## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

In re Detention of Eh rlich , 2012 IL App (1st) 102300

Appellate Court Caption In re DETENTI ON OF STEVEN EHRL I CH (The People of the State of I llinois
, Petitioner-Appellee
, v. Steven Ehrlich, Respondent-Appe llant).

District & N o. First District, Second D ivision Docke t No. 1-10-2300

Filed May 29, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) T h e trial court’s finding that responde nt was a sexually violent pers o n and the order committing him to a secur e fac ility for treat m en t we re aff irmed, wher e, i n t er a l i a , responde nt did not prove that the State had
agree d not to seek commitment, the differ ence s betwee n the issues in his prior convictions and the commitment proce eding s prec luded hi s claim that collater al estoppel barr ed the State from relitig ating the issues in his prior convictions, the admission of an updated version of his e valuation without proper disclosure in discovery did not war rant a new trial, and his commitment to a secure fac ility was ne ither unre asonable nor ar bitrary

.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 9 9 -C R -80009; the Hon. Paul P. Biebe l, J r., Judge, pr esiding

.

J udg ment Affir med.Counsel on

Appea l L aw Offic e of S t ep h en F. Potts
, of Des Plaines (Stephen F. Potts
, of counsel), f

or appe llant.

L isa M ad i gan, Attorney Gene ral, of Chicag o (Michae l A. Scodro, Solicitor Gene ral, and Michae l M. Glick and Kather ine D. Saunders, Assistant Attorney s Gene ral, of c ounsel), for the People.

Panel J USTI CE HARRI S delivered the judgme nt of the cour t, with opinion.
J ustices Cunningha

m and Connor s concurred in the judgme nt and opinion.

OP INION

¶ 1 The State filed a petition seeking responde nt’s commitment under sections 15 and 40 of the Sexually

Violent Persons Commi tment Act (Act) (725 I L CS 207/15, 40 (West 1998)). The State alleg ed defe ndant had been convicted of four sexually violent offe nses, that defe ndant had b ee n diag nosed with two mental disorders, and that responde nt’s mental disorders made it substantially proba b l e that he would eng ag e in future acts of sexual violence. The circ uit court of Cook County found probable cause to detain responde nt. After

a bench trial, the circ uit court enter ed a judgme nt finding responde nt a sexually violent person. Af

ter a dispositi onal hear ing, the circ uit c ourt order ed re spondent be c ommitt ed to the custody of the Depa

rtment of Human Service s (DHS) for trea tment in a secur e fac ility

. ¶ 2 Respondent raises the following issues on appea l: ( 1) whether the circ uit c ourt err ed in faili ng to dismiss the State’s petition based on the alleg ed brea ch of a previous p l ea agree ment or under collater al est o p p el principles; (2) whether the circ uit court err ed in allowi ng the S tate to prese nt evidenc e that responde nt did not submit to an int ervie w wit h

a DHS psy cholog ist or participate in any t re at m en t in the DHS fac ility
, wher e he was detained while awa iting trial; (3) whether the circ uit court abused its discre tion in denying

re s p o n d en t ’s motion for a new trial wher e the State alleg edly failed to timely disclose an updated repor

t from its expert; (4) whether the evidenc e was sufficie nt to prov e t h at responde nt is a sexually violent person; and (5) whether the circ uit court abused its discretion when it committed responde nt to institutional car e in a secur e fac ility rathe r than place him on conditional rele ase. ¶ 3 We hold the circ u i t co u rt p roper ly denied responde nt’s motion to dismiss pursuant to

s ec t i o n 2-619 of the I llinois Code of Civil Procedur e (Code) (735 I L CS 5/2-619 (Wes t 2000)) beca

use responde nt failed to prove the exis tence of a plea agree m en t wh er eby the State agree d not to seek responde nt’s future civil commitment. Additionally
, the responde nt failed to prove collater al estoppel. We hold responde nt has wa i v ed h is argument that the circ uit court err ed in allowing evidenc e that he did not participate in an evalua tion with the

-2-State’s expert or participated in treatment while in custody beca use he failed to object to the testimony at trial. We hold responde nt is proce durally defa ulted from raising the issue of the State’s alleg ed discovery violation under the rule of invited err or. We hold the State proved responde nt gu i l t y b eyond a rea sonable doubt. We hold the circ uit court did not abuse its discretion when it order ed responde nt to be committed to institutional car e in a secur e fac ility

.

¶ 4 J URI SDI CTI ON ¶ 5 On J une 30, 2010, afte r a dispositional hearing, the circ uit c ourt order ed responde nt be committed to DHS custody for treatment in a secur e fac ility . On J uly 22, 2010, responde nt timely filed his notice of appea l. Acc ording ly
, this court has jurisdiction pursuant to I llinois Supreme Court Rules 301 and 303 g overning appea ls f rom final judgme nts e ntere d below. I ll. S. C t. R. 301 (ef

f. Fe b. 1, 1994); R. 303 (ef f. May 30, 2008); see a lso 725 I L CS 207/ 20 (West 1998) (“The proce eding s under this Act shall be civil in nature .”); In re Detention of Hardin , 238 I ll. 2d 33, 41-43 (2010).

¶ 6 BA CKGROUND ¶ 7 On J u l y 1
, 1 9 9 9
, the State filed a petition seeking responde nt’s commitment und er sections 15 and 40 of the Act (725 I L CS 207/15, 40 (West 1998)). In support of its petition, the State alleg ed responde nt was convicted and sentenc ed to four sexually violent offe nses. In 1980, he was sentenc ed to four y ear s’ probation for indece nt liberties with a child by the circ uit court of Du P ag e C ounty

. Also in 1980, he was sentenc ed to three y ear s’ probation for indece nt liberti es wi t h a child by the circ uit court of Cook County

. In 1990, he was sentenc ed to 10 y ear s in the I llinois Depa rtment of Correc tions (I DOC) for ag g ravated sexual abuse/bodily harm by the circ uit court of Du Pag e County

. In 1998, he was sentenc ed to 17
y ear s in I DOC for ag grava ted criminal sexual assault by th e circuit court of Cook County

. The State alleg ed responde nt had been diag nosed as h av ing the mental disorders of: pedophilia, primarily sexually attrac ted to fema les
, nonexclusive ty pe, and persona lity disorder not otherwise specifie d wi t h n ar cis sistic fea tures. The State alleg ed that “[a]s a result of the Respondent’s sexual offe nse history and h i s m en t al health diag nosis, which indicate that he suffe rs from a mental disorder, it is substantially probable that Respondent will eng ag e in future acts of sexual violence.” At the time of the State’s petition, responde nt

was within 90 day s of being place d into mandatory supervised rele ase. Also on J uly 1, 1999, the circ uit court enter ed an or der f or dete ntion. ¶ 8 On August 4, 1999, after a hea ring , the circ uit court found there was proba ble ca use to believe that responde nt is a sexually violent pe rson. The circ uit court order ed responde nt’s detention to continue and for DHS to evaluate responde nt pursuant to section 30(c) of the Act (725 I L CS 207/ 30(c) (West 1998)). ¶ 9 On May 31, 2001, responde nt filed a motion to dismiss pursuant to section 2-619 of the

-3-Code (735 I L CS 5/2-619 (West 2000)). In his motion, responde nt al leg ed that his four 1 convictions, as listed in the State’s petition, wer e all based on pleas of guilty

. He alleg ed that
at the time he enter ed into a fully neg otiated guilty plea with the State in his latest conviction, the State did not inform him that it int en ded to seek his commitment under the Act. Res p o n d ent argued the State’s petition must be dismiss ed based on this alleg ed brea ch. R es p o ndent also argued that the State is prec luded, by the doctrine of collater al estoppel, from asser

ting that he had a mental disorder at the time of the offe nses for wh i ch h e was convicted and that he has a mental disorder that cre ates a substantial probability that he will
eng ag e in future acts of se x ual violence

