arising out of the trial court’s order committing him to institutional care in a secure
facility, which occurred after the trial court had initially found conditional release to be
appropriate. For the reasons that follow, we affirm the judgment of the trial court.
¶3 I. BACKGROUND
¶4 A. Pretrial Background
¶5 The record before this court reveals that in 1988, respondent was found guilty in a bench trial
in Cook County case number 87-CR-2389 of two counts of aggravated criminal sexual assault,
one count of armed robbery, and one count of armed violence stemming from an incident that
occurred on January 26, 1987, when respondent was 20 years old. Respondent was sentenced to
37 years and 6 months in the Illinois Department of Corrections on that conviction.
¶6 On December 17, 2012, shortly before respondent was scheduled to be released from prison,
the State filed a petition seeking respondent’s involuntary commitment under the Sexually Violent
Persons Commitment Act.
¶7 In February 2013, the trial court conducted a probable cause hearing on the petition and
initially ruled that the State had failed to show probable cause that respondent was a sexually
violent person. This initial ruling was based in part on the trial court’s finding that Ashley Paluska,
Psy.D., the licensed clinical psychologist who testified for the State at the probable cause hearing,
had used “unreliable” evidence in reaching the opinion that respondent met the diagnostic criteria
for the mental disorder of paraphilia not otherwise specified with sexual attraction to
nonconsenting females (hereinafter “paraphilia NOS nonconsent”). Generally speaking, that
diagnosis required a showing of recurrent and intense sexually arousing fantasies, urges, or
behavior involving nonconsenting persons over a period of at least six months. The evidence that
-2-
Nos. 1-23-2214 and 1-24-1360 (cons.)
the trial court described as “unreliable” included three offenses for which respondent had been
charged as a juvenile, of which the records had been destroyed by 2013. Thus, Dr. Paluska knew
minimal factual details about these three juvenile cases in reaching the opinion that respondent
had engaged in behavior toward nonconsenting persons over a period of at least six months.
¶8 Respondent’s first juvenile case involved an incident in 1981, when respondent was 15 years
old. He was charged with aggravated criminal sexual abuse, aggravated burglary, burglary, battery,
sexual relations within family, and two counts of miscellaneous delinquency. He was found
delinquent, although it is unknown as to which charges, and placed on probation.
¶9 Respondent’s second juvenile case involved an incident in 1982, when he was 16 years old,
for which he was charged with battery, disorderly conduct, and sexual relations within family.
These charges were dismissed with leave to reinstate.
¶ 10 Respondent’s third juvenile case involved an incident in 1983, when he was 16 years old, for
which he was charged with home invasion, aggravated battery, and burglary. Respondent pled
guilty to the home invasion charge and was sentenced to six years in the Illinois Department of
Corrections (IDOC). No record indicates that there was any sexual component to this 1983 offense
except for a “statement of facts” that was prepared by the office of the Cook County State’s
Attorney as part of respondent’s later case in 1987. That document, which is not contained in the
record on appeal, apparently suggests that respondent had a motive to commit sexual assault as
part of this 1983 incident but was interrupted before any offense of a sexual nature occurred.
¶ 11 As indicated, the trial court initially found following a February 2013 hearing that the State
had failed to show probable cause that respondent was a sexually violent person. The trial court
found that Dr. Paluska’s lack of knowledge of any factual detail about respondent’s three juvenile
adjudications rendered them unreliable as a basis for her diagnosing him with the mental disorder
-3-
Nos. 1-23-2214 and 1-24-1360 (cons.)
of paraphilia NOS nonconsent. However, on March 22, 2013, the trial court granted a motion by
the State to reconsider its ruling. In doing so, the trial court reiterated its finding that the lack of
factual information about respondent’s three juvenile cases rendered them unreliable as bases for
Dr. Paluska’s diagnosis. But the trial court found from its review of the transcript that it had
initially misunderstood Dr. Paluska’s testimony that her diagnosis of paraphilia NOS nonconsent
did not rely entirely on the 1987 offense plus the three juvenile adjudications; instead, it also relied
on 10 incidents of sexual misconduct for which respondent had been issued disciplinary tickets by
IDOC between 1990 and 2012. The trial court found that these 10 incidents, which generally fit a
pattern of respondent intentionally exposing himself and masturbating when female correctional
officers were present, had been properly relied upon by Dr. Paluska in diagnosing respondent with
the mental disorder of paraphilia NOS nonconsent. The trial court thus found upon reconsideration
that the State had shown probable cause that respondent was a sexually violent person.
¶ 12 B. Trial
¶ 13 Respondent’s case ultimately proceeded to a two-day jury trial beginning March 8, 2023.
Prior to trial, respondent filed a motion in limine to preclude the State’s witnesses from disclosing
any contents of the “statement of facts” prepared by the State’s Attorney’s office as part of the
1987 case on the grounds that the statements in it were unreliable. A second motion in limine
sought to preclude testimony about the details of his disciplinary infractions while incarcerated on
the same grounds that they were unreliable. The trial court denied both motions.
¶ 14 Two witnesses testified at respondent’s trial. Both were licensed clinical psychologists who
testified as expert witnesses on behalf of the State. The first was Melissa Weldon-Padera, Psy.D.,
who specializes in sex-offender evaluation for Wexford Health Sources, which is a contractor hired
by IDOC. The second was Nicole Hernandez, Ph.D., who also specializes in sex-offender
-4-
Nos. 1-23-2214 and 1-24-1360 (cons.)
evaluation and is employed by the Illinois Department of Human Services (DHS)
¶ 15 1. Melissa Weldon-Padera, Psy.D.
¶ 16 a. Direct Examination
¶ 17 Dr. Weldon-Padera testified that she had become involved in respondent’s case in 2014 after
the previous evaluator had resigned. On March 3, 2014, she met with the respondent and offered
to interview him as part of her evaluation; however, he declined an interview. She thus proceeded
by reviewing the available information including records from respondent’s criminal cases,
records from his time at IDOC and his detainment at the DHS treatment and detention facility, his
medical records, and any prior psychological records. As of the time of trial, she had reviewed
updated records through October 2022. She testified that these were the kinds of records
reasonably relied upon by experts in her field when conducting such evaluations. The trial court
instructed the jury that Dr. Weldon-Padera was being permitted to testify to these materials for the
limited purpose of informing the jury what she had relied upon to reach her opinions, that it was
not evidence in the case and could not be considered by the jury as such, and it could only be
considered on the question of the weight to be given to the testimony. See Ill. Pattern Jury
Instructions, Civil, No. 2.04 (hereinafter “IPI Civil 2.04”).
¶ 18 Dr. Weldon-Padera testified that it was her opinion to a reasonable degree of psychological
certainty that respondent met the statutory criteria to be found a sexually violent person and
referred for civil commitment. He had been convicted of a sexually violent offense, that being his
conviction for aggravated criminal sexual assault in case number 87-CR-2389. It was also her
opinion to a reasonable degree of psychological certainty that he suffers from five mental
disorders: (1) other specified paraphilic disorder, sexually aroused by nonconsenting females in a
controlled environment (OSPD nonconsent); (2) exhibitionistic disorder, sexually aroused by
-5-
Nos. 1-23-2214 and 1-24-1360 (cons.)
exposing genitals to mature individuals; (3) alcohol abuse disorder, moderate, in a controlled
environment; (4) cannabis use disorder, moderate, in a controlled environment; and (5) antisocial
personality disorder (ASPD). In diagnosing respondent, she relied upon the fifth edition of the
Diagnostic and Statistic Manual (hereinafter “DSM-5”), which she described as the authoritative
guidebook used by all mental health professionals to diagnose mental disorders. She testified that
each of these five mental disorders is a congenital or acquired condition that affects emotional or
volitional capacity and that predisposes respondent to engage in acts of sexual violence.
¶ 19 As to the first mental disorder of OSPD nonconsent, she explained that “paraphilia” is any
intense and persistent sexual arousal or interest in something abnormal, including nonconsenting
partners. Paraphilia becomes a disorder when the person acts on it or when it causes them distress
or impairment or harm to somebody else. In coming to that diagnosis, she relied upon respondent’s
criminal history, including his three juvenile cases. See supra ¶¶ 8-10. As to the 1981 and 1982
cases, she testified to the charges against him and the nature of the disposition, but she testified
that she had no police reports or other records to review given the length of time that had passed.
As to the 1983 case involving home invasion, she testified over respondent’s objection that her
review of the statement of facts from his subsequent case in 1987 indicated that respondent’s
motivation for this 1983 home invasion was sexual “in that he sexually offended a young woman
but was surprised by family members before he could achieve penetration.”
¶ 20 She also testified that she reviewed police reports and the statement of facts from
respondent’s 1987 case that had resulted in the conviction for aggravated criminal sexual assault.
She explained that the records indicated respondent had approached a woman in a parked car and
forced her at knifepoint to perform acts of oral and vaginal sex on him. He then restrained the
victim and drove the victim’s car to the homes of two of his girlfriends, where he again forced her
-6-
Nos. 1-23-2214 and 1-24-1360 (cons.)
at knifepoint to perform acts of affection toward him. He finally drove the victim to a different
location and again forced oral and vaginal sex upon her, after which time the victim escaped by
jumping from the moving car. Dr. Weldon-Padera testified that she had also relied upon statements
that respondent had made about this incident to another evaluator who had interviewed him, in
which respondent acknowledged being sexually satisfied by the assault. This signified to Dr.
Weldon-Padera that respondent experiences sexual arousal to experiences of violence with
nonconsenting individuals.
¶ 21 In addition to his criminal history, Dr. Weldon-Padera also considered respondent’s behavior
while in IDOC custody in diagnosing him with OSPD nonconsent. Over objection, she testified to
two specific incidents for which he had been given disciplinary tickets relevant to this diagnosis.
One occurred when he ran his hand on the thigh of a teacher two times after she had told him to
stop. The second occurred when he placed his hand on the buttocks of a medical technician after
she had told him to get out of her room. These two incidents showed that respondent is unable to
control his urges and behavior even in a highly controlled environment. These incidents, along
with his juvenile and criminal history, show that respondent has a desire for engaging in sexual
behavior with unwilling females and obtains gratification of this paraphilic interest in a way that
causes harm or risk of harm to others.
¶ 22 She testified that respondent continues to suffer from OSPD nonconsent because paraphilic
disorders are lifelong conditions that do not go away without treatment. She testified that this
disorder predisposes him to engage in acts of sexual violence because he has not shown that he
can control his urges, impulses or behavior, even in the controlled environment of the detention
center, and he has not engaged in sex offender treatment to learn ways to manage or reduce them.
¶ 23 As to respondent’s second mental disorder, exhibitionistic disorder, Dr. Weldon-Padera
-7-
Nos. 1-23-2214 and 1-24-1360 (cons.)
explained that he meets the criteria for this disorder because he has a 30-year history within IDOC
of exposing his genitals to nonconsenting and unwilling females. Over objection, she explained
and provided examples that, in addition to the two above-described incidents for which respondent
had received disciplinary tickets, he had nine additional tickets for exposing his genitals to female
staff or for masturbating in the presence of female staff. She explained that his most recent write-
up for sexual misconduct as of the time of trial had been in October 2022. She testified that his
exhibitionistic disorder predisposes him to commit acts of sexual violence because it indicates that
he has not shown an ability to control himself with regard to his impulses and behaviors, he has
continued to act on them, and he has not undergone treatment to learn to control them.
