## 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 Com m itm ent of Fields , 2012 IL App (1st) 112191

Appellate Court Caption In re COMMI TMENT OF J USTI N FI EL DS (The People of the State of I llinois , Petitioner-Appellee , v. J ustin Fields, Respondent-Appe llant).

District & N o. First District, Third Division Docke t No. 1-11-2191

Filed Modified upon denial
of re hearing November 14, 2012

Dec ember

28, 2012

Held (Note : This s

yl lab us

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

par ed by the Repo rt e r 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

. ) I n p roceeding s seeking the commitment of responde nt as a sexua l l y violent person, the prosec utor’s rema rks in closin g argument alleg edly
arguing expert’s testimony as substanti ve evidenc e did not improperly shift the burden of proof, violate order s in lim i ne or war rant a mistrial, and althoug h responde nt was proved to be a sexually violent person, the commitment order was vacated and the cause was rema nded for a proper dispositi onal hear ing, since the trial court err ed in failing to allow responde nt to present evide nce at the dispositi onal stag e.

Dec ision Under
Review Appea l from t h e Circuit Court of Cook County
, No. 07-CR-80002; the Hon. Michae l B. McH ale, Judge , presiding

.

J udg ment Affir med in part a

nd cac ated in par

t; cause r emande d.Counsel on

Appea l L aw Offic es of Chicag o-Ke nt College of L aw, of Chicag o (D an i el T. Coy ne, M att hew M. Daniels, and Eliz abeth D. L eeb, of counsel), for appellant.

L i s a Madig an, Attorney Gene ral, of Chicag o (Michae l A. Scodro, Solicitor Gene ral, and M ichae l M. Glick and L indsay Be yer Pay ne, Assistant Attorney s Gene ral, of c ounsel), for the People.

Panel J USTI CE STEEL E delivere d the judg ment of the c ourt, with opinion.
J ustices Neville a

nd Sterba c oncurr ed in the judg ment and opinion.

OP INION

¶ 1 Following a jury trial in the circ uit court of Cook County
, responde nt Justin Fie lds was found to be a sexually violent person (SVP) under the Sex ually Violent Pers o n s Co mmitm ent Act (Ac t) (725 I L CS 207/1 et seq. (West 2010)). The trial co u rt s ub s equently enter ed an 1 order committing responde nt to a secur e fac i l i t y fo r i nstitut ional car e and trea tment. On
appea l, responde nt argues that: (1) he was denied a fair trial when the prosec ution improperly commented about h i s custodial status and nonparticipation in treatment, as well as improperly argue d testimony from the State’s expert witnesses as substantive evidenc e, during its closing argument that shifted the burden of proof and violated order s in limine ; (2) the trial court err ed in denying his motion for mistrial based upon the prosec ution’s alleg edly improper rema

rks during closing argument; (3) the State failed to prove beyond a rea sonable doubt that he was an S VP under the Act; and (4) he wa s denied his rig ht to a dis positional hear ing under the Act (725 I L CS 207/40(b) (West 2010)) befor e the commitment order was enter ed. Whil e we reje ct responde nt’s challeng es to the prosec utor’s rema rks during closing
argument and the suff

iciency of the e vidence ag ainst him, we rema nd the ca use to the trial
court to conduct a dispositi onal hear ing allowing responde nt to prese nt t es t i m o ny and evidenc e for

its consideration in fra

ming the c ommitm ent orde r.

¶ 2 BA CKGROUND ¶ 3 On August 23, 2005, the respondent, then 21 y ear s old, was a rr est ed and char g ed with wit h ap p ro x imately 20 counts for various offe nses, including ag g ravated criminal sexual

T he Act
, whic h was ena ct ed in 1998
, aut hor izes the invol unt ary comm it m ent of ind ividu al s 1 beyond the ti m e of re le ase wher e the ind ividu al s are fou nd to be sexua ll y viole nt as def ine d by the Act

. In re Det ent ion of Samue ls on , 189 I ll . 2d 548, 551-52 (20 00)

. Addi ti ona ll y, t he Act pro vides for per iod ic re exa m in a t ion of suc h ind ividu al s to det erm ine if the y sho uld be con si der ed for

con dit ion al re le ase ordi sch ar ge. 720 ILCS 207/ 55 ( We st201 0).