. 2 ¶ 10 Respondent attache d to his section 2-619 motion the transcr ipt from his latest conviction wher e he pled guilty

. Acc ording to the transcript, the assistant Stat e’s Attorney (ASA) 3 explained the State’s offe r, stating“On a plea to Count One, the of fer was seve nteen year s I llinois Depa

rtment of Correc tions. That would be concur rent nunc pro tunc with Case No. 88CF2342.” The ASA then stated “[a]s part of t he plea agree ment, the [S ]t ate will be dismiss ing the re m ai n ing counts. That is essentially the agree ment.” Def endant then pled
guilty

. ¶ 11 The State responde d that its petition seeking responde nt’s commitment under the Act is

a collater al conseque nce of his guilty plea and, there fore
, the State did not have an obligation
to inform him of the possibili ty of a future civil commitment. The Sta t e ar gu ed that the doctrine of collater al estoppel was not applicable beca use the litigated issues in responde nt’s

cr i m i n al convictions wer e not identical to those the State had to prove at a future civ i l commitment trial under the Ac t. ¶ 12 In reply
, responde nt ackn o wl ed ged t h e S t at e’ s argument that his guilty plea was a collater al consequence
, but did not addre ss it’s merits. Rather, respondent maintained that the State violated its plea agree ment based on contra ct principles and fundame ntal fairne ss. ¶ 13 On the first day of trial, J uly 12, 2006, the rec ord reve als that responde nt filed a motion
to bar testimony based on an alleg ed violation of I llinois Supreme Court Rule 213. I ll. S. Ct. 4 R. 213 (ef

f. J uly 1, 2002). Respondent argued that Dr. Ba rry L eavitt’s 2 0 0 6 up d at e to his evaluation of responde nt violated Rule 213 and should be barr ed. I ll. S. Ct. R. 213 (ef f. J uly 1, 2002). Dr. L eavitt did his orig inal evaluation of responde nt in 1999 and provided updated

Resp onde nt d i d n o t s p e ci fy unde r what sub sec ti on of sec ti on 2- 619 of the Code he was 1

see king dismiss al und er

(7 35 I LCS 5/ 2- 619 (W est 200 0))

. Resp onde nt al so ar gued tha t the Sta te ’s pet it ion sho uld be dis m is sed for bei ng u nti me l y, 2 buthe fa il ed t o r ene w th e c hal le nge bef ore th is cou rt

.

In his m oti on, re spo nde nt al le ges tha t al l fou r of his con victi ons wer e bas ed on ful ly 3

n e got ia te d guilt y ple as wit h the Sta te

. However, he onl y at ta che d the tr ans cr ipt of his guilt y ple a fr om hi s l at est con victi on.

Alt hough re spo nde nt’ s m oti on is not in the re cor d, we do have the tr ans cr ipt of pro cee din gs 4 bef ore th e c ir cui t c our t.

-4-repor ts in March of 2002 a

nd September 2004 a

nd on J uly

6, 2006. The ASA e x plained to the court that the updates contained the f o llowing new information: an evaluation repor t from

a medical doctor employ ed by DHS outlining responde nt’s medical condition, and “a line stating that [respondent] is able to ambulate for short distances with the use of a walker
, but still utiliz ing a whee lchair for long distances.” T h e ASA argued that Dr. L eavitt is responsible for

makingsure his re ports are up to date and c urre nt. ¶ 14 Respondent, relying on I llinois Supreme Court Rules 218, 213(f)
, an d 213(g ), argued that expert opinions have to be supplemented at least 60 day s prior to trial. I ll. S. Ct. R. 218 (ef f. Oct. 4, 2002); R. 213(f)
, (g ) (ef f. J uly 1, 2002). Respondent’s counsel indicated to the court that he rec eived the updated repor t about a we ek befor e trial. The following colloquy

occur red be tween the court a

nd responde nt’s counsel:
“THE COURT: What I would sug g est is this. I will allow Dr. L eavitt to be rede posed if you’re willing on the basis of whateve r information that you ca n g ather and we can

move from there if y o u wa n t to do it that way

. I want the deposition to take place in a prompt fashion. Now, [respondent’s counsel], do you want to do that, the element of surprise is taken out of it that way

. *** I want full information from ever y body

. And if that will be helpful to me if you wish to h av e a d ep o s ition of Dr. L eavitt taken or whateve r else you want to do, I will
open it up for that purpose be cause I will make the judicial stateme nt that this case has been se t severa l times.
RESP ONDEN T’S COUNSEL : J udg e, I will go a head a nd proce ed today

. THE COURT: You wa

nt to procee d today ?
RESP ONDEN T’S C OUNS E L : I would just like the liberal opportunity on crossexamination with reg ards to his relianc e on a ne w re port.

***
THE COURT: Sure, or we can start today and I could enter and continue for you to look at it if y ou want. RESP ONDEN T’S COUNSEL : I f that become s nece ssary , I will inform the court and
reque st that. THE COURT: Fine

. RESP ONDEN T’S COUNSEL : And Iwould like to proce ed today .” ¶ 15 The case proce eded to trial afte r responde nt waived his rig ht to a jury trial and the State withdrew its jury

demand. ¶ 16 Dr. B arr

y L eavitt testified on beha lf of the State. The parties stipulated that Dr. L eavitt is a licensed c linical psy cholog ist and an expert in the field of evaluating se x offe nders f or the risk of reof

fending. Dr

. L eavitt conducts post-probable -ca use civil commitment evaluations under the Act. On October 12, 1999, Dr. L eavitt conducte d a clinical evaluation of responde nt to deter

mine whether responde nt was a sexually violent person under the Act. Respondent agre ed t o p articipa te in the interview. Prior to meeting with responde nt, Dr. L eavitt revie wed responde nt’s I DOC master file, police repor ts, investigat i v e reports, and

-5-prese ntence investigation repor ts. He believed that he also revie wed repor ts from the Depa rtment of Children and Family Service s. Dr. L eavitt testified that the above documents he re v iewed are g ener ally relied upon and acc epted by experts in his field to deter mine whether a sex offe nder risks reof fending

. He completed the evaluation and issued a written
repor t, finding respo n dent’s mental disorders make it substantially probable that he will
eng ag e in future acts of se x ual violence

. ¶ 17 Following the initial evaluation in October of 1999, Dr. L eavitt completed three updated
repor ts on responde nt: in 2002 and 2 0 0 4 and sever al wee ks befor e trial. The following 5 exchang e occ urre d betwee n the ASA, the cour t, and Dr. L eavitt: “Q. [AS A]: And in those three updates, did you have persona l fac e-to-f ace interviews with [ responde nt] ?
A. I did not. Q. Did you attempt to?
A. On two occ asions I

did, y es. Q. What happene d? A. [Respondent] ref

used to participate in those eva luations. THE COURT: What y ear s were those when he ref used? A. *** [I ]n 2002 and Ibelieve in 2004.”
Dr. L eavitt testified that in conducting t h e up d at ed evalua tions, he followed the same proce dures he did when he initially evaluated responde nt in 1999. Additionally
, he revie wed responde nt’s clinical file f rom the DHS treatment and detention fa cility

. ¶ 18 Dr. L eavitt testified that d u rin g th e c o u

r se of his evaluation, he revie wed r espondent’s criminal history

. Respondent’s first convictions wer e in 1980 i n b o t h Du Pag e and Cook Counties for indece nt liberties with children. It was Dr. L eavitt’s u n d er s tanding that the victims wer e a nine-year -old, an eig ht-y ear -old, and a four- year -old. Dr. L eavitt stated they “we re all fema le children that had bee n sexually fondled a nd nude picture s had bee n taken of these children.” He believed that both convictions wer e the result of guilty pleas and that

re s p o ndent knew the children involved. Respondent was g iven a four- year probationary
sentenc e in Du Pag e County
, “as well as additional jail time as part of that probationary
sentenc e.” Respondent was also order ed to g o through counseling “and mandated not to take
any additional pictures of children.” Respondent’s conviction i n C ook County car ried a three -year probationar

y sentenc e. Dr

. L eavitt testified that when he discussed the 1980 convictions with responde nt, “ther e was a minimi zation on his part of having rea lly done
any thing wrong