¶ 24 As to respondent’s third mental disorder, ASPD, Dr. Weldon-Padera explained that this is a
pervasive pattern of disregarding and violating others’ rights since age 15. While the diagnosis
requires him to meet only three criteria, respondent meets seven criteria. For example, he fails to
conform to social norms, as shown by his criminal history and inability to follow rules while
incarcerated or detained. He has shown a reckless disregard of others by his pattern of physical
and sexual assaults. He has also exhibited no remorse or concern for his criminal or sex-offense
victims. Dr. Weldon-Padera explained that respondent’s ASPD predisposes him to engage in acts
of sexual violence, as antisocial tendencies are linked to higher sexual recidivism rates, and it is
easier for a person to sexually reoffend when that person does not care about following rules or
respecting others’ rights.
¶ 25 As to respondents’ fourth and fifth mental disorders, alcohol and cannabis use disorders, Dr.
Weldon-Padera testified that his use of these substances while he had been in the community had
met the diagnostic criteria, and he had also admitted to being intoxicated or high on cannabis at
the time of some of his arrests. These disorders do not go into remission until it is shown that he
-8-
Nos. 1-23-2214 and 1-24-1360 (cons.)
can be in the community for a period of time without using the substances. These disorders
predispose him to engage in acts of sexual violence, because research has shown that substance
use increases sexual recidivism risk due to impaired judgment, distorted thinking, and increased
impulsivity, even in a person who has learned from treatment.
¶ 26 Dr. Weldon-Padera next testified to a reasonable degree of psychological certainty that
respondent is substantially probable to commit future acts of sexual violence if there is no
appropriate custody or treatment for him. Her opinion is based in part on risk assessments that she
performed, along with her consideration of “dynamic” risk factors and protective factors. She used
two actuarial tests that measure “static” risk factors, meaning historic factors that do not change
except for age. The first actuarial test she used was the Static-99R, on which respondent’s score of
7 put him in the highest category of risk to sexually reoffend. His score of 7 is in the top 97.2% of
the sample, meaning he is 5.25 times more likely to be sexually reconvicted than the average sex
offender. His absolute risk to reoffend associated with this score is 30.7% over 5 years, 42% over
10 years, and 51.1% over 20 years. The second test was the Static-2002R, on which respondent’s
score of 7 also placed him in the highest risk category to sexually reoffend. His score was in the
top 99.3% of the sample and equates to him having a sexual recidivism rate that is 3.6 times higher
than the average sex offender. His absolute risk to reoffend associated with the score of 7 on this
test is 26.8% over 5 years and 45.7% over 20 years.
¶ 27 To measure respondent’s dynamic risk factors, which she described as psychological
variables that have been shown in research to be “related to” sexual recidivism but that can change
through treatment, she used an assessment test known as Stable-2007. This assessment takes into
account factors that are associated with sex offending but that can be progressively changed
through intervention and treatment. Among the factors relevant in respondent’s case are that he
-9-
Nos. 1-23-2214 and 1-24-1360 (cons.)
has some support from family members and his ex-wife, but it is unknown what level of kind or
support he receives. Another factor is that because he has been incarcerated or detained for most
of his life, he has never shown a capacity to be involved in a long-term, stable, marriage-type
relationship. While he did marry a woman during his incarceration, he also has a documented
history of domestic abuse toward her, including physically assaulting her during two visits. His
criminal history is reflective of a person who is indifferent to the overall well-being and rights of
others, and he has not participated in sex-offender treatment to demonstrate a level of
understanding of victim empathy and that his conduct causes harm. His criminal record and
disciplinary infractions show that he acts impulsively without regard to the negative consequences
to himself or others.
¶ 28 Finally, Dr. Weldon-Padera considered whether any protective factors existed that reduced
respondent’s risk to reoffend. Although recidivism risk normally decreases as a person ages, she
testified that in this case it is clear that respondent has not aged out of it by age 56. He has also not
engaged in the core sex-offender treatment groups at his DHS treatment facility, and he has been
removed from other groups due to engaging in inappropriate sexual behaviors while in them.
¶ 29 b. Cross-Examination
¶ 30 On cross-examination, Dr. Weldon-Padera acknowledged that respondent had no obligation
to participate in an interview with her as part of the evaluation process. She acknowledged that she
had no details about his 1981 or 1982 juvenile cases, and she does not know whether respondent
was adjudicated delinquent on all charges against him in the 1981 case. The charge of sexual
relations within family filed in these cases is not considered a sexually violent offense. As to his
1983 case, she acknowledged that the only document she had that made reference to a sexual
motive was the statement of facts prepared by the State’s Attorney’s office in the 1987 case, and
- 10 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
that consisted of only one or two sentences that reference a sexual motivation. As to his 1987 case,
she agreed that she had minimal law enforcement information about that case and had not reviewed
any trial transcripts. She also acknowledged that the incident for which respondent had received a
disciplinary ticket while in IDOC for touching a teacher’s thigh had occurred in 1990, and the
incident involving his touching of a medical technician’s buttocks had occurred in 1992.
¶ 31 She acknowledged that the DSM-5 includes a cautionary statement that when its categories,
criteria, and descriptions are employed for forensic purposes, there is a risk that diagnostic
information will be misused or misunderstood; and having a DSM-5 diagnosis does not necessarily
mean that impulses or behavior cannot be controlled. She acknowledged that the “nonconsenting”
qualifier of her diagnosis of OSPD nonconsent is not specifically listed in DSM-5, and attempts to
make sexual arousal to nonconsenting partners a standalone diagnosis have been rejected. As such,
the DSM-5 includes no standardized diagnostic criteria for it. She was questioned as to her lack of
knowledge of the factual details of respondent’s three juvenile cases on her opinion that he had
shown a “pattern” since adolescence of sexual behavior with unwilling females. She could not
point to any evidence that he had experienced arousal during any of the incidents cited other than
the 1987 offense. She also agreed that the 1987 offense had been the last incident of sexually
violent behavior by respondent. There had been no documented evidence of him committing a
hands-on offense to another person since 1992.
¶ 32 She acknowledged that the recidivism data associated with the scores on the Static-99R
comes from a “high-risk high-needs” sample group, not from the “routine” sample group. The
high-risk high-needs sample groups studied over 5-year and 10-year periods were significantly
smaller than the routine sample groups. The demographics studied in both sample groups included
all ages, and there is a possibility that the risk levels of older sex offenders are inflated. As to the
- 11 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
Static-2002R, she acknowledged that assigning respondent a score of 7 required her to use his
juvenile offenses to determine that he had multiple sentencing occasions for sexual offenses prior
to the 1987 offense; and she was again questioned concerning her lack of knowledge that those
juvenile cases involved sexual-offense adjudications. She also acknowledged that for both tests,
the recidivism data includes reoffenders who commit noncontact offenses such as exposure or
breaking into a home to steal underwear. Such noncontact offenses are not considered sexually
violent offenses.
¶ 33 She was also questioned about her evaluation of dynamic risk factors through the Stable-
2007 test. She acknowledged that the coding manual for this test states that a comprehensive
assessment should include an in-person interview, yet that was not offered to respondent in 2021
at the time when she first employed that test. It also states that a comprehensive assessment should
include review of records and collateral information, and this would include interviews with the
offender’s support network. She acknowledged that she had not reached out to respondent’s ex-
wife or other family members for purpose of evaluating the factors relevant to the Stable-2007 test.
There was no redirect examination by the State of Dr. Weldon-Padera.
¶ 34 2. Nicole Hernandez, Ph.D.
¶ 35 a. Direct Examination
¶ 36 Dr. Nicole Hernandez was the second expert witness to testify for the State. She likewise
conducted an evaluation of respondent based upon a review of records including his IDOC master
file, any available court documents and police reports, prior examinations of him, and his records
from the DHS treatment and detention facility, which include his treatment plans, progress notes,
disciplinary records, and mental health and medical records. She testified that these were the kinds
of records reasonably relied upon by experts in her field when conducting these types of
- 12 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
evaluations, at which point the trial court instructed the jury pursuant to IPI Civil 2.04. Dr.
Hernandez testified that she also conducted an 85-minute interview with respondent in July 2022.
¶ 37 In her testimony Dr. Hernandez expressed an opinion to a reasonable degree of psychological
certainty that respondent meets the criteria to be found a sexually violent person. He has been
convicted of a sexually violent offense, and he has mental disorders that make it substantially
probable that he will engage in future acts of sexual violence.
¶ 38 As to his mental disorders, Dr. Hernandez testified that she diagnosed him with three:
(1) OSPD nonconsent, (2) exhibitionistic disorder in a controlled environment, and (3) ASPD. She
also used DSM-5 in making her diagnoses.
¶ 39 Dr. Hernandez testified that respondent’s OSPD nonconsent and exhibitionistic disorders act
in combination in his case. The available records show that he began at a young age engaging in
sexually deviant behaviors. These include two arrests at ages 15 and 16 for sexually problematic
behavior with family members, plus a conviction for aggravated sexual assault at age 20 for
abducting a female and sexually assaulting her multiple times in multiple locations. Since
respondent has been in confinement, he has been unable to engage in behavior of the same nature,
and therefore his behavior has evolved into exposing behavior with the hope of obtaining a reaction
from the nonconsenting female corrections staff and therapy aides. At IDOC he had 11 disciplinary
reports over a 22-year period of exposing himself, masturbating, or touching female staff
inappropriately. At the DHS treatment and detention facility, he has had an additional 25 reports,
most of which involve exposing himself. The most recent incident prior to trial was in October
2022, when he was masturbating in a highly public location within the facility and also exposed
himself during a group therapy discussion. He has also had three separate incidents in recreational
group therapy sessions of touching himself inappropriately in the group room. He has further
- 13 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
acknowledged that he is aroused by exposing himself to and getting a reaction from females, that
he cannot control his urges, and that it is his way of coping.
¶ 40 Dr. Hernandez testified that ASPD applies to respondent because he has engaged in behaviors
showing a complete disregard for others throughout his life: skipping school; selling drugs;
affiliating with gangs; and being arrested at age 15 and first incarcerated at age 16. He has
continued to consistently engage in such behaviors since the time of his institutionalization, having
received 132 disciplinary reports in IDOC and 49 disciplinary reports at the DHS treatment and
detention facility.
¶ 41 Concerning all three diagnoses, Dr. Hernandez testified that respondent’s strong sexual urges
and lack of concern for others cause him to engage in these behaviors repeatedly despite sanctions.
His mental disorders make him substantially probable to commit future acts of sexual violence
because he admits that he cannot control himself. Thus, in an environment with few restrictions,
he would be capable of reengaging in his past behavior such as abducting women at knifepoint or
committing rape. Dr. Hernandez finds it significant that respondent has received double the
number of sexual rule violation reports since moving to the less-restrictive setting of the DHS
facility than he did during his incarceration at IDOC.
¶ 42 Dr. Hernandez also conducted a risk assessment as to respondent by using actuarial measures,
and she also considered dynamic risk factors and protective factors. On the Static-99R test, she
scored respondent a 7, which placed him at the “highest of high-risk categories” and indicated that
he was 5.25 times more likely to sexually reoffend than the typical sex offender. On the Static-
2002R, she scored respondent a 6, which placed him in the second highest risk category and
indicated that he was 2.63 times more likely to sexually reoffend than a typical sex offender.