. One of the words that he used to me wa s t h at h e wa s just charg ed with simple fondling .” Dr. L eavitt opined that “ther e was a sever e minimi zation and denial of any other e lements of the c harg es ag ainst him.” ¶ 19 Dr. L eavitt testified reg ardi n g re s p o n d en t ’s s econd conviction; ag g ravated cr iminal sexual abuse in 1988 in Du Pag e County

. Respondent was approximately 40 y ear s old at the

Dr. Le avitt te st if

ie d du ri ng res pond ent ’s tr ia l o n J uly 12, 2006

. 5

-6-time. Following a bench trial, in which responde nt was convicted of one count of ag g ravated

criminal sexual abuse toward his 10-year -old stepson, h e was sentenc ed to 10 y ear s’ imprisonment. Respondent had also been i n d i ct ed and char g ed with two-counts of
ag g ravated criminal sexual abuse ag ainst his stepdaughter, but was acquitted of t h es e char g es. During the police investigation of the case , responde nt admitted to sexually abusing his stepson. Dr. L eavitt testified that when he i n t er v i ewed responde nt, responde nt denied havingany

sexual invol vement with either child. ¶ 20 Dr. L eavitt also testified conce rning responde nt’s second conviction in 1988, of a “nonsexual offe nse with strong sexual elements.” Dr. L eavitt testified resp o n d en t was char g ed with disorderly conduct in L ake County beca use he attempted to photogr aph two 11-year -old fema le children. He did no t kn o w the children. Respondent had initially attempted to photogr aph the children and then attempted to photogr aph one of t he ch i l d re n four or five day s later. On this second attempt, responde nt wa s i n front of the children’ s home. Respondent had g otten out of his vehicle to try to photogr aph one of the children. Dr. L eavitt
op i n ed that “I think what is important here *** is these wer e children who wer e young , p re pubesce nt children who would fit within a profile of victims.” When he discussed t h e incident with respondent, r espondent de nied doingit. Respondent ple d guilty and rec eived probation for

six months. ¶ 21 Dr. L eavitt testified regard i n g re s p o n d en t’s final conviction for ag g ravated cr iminal sexual assault in 1997 in Cook County

. The victim was responde nt’s nine-year -old adopted daughter. The offe nses occur red over a nine-month period in 1989 and 1990, but the abuse

was not repor

ted until responde nt was place d on parole in 1994. Respondent pled guilty and

rec eived a 17-y ea r prison sentenc e. When Dr. L eavitt discussed the circ umstances of this conviction with responde nt, responde nt “denie d having committed any criminal act towards his child.” ¶ 22 As p ar t o f h i s ev al u at i o n of responde nt, Dr. L eavitt also revie wed r esponde n t ’s disciplinary history from his time in the custody of the I DO C an d DHS. Respondent had “two signific ant misconducts.” Whil e i n the I DOC’s custody in 1998, responde nt “wa s

cover ing up the window in his cell with cardboard” and an office r saw responde nt “jumping
out of the bed and pulling up his underw ear .” Respondent had in his possession six pictures of young g irls and an adver tisement for a pornographic video. On two occas ions in 2001, while in DHS custody
, responde nt had in his possession approximately 100 photogr aphs of prepube scent g irls conce aled in leg al documents. When Dr. L eavitt asked responde nt about these “misconducts,” responde nt denied them. Dr. L eavitt opined that the infrac tions “spea k
to ong oing indications of deviant sexual interests
, t h at despite having had numerous convictions, sanctions, all sorts of safe guards imposed, that it speaks in m y opinion to indications of his ong oing uncontrolled deviant sexual interests.” Dr. L eavitt was shown, as

an exhibi t, the pictures found in responde nt’s possession in 2001. In addition to pictures of prepube scent g irls, there wer e also pictures of adults eng ag ing in sex. Dr. L eavitt opined that both sets of pictures w ere rele vant to his evaluation beca use he believed “ it’s connec ted to [respondent’s] deviant sexual fanta sies. And it is a way to help gener ate *** his deviant sexual interests.” Dr

. L eavitt t estified further that he thought “the importance is that those adult pornog raphic or sexualiz ed pi ct u re s ca n be used to g ener ate the fanta sy life of the

-7-children, the numerous picture s of the childre n that wer e found in his possession.”

¶ 23 Dr. L eavitt also testified reg arding responde nt’s continued denial or minimi zation of his various o ff

en s es. He opined that it shows that responde nt “continues to be unable or unwilling to acknow ledg e responsibility and to acc ept *** the problems that he has.” He stated that responde nt has “no insight, no awa rene ss, no acc eptanc e of the profound
psy cholog ical and se x ual problems that he ha s experience d.” ¶ 24 In 1999, Dr. L eavitt perf ormed th re e p s y ch o l o gi cal tests on responde nt: the g ener al aptitude measure for adults; the Minnesota Multiphasic Personalit y Inventory (MMPI ), a persona lity test; and the Malon Clini cal Multi-Ax ial Invent o ry (M CMAI ), another
persona lity test. The g ener al aptitude measure for adults test showed responde nt functioned in the aver ag e rang e of intellectual functioning

. Dr. L eavitt t es t ified that the MMPI and MCMAItests reve aled two “ primary finding s.” The f

irst “indicated a

g ener al re sistance to discussing and/or admitting to psycholog ical problems.” The s econd reve aled “some evidenc e of def

i cits in [respondent’s] persona lity
, specific ally with respe ct to self-e steem, sensitivity to criticism, fee lings of inadequa cy , and g ener ally helplessnes s with respe ct to

cer tain ty pes of soc ial judgme nt or social instituti ons.” ¶ 25 Dr. L eavitt testified that he was familiar with the “Diagnostic and Statist ical Manual of Mental Disorde rs, IV Edition-TR. (DSM-TR),” whic h he believe d was a uthoritative in his field. Ba sed on DSM-TR, Dr. L eavitt diagnosed responden t with two mental disorders: pedophilia, primarily attrac ted to females, nonexclusive ty pe; and seconda

ry persona lity disorder, not otherwise specifie d with narc issist ic persona lity featu re s

. He testified these disorders are cong enital or acquir ed conditions that aff ect resp o n d ent’s emotional or volitional capac ity

and pre dispose him to commitacts of se x ual violence

. ¶ 26 Dr

. L eavitt also used a sever al step proce ss to evaluate responde nt for t h e ri s k o f reof fending

. First, he deter

mined whether responde nt suffe red from a mental disorder. Next he deter mined whether responde nt’s level of risk, i

. e. , whether there was substantial probability that responde nt would reof fend in the future based on his mental conditions. He testified that throug hout the proces s , h e analy zed responde nt’s score s on “spec ific risk instruments that are desi gn ed to help g aug e the level of risk that a particula r sex offe nder
may or may not possess.” He then looked at risk fac tors particula r to responde nt that would
ag g ravate or mitigate his risk. Finally
, Dr. L eavitt looked at “dy namic risk fac tors” which he descr ibed as important “in terms of understanding someone’s level of risk beyond what the
actua rials tell you, but they are als o p o t en t i al treatment indicators that can over time, if
appropr iately addre ssed, serve to reduce an i ndividual’s level of risk.” He used sever al
actua rial instruments in his evaluation: the Rapid Risk Assessment Sex Offe nder Recidivism (RRASOR); Static 99; and the Minnesota Sex Offe nder S creening Tool, Revised. He testified that t h e re s u l t s of those three tests, taken toge ther, place d responde nt “within the high le vel of risk.” Respondent’s dy namic risk factors showed responde nt as “having very

sever e defic its with respe ct to his levels of intimacy .” He testified that “the primary motivating forc es behind [respondent’s] extensive sexual abuse is his *** defic its with
respe ct to healthy levels of intimacy and rela tionships with ag e appropr iate individuals.” He
op i n ed t hat responde nt “lac ked a rea l capa city for and empathizing with others” beca use responde n t “was so self-e volved, so self-a bsorbed that I think it preve nted him from

-8-appropr iate empathiz ing with individuals.” Respondent also “had a di fficult ti me properly

regulating a

nd controllinghis sex ually deviant intere sts.” ¶ 27 Dr

. L ea vitt testified that responde nt did not participa te in any sex offe n d er s p ec i fi c treatment while i n ei t h er I DO C or DHS custody

. Ba sed on his revie w of the rec ord, Dr. L ea v i t t testified responde nt had been offe red treatment while in I DOC custody

. Whil e in DHS cust o dy , respondent “has been offere d treatment on at l east a monthly basis over the last sever al y ear s by members of his multi-discipli nary treatment team.” Dr. L eavitt s tated that responde nt did participate in a mandated outpatient program while he was on parole in 1994, but that “the program was not sex offe nder specific .” Respondent also participa ted in counseling in 1980 and 1981, but responde nt’s discharg e summary showed that the treatment

was not succe ssful, that responde nt did not complete the treatment, and that responde nt “wa s identified as a high risk sex offe nder, who was massively resistant to any form of
psy cholog ical intervention.” Respondent’s counsel did not object at any time to Dr. L eavitt’s testimony conce rningresponde nt’s past treatment. ¶ 28 Dr. L eavitt testified that he was awa re of responde nt’s phy sical conditions. These include diabetes, rena l dise ase, kidney problems that require d dialy sis three times a wee k, vascula r disease that resulted in the partial amputation of his rig ht foot and a toe on his left foot, and hy perte nsion. Respondent was partially am b u l at o ry in that “he could walk short distances either on his own and throug h the use of a walker but that for longe r d i s t an ce s was more comforta ble and n ee d ed the use of a whee lchair.” He did not think responde nt’s medical

co nditions mitigated respondent’ s risk of reoffe nding. He ex plained that “ther e is no clea r evidenc e that these conditions aff ect[ ] his interest and/or ability to eng ag e in sexual deviant behavior s.” He found “it is equally possible that [respo n d en t ’s ] presumed state of helplessness or being in a whee lchair could be a further tool in his manipulative armor.” He stressed responde nt’s use of manipulation to g ain acc ess to children. Additionally
, he stated that responde nt’s phy sical conditions “may aff ect his l i b i d o , but what we do know is that sexual dy sfunction does not cor relate with a re duction in sex ual re cidivism risks.” ¶ 29 In conclusion, Dr. L eavitt opined that “at the prese nt time that [respondent] does possess

a substantial probability of eng ag ing in future acts of sexual violent behavior .” When asked what he meant by “substantial probability ,” he answe red that responde nt “is much more likely than not to eng ag e in future acts of sexual violence without appropr iate secur e car e and intervention.” ¶ 30 On cross-e x amination, Dr. L eavitt testified that when he first interviewe d responde nt in 1999, responde nt was 51 y ear s old and he did not believe that responde nt was in a whee lchair

or had any amputations. Respondent was also not rec eiving any dialy si s fo r renal disease when Dr. L eavitt first met him. He agree d to defe nse counsel’s question that “it would be fair
to say that [respondent’s] medical condition was substantially differ ent in 1999.” Dr. L eavitt admitted he wa s not a medical doc tor, nor is he lice nsed to do medica l work. He could not

rec all if responde nt was in a whe elcha ir or had a ny amputations in 2001. ¶ 31 When asked by responde nt’s counsel whether the risk instruments he used “only place

a person in a specific risk cate g ory ,” Dr. L eavitt agree d. He testified that the risk instruments “ca n g ive you informed information about a cate g ory of risk that a particula r individual falls

-9-into.” He explained that the “the risk instruments are rea lly to kind of g ive you a broad base

estimate of risk assessment.” He testified that the risk instruments he used in his evaluation

can be used on someone with responde nt’s phy sical ailments beca use “ther e is nothing in the instruments t h ems elves that would rule that out.” Respondent’s counsel asked Dr. L eavitt wh et h er age i s a risk fac tor to consider, to which he responde d that “[i] t is cer tainly a ris k fac tor that is very controve rsial within the field today .” Dr. L eavitt opined that “it is unclea r

as to the aff

ect ag e has on the likelihood of [respondent’s] reof fending
, particula

rly in light of the fac t that [respondent] was continuing to reof fend on an esca lating pattern well into his 40s.” He testified that he was awa re of finding s in the field that show rec idivism decr ease s afte r the ag e of 50, and s ignif icantly decr ease s afte r the ag e of 60, but noted that there are other more rec ent finding s of the opposite conclusion. He stressed that there i s “n o t a sol i dified opinion at the prese nt time.” He admitted that responde nt did not have any convictions afte r the a g e of 50. ¶ 32 On redirect e x amination, Dr. L eavitt was shown a n exhibi t that showed the date of the amputation of responde nt’s rig ht foot. He rea d into the rec ord that responde nt’s amputation

was on April 5, 2001. He testified that the photogr aphs of children were found in responde nt’s room afte r the amputation of his right foot. ¶ 33 T h e St a

te th e n prese nted into evidenc e cer tified copies of responde nt’s c o n v ic ti o n s b e f

o r e resting

. ¶ 34 L arr

y M. Davis, M.D., testified on responde nt’ s b ehalf

. Dr. Davis testified that he is a
psy chiatrist, phy sician, s ex thera pist, and rese arc her. The parties stipulated that Dr. Davis

was qualified to testify both as a medical expert and as a psychiatrist. Dr. Davis beg an evaluating responde nt in 2004 afte r responde nt’s previous evaluator passed a w a y

. During the

course of his evaluation, he interviewe d responde nt persona lly for 90 minutes, “re viewed a varie ty o f wr i t t en materia ls,” obtained a testosterone serum level, which had been court order ed, and r eviewe d repor ts from other examiners and responde nt’s medical r ecor ds. He tested responde n t ’s t es tosterone serum level beca use “[t] he issue of human libido, drive, behavior
, [and] function in the sexual are a has much to do with the testosterone levels of men and women.” Respondent had commented to him “that he had no ere ction response but also diminis hed libido and desire with the former problem g oing back into ’89, ’90, or ’91 period,” which Dr

. Da vis found “wa s a critica l piece of information in understanding the libidinal drive to behave sexually .” ¶ 35 As part of his evaluation, Dr. Davis made a m ed i ca l d i agn o s i s o f re spondent. He diag nosed responde nt wi t h: diabetes mellitus, ty pe I ; insulin depende ncy ; nephrotic
sy ndrome, which cause s kidney problems such as dy sfunction or failure ; chronic vestibular problems due to g entamycin, which cause s problem with his balanc e; and hy perte nsion. He found responde nt’s amputations signific ant beca use they s h o we d “the intensity of the periphe ral vascula

r diseas e as sociated with the diabetic proce ss.” He testified responde nt would only li v e “a few day s without *** dialy sis *** beca use the kidney s are not functioning .” He explained for the court that responde nt’s right foot “ends in a round–it’s as though the foot is mostly g one.” Respondent’s l eft foot was “ g ener ally intact,” e x cept that his distal big toe was amputated. Due to the amputations , responde nt “is not able to g o far from his whee lchair.” He did not agree with comments in repor ts from other examiners that