¶ 43 Dr. Hernandez also identified various dynamic risk factors affecting respondent’s likelihood
- 14 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
to sexually reoffend. She found that he has a deviant sexual interest or preference, that being an
arousal to nonconsenting persons; sexual preoccupation, as shown by his doubling of reported
incidents of sexually inappropriate behavior within the less restrictive DHS facility; and an
acknowledgement that he uses these behaviors to cope with his situation. He justifies his offenses
in his mind, particularly by stating that his exposing and masturbating behaviors are not as bad as
the offenses he committed when he was in the community. He exhibits grievance hostility, by
filing an excessive number of grievances within the DHS treatment and detention facility and by
blaming the female staff members for setting him up to masturbate in front of them. He has no
history of forming long-term, emotionally intimate relationships, and even though he was married,
he twice assaulted his wife during her visits to IDOC. He has shown resistance to and
noncompliance with rules.
¶ 44 Finally, Dr. Hernandez considered respondent’s protective factors of completing sex offender
treatment, any debilitating medical conditions, and his age. She does not find respondent’s age of
56 to be a protective factor, because he has continued through the present to engage in sexual
acting out and antisocial behaviors. He does not have any medical conditions that are debilitating
in a way that he cannot reoffend. And he has only briefly attended relapse prevention treatment
designed to help him take responsibility for his offending behavior, figure out why it occurs, and
find ways to prevent it from occurring in the future. He had also been removed from several groups
for exposing himself, and at the time of trial he had not received any treatment in four years.
¶ 45 b. Cross-Examination
¶ 46 On cross-examination, Dr. Hernandez acknowledged that she had previously worked as a
treatment provider at the DHS treatment and detention facility, during which time she had provided
treatment to respondent between September and December 2015. During that treatment,
- 15 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
respondent had complained about her for pressuring him to discuss a ticket for masturbation. She
was on his treatment team and participated in discussing a treatment plan with him. She also
provided treatment to him in a skills group between January and June 2016. She disagreed that she
had a conflict of interest in evaluating respondent, stating that it had been eight years since her
treatment of him.
¶ 47 Dr. Hernandez acknowledged that she combined the diagnoses of OSPD nonconsent and
exhibitionistic disorder on direct examination because there is overlap between them, although
they are separate disorders. She agreed that 1987 was the last time respondent had engaged in a
sexually violent offense but added that he was continuing to engage in offense-adjacent behaviors
“because he cannot abduct a woman in the facility at knifepoint.” She acknowledged that he had
worked in the dietary division of the prison and thus had been in the presence of knives without
incident. She did not know whether other individuals within IDOC had engaged in sexually violent
offenses. She agreed that exposing genitals is not considered a sexually violent offense if it occurs
in the community, but she added that “it’s the motivation of that nonconsent and repetitively
engaging the same people when they’re telling him to stop, that is in the realm of that sexually
violent offense.” By that, she meant his conduct within the controlled environment was in the same
pattern of “targeting a victim, they are saying no, he’s getting aroused to it, he’s getting erect to it,
and he’s exposing and masturbating.” She agreed that exposing and masturbating were not
sexually violent offenses in themselves, nor is touching someone on the thigh. She stated that there
were instances in which touching another individual on the buttocks for the purpose of sexual
arousal could be considered a sexually violent offense under the law, but the offense of criminal
sexual abuse is not a sexually violent offense.
¶ 48 She testified that exhibitionistic disorder on its own cannot predispose someone to engage in
- 16 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
acts of sexual violence, but it was predisposing respondent to engage in acts of sexual violence in
conjunction with his OSPD nonconsent and his ASPD. The ASPD likewise did not predispose him
to engage in sexual violence on its own, but it did in conjunction with the OSPD nonconsent. She
testified that in diagnosing him with OSPD nonconsent, she was not relying on the 1981 juvenile
incident as necessarily having occurred; instead, it was part of his pattern of accusations of
inappropriate sexual behavior, which “don’t come out of nowhere.” She stated that the offense of
sexual relations within family was nonconsensual by nature. She testified that she had not relied
on the 1983 incident of home invasion for the diagnosis of OSPD nonconsent or exhibitionistic
disorder, but she relied on it only for the diagnosis of ASPD. She agreed that a mental disorder as
defined by DSM-5 is not necessarily the same thing as a mental disorder under the Sexually Violent
Persons Commitment Act.
¶ 49 As for her risk assessment, Dr. Hernandez agreed that neither of the two actuarial tests she
used was limited to assessing the risk of sexually violent offenses; they assessed the risk to commit
any form of sexual offense, which could include nonviolent offenses such as stealing underwear
or exposing behavior. She testified that she assigned respondent a score of 6 on the Static-2002R
because she did not count his juvenile cases as “prior sentencing occasions” for purposes of that
test. She did that to be conservative because she did not have the records. She agreed that the two
tests do not indicate whether someone’s risk to reoffend is caused by a mental disorder.
¶ 50 She was asked about her assessment of respondent’s dynamic risk factors, and she disagreed
that it was “double-dipping” to score him points for prior sex offenses on the static tests and also
use them in her evaluation of the dynamic risk factors. Using them in this fashion does not increase
his score, but an offender with multiple dynamic risk variables is at a higher risk to reoffend. She
agreed that each of the dynamic risk factors had been part of an analysis in which they found that
- 17 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
the factors had small correlations upon sexual recidivism, although they were not limited to
looking only at violent offenses. Thus Dr. Hernandez does not know whether any of the dynamic
risk factors had any relationship to sexually violent recidivism or whether any of the actuarial
instruments are predictive of sexual violence according to the Sexually Violent Persons
Commitment Act. There was no redirect examination by the State of Dr. Hernandez.
¶ 51 3. Closing Arguments
¶ 52 Following the conclusion of the evidence, the case proceeded to closing arguments. Pertinent
to this appeal, the prosecutor made several references in closing and rebuttal to the facts of
respondent’s juvenile and criminal cases. For example, she stated that respondent had been
“convicted of a home invasion at age 16 *** that had some sexual motivation to it.” She also
stated, “And while on parole, at age 20, he committed the act of aggravated criminal sexual assault.
That’s where he abducted the woman at knife point, drove her around, went to two separate
locations where he sexually assaulted her in two different manners.” She also referenced
respondent’s disciplinary tickets, including by stating that respondent “at age 56, had a sexual
misconduct at the treatment and detention facility not six months from the day of his trial.” And
two references were made in rebuttal closing that respondent could “walk out the door.” Those
statements are set forth in greater detail in our analysis below.
¶ 53 4. Jury Instructions
¶ 54 Several rejected jury instructions are also pertinent to this appeal. Respondent tendered a
proposed nonpattern instruction that gave a definition of “sexually violent offense” that included
13 categories of offenses enumerated by name. Respondent also tendered seven proposed
instructions to the effect that the offenses of public indecency, criminal sexual abuse, and sexual
relations within families were not sexually violent offenses.
- 18 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
¶ 55 5. Verdict and Judgment
¶ 56 At the conclusion of the trial, the jury returned a verdict finding respondent to be a sexually
violent person. The trial court entered judgment upon the jury’s finding. It also ordered that
respondent be committed to the custody of DHS in a secure setting until further order of court and
ordered DHS to conduct a predisposition investigation.
¶ 57 C. Posttrial Proceedings and Commitment Order
¶ 58 The matter was then continued periodically until September 19, 2023, at which time the trial
court conducted the dispositional hearing. Respondent testified at that hearing and was questioned
about a new disciplinary report that on August 14, 2023, he had been “masturbating at staff” while
in the law library of the DHS treatment and detention facility. Respondent denied that this had
occurred. At the conclusion of the hearing, the trial court reserved ruling and stated that it wanted
to view any report or surveillance video of that incident prior to ruling.
¶ 59 On October 26, 2023, the trial court stated that it had viewed the six minutes of surveillance
video that had been supplied to it by the State. The court stated that it saw no corroboration of any
report of misconduct on the video and that it was not considering the incident with respect to its
dispositional determination.
¶ 60 In ruling, the court stated that based upon the fact that respondent had been in DHS custody
for 11 years after serving his original sentence, it was going to “take a chance” and order
conditional release. This oral ruling was followed by a written order entered November 6, 2023,
in which the court ordered that respondent’s commitment be on conditional release, that he remain
in secure care pending further order of court, that a conditional release plan be prepared within 60
days, and that he shall be placed upon conditional release upon the court’s review and approval of
the conditional release plan. It also continued the matter to December 21, 2023, for the trial court’s
- 19 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
review and approval of the conditional release plan. On November 13, 2023, respondent filed his
first notice of appeal.
¶ 61 On December 8, 2023, the State filed a petition in the trial court seeking to “revoke”
conditional release. That petition alleged that on December 1, 2023, another incident occurred in
which respondent was observed exposing himself and masturbating during a group therapy
session. On December 15, 2023, respondent filed a motion to dismiss the State’s petition to revoke
conditional release. Respondent argued in that motion that he was not yet “on conditional release,”
and thus the State’s reliance upon the statute governing the revocation of conditional release made
its petition legally insufficient. On December 18, 2023, the court held a hearing and denied
respondent’s motion to dismiss. The trial court stated to respondent’s counsel that while
“technically I think you’re right,” the new allegations raised in the State’s petition were matters
“that would certainly impact this court’s decision to place him on conditional release.” It thus
stated, “So however you want to style it[,] I think we have to set it down for a hearing.”
¶ 62 The trial court allowed respondent’s counsel time to take depositions on the matter. On April
30, 2024, the State filed an amended petition to revoke conditional release. It alleged that in
addition to the incident of December 1, 2023, a second new incident had occurred on March 2,
2024, in which a female staff member had observed respondent lying in his bed without pants and
masturbating during that evening’s count of the residents.
¶ 63 On June 20, 2024, the trial court conducted an evidentiary hearing at which it heard the
testimony of eight witnesses including respondent. The first to testify was Courtney Rhoades, who
had been respondent’s primary therapist at the DHS treatment and detention facility since July
2022. Her interactions with him were without incident until her last day of working there,
December 1, 2023. That day, she and a co-facilitator named William Bowden were facilitating a
- 20 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
mentoring group in which respondent was a participant. She testified that during that session, she
observed respondent exposing himself and masturbating, along with a white substance. She exited
the room, reported the incident to a security therapy aide, and did not return to the group room.
¶ 64 Bowden was the second witness to testify. He testified that he had not observed anything
unusual occur in the group that day, but that Rhoads had left the room and the group was dismissed
early after a security therapy aide arrived.
¶ 65 The third witness to testify was Elizabeth Schmidt. She testified that she was a security
therapy aide working at the treatment and detention facility on March 2, 2024. She conducted the
11 p.m. count that night, wherein the residents are directed to go into their rooms and lock up.
When she walked by respondent’s room that night, she observed him lying on his bed without
pants and masturbating. The trial court inquired of the witness that the 11 p.m. count occurs every
day following an announcement made over a loudspeaker.
¶ 66 The fourth witness to testify was Dr. Hernandez. She testified that she had reviewed
respondent’s progress notes, treatment plans, and behavioral reports from the year since the trial.
Her opinion was that the least restrictive environment appropriate for him was the treatment and
detention facility. Her review of behavioral records showed that since the trial, respondent had
incurred seven new misconduct violations at the treatment and detention facility; four of these
were sexually motivated, and two occurred after he had been granted conditional release. Dr.