-10-he revie wed in h is e v a lu ation that found responde nt’s prognosis “fa irly g ood.” He opined that

resp o ndent is “fully depende nt” on others to stay alive and that he thought “it’s a pretty terrible diag nosis when at a young ag e of 58, you’re alre ady losing body parts by amputation or fr om diabetes a

nd have c omplete re nal fa ilure.” ¶ 36 Dr. Davis a lso evaluated responde nt’s curr ent psychiatric condition and conclude d he did

n o t “have any issue” with responde nt’s pedophile diag nosis, but would place it in t h e “historical cate g ory beca

use *** I have no evidenc e since I ’ve been evaluating him that it’s

an active thought proce ss.” He also opined responde nt had “a strong pattern of para noid
persona lity disorder.” He did not believe responde nt is substantially probable to reof fend. He fac tored in responde nt’s ag e, and his testosterone levels, which he found to be low, in forminghis opinion. He testified that responde nt’s “beha vioral diffic ulties that come fr om being a bitter, angry , para noid, older man in a whee lchair without the ability to move about without assistance
, without the ability to live without assistance ,” reduc e his rec idivism rate

. He c oncluded that r espondent ha d a 6% to 8% c hance of re offe nding. ¶ 37 On cross-e x amination, Dr. Davis admitted that responde nt’s comments about ability to have an er ec t i on wer e “[ t] otally subjective.” He testified that responde nt does not take his medicine or follow the proper diet g iven his medica l co n d i tions. He also clarified that responde nt “is able to use a walker
, but not extensively .” He admitted he is not an expert in predic ting sexual rec idivism
, stating “my expertise is not a Ph.d who does a lot with actua rial device s.” He agree d that males with low testosterone still desire to have a se x life. ¶ 38 On redire ct examination, Dr. Davis clar ified that his opinion of responde nt’s likelihood of reof fending is based on his medical perspe ctive expertise. He also believed responde nt’s medical condition would continue to decline in the future. He also stated that h e thought “ac tuarial data [are] useful.” Howeve r, “they don’t have a reduc e probability fac tor in them for things such as medical condition or other circ umstances.” He agree d when asked whether it wa s h i s opinion “that actua rials would be used in conjuncture [ sic ] with a clinical,
psy chiatric as we ll as medical a pproac h.” ¶ 39 On re- cross-e x amination, Dr. Davis admitted that he did consider Dr. L eavitt’s actua rials and stated that “I

don’t take issue w ith Dr. L eavitt’s ac tuarial re port.” Responde nt rested. ¶ 40 On December 6, 20 0 6, the circuit court entered an order findi ng responde nt a sexually violent person and committed him to DHS custody “for control, car e, and treatment until such time as he is no long er a sexually violent pe rson.” The order provided that DHS shall conduct an examination of responde nt pursuant to section 40(b)( 2) of t h e Act (725 I L CS 207/40(b)(2) (West 2006)), “as to whether the Respondent’s commitment should be for institutional car e in a secure fac ility or for conditional re l ease,” and that “Dr

. L eavitt s hall update his DHS eva luation.” 6 ¶ 41 On J anuar

y 3, 2007, responde nt filed a motion for a n ew t rial. R eleva nt to this appeal, responde nt argued that the Sta t e brea ched its plea agree ment with him and that the State should be barr ed, under the doctrine of collater al estoppel, from asser ting that responde nt

Resp onde nt was als o order ed to provide a biol ogical spe ci m en acc ord ing to sec ti on 4 5 of 6 the Act(7 25 I LCS 207 /45 (W est 200 6))

.
-11-“has a mental disorder which he had at the time of the offe nses for which he was previously

convicted” and “that he has a mental disorder that cre ates a substantial probability that he will eng ag e in acts of sexual violence.” Respondent argued further that the circ uit court err ed by allowing the State to prese nt testimony that he did not submit to an interview with a DHS
psy cholog ist and that he did not participate in any treatment while awa iting trial at the DHS fac ility

. Respondent asser ted that the State should have been barr ed from p re s en t i ng Dr. L ea v it t’ s updated repor

t beca use of its untimely disclosure. Respondent’s final argument was that the evidenc e wa s not sufficient to prove his guilt. ¶ 42 In response , the State argu ed that responde nt’s future civil commitment under the Act

was a coll at era l conseque nce of his guilty plea and, there fore
, the State did not have to inform h i m o f i t s possibili ty

. The State argued that it was not collater ally estopped from seeking to commit responden t beca use t he is sues i n responde nt’s commitment proce eding

wer e not identical to those raised in his prior criminal conviction proce eding s. Acc ording ly
, the minimum require ments of collater al estoppel wer e not met. In response to responde nt’s
argument that the circ uit court er re d i n allowing the State to prese nt testimony of responde nt’s failure to be evaluated by DHS and participate in treatment while awa iting trial, the State argued that the rec ord of proce eding s shows that at no time did responde nt obje ct to the testi mony on the matter. Acc ording ly
, the State claimed responde nt waived his
argument. Fur

ther, the State arg

ued that “[r]espondent does not have a non-hea ring rig ht to

rema in silent and there fore there was no violation.” The State argued that responde nt relied

on improper authority to argue that Dr. L eavitt’s updated repor t s h o u l d be barr ed beca use “ther e was no case manag ement confe renc e order requiring that discovery be completed 60 day s befor e trial.” The State a lso argued that the e vidence supported the ve rdict. ¶ 43 In rep l y , re s p o n d en t cl ar i fi ed t h at h e was “not claiming that beca use he was not admonished at his plea that he could be subje ct t o the t erms of the Act is a violation of his rig hts. [His] position is that he had a fully executed and compre hensive deal with the [S tate] for a plea which was [a] brea ch b y the [S tate] when it filed this action.” Acc ording ly
, he
argued that the action should have been dismiss ed based on contra ct law principles. In reg ard
to the other arguments, responde nt maintained his positions outlined in his motion for a new trial. Respondent did not addre ss the State’s contention that he waived his argument that the State prese nted improper te stimony by failingto object at trial. ¶ 44 On November 2, 2007, the circ uit court issued a written memorandum opinion and orde r denying responde nt’s motion for a new trial. Relevant to this appea l, the court found that the State did not brea ch its plea agree ment with responde nt beca use commitment under the Act

was a collater al conseque nce of responde nt’s guilty plea. Collateral estoppel also did not bar responde nt’s commitment under the Act bec ause issue pr eclusion only applies t o identical issues alre ady li t i gat ed

. The court found that the “issue of Respondent’s curr ent mental condition a

nd his pr opensity for sexual violenc e is diff ere nt f rom his pr evious mental state and his guilt in a previous act of sexual violence.” T h e co u rt also found that responde nt’s rig ht to rema in silent was not violated by the State’s prese nt at i o n of testimony that responde nt ref

used to be evaluated or trea ted by DH S

. T h e court found that under section 25(c) of the Act, responde nt’s rig ht to rema in silent only applied to hear ings, not to clinical examinations (725 I L CS 207/25(c) (West 2006)). In addre ssing responde nt’s arg ument that

-12-the State failed to timely di s cl o s e Dr

. L eavitt’s updated opinion, the court found that

“[u] nlike Respondent’s contention, the record shows that Dr. L eavitt di d not testify to any new diagnosi s , b u t mere ly testified t hat hi s diag nosis was curre nt and therefor e, there was

no surprise on the part of Respondent.” The court also found that responde nt failed to show he was prejudice d beca

use the court “g ave r e s p o ndent the opportunity to redepose Dr. L eavitt and to postpone the trial,” which responde nt declined. Finally
, the circ uit court found the State proved responde nt a sexually violent person beyond a rea sonable doubt. Specifica lly
, the cour t found that the State met its burde n of proof under the Act by prese nting evidenc e that “[r]espondent had bee n convicted of a se x ually violent offense , that he wa s diag nosed as suffering from a mental di sorder
, pedophilia, and that he is likely to commit future acts of sexual violence.” ¶ 45 On November 9
, 2 0 0 9, the parties prese nted evidenc e in a dispositi onal hear ing. D r. L eavitt ag ain testified on behalf of the State. The parties stipulated to Dr. L ea v i tt’s qualifications in the field of clinical psychology and treatment of sex offe nders. Dr. L eavitt testified that he has evaluated responde nt five times, the most rec ent being in J anuar y of that
y ear

. His final evaluation was differ ent than his previous evaluations beca use it wa s a predispositional investigat i o n repor t wher e his primary focus was deter mining the least restric tive environment for responde nt’s treatment while also saf egu ar d i ng the public. In addition to revie wing responde nt’s rec ords, Dr. L eav itt interviewe d responde nt in November of 200 8

. D u

rin g h is te s ti mony , Dr. L eavitt descr ibed responde nt’s prior convictions in simil ar fashion to his testimony

in respondent’ s trial. ¶ 46 Dr

. L ea v i t t t es t i fi ed re s p o n dent beg an treatment afte r his bench trial in 2006. He descr ibed respondent’s progre ss as “ex cee dingly slow.” R esponde nt had been i n the “core

sex offe nder g roups and did participate in that particula r specific component of the treatment for sever al months but then was remove d from that as a result of a lack of trea tment proce ss.” Re s pondent was in phase two, which was acc epting responsibility
, but did not make any prog ress. After remova l from the “cor e sex offe n d er” g roup, responde nt was ref err ed to a “tac tics g roup,” which responde nt participated in and Dr. L eavitt believed he completed. Respondent was then r efe rre d to, and continued to par ticipate at the time of the hear ing in, the “powe r to chang e g roup.” Dr. L eaving explained that the “powe r to chang e g roup *** is

a specia liz ed ty

pe of treatment modality desig ned to help individuals to look at and addre ss the obstacles that keep them from making more adequate progress within t h e co re sex offe nder specific treatment.” I t is desig ned to get an i n d i v i dual back into one of the core treatment prog rams. Dr. L eavitt testified that responde nt is not back into the core treatment prog ram beca

use he continues to deny committing any of his prior convictions. Specifica lly
, Dr. L eavitt stated that responde nt has “diffic ulties and resistenc e to taking responsibility for and acknow ledg ing his sexual crimes despite the fac t that he did, in fac t, plead guilty to three out of these f

our ca ses.” ¶ 47 Dr. L eavitt opin ed t h at re s p o n d en t “c o n tinues to suffe r from both a diag nosis of pedophilia, sexually attrac ted to fema l es , n o nexclusive ty pe and persona lity disorder not otherwise specifie d with narc issist ic persona lity features.” Ba sed on a repor t by responde nt’s expert Dr. Kirk Witherspoon, Dr. L eavitt testified that re spondent continues to masturbate
to fanta sies of fema le children ag e 10 to 14 approximately once per wee k. Dr. L eavitt opined

-13-that responde nt’s mental diso rd er p re d i sposes him to commit acts of sexual violence and

aff ects his ability

to control his actions. ¶ 48 I n the course of his evaluation, Dr. L eavitt looked at three fac tors that wo u l d re du ce responde nt’s risk of re offe nding: a g e, hea lth, and the impact of his sex offe nder tre atment. Dr. L eavitt testified that althoug h there is r esea rch that shows that individuals ove r the ag e of 60 have a reduc ed level of reof fending
, “you have to look at the particula r individual.” He opined that despite responde nt’s ag e, “ther e was no evidenc e based on his particula r course of behavior that there was any reduc tion, meaning ful reduc tion, with respe ct to risk beca use of his ag e and the same thing would g o with respe ct to his health considera tion.” Dr. L eavitt acknow ledg ed that responde nt has sever al health problems, including rena l disease, kidney disease, vascula

r disease, and amputations, but noted that responde nt “is in much better health over the last sever al y ear s.” He opined that despite responde nt’s health-r elated issues, “they have not had a marke d impact on his p ri m ary d y namic risk fac tor and that is sexual relation problems.” ¶ 49 Dr. L eavitt t estified that despite r espondent’s a dmission of continued attrac tion to preadolesc en t children, respondent sti ll claimed he was not at risk of reoffe nding. Dr. L eavitt opined that responde nt continued to have a substantial probability of reof fending if rele ased into the community

. He testified further that in his opinion, responde nt’s treatment can proce ed most eff

ectively in a sec ure se tting. He commented that he would not rec ommend

a conditional rele ase for responde nt beca use he viewed responde nt as “an untreated, chronic
, fix ated pe dophile.” ¶ 50 On cross-e x amination, Dr. L eavitt ad m i t t ed t h at h e was not awa re of re spondent’s participation in a g roup called “proble m solvin g. ” Dr. L eavitt also admitted there are treatments available for responde nt that would allow responde nt to participa te wi t h out admitting his sex offe nse history

. Dr. L eavitt did not take into consideration the rec ent

rese arc h titled “Static 2002 R” beca use his approa ch in his most rece nt evaluation focuse d

on what the least restric tive treatment was for responde nt. W h en asked what “lea st restric tive” mea

nt to him, Dr. L eavitt testified that it is “what ty pe of se tting ca

n best meet [respondent’s] needs and simultaneously safe guard the interests of the c ommunity .” ¶ 51 Dr. Kirk Wit herspoon, a licensed clinical psycholog ist, testified on responde nt’s behalf

. After testifying about his qualifications, Dr. Wit herspoon was allowed by the court to testify

as an expert. In addition to revie wing re s p ondent’s rec ord, Dr. Witherspoon interviewe d responde nt two times. Dr. Wit herspoon testified that responde nt “ac knowledg es an interest in prepube scent fema les as well as those I believe 16 and older.” Dr. Wit herspoon testified responde nt was administ ere d a sex ual arousal test called “ the penile platy smal g raph.” Dr. Wit herspoon cautioned that the test is “not terribly reliabl e. ” R espondent did not exhibi t sexual arousal fr om the stimul i administered as pa rt of the test. ¶ 52 Dr. Wit herspoon perf ormed a risk assessment on responde nt. He opined that “[b] ased on the structure d risk assessment re s u l t s and the actua rial results, [respondent] fell within a low–moderate risk cate g orica l estimate.” Dr. Wit herspoon took responde nt’s phy sical condition into consideration to deter mine responde nt’s risk of reof fending

. He bel i ev ed responde nt’s health was a “strong mitigating fac tor,” an d t h at i t would be “diffic ult for

-14-[respondent] to act out and in deviant sexual way s.”

¶ 53 Dr. Wit herspoon also testified as to his opinion reg arding responde nt’s treatment, stating “I think [respondent] would be better off in an outpatient setting, particula rly one that would allow treatment wher e offe nse admiss i o n wasn’t require d. And g iven that that’s the least restric tive environment for somebody

with his demonstrated leve l of risk at this point.” ¶ 54 On cross-e x am i n at i o n , Dr

. W i t h er s p o o n testified that responde nt told him of his
attrac tion to female g irls ag e 12 to 14. Dr. Witherspoon also admitted responde nt told him that o n ce p er wee k he masturbates to fanta sies of 9- and 10-year -old fema les. He also acknow ledg ed that responde nt’s excuse, when caught with sexual pictures of young fema les, that he wa s rese arc hing the media’s exploi tation of children “wa s not very believable .” Respondent also denied having committed any sexual offe nses, even the ones he pled guilty to, in speaking wi t h Dr

. Witherspoon. Dr. Wit herspoon diag nosed responde nt with pedophilia. When as k ed whether there was a controve rsy over the eff ect of ag e on reof fending , Dr. Witherspoon responde d, “No. I think the controver sy

is gone .” ¶ 55 On J une 30, 2010, the c ircuit court found responde nt’s treatment should be in a se cure fac ility

. The court order ed that responde nt be committed to DHS custody until further order of the c ourt. ¶ 56 On J uly

22, 2010, responde nt timely filed his notice of a

ppeal. This appe al followed.