Hernandez testified that the timing of the two most recent incidents showed that respondent “is
struggling to control his behaviors especially with relation to his sexual preoccupation and
impulsivity.” Her opinion was that respondent’s treatment needs to continue in a secure setting
because his past progression of committing three times as many incidents in the less-secure setting
of the treatment and detention facility than he did at IDOC means that, in an even less secure
- 21 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
environment, “the potential for him to create new victims could potentially increase and be
substantial.” Her opinion to a reasonable degree of psychological certainty was that respondent is
substantially probable to commit new acts of sexual violence if on conditional release, and she
does not believe that his care could not be safely managed in the community. However, she also
answered no when asked if in her opinion the safety of others required respondent’s conditional
release to be revoked.
¶ 67 Three residents who had been part of the group on December 1, 2023, all testified on
respondent’s behalf. All three witnesses denied seeing any incident involving respondent.
Respondent himself also testified and denied that either of the incidents to which Rhoades and
Schmidt had testified occurred.
¶ 68 After hearing argument, the trial court ruled that it was revoking respondent’s conditional
release. It stated that it found the testimony of Rhoades to be credible as to the conduct by
respondent that she had witnessed, even though other witnesses had testified they had not seen
anything. The court also found the testimony of Schmidt to be credible. The court stated that it
found it “very troubling” that these incidents had occurred at a time when respondent understood
and knew that his conditional release was under consideration by the court. The court stated that
the timing of these incidents led it to agree with Dr. Hernandez that respondent was “struggling to
control his behavior” in a way that “if gone unchecked, could very well result in a likelihood of
much re-offending.” Accordingly, the trial court stated that it agreed with Dr. Hernandez’s opinion
that respondent was substantially probable to commit acts of sexual violence if he was placed on
conditional release.
¶ 69 The trial court entered a written order that same day finding that the State had proven by clear
and convincing evidence that the safety of others required revocation of respondent’s conditional
- 22 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
release, that the State’s petition to revoke was granted, and that respondent shall remain in secure
care until further order of court. Respondent thereafter timely filed a second notice of appeal, and
the two appeals were consolidated in this court.
¶ 70 II. ANALYSIS
¶ 71 A. Sufficiency of Evidence
¶ 72 On appeal, respondent’s first contention is that the judgment of the trial court should be
reversed on the basis that the evidence presented at trial was insufficient to establish beyond a
reasonable doubt that he was a sexually violent person. When reviewing claims that challenge the
sufficiency of evidence, we consider whether, viewing the evidence in the light most favorable to
the State, any rational trier of fact could find the elements to have been proven beyond a reasonable
doubt. In re Commitment of Fields, 2014 IL 115542, ¶ 20. Under this standard of review, it is not
the function of the appellate court to reweigh the evidence or to retry respondent. In re Detention
of Lieberman, 379 Ill. App. 3d 585, 602 (2007). Rather, the trier of fact, which in this case was the
jury, is responsible for assessing witness credibility, weighing the testimony and evidence, and
drawing reasonable inferences therefrom. Id. Thus, we will not substitute our judgment for that of
the jury on questions involving the weight of evidence or the credibility of witnesses. In re
Detention of White, 2016 IL App (1st) 151187, ¶ 56. We will not reverse a jury’s determination
that an individual is a sexually violent person unless the evidence is so improbable or
unsatisfactory that it leaves a reasonable doubt on the question. Id.
¶ 73 To establish that respondent was a sexually violent person, the State had to prove the
following three elements beyond a reasonable doubt: (1) that respondent had been convicted of a
sexually violent offense, (2) that he has a mental disorder, and (3) that his mental disorder makes
it substantially probable that he will engage in acts of sexual violence. Fields, 2014 IL 115542,
- 23 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
¶ 20; see 725 ILCS 207/5(f), 35(d)(1) (West 2022). As to the first element, respondent does not
dispute that he was convicted of a sexually violent offense, and his conviction for aggravated
criminal sexual assault in case 87-CR-2389 satisfies this element. See 725 ILCS 207/5(e)(1) (West
2022). As to the second and third elements, respondent raises four challenges to the sufficiency of
evidence used to establish them. Although these overlap somewhat, two of respondent’s challenges
are directed at the second element above, and two are directed at the third.
¶ 74 1. Mental Disorder
¶ 75 For purposes of the Sexually Violent Persons Commitment Act, a “mental disorder” is “a
congenital or acquired condition affecting the emotional or volitional capacity that predisposes a
person to engage in acts of sexual violence.” Id. § 5(b). Respondent’s first challenge involves the
“predisposition” requirement of this statutory definition. He argues that the evidence failed to
prove beyond a reasonable doubt that any of the conditions with which the State’s experts
diagnosed him predisposed him to engage in acts of sexual violence, as opposed to nonviolent
acts. His second challenge is that the State failed to prove the mental disorder element because its
experts used unreliable evidence to reach their opinions on this issue.
¶ 76 We have previously observed that in sexually violent persons cases, courts rely heavily on
the conclusions of expert witnesses exercising professional judgment in assessing whether an
individual has a mental disorder that predisposes that person to engage in acts of sexual violence.
In re Commitment of Montanez, 2020 IL App (1st) 182239, ¶ 70; In re Commitment of Moody,
2020 IL App (1st) 190565, ¶ 48. In this case, two expert licensed clinical psychologists gave
opinions to a reasonable degree of psychological certainty, based upon their training, experience,
and review of the relevant information in this case, that respondent suffers from multiple mental
disorders that predispose him to engage in future acts of sexual violence. Both Dr. Weldon-Padera
- 24 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
and Dr. Hernandez diagnosed respondent with OSPD nonconsent, exhibitionistic disorder, and
ASPD. Dr. Weldon-Padera also diagnosed him with alcohol and cannabis abuse disorders. Both
experts explained why in their professional opinions respondent suffers from these mental
disorders and why they predispose him to engage in acts of sexual violence. Both explained, in
summary, that throughout his incarceration and his time in detention, respondent has continued as
a result of his mental disorders to engage in sexually inappropriate behavior toward nonconsenting
females, thereby demonstrating that he is unable to control his behavior. Dr. Hernandez testified
that his behaviors within detention are “altered” versions of the violent behavior he had committed
in the community, which he is unable to repeat in a controlled environment; these behaviors show
that he continues to experience arousal toward nonconsenting females that he cannot control. Dr.
Hernandez testified that it was significant that respondent had received double the amount of
sexual rule violation reports since moving to the less-restrictive setting of the DHS facility than he
did during his incarceration at IDOC. Thus, she testified, “in a less restrictive environment than
he’s in right now, he’s capable of engaging in behaviors that he has in the past such as abducting
women at knifepoint and raping her on multiple locations.”
¶ 77 Respondent’s first argument concerning the sufficiency of this evidence is that the evidence
showed that four of his purported mental diagnoses fail to meet the statutory requirement of
predisposing him to engage in acts of sexual violence. These were his diagnoses of exhibitionistic
disorder, ASPD, cannabis use disorder, and alcohol abuse disorder. Respondent cites the experts’
testimony that none of these four disorders, acting alone, predisposed him to engage in acts of
sexual violence. However, we agree with the State that this point by respondent is irrelevant
because the expert testimony was clear that these disorders operated in connection with his OSPD
nonconsent to predispose respondent to commit acts of sexual violence and increase his risk of
- 25 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
recidivism. There is no statutory requirement that each individual mental disorder with which a
person is diagnosed must independently predispose him or her to engage in acts of sexual violence,
and evidence that multiple conditions operate in conjunction with one another to predispose a
person to engage in acts of sexual violence may satisfy the definition of a mental disorder. White,
2016 IL App (1st) 151187, ¶ 46.
¶ 78 Respondent also challenges the sufficiency of the evidence of his OSPD nonconsent
diagnosis. While we find respondent’s precise argument on this point to be somewhat difficult to
track, we understand his argument to be that a diagnosis of OSPD nonconsent which predisposes
a person to engage in acts of sexual violence requires the State to prove more than one act of sexual
violence occurring over a period lasting longer than six months. From this premise, he argues that
the State’s experts cited only one act of sexual violence in his past, i.e., his 1987 offense, with all
other behaviors cited being nonviolent offenses. He criticizes Dr. Weldon-Padera for attempting
to make up for “the lack of evidence for the six-month requirement” by relying upon his three
juvenile cases, about which she had no information that any acts of sexual violence occurred. He
also criticizes Dr. Hernandez for attempting to “meet the six-month criteria” by using nonviolent
sexual offenses and “blurring the lines” between his exhibitionistic disorder and OSPD nonconsent
diagnoses.
¶ 79 We reject respondent’s arguments on this point also. First, respondent cites no statutory
support for this argument that the State is required to prove more than one prior act of sexual
violence. Instead, we agree with the State that the Sexually Violent Persons Commitment Act does
not require proof that respondent committed more than one prior act of sexual violence before a
trier of fact can find that he has a mental disorder that predisposes him to engage in acts of sexual
violence. See 725 ILCS 207/5(b), (f) (West 2022). Second, we find nothing in the testimony or
- 26 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
evidence at trial supporting any form of “six-month” requirement or criteria concerning this
diagnosis. No testimony or evidence was presented that there must be a showing of multiple prior
sexually violent acts over a period longer than six months to support a diagnosis of OSPD
nonconsent that predisposes a person to engage in acts of sexual violence. Instead, both expert
witnesses testified to a reasonable degree of psychological certainty that respondent met the
diagnostic criteria for OSPD nonconsent and that it predisposes him to engage in acts of sexual
violence. They explained the reasons for their opinions, and nothing about this testimony is
improbable or unsatisfactory so as to leave a reasonable doubt on the question. White, 2016 IL
App (1st) 151187, ¶ 56.
¶ 80 Respondent also argues that Dr. Weldon-Padera improperly sought by her testimony to shift
the burden of proof onto him to disprove that he was predisposed to engage in acts of sexual
violence due to his OSPD nonconsent diagnosis. This argument is based on Dr. Weldon-Padera’s
testimony explaining why respondent’s OSPD nonconsent predisposes him to engage in acts of
sexual violence, wherein she stated, “He hasn’t shown that he can control these urges, impulses,
arousal, and behaviors given that he continues to act on them throughout the decades that he’s been
at the detention center.” (Emphasis added.) This statement clearly refers to the showing respondent
is required to make in sex-offender treatment at the DHS treatment and detention facility, not the
showing he must make in court. The argument that this isolated comment improperly shifted the
burden of proof onto him is meritless.
¶ 81 Respondent makes a second, related challenge to the sufficiency of the State’s evidence to
prove that he had a “mental disorder” within the statutory definition. He argues that the State’s
experts used unreliable evidence to conclude that he had exhibited a “pattern” of behavior that
supported the diagnosis of OSPD nonconsent. For example, he criticizes Dr. Weldon-Padera’s use
- 27 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
of his three juvenile cases in concluding that he had shown a pattern since adolescence of desire
for sexual behaviors with unwilling females, even though she acknowledged that she had minimal
details beyond the charges that any of those cases involved sexual behaviors with unwilling
females. He similarly criticizes Dr. Hernandez’s use of nonviolent sexual acts during his
incarceration and his 1981 juvenile case to conclude that he had displayed a pattern supportive of
an OSPD nonconsent diagnosis. He heavily emphasizes the fact that, following the 2013 probable
cause hearing in this case, the trial court twice stated that the unavailability of the records from his
three juvenile cases rendered them unreliable as bases for diagnosing respondent with what was
then termed paraphilia NOS nonconsent.
¶ 82 We again reject respondent’s arguments for reversal based upon the experts’ use of
purportedly unreliable evidence in forming their opinions. The factual basis for the opinion of an
expert witness is a matter generally held to go to the weight of the evidence, not its sufficiency,
and decisions regarding the weight to be given expert testimony are for the jury to determine in
light of the expert’s credentials and the factual basis of the opinion. Snelson v. Kamm, 204 Ill. 2d
1, 26-27 (2003). The above shortcomings in the experts’ knowledge about the facts of respondents’
juvenile cases and the fact that none of respondents’ behavior while incarcerated or in detention
amounted to acts of violence were thoroughly exposed through vigorous and able cross-
examination by respondents’ counsel. Nevertheless, the jury apparently credited the experts’
testimony that the respondent suffered from a mental disorder within the meaning of the statute,
and we will not substitute our judgment for that of the jury on such matters going to the weight of
evidence or the credibility of witnesses. White, 2016 IL App (1st) 151187, ¶ 56.
¶ 83 2. Substantial Probability to Engage in Sexually Violent Acts
¶ 84 Respondent also raises two challenges to the third element that the State was required to
- 28 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
prove beyond a reasonable doubt, which was that respondent’s mental disorder makes it
“substantially probable that [he] will engage in acts of sexual violence.” 725 ILCS 207/5(f) (West
2022). In this context, “substantially probable” means “much more likely than not.” In re
Detention of Bailey, 317 Ill. App. 3d 1072, 1086 (2000). Respondent’s first challenge to the
sufficiency of the evidence used to prove this element is that it failed to prove that he was
substantially probable to engage in acts of sexual “violence,” as opposed to nonviolent offenses or
acts. His second challenge is that the State’s evidence that he would engage in sexually violent
acts in the future was too weak to prove “substantial probability.”
¶ 85 On this element, both Dr. Weldon-Padera and Dr. Hernandez expressed opinions to a
reasonable degree of psychological certainty that respondent was substantially probable to commit
acts of sexual violence in the future if he was not in appropriate custody or treatment. Both experts
testified to reaching this opinion after performing an assessment of his recidivism risk that
involved using actuarial assessments of risk based on “static,” unchanging risk factors; an
assessment of “dynamic” risk factors that could change with treatment; and consideration of any
protective factors present in his case. On the Static-99R actuarial test, both experts gave respondent
a score of 7 and testified that this score placed him in the highest risk category among all sex
offenders to sexually reoffend. On the Static-2002R actuarial test, Dr. Weldon-Padera gave
respondent a score of 7 and testified again that this score placed him in the highest risk category
to reoffend. Dr. Hernandez gave respondent a score of 6 on this assessment and testified that this
score placed him in the second-highest category of risk to reoffend. Furthermore, both experts
engaged in a comprehensive explanation of various dynamic risk factors, which had been shown
by research to correlate to higher rates of recidivism among sex offenders, that they concluded to
be present in respondent’s case. And both experts explained why no protective factors, including
- 29 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
age, were present in respondent’s case that lowered his risk to reoffend.
¶ 86 As stated above, respondent’s first argument is that the evidence offered to prove this element
of the State’s case was insufficient because it failed to prove that it is substantially probable that
he will engage in acts of sexual “violence,” as opposed to engaging in sexual acts that are
nonviolent. He contends that the evidence proved at most that he had a predisposition to commit
sexual acts that do not involve violence, such as conduct that might qualify as public indecency,
criminal sexual abuse, or sexual relations within families. See 720 ILCS 5/11-1.50, 11-11, 11-30
(West 2022). He is critical of the fact that the two actuarial tests used by both experts do not
distinguish between the risk of sexually violent recidivism and the risk of recidivism involving
sexually nonviolent offenses. He is also critical of Dr. Weldon-Padera’s use of his 1981 and 1983
juvenile cases to give him a score of 7 on the Static-2002R, instead of a score of 6 as Dr. Hernandez
did, where Dr. Weldon-Padera did not know the basis for his adjudication of delinquency in the
1981 case and knew he was not charged with a sexual offense in the 1983 case. As for the experts’
assessment of dynamic risk factors, he cites the cross-examination of Dr. Hernandez that she did
not know whether any of the dynamic risk factors had any relationship to sexually violent
recidivism, only that they had small correlations or effects on overall sexual recidivism. He
similarly cites the fact that Dr. Weldon-Padera’s direct examination testimony was only that these
dynamic risk factors were “associated with” or “related to” sexual recidivism, not that they
increased respondent’s risk of engaging in sexually violent offenses.
¶ 87 We again reject this argument. We find it to be nothing more than a challenge to the factual
bases of the witnesses’ opinions that respondent is substantially probable to commit acts of sexual
violence in the future, and such matters go to the weight of evidence, not its sufficiency. Snelson,
204 Ill. 2d at 26. It was thus the province of the jury to decide the weight to give to the experts’
- 30 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
opinions after being made aware on cross-examination of any shortcomings in the evidence upon
which they relied. We do not substitute our judgment for that of the jury on such questions of
weight of evidence and witness credibility. White, 2016 IL App (1st) 151187, ¶ 56. Also, as to
respondent’s final point that Dr. Weldon-Padera testified only that the dynamic risk factors were
“associated with” or “related to” sexual recidivism, we add that we do not require that experts use
any specific, precise, or exact language when testifying to the causal connection between a
respondent’s mental disorder and the risk of sexually violent recidivism. Montanez, 2020 IL App
(1st) 182239, ¶ 76.
¶ 88 Respondent’s second sufficiency-of-evidence challenge to this element is closely related to
the first. In essence, he cites largely the same shortcomings in the evidence as set forth above and
argues that they show that the evidence was too weak to constitute proof of “substantial
probability” that he will engage in acts of sexual violence. In doing so, respondent compares the
testimony in this case to that of In re Commitment of Gavin, 2024 IL App (1st) 230246, and a
nonprecedential order from In re Commitment of McCormack, 2021 IL App (1st) 181930-U.
¶ 89 Unlike the initial petition at issue in this case, Gavin involved a petition for discharge by a
petitioner who had previously been adjudicated a sexually violent person. Gavin, 2024 IL App
(1st) 230246, ¶ 1. Following a jury determination that the petitioner remained a sexually violent
person, the petitioner challenged whether the State had proven by clear and convincing evidence
that he remained “substantially probable” to engage in acts of sexual violence. This court reversed,
finding that the State’s expert’s use of internally conflicting or absent rationale for his opinions
constituted manifest error. Id. ¶ 69. The petitioner was 64 years old at the time of trial, used a cane
for ambulation, and had undergone surgeries for hip replacement and the removal of a testicle. The
court found it problematic that the expert had scored petitioner on the static assessment tests as if
- 31 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
he was 37 years old and then testified that he was “ ‘about as high risk as you’re going to get,’ ”
despite acknowledging that his present age of 64 should have resulted in lower scores. Id. ¶¶ 49-
51. The court also found that the expert had failed to explain the significance to his risk assessment
of a single incident of exposure by the petitioner that had occurred when he was over age 60 and
why the petitioner remained substantially probable to commit sexually violent acts despite his
limited mobility and other health problems. Id. ¶¶ 58-64.
¶ 90 In McCormack, a panel of this court held in a nonprecedential order that the evidence had
failed to prove substantial probability where both of the State’s experts had testified that the
respondent was at a low statistical risk to reoffend based upon the actuarial tests. McCormack,
2021 IL App (1st) 181930-U, ¶ 28. Thus, the trial court, which was conducting a bench trial, relied
upon the testimony as to dynamic risk factors. However, one of the dynamic factors upon which
the trial court had relied, involving the respondent’s ability to sexually self-regulate, was one that
the State’s expert had “rejected outright” as inapplicable in the respondent’s case. Id. ¶ 32. The
trial court had also found that the respondent’s failure to participate in sex-offender treatment had
“increased” his risk to reoffend, which was not an accurate characterization of the testimony. Id.
¶ 33. Finally, the appellate court stated that it had been “left to guess” from the testimony why
certain identified dynamic risk factors increased the respondent’s risk of violently reoffending and
that overall, the expert’s testimony left “too much to inference” on the question. Id. ¶¶ 35, 42.
¶ 91 We reject respondent’s argument that the evidence in this case suffered from any of the
problems that existed in Gavin or McCormack. Here, the two experts testified that respondent’s
actuarial test scores placed him in the highest risk category among all sex offenders to reoffend,
except that Dr. Hernandez scored him in the second-highest risk category on the Static-2002R test
only. And unlike in Gavin or McCormack, we find that Dr. Weldon-Padera and Dr. Hernandez
- 32 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
adequately explained the reasons why the dynamic risk factors they identified were present in
respondent’s case and informed their overall clinical judgments that he was substantially probable
to engage in acts of sexual violence. It is the province of the jury to evaluate the expert testimony
concerning the risk of recidivism shown by actuarial test results in conjunction with all of the other
evidence presented to determine whether a respondent is “substantially probable” to reoffend. In re
Commitment of Haugen, 2017 IL App (1st) 160649, ¶ 25. The witnesses’ testimony on these points
was sufficient to support the jury’s verdict, and none of the reasons argued by respondent are a
basis to disturb it.
¶ 92 In conclusion, we hold that a rational trier of fact could determine from the evidence
presented that all elements necessary to establish that respondent was a sexually violent person
were proven beyond a reasonable doubt.
¶ 93 B. Trial Errors
¶ 94 1. Evidentiary Errors
¶ 95 Respondent also urges this court to reverse the judgment and remand this case for a new trial
due to various alleged trial errors that prejudiced his right to a fair trial. His first argument is that
the trial court erred in allowing the State to elicit unreliable hearsay evidence under the guise of
basis-of-opinion testimony. Specifically, respondent contends that the State’s witnesses should not
have been able to disclose the contents of the document referred to as the “statement of facts,”
which was created by the office of the State’s Attorney as part of respondent’s 1987 case. Dr.
Weldon-Padera used this statement of facts to testify that respondent’s motive for his 1983 juvenile
case involving home invasion had been to sexually assault a young woman but that he had been
interrupted by family members before he could do so. Respondent again emphasizes that in 2013,
the judge conducting the probable cause hearing had found this evidence to be unreliable.
- 33 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
Additionally, respondent complains about both experts’ disclosure of the contents of certain IDOC
and DHS disciplinary records involving specific incidents of sexual misconduct. We review
alleged evidentiary errors for abuse of discretion. Montanez, 2020 IL App (1st) 182239, ¶ 80.
¶ 96 An expert witness may give opinion testimony that relies upon facts not in evidence, as long
as the underlying information is of a type reasonably relied upon by experts in the particular field.
In re Commitment of Tenorio, 2020 IL App (1st) 182608, ¶ 43; see Ill. R. Evid. 703 (eff. Jan. 1,
2011). Expert witnesses are further permitted to reveal to the jury the contents of the materials
upon which they have reasonably relied for the purpose of explaining the basis of their opinions.
Tenorio, 2020 IL App (1st) 182608, ¶ 43. Prohibitions on the admission of hearsay evidence are
not violated in this circumstance because the underlying facts are not being offered for their truth
but for the limited purpose of explaining the factual basis for the expert’s opinion. People v.
Lovejoy, 235 Ill. 2d 97, 142-43 (2009). However, if the basis for an expert’s opinion is so uncertain
that it reaches the level of speculation, then the opinion should not be allowed. Montanez, 2020 IL
App (1st) 182239, ¶ 121; accord Dyback v. Weber, 114 Ill. 2d 232, 244 (1986) (an expert’s opinion
cannot be based upon conjecture and guess).