¶ 57 ANALYSI S ¶ 58 Respondent raises the following issues on appea l: ( 1) whether the circ uit c ourt err ed in failing to dismiss the S t at e’ s petition based on the alleg ed brea ch of a previous plea
agree ment or under collater al estoppel principles; (2) whether the circ uit court err ed in allowing the S tate to prese nt evidenc e that responde nt did not submit to an int ervie w wit h

a DHS psy cholog ist or participate in any treatment in t h e DH S fa cil ity
, wher e he was detained while awa iting trial; (3) whe ther the c ircuit court a bused its discretion in denying responde nt’s motion for a new trial wher e the State alleged l y fa i l ed to timely disclose an updated repor

t fr o m i ts expert; (4) whether the evidenc e was sufficie nt to prove that responde nt is a sexually violent person; and (5) whether the circ uit court abused its discretion when it committed responde nt to institutional car e in a secur e fac ility rathe r than place him on conditional rele ase. We will addre ss eac h arg ument in turn. ¶ 59 Respondent first ar gues that the c ircuit court e rre d when it fa iled to dismi ss the State’s petition. Respondent asser ts that the State brea ched a fully neg otiated plea agree ment that he
enter ed into with the State in his final criminal conviction. As alternative support, responde nt contends the State cannot relitig ate two issues, his mental disorder that he had at the time of his criminal convictions or that he has a mental disorder that cre ates a substantial probability that he will reof

fend ba sed on collate ral e stoppel. ¶ 60 The State responds that responde nt’s Marc h 1998 guilty plea t o aggr av at ed criminal sexual assault did not bar his subsequent civil commitment under the Act b ec au s e the
transcr ipt of the proce eding s contains no promise that the State would not seek responde nt’s civil commitment. The State asser ts that there can be no brea ch of a plea agree ment if there

was no agree ment. In response to responde nt’s collater al estoppel argument, the State argues

-15-that responde nt’s argument fails beca use the Act is conce rned with his curr ent mental state, not his prior mental state. ¶ 61 Section 2-619 of the Code allows for involuntary dismiss al o f a cl ai m b y as s er t i n g “ ‘af firmative matter’ outside of the pleading .” Czarobski v. Lata
, 227 I ll. 2d 364, 369 (2008) (quoting W

allace v. Smyth
, 203 I ll. 2d 441, 447 (2002))

. When proce eding under section 2- 619 of the Code, the leg al sufficie ncy of the complaint is admitted. Doe A

. v. Diocese of Dallas
, 234 I ll. 2d 393, 396 (2009). “When ruling on such a motion, the court must construe the pleading s and supporting documents in the light most favor able to the nonmoving party .” Lata , 227 I ll. 2d at 369. Our standar d of re view of a section 2-619 motion is de novo

. Id. ¶ 62 Respondent argues that the State’s petition should have b ee n d i s missed for its alleg ed brea ch of a plea agree ment betwee n the parties. We note that responde nt does not argue that the circ uit court failed to admonish him of the conseque nces of his guilty plea; rathe r, he only
argues that based on contra ct law principles, the State violated the plea agree ment it enter ed into with him. Respondent attache d to his section 2-619 motion to dismiss the transcr ipt from his latest conviction, which includes testimony from the ASA, the court, and responde nt. The State maintains that the transcr ipt does not show any agree ment betwee n the parties wher eby the State agree d that it would ref rain from seeking to commit responde nt under the Act. After revie wing responde nt’s motion, and attache d transcr ipt, we agree with the State. Acc ording to the transcr ipt, the ASA expl ained the State’s offe r, stating“On a plea to Count One, the offe r was sev entee n y ear s I llinois Depa rtment of Correc tions.” The ASA then stated “[a]s part of the plea agree ment, the [S ]t ate wi ll be dismiss ing the rema ining counts. That is essentially the agr eeme nt.” Defenda nt then pl ed guilty

. Notably absent fr o m t h e transcript is any mention of respond en t ’s future civil commitment under the Act. The State cannot brea ch an agree ment if the rec ord shows that no agree ment exis ted. People v. Lumzy
, 191 I ll. 2d 182, 187 (2000). ¶ 63 Respondent’s second contention why the circ uit court should have dismiss ed the State’s petition pur suant to se ction 2-619 of the Code is ba sed on collater al estoppel. He urg es the State cannot asser

t he had mental disorders for which he was previously convicted and that they cre ate a substantial probability

he will eng ag e in ac ts of sexual viol ence

. ¶ 64 The require ments of the doctrine of collater al estoppel are : “(1) the court rende red a final judgme nt in the prior case ; (2) the party ag ainst whom estoppel is asser ted was a party or in privity with a party in the prior ca se; and (3) the issue dec ided in the prior c ase is identical with the one prese nted in the instant case .” (Emphasis added.) People v. Tenner
, 206 I ll. 2d 381, 396 (2002). ¶ 65 R es p o n d en t ’s co l l at er al est oppel argument fails beca use the iss u es i n h i s p ri o r convictions are not identical. At issue in his civil commitment under the Act is his curre nt mental conditi on and his propensity for se x ual violence at this time. This is differ ent from his previous mental state for which he was char g ed with ag gravated criminal sexual assault in 1997. Section 15 of the Act, which addre sses the peti t i o n t o co mmit a sexually violent
person, states that “[t] he person is dang erous to others beca use the person’ s mental disorder

cre ates a substantial probability that he or she will eng ag e in ac ts of sex ual vi olence ” (725 I L CS 207/15(b)(5) (West 2000)); see also In re Detention of Samuelson
, 189 I ll. 2d 548, 559

-16-(2000) (In addre ssing whether the Act is subjec t to challeng es based on double jeopar dy or

ex p o s t f a cto principles, the supreme court stated, “[a] defe ndant cannot be involuntarily committed based on past co n du ct

. Involuntary confine ment is permissible only wher e the d efendant prese ntly suffe rs from a mental disorder and the disorder cre ates a sub s t an t i al probability that he wi l l en gage in acts of sexual violence in the future.” ). Respondent’s

curr ent mental condition and the probability that he will eng ag e in future sexual violence are differ ent issues than the issue of responde nt’s mental state, which led to his 1997 conviction for a g g ravated cr iminal sex ual assault. ¶ 66 Acc ording ly
, the circ uit court did not err when it denied responde nt’s motion to dismiss the State’s petition pursuant to sec tion 2-619 of the Code. ¶ 67 Respondent’s next argument is that the circ uit court err ed in allowing the State to pr esent evidenc e that responde nt did not submit to an interview with a DHS psy cholog ist or participate in any treatment in the DHS fac ility he was detained in while awa iting trial. We hold responde nt has waived this argument. Although responde nt raised this issue i n his
p o s t t ri al m o tion, he did not object to the complained- of testimony at trial. See Orzel v. Szewczyk , 391 I ll. App. 3d 283, 287 (2009) (“B oth an objection at trial and a written posttrial motion raising the issue are nece ssary to prese rve an err or for appellate revie w.”)

. Respondent alleg ed in his opening brief that he objected at trial. Howeve r, his citation to the

rec ord di d not show any

objections at trial. F urthermor e, our r eview of the re cord f

ailed to

uncover any objections to the complained-of evidence until responde nt’s posttrial motion. Acc ording ly , we hold re spondent has wa ived this contention. ¶ 68 Respondent next argues that a new trial should be g iven beca use the circ uit court did not bar Dr. L eavitt’s 2006 update to his evaluation of responde nt. Respondent alleg es since the d isclosure was untimely
, it should have been barr ed from being introduced at tr i al

. I n response , the State argues that respond en t el ec t ed to g o forwa rd with the trial despite the alleg ed discovery violati o n an d re jected the court’s sug g estion to continue proce eding s to allow for revie w of Dr. L eavitt’s update or to further depose Dr. L eavitt. The State contends responde nt invited any

err or. ¶ 69 In In re Detention of Swope
, 213 I ll. 2d 210, 217 (2004), our supreme court explained the rule of invited e rror : “Simply stated, a party cannot complain of err or which t h at party induced the court to make or to which that party consente d

. The rationale behind this well-e stablished rule is that it would be manifestly unfair to allow a party a second trial upon the basis of err or which that par

ty injected into the proc eeding s.” (Empha sis added.) Id.
The c ourt explained that such ac tions result in a proce dural de fault. Id. ¶ 70 I n the case at bar, the following colloquy betwee n the court and responde nt’s counsel show that responde nt consented to the c ourt’s ac tions.
“THE COURT: What I would sug g est is this. I will allow Dr. L eavitt to be rede posed if you’re willing on the basis of whateve r i n fo rmation that you can g ather and we can

move from t h er e i f you want to do it that way

. I want the deposition to take place in a prompt fashion.
Now *** do you want to do that, the element of surprise is taken out of it that way

.