¶ 97 Upon the record presently before us, we have no basis to conclude that it was error to allow
Dr. Weldon-Padera to disclose to the jury the contents of the statement of facts prepared by the
office of the State’s Attorney as part of the 1987 case. Importantly, the statement of facts itself is
not contained in the record on appeal. As such, we are unable to conduct any meaningful review
of this document to assess whether anything about it makes it too unreliable to serve as a basis for
the opinions expressed by Dr. Weldon-Padera. We reiterate our statement from Montanez that it
is imperative that counsel ensure that the records upon which challenged opinions are based be
included in the record on appeal so that this court can evaluate whether experts have based their
- 34 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
opinions on unreliable sources of information. Montanez, 2020 IL App (1st) 182239, ¶ 121.
¶ 98 The principle of “reliability” in this context “centers on whether ‘the underlying facts or data
upon which [the expert] seeks to base an opinion are of a type reasonably relied upon by experts
in the particular field.’ ” People v. Simmons, 2016 IL App (1st) 131300, ¶ 124 (quoting City of
Chicago v. Anthony, 136 Ill. 2d 169, 186 (1990)). Respondent’s motion in limine on this issue
indicates that the document referred to as the “statement of facts” was the type of document that
the State’s Attorney is required to prepare and file when a defendant is sentenced to IDOC. See
Ill. Rev. Stat. 1987, ch. 38, ¶ 1005-4-1(d). Such document is transmitted to IDOC for the purpose
of furnishing it “with the facts and circumstances of the offense for which the person was
committed together with all other factual information accessible to them in regard to the person
prior to his commitment relative to his habits, associates, disposition and reputation,” along with
any other facts or circumstances that may aid IDOC while that person is in custody. Id. Nothing
about a document of this type strikes us as being inherently unreliable as a basis for use by
psychologists in sex-offender evaluations. The necessary foundation was laid when Dr. Weldon-
Padera testified that court records, criminal records, IDOC records, and DHS records are all types
of records that clinical psychologists reasonably rely upon when conducting sex-offender
evaluations. Accordingly, the trial court did not abuse its discretion in allowing the State to elicit
from Dr. Weldon-Padera testimony as to the contents of the statement of facts from respondent’s
1987 case that formed a basis of her opinions.
¶ 99 The same analysis applies to respondent’s argument that the trial court should not have
allowed the expert witnesses to disclose the facts of the disciplinary tickets that he received for
incidents of sexual misconduct at IDOC and DHS. Again, the records themselves are not included
within the record on appeal. Nothing about them strikes us as inherently unreliable. And both
- 35 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
experts testified that these IDOC and DHS records are of a type reasonably relied upon by experts
in their field when conducting sex-offender evaluations. The trial court did not abuse its discretion
in allowing this testimony.
¶ 100 Respondent also cites Smith v. Arizona, 602 U.S. 779 (2024), for the proposition that the
testimony discussed above was improper as basis-of-opinion testimony because it depended upon
the truth of the matters asserted. However, we do not read Smith to support such a broad
proposition, and we find it inapposite to the present case. Smith involved a criminal prosecution
for drug offenses. Forensic testing of seized evidence had been performed by a laboratory analyst
who ultimately did not testify at trial. Instead, a different forensic expert had testified at trial and
expressed opinions based largely upon a report and notes that the nontestifying analyst had
prepared about the tests she performed. The testifying expert disclosed the methods and results of
the tests performed by the nontestifying analyst in explaining the basis of his opinion. Id. at 790-
91. The issue before the United States Supreme Court was whether the Confrontation Clause of
the Sixth Amendment barred the testifying expert from disclosing facts associated with the forensic
testing performed by the nontestifying analyst, notwithstanding that those facts served as a basis
for the testifying expert’s opinion. Id. at 783.
¶ 101 The Confrontation Clause applies in criminal prosecutions to protect the right of the accused
to be confronted with the witnesses against him. Id. Because the Confrontation Clause prohibits
only “testimonial hearsay,” the court first considered whether such evidence constituted hearsay.
Id. at 792. The court reasoned that, although the evidence at issue might be considered non-hearsay
as a matter of state evidence law, the question of whether the statements were admitted for their
truth for purposes of the constitutional right to confrontation did not turn on evidentiary rules. Id.
at 793-94. Relevant here, the court held that the results of testing performed by the nontestifying
- 36 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
analyst were admitted for their truth despite the fact that they were disclosed to explain the basis
of the testifying expert’s opinion. Id. at 795-800. It stated, “ ‘The whole point’ of the prosecutor’s
eliciting such a statement is ‘to establish—because of the [statement’s] truth—a basis for the jury
to credit the testifying expert’s’ opinion.” (Emphasis in original.) Id. at 795 (quoting Stuart v.
Alabama, 586 U.S. 1026, 1028 (2018) (Gorsuch, J., dissenting from denial of certiorari)). This
implicates the Confrontation Clause because “the defendant has no opportunity to challenge the
veracity of the out-of-court assertions that are doing much of the work.” Id. at 796. However, the
Supreme Court went on to remand the case for the lower courts to determine whether the hearsay
statements at issue were also “testimonial” so as to be prohibited under the Confrontation Clause.
Id. at 800-02.
¶ 102 Respondent makes no argument that the Confrontation Clause applies in these commitment
proceedings, which are “civil in nature.” See 725 ILCS 207/20 (West 2022). Accordingly, whether
the contents of the statement of facts or respondent’s disciplinary tickets would constitute hearsay
for purposes of the Confrontation Clause if disclosed as basis-of-opinion testimony in a criminal
prosecution is inapposite to the argument before us. We deal here only with a question as to the
admissibility of evidence as a matter of state evidence law in a civil proceeding. We therefore find
Smith to be of no aid to respondent’s argument. The precedent of this court is clear that basis-of-
opinion testimony is permissible in cases under the Sexually Violent Persons Commitment Act
under Illinois law, and we will continue to follow this precedent unless a higher court holds
otherwise. See In re Commitment of Mitts, 2025 IL App (1st) 230821-U, ¶ 110 n.1.
¶ 103 2. Closing Argument
¶ 104 Respondent’s next argument is that he suffered substantial prejudice as a result of multiple
improper statements by the two prosecutors who made closing and rebuttal arguments on behalf
- 37 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
of the State. First, he argues that the prosecutors improperly argued facts disclosed as basis-of-
opinion testimony as if they were substantive evidence that had been admitted for their truth. He
further argues that a prosecutor compounded this improper argument by vouching for its truth.
Second, he argues that a prosecutor unfairly inflamed the jury’s passions by twice pointing to the
courtroom doors and arguing that respondent would walk out of them if the jury did not find him
to be a sexually violent person.
¶ 105 The prosecution is afforded wide latitude in making closing arguments so long as the
comments made are based upon the evidence or reasonable inferences drawn therefrom. Tenorio,
2020 IL App (1st) 182608, ¶ 42. Prosecutors may comment on the credibility of the witnesses and
the defense’s characterizations of the evidence or the case, and they may respond in rebuttal to
statements by defense counsel that clearly invite a response. Id. When this court is asked to review
a challenge to remarks made by a prosecutor during closing arguments, we consider them in the
context of the entire closing arguments made by both parties. Id. We will not reverse a jury’s
verdict based upon improper remarks unless the comments were of such magnitude that they
resulted in substantial prejudice to the respondent and constituted a material factor in the verdict.
In re Commitment of Butler, 2013 IL App (1st) 113606, ¶ 30; In re Commitment of Kelley, 2012
IL App (1st) 110240, ¶ 42.
¶ 106 As discussed in the preceding section, an expert witness may express opinion testimony that
relies upon facts not in evidence, provided the underlying information is of a type reasonably relied
upon by experts in the particular field. Tenorio, 2020 IL App (1st) 182608, ¶ 43. An expert is
further permitted to disclose to the jury the contents of the materials upon which he or she has
relied for the purpose of explaining the basis of the opinion expressed. Id. However, the underlying
facts that serve as the basis for the expert’s opinion are not considered substantive evidence unless
- 38 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
separately admitted. In re Commitment of Gavin, 2014 IL App (1st) 122918, ¶ 68. A prosecutor
must avoid arguing such basis-of-opinion evidence as substantive during closing argument. Id.
¶ 107 Respondent contends that prosecutors argued the facts of his prior offenses and disciplinary
tickets as substantive evidence, notwithstanding that these facts were disclosed to the jury only as
basis-of-opinion testimony. He challenges as improper the prosecutors’ statements that (1) he was
convicted at age 16 of a home invasion that had a sexual motivation, (2) at age 20 he abducted a
woman at knifepoint, drove her around, and sexually assaulted her multiple times, (3) at age 56 he
had an incident of sexual misconduct at the treatment and detention facility, and (4) while in the
community he targeted a specific female and raped her, whereas in detention he repeatedly targets
nonconsenting females to expose himself and masturbate in the presence of.
¶ 108 We reject respondent’s contention that the challenged statements constituted improper
closing argument. When we consider the challenged statements in the context in which they were
made, we find them to be part of a proper argument based upon the evidence that respondent had
ASPD, which acted in conjunction with his OSPD nonconsent and exhibitionistic disorder and
predisposed or made him substantially probable to engage in acts of sexual violence. The context
in which the first two challenged statements above were made was part of the prosecutor’s broader
explanation that the experts had diagnosed respondent with multiple mental disorders that met the
statutory requirement of predisposing him to engage in acts of sexual violence. They followed
shortly after an explanation that ASPD was one of the disorders with which both experts had
diagnosed respondent, and that the testimony had shown that ASPD acted in conjunction with
OSPD nonconsent and exhibitionistic disorder and made them worse in the sense that respondent
“doesn’t care what happens” and “doesn’t adhere to rules.” The prosecutor then reminded the jury
that it “heard about this with his criminal history and some of his criminal behavior that he had
- 39 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
throughout the years.”
¶ 109 The prosecutor then went on to address the various terms and phrases included in the statutory
definition of “mental disorder,” the last of which was that it “predisposes [respondent] to commit
acts of sexual violence.” The prosecutor argued that respondent’s mental disorders satisfied this
aspect of the definition because he has “a lifelong pervasive pattern of sexually acting out. While
in the community he was charged with sex offenses as a juvenile. He was convicted of a home
invasion at age 16 that had sexual—that had some sexual motivation to it.” (Emphasis added.)
When he was 20 years old and on parole, he committed aggravated criminal sexual assault. “That’s
where he abducted the woman at knife point, drove her around, went to two separate locations
where he sexually assaulted her in two different manners.” (Emphasis added.) The prosecutor
concluded this point by stating that this “shows that [respondent] is dangerous due to his mental
disorder of [OSPD]. He’s engaged in sex acts with noncompliant persons, and it also shows that
he’s dangerous because he has [ASPD]. He doesn’t care who he harms while acting on his sexual
urges.”
¶ 110 The third challenged comment above was also made in the context of discussing respondent’s
diagnosis of ASPD and specifically why the evidence showed that it continued to place him at risk
of engaging in acts of sexual violence despite his age. Discussing testimony of the risk factors
present in respondent’s case, the prosecutor referenced that one such risk factor was his ASPD.
The prosecutor then stated, “And you heard both of the doctors tell you that when people get older,
this disorder tends to wane, it doesn’t seem to be as obvious. But for [respondent], that’s not the
case. [Respondent], at age 56, has a sexual misconduct at the treatment and detention facility not
six months from the day of his trial.” (Emphasis added).
¶ 111 The fourth challenged comment occurred in rebuttal argument. It was made in response to
- 40 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
respondent’s counsel’s emphasis in closing that the evidence did not show beyond a reasonable
doubt that respondent was predisposed to engage in sexually “violent” acts and that there had been
no evidence that he had attempted any sexual act amounting to violence while in detention. The
prosecutor stated in rebuttal:
“It is true they are not sexually violent offenses. Nobody told you they were. Dr.
Hernandez told you that exposing himself and masturbating in front of all of these female
staff members, these are adjacent behaviors. ***
She means that when he exposes himself and masturbates like this, it’s because he’s
not able to offend in the TDF [(treatment and detention facility)] in the same way that he’s
able to offend in the community. Different environment. His behavior adapted to his new
environment. It shifted a little. It became a replacement for rape. How he engages in these
behaviors in the TDF is also very similar to how he engaged in the sexually violent offense
in the community. When he was in the community, he targeted a specific female. He abducted
her. He took her to different places. He repeatedly—
MS. LEVINE [(RESPONDENT’S ATTORNEY)]: Objection, basis of opinion.
THE COURT: Overruled.
MS. ZYZNAR [(ASSISTANT ATTOREY GENERAL)]: —repeatedly raped her and
paraded her around his other girlfriends. In the TDF he targets specific females.
MS. LEVINE: Same objection, Judge.
THE COURT: Overruled.
MS. ZYZNAR: He repeatedly exposes himself and masturbates while they say no and
stop. Respondent wants you to believe that these are wildly different situations and wildly
different offenses. But in this case, they’re very similar at the core. The heart of it is the same.
- 41 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
He’s clearly still aroused to nonconsenting women. They say no, he keeps going. They cry,
he keeps going. They say stop, I don’t want to see your penis, I'm at work, he keeps going.
He likes this—
MS. LEVINE: Objection, basis of opinion.
THE COURT: Overruled.
MS. ZYZNAR: He seeks it out. They’re adjacent. They cannot just be parsed out
completely. All the experts were saying yesterday is that if he were to be placed back into
the community, his pattern of behavior is substantially probable to shift back to what he did
in the community. It’s substantially probable to shift back to committing a sexually violent
offense.” (Emphases added.)
¶ 112 In our view, the challenged statements above were fair comments and arguments based upon
the evidence and testimony at trial. It is evident in context that the statements about respondent’s
crimes or disciplinary tickets were argued to the jury as reasons or bases for the experts’ opinions,
in particular that they were facts supporting the experts’ diagnosis of ASPD and that, in
conjunction with his other diagnosed mental disorders, it predisposed him or made him
substantially likely to engage in acts of sexual violence despite his age of 56 years. Further, the
fourth challenged comment above was permissible rebuttal to respondent’s counsel’s argument
and characterization of the evidence in closing. We do not find any of these comments to be basis-
of-opinion testimony argued as substantive evidence.
¶ 113 We find the comments above to be far different than the prosecution argument that this court
found to warrant reversal in Gavin, 2014 IL App (1st) 122918, upon which respondent relies. In
that case, the prosecutor extensively detailed the facts of the respondent’s prior crimes in both
opening statement and closing argument with minimal statements as to how they served as bases
- 42 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
for the experts’ opinions that the respondent suffered from a mental disorder. Id. ¶¶ 11-12, 26-27,
71. This court found that the extensive narrative presentation of respondent’s past crimes “at times
reads as if Gavin was on trial for rape” and misdirected the focus of the case by “disconnecting the
underlying facts and the experts’ use of them.” Id. ¶ 74. This was further compounded by the
prosecutor’s use of an “extreme” level of sarcasm when addressing the effect of the respondent’s
health problems on his risk of reoffending. Id. ¶¶ 64-65. We find no argument of a similarly
problematic nature to have occurred in the present case.
¶ 114 Respondent also argues that improper vouching occurred during rebuttal closing when the
prosecutor stated “[w]e know this” in the context of an argument that respondent did not have the
same opportunity in the treatment and detention facility to abduct, rape, or parade a woman around
as he had done in the community. It is prejudicial error for a prosecutor to express personal beliefs
or opinions, or invoke the integrity of the prosecutor’s office, to vouch for the credibility of a
prosecution witness. People v. Boling, 2014 IL App (4th) 120634, ¶ 126. However, we deem the
challenged statement in this case merely to be an offhand remark that did not constitute improper
vouching. In this context, the statement “we know this” is no more expressive of a prosecutor’s
personal opinion than stating to the jury “you know this.” See id. ¶ 127.
¶ 115 Finally, respondent argues that the State engaged in improper and prejudicial argument when
on two occasions during rebuttal the prosecutor pointed to the courtroom doors and told the jury
that respondent would “walk out these doors” and back onto the street if it did not find him to be
a sexually violent person. It is improper for a prosecutor to make remarks for the sole effect of
inflaming the jury’s passions or developing its prejudices without casting any light on the issues
of the case. People v. Short, 2020 IL App (1st) 162168, ¶ 76.
¶ 116 We reject respondent’s argument that the prosecutor’s use of the phrase “walk out these
- 43 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
doors” was improper. As we referenced above, one of the main points of respondent’s counsel’s
closing argument was that there had been no evidence that he had attempted any sexual act
amounting to violence while in detention. The prosecutor’s use of this phrase occurred in rebutting
this argument, to emphasize to the jury that it was considering respondent’s probability to commit
acts of sexual violence in the community, not within the treatment and detention facility. In
elaborating on this distinction, she first stated, “If he were to walk out that door back on the street,
how risky is he? Is he substantially probable to commit an act of sexual violence? That’s what
we’re talking about.” And later: “He doesn’t try to rape somebody at the TDF because he knows
he’ll get caught because he’s smart of enough to know that. That’s why he hasn’t done it. That is
not evidence that he wouldn’t walk out these doors and be substantially probable to do it again.”
In context, this was a fair rebuttal argument based upon the evidence. We do not view its purpose
as inflaming the jury’s passions or exhorting the jury to focus on the consequences of its verdict
without regard to the evidence.
¶ 117 3. Jury Instructions
¶ 118 Respondent next argues that the trial court abused its discretion by denying eight of his
tendered jury instructions. On the whole, these instructions sought to instruct the jury as to 13
categories of offenses, enumerated by title, that are considered “sexually violent offenses” under
section 5(e) of the Sexually Violent Persons Commitment Act (725 ILCS 207/5(e) (West 2022));
to inform it that the offenses of public indecency, criminal sexual abuse, and sexual relations within
families are not sexually violent offenses; and to define the elements of public indecency, criminal
sexual abuse, and sexual relations within families. Respondent argues that these tendered
instructions were crucial to his defense to limit the jury’s consideration of the “mental disorder”
and “substantial probability” elements of the State’s case, both of which required the jury to assess
- 44 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
his risk of engaging in acts of sexual violence rather than sexually nonviolent acts.
¶ 119 The decision whether to provide a particular jury instruction rests within the sound discretion
of the trial court and will not be disturbed absent a clear abuse of discretion. In re Detention of
Melcher, 2013 IL App (1st) 123085, ¶ 50. Jury instructions should not be misleading or confusing.
People v. Brown, 2015 IL App (1st) 131552, ¶ 42. Our task when presented with a challenge
involving jury instructions is to determine whether the instructions, considered together, fully and
fairly announced the law applicable to the theories of the State and defense. People v. Mohr, 228
Ill. 2d 53, 65 (2008).
¶ 120 In declining to give these eight tendered instructions, the trial court reasoned that they might
confuse the jury into believing that the State had a burden of proving that the other crimes with
which respondent had been charged prior to 1987 or the subsequent acts attributed to him while in
custody constituted sexually violent offenses. We agree with the trial court that giving these
proposed instructions to the jury had a high potential of confusing or misleading it about what the
State had the burden of proving concerning sexually violent offenses. We reject respondent’s
contention that instructing the jury as to various offenses that are and are not sexually violent
offenses was necessary to his defense against proof that he was predisposed or substantially
probable to engage in acts of sexual violence. See 725 ILCS 207/5(b), (f) (West 2022).
Accordingly, we find no abuse of discretion in the trial court’s refusal of the tendered instructions.
¶ 121 4. Cumulative Error
¶ 122 Having rejected all of respondent’s claims of trial error, we need not consider his argument
that cumulative error denied him a fair trial.
¶ 123 C. Commitment Order
¶ 124 In addition to the issues stemming from his jury trial, respondent also raises several
- 45 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
arguments pertaining to the trial court’s order committing him to institutional care in a secure
facility. This occurred after the trial court had initially found respondent eligible for conditional
release. Respondent urges us to reverse the order committing him to secure care and remand the
case for further consideration of a conditional release plan. A brief explanation of the procedural
history surrounding this ruling is helpful to an understanding of the arguments made by both sides
concerning this issue.
¶ 125 Following the dispositional hearing, the trial court orally ruled on October 26, 2023, that due
to the length of time respondent had been incarcerated and in DHS custody, it was going to “take
a chance” and order conditional release. That oral ruling was followed by a written order entered
November 6, 2023. That written order provided that (1) respondent’s commitment shall be on
conditional release, (2) respondent will remain in secure care at the DHS treatment and detention
facility until further order of court, (3) DHS and Liberty Healthcare shall prepare a conditional
release plan within 60 days, (4) upon review and approval of the conditional release plan,
respondent shall be placed on conditional release, and (5) the matter was continued to December
21, 2023, for the trial court’s review and approval of the conditional release plan.
¶ 126 Notwithstanding that this order contemplated the preparation and court approval of a
conditional release plan before respondent was placed on conditional release, we glean from the
record that both sides, at least initially, viewed this as a final order. Accordingly, on November 13,
2023, respondent filed a notice of appeal. On December 8, 2023, the State filed in the trial court a
petition to “revoke” conditional release, citing section 40(b)(4) of the Sexually Violent Persons
Commitment Act (725 ILCS 207/40(b)(4) (West 2022)). It asserted that on December 1, 2023,
respondent had engaged in a new incident of exposure and masturbation during a group therapy
session. On December 15, 2023, respondent filed a motion to dismiss the State’s petition to revoke
- 46 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
conditional release on grounds of legal insufficiency. See 735 ILCS 5/2-615(a) (West 2022). The
legal insufficiency identified in respondent’s motion to dismiss was that section 40(b)(4)
contemplates the filing of a petition to revoke conditional release “[a]t any time during which the
person is on conditional release” (725 ILCS 207/40(b)(4) (West 2022)), and respondent was not
“on conditional release” because the court had not yet approved his conditional release plan.
¶ 127 On December 18, 2023, the trial court heard arguments on respondent’s motion to dismiss.
The State acknowledged the technical accuracy of respondent’s argument. However, the
prosecutor stated that a petition to “revoke” under section 40(b)(4) was “the only way to put the
issue back in front of the court” in the event “something happens after the 30 day motion to
reconsider period ends” but before the end of the 60-day period allowed by statute for the
preparation and approval of a conditional release plan. The trial court likewise acknowledged the
technical accuracy of respondent’s argument, but it nevertheless denied his motion to dismiss. The
trial court stated that “however you want to style it,” the State’s petition raised new factual matters
“that would certainly impact this court’s decision to place him on conditional release.” The trial
court ultimately held an evidentiary hearing on June 20, 2024, granted the State’s petition to revoke
conditional release, and ordered that respondent remain in secure care until further order of court.