-17-*** I want full information from ever y body

. And if that will be helpful to me if you wish to have a deposition of Dr. L eavitt taken or whatever el s e y o u wa nt to do, I will open it up for that pur

pose bec ause I

will make the judicial stateme nt that this case has been se t severa l times.
RESP ONDEN T’ S COUNSEL : J udg e, I will go a head a nd proce ed today

. THE COURT: You wa

nt to procee d today ?
RESP ONDEN T’S COUNSEL : I would j u s t l i ke the liberal opportunity on crossexamination with reg ards to his relianc e on a ne w re port.

***
THE COURT: Sure
, or we can start today and I could enter and continue for you to look at it if y ou want. RESP ONDEN T’S COUNSEL : I f that become s nece ssary , I will inform the court and
reque st that. THE COURT: Fine

. RESP ONDEN T’S COUNSEL : And Iwould like to proce ed today .” The above exchang e shows responde nt consente d to the circ uit court’s actions. It w ould be unfair to allow hi m to now complain of t he course of ac t i o n t h e ci rcuit court took afte r he
consente d to it. Acc ording ly
, res p o n dent is proce durally defa ulted from raising this issue befor e this court. ¶ 71 Respondent next arg ues the State failed to prove him guilty beyond a rea sonable doubt. In response , the State contends responde nt’s argument is only an attack on the cre dibilit y of the State’s expert witness and that respondent is askingthe cour t to rewe igh the evidenc e. ¶ 72 T h e Ac t d efines a sexually violent person as “a person who has been convicted of a sexually violent of

fense *** and who is dang erous beca use he or she suffe rs from a mental disorder that makes it substantially probable t h at the person will eng ag e in acts of sexual violence” (725 I L CS 207/5(f) (West 2006)). At trial, the State had “the burden of proving the alleg ations in the petition beyond a rea sonable doubt” (725 I L CS 207/35(d)(1) (West 2006)). In revie wing the sufficie n cy of the evidenc e, “we ask only whether
, afte r viewing the eviden ce i n the light most favor able to the State, any rational trier of fac t could find the elements proved beyond a rea sonable doubt.” In re Detention of Erbe
, 344 I ll. App. 3d 350, 373 (2003). W e will not rew eig h the evidence because it i s the function of the trier of fact
to decide what rea sonable infere n ces to draw from the evidenc e, to evalua te whether witnesses ar e cr edible, and to r esolve a ny conflicts in the evide nce. Id. ¶ 73 In this case , the State alleg ed i n i t s p et i t i o n t h at responde nt was convicted of and
sentenc ed on four sexually violent offe nses; that he was diag nosed wi t h two mental disorders, and that “[a]s a result of the Respondent’ s sexual offense history and his mental health diag nosis, which indicate that he suffe rs from a mental disorder, it is substantially probable that Respondent will eng ag e in future acts of sexual violence.” The State prese nted

cer tified copies of responde nt’s convictions and Dr. L eavitt testified reg arding his diag nosis of responde nt having the mental disorders of pedophilia, p ri m arily attrac ted to fema les, nonexclusive ty

pe; and seconda

ry personal i t y disorder, not otherwise specifie d with

-18-narc issist ic persona lity features. The State offe red, through the testimony of Dr. L eavitt,

detailed testimony explaining why it is substantially probable that responde nt will eng ag e in future acts of sexual violence, despite responde nt’s ag e and health. Re s p o n dent’s expert witness, Dr. Davis, disag ree d with D r. L eavitt’s opinion. How ever , it is not the function of this court to rew eig h the evidenc e, make cre dibilit y deter minatio n s , o r resolve conflicting evidenc e. In re Erbe
, 344 I ll. App. 3d at 373. We hold the State prese nted sufficie nt evidenc e provingthe alleg ations of its petition bey ond a re asonable doubt. ¶ 74 Respondent’s final argument is that the circ u i t co u rt ab u s ed i t s discretion when it committed re s p ondent to institutional car e in a secur e fac ility rathe r than place him on conditional rele ase a fter his dispositi onal hear ing. T he State re sponds that the circ uit court did not abuse its discretion. The Stat e argues that responde nt’s history of reof fending
, his mental disorder, and his curr ent mental condition demonstrate his nee d fo r t re atment in a

secur e fa cility

. ¶ 75 After a person is found to be a sexually violent person, the Act provides that an order of commitment shall be enter ed order ing the person to be committed in either institutional car e in a secur e fac ility or be place d on conditional rele ase (725 I L CS 207/40(b)(2) (West 2010)). Section 40(b)( 2) of the A ct provides:
“In deter mining whether commit ment shal l b e for institutional car e in a secure fac ility

or for conditional rele ase, the court shall consider the nature and ci rc u m s t ance s of the behavior that was the basis of the alleg ation in the petition ***, the person’ s mental history and prese nt mental condition, and what arr ang ements are available to ensure that the person has acc ess to and will participate in nece ssary trea tment. *** The Depa

rtment shall arr ang e for control, car e and treatment of the person in the least restric tive manner consi stent with the require ments of the person and in acc ordanc e with the co u rt ’s commitment order.” 725 I L CS 207/ 40(b)( 2) (West 2010).
We revie w the circ uit court’s decision to commit a perso n to a secur e fac ility or to conditional rele ase for an abuse of discretion. In re Erbe
, 344 I ll. App. 3d at 374. The circ uit court’s ruling will only be considere d an abuse of discretion if that decision is unrea sonable, arbitra ry or whe re no r easona

ble per son would take the same view a s the circ uit court. Id. ¶ 76 At the dispositi onal hear ing, the State prese nted the detailed testimony of Dr. L eavitt. He testified that responde nt was not making progress in his treatment an d was not taking responsibility for his offe nses

. He found responde nt continued to suffe r from pedophilia, sexually attrac ted to fema les, n o n exclusive ty pe, and persona lity disorder not otherwise specifie d with narc issist ic persona lity features. He opined that responde nt’s mental disorders predisposed him to commit act s o f sexual violence and aff ecte d his ability to control his actions. He testified responde nt continued to fanta siz e about fema le children ag e 1 0 to 14 approximately once per wee k. Even considering responde nt’s ag e and health problems, Dr. L eavitt did not reco m mend conditional rele ase beca use he believed responde nt is “an
untreated, chronic
, fix ated pedophile.” We cannot say the circ uit court’s decision to commit responde nt to a secur e fac ility is unrea sonable or arbitra ry

. Respondent’s expert witness, Dr. Wit herspoon, disag ree d with Dr. L eavitt’s opinion that treatment in a secur e fac ility was the best course of treatment for responde nt. Howeve r, it i s n o t the function of this court to

-19-rew eig h the evidenc e, make cre dibilit y deter minations, or resolve conflicting evidenc e. In

re Er b e , 3 44 I ll. App. 3d at 373. Acc ording ly
, we hold the circ uit court did not abuse its discretion when it committed responde nt to a secur e fac ility for treatm en t as o pposed to conditional rele ase.

¶ 77 CONCLUSI ON ¶ 78 The judg ment of the c ircuit court of Cook County

is affirme d.

¶ 79 Affir

med.

-20-