¶ 128 On appeal, respondent raises two arguments in the alternative. First, he argues that the trial
court erred in denying his motion to dismiss despite acknowledging that, because respondent was
not yet “on conditional release,” section 40(b)(4) did not allow a petition to “revoke” conditional
release. Second, and in the alternative, he argues that the trial court was divested of jurisdiction to
change his commitment status from conditional release to secure care once he filed his notice of
appeal of the trial court’s dispositional order on November 13, 2023. He contends that the trial
court’s order of October 26, 2023, was a final and appealable order.
- 47 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
¶ 129 In response to both of respondent’s arguments above, the State contends that the trial court’s
dispositional ruling of October 26, 2023, and written order of November 6, 2023, was an
interlocutory order that the trial court retained the inherent authority to modify at any time prior to
judgment. Thus, the State argues, denial of respondent’s motion to dismiss was proper because the
trial court correctly focused on the substance of the State’s petition, not its legal labeling, and
treated it as a motion to reconsider an interlocutory order. The State similarly argues that the trial
court was not divested of jurisdiction by respondent’s filing of a notice of appeal from an order
that was not final or appealable.
¶ 130 The resolution of these interrelated arguments requires us to first address whether the ruling
of October 26, 2023, and written order of November 6, 2023, constitutes an interlocutory order or
a final and appealable order. We acknowledge that some lack of clarity appears to exist in the law
as to whether the final order in this context is the one that allows conditional release or the one
approving the conditional release plan. In 2010, our supreme court accepted a petition for leave to
appeal in a case that presented this issue but declined to resolve it on the basis that the appeal
before it was moot. See In re Commitment of Hernandez, 239 Ill. 2d 195, 201 (2010). In doing so,
it also vacated the judgment of the appellate court on grounds of mootness. Id. at 203. The supreme
court suggested that a party who remained genuinely uncertain as to what constituted the final
order in this context “may always protect itself by filing multiple notices of appeal.” Id. at 204.
¶ 131 An issue similar to this was addressed in In re Commitment of Hansen, 2024 IL App (3d)
230334. There, the appellate court held in part that an order by which the trial court directed DHS
to prepare a conditional release plan and stated that it was “ ‘not making any ruling until I see what
the proposed conditional release plan is’ ” was not a final order. Id. ¶¶ 17, 31. The appellate court
reasoned that this order was nonfinal because it “did not adjudicate the conditional release issue
- 48 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
and merely continued the case for final resolution.” Id. ¶ 31.
¶ 132 In this case, we find that the issue of whether a final order existed prior to the trial court’s
review and approval of the conditional release plan requires a simple application of the well-
established rule that a trial court’s ruling is final if it terminates the litigation between the parties
and fixes their rights so that, if affirmed, the trial court has only to proceed with execution of the
judgment. In re Detention of Hardin, 238 Ill. 2d 33, 42-43 (2010). An order is considered final as
long as any matters left for future determination by the trial court are merely incidental to the
ultimate rights that have been adjudicated by the judgment. In re D.D., 212 Ill. 2d 410, 418 (2004).
¶ 133 Applying these rules, we conclude that the trial court’s ruling of October 26, 2023, and
written order of November 6, 2023, is not a final ruling or order. It neither terminated the litigation
nor fixed the parties’ rights such that the trial court would need only proceed with execution if we
affirmed it. Instead, the order contemplated that future actions of a substantive nature would occur
in the proceedings. Specifically, DHS and its contractor still needed to prepare a conditional release
plan within 60 days, and the trial court still needed to review and approve that plan before
respondent ultimately would be placed on conditional release. This need for future substantive
determinations by the trial court renders this an interlocutory order.
¶ 134 We further find this interpretation to be consistent with the language of the Sexually Violent
Persons Commitment Act. Under that statutory scheme, it is the commitment order that is the final
and appealable judgment. See 725 ILCS 207/35(g) (West 2022) (providing that a judgment entered
on the finding at trial that a person is a sexually violent person “is interlocutory to a commitment
order under Section 40 and is reviewable on appeal”). While section 40(b)(2) provides that a
commitment order shall “specify either institutional care in a secure facility *** or conditional
release” (id. § 40(b)(2)), section 40(b)(3) provides for several things that must occur “[i]f the court
- 49 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
finds that the person is appropriate for conditional release.” Id. § 40(b)(3). Specifically, a trial court
must first notify DHS, which must then prepare a plan that identifies any treatment and services
that the person will receive in the community and any needs for supervision, counseling,
medication, community support services, residential services, vocational services, or substance
abuse treatment. Id. Then, “[t]he plan shall be presented to the court for its approval within 60 days
after the court finding that the person is appropriate for conditional release,” unless additional time
is requested. Id. Additionally, section 40(b)(5) provides that the trial court shall “order the person
be subject to the following rules of conditional release, in addition to other conditions ordered, and
the person shall be given a certificate setting forth the conditions of conditional release.” Id.
§ 40(b)(5). The statute then enumerates 28 such rules and conditions to be included. Id.
§ 40(b)(5)(A)–(BB).
¶ 135 Under the above-described statutory scheme, the trial court’s ruling of October 26, 2023, and
written order of November 6, 2023, was in the nature of the “finding” contemplated by section
40(b)(3) that respondent was appropriate for conditional release. Id. § 40(b)(3). Such a finding is
a statutory prerequisite to the preparation of a conditional treatment plan, which DHS must prepare
and present to the trial for its approval within 60 days after the “finding” that conditional release
is appropriate. Id. It is the order approving the conditional release plan and placing a person on
conditional release plan that is final, not the earlier “finding” that the person is appropriate for
conditional release.
¶ 136 Having decided this issue, we now return to respondent’s argument that the trial court erred
by denying his motion to dismiss the State’s petition as legally insufficient despite the trial court’s
acknowledgement that, because respondent was not yet “on conditional release,” section 40(b)(4)
was technically not applicable. See id. § 40(b)(4). The State responds that the trial court acted
- 50 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
appropriately by looking beyond the label of its petition to its substance and correctly viewing it
as a motion to reconsider an interlocutory order. The State contends that the petition was properly
viewed as a motion to reconsider because it raised new evidence of an incident of sexual
misconduct occurring a mere five weeks after the trial court had granted conditional release.
¶ 137 We agree with the State’s argument. In determining the nature of a pleading or motion, courts
are not bound by the title given to the document by a party; instead, it is the substance of the
document that governs. People ex rel. Ryan v. City of West Chicago, 216 Ill. App. 3d 683, 688
(1991). Accordingly, citation to an inapt statute is not fatal because a court analyzing a party’s
request for relief should look to the substance of the request. See In re Haley D., 2011 IL 110886,
¶ 67; Pasquinelli v. Sodexo, Inc., 2021 IL App (1st) 200851, ¶ 27. That is what appears to have
occurred in this instance, where the trial court stated that “however you want to style it,” the State’s
petition had raised evidence of a new incident of sexual misconduct “that would certainly impact
this court’s decision to place him on conditional release.” And because we have already held that
the trial court’s ruling as to respondent’s eligibility for conditional release was merely interlocutory
at this point of the case, it was a ruling that the trial court retained the inherent authority to modify
as of that time. See Hernandez v. Pritikin, 2012 IL 113054, ¶ 42 (a trial court retains the “inherent
power to review, modify, or vacate interlocutory orders while the court retains jurisdiction over
the entire controversy”). The trial court thus did not err by denying respondent’s motion to dismiss
the State’s petition.
¶ 138 For similar reasons, we also reject respondent’s argument, raised in the alternative, that the
trial court was divested of jurisdiction to change his commitment status from conditional release
to secure care because he filed a notice of appeal on November 13, 2023. Respondent relies upon
the general rule that the filing of a notice of appeal divests the trial court of jurisdiction to enter
- 51 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
any order involving a matter of substance and causes the jurisdiction of the appellate court to attach
instanter. See People v. Rivera, 2024 IL App (1st) 240520, ¶ 19. However, if the order appealed
from is not final and appealable, the filing of a notice of appeal neither deprives the trial court of
jurisdiction to proceed with the case nor vests the appellate court with jurisdiction to review. State
ex rel. Beeler, Schad & Diamond, P.C. v. Target Corp., 367 Ill. App. 3d 860, 863-64 (2006). Here,
because respondent’s notice of appeal was directed at an order that we have held not to be final,
the trial court was not divested of jurisdiction to reconsider or change its finding concerning
respondent’s eligibility for conditional release.
¶ 139 Respondent’s final argument is that, assuming the trial court properly proceeded to ruling on
this issue, the State nevertheless failed to meet its burden of proving by clear and convincing
evidence that the safety of others required that his conditional release be revoked. Section 40(b)(4)
of the Sexually Violent Persons Commitment Act (725 ILCS 207/40(b)(4) (West 2022)) provides
that, on a petition to revoke conditional release, “[t]he State has the burden of proving by clear and
convincing evidence that any rule or condition of release had been violated, or that the safety of
others requires that the conditional release be revoked.” Respondent argues that he could not have
violated any rules or conditions of release because no conditional release plan had yet been
approved, and the State acknowledged in its closing arguments that it was not asserting any
violation of such rules or conditions. Respondent likewise argues that because he was never in the
community, the safety of others was never an issue within the contemplation of the statute. He also
points out that Dr. Hernandez answered no when asked whether in her opinion the safety of others
required respondent’s conditional release be revoked.
¶ 140 In response, the State maintains its position above that this was a reconsideration of an
interlocutory finding of conditional release based upon new evidence, and it argues that the trial
- 52 -
Nos. 1-23-2214 and 1-24-1360 (cons.)
court properly exercised its discretion when it committed respondent to institutional care in a
secure facility. A trial court’s commitment decision is reviewed for abuse of discretion. In re
Commitment of Trulock, 2012 IL App (3d) 110550, ¶ 52. In determining whether commitment of
a sexually violent person shall be for institutional care in a secure facility or for conditional release,
the trial court is to consider the nature and circumstances of the behavior that was the basis of the
allegation, the person’s mental history and present mental condition, and what arrangements are
available to ensure that the person has access to and will participate in necessary treatment. 725
ILCS 207/40 (b)(2) (West 2022).
¶ 141 Under either legal standard, we find no error in the trial court’s ruling revoking its finding of
conditional release and committing respondent to secure care. The trial court held an evidentiary
hearing at which it found credible the testimony of Rhoades and Schmidt that respondent had
engaged in two acts of exposure and masturbation in their presence, which occurred after the court
had found him eligible for conditional release but before final approval of his conditional release
plan. The trial court found it “very troubling” that these incidents occurred while his conditional
release was under consideration by the court and stated that their timing led it to agree with Dr.
Hernandez that respondent was “struggling to control his behavior” in a way that “if gone
unchecked, could very well result in a likelihood of much re-offending.” Accordingly, the trial
court stated that it agreed with Dr. Hernandez’s opinion that respondent was substantially probable
to commit acts of sexual violence if placed on conditional release. We find the trial court’s
reasoning and ruling on this matter to be fully supported by the evidence.
¶ 142 III. CONCLUSION
¶ 143 For the reasons set forth above, the judgment of the trial court is affirmed.
¶ 144 Affirmed.
- 53 -
Case Information
- Court
- Ill. App. Ct.
- Decision Date
- September 22, 2025
- Status
- Precedential