-2-abuse, ag g ravated kidnapping
, and possession of a stolen motor vehicle, in Cook County

circ uit court case number 05 CR 21674. He subsequently pled guilty to one count of
ag g ravated sexual a

buse and one count of kidnapping stemming from the events involving a nine-y ear -old male victim. He w as sentenc ed to three y ear s’ imprisonment in the I llinois Depa rtment of Corre ctions (DOC).

¶ 4 Petition for Comm itment ¶ 5 Prior to his mandatory supervised rele ase, the State filed a petition on Fe bruar y 14, 2007, for responde nt’s involuntary commitment under the Act. The petition alleg ed, among other things, that responde nt was an SVP as define d by the Act; that responde nt was diagnosed by Ba rry L eavitt, Psy

. D., as having the mental disorder o f p ed ophilia; and that responde nt’s mental disorder made it substantially probable that he would eng ag e in sexually violent acts. Dr. L eavitt’s eva luation was attac hed to the petition. ¶ 6 On Fe bruar

y 15, 2007, the trial cour

t entere d an orde r to have responde nt de tained in a fac ility under the custody of the I llinois Depa rtment of Human Service s (DHS). On J uly 25, 2007, the trial court enter ed a memorandum opinion and order findi n g p ro b ab le cause for responde nt’s commitment under the Act following h ear ings that commence d on April 17, 2007, and conclude d on J une 18, 2007. Cou n sel for the parties filed jury demands on the

same date. Fur

ther, L esley Kane
, Psy

. D., was appointed as the responde nt ’s expert to conduct a n assessment and e valuation of the r espondent.

¶ 7 Pretrial Proce eding s ¶ 8 Prior to trial, the parties eng ag ed in discovery
, including d ep o s i t i o n s and docume nt production, and responde nt filed various motions. For the purpo s es of our discussion, this

s ec t i o n highlig hts motions in limine related to the issues raised on appea l. On August 30, 2010, responde nt filed two motions in limine

. One motion soug ht to lim it testim ony about the respondent’s bac kground prof fer ed by the S tate’s witnesses only to show the bases for their opinions and not as substantive evidenc e in acc ordanc e with W ilson v. Clark
, 84 I ll. 2d 186 (1981). Respondent also reque sted an appropriate instruction for the jury

. T h e second motion soug ht to prec lude any testimony

reg ardingresponde nt’s custodial status, to which the State objecte d. ¶ 9 On September 17, 2010, the trial court conducte d a hearing on responde nt’s motions. The trial court g rante d the motion broug ht under W ilson
, with no objection by the State. The trial
court ag ree d to provide a limit ing instruction to the jury befor e ea ch witness testified and during clos i ng instructions. The trial court also cautioned the State to pref ace comments during closing arg

uments that the information was relied upon by the witnesses in f orming
t h eir opinions. As for the motion reg arding responde nt’s custodial status, the trial court g rante d the motion in part, admonishing the State not to make “unnec essar y or g ratuitous” ref ere nces to responde nt’s custodial status. In response to the State’s reque st for clar ifica ti on, the trial court indicated it was acc eptable to ask routine questions, such as wher e an interview with responde nt occur

red, an d n oted responde nt’s custodial status would come up in anticipated discussion reg arding disciplinary tickets contained in responde nt’s master fi le.

-3-Indeed, the trial court expected the term “did” would have to be used relative to responde nt’s

conduct while in c ustody

.

¶ 10 Trial Proce eding s ¶ 11 After

some continuanc es, t he jury trial was scheduled to beg in on March 22, 2011. O n Marc h 22, 2011, the jury was selec ted. Be fore the trial proce eding s beg an the following day
, responde nt moved in limine for th e t ri al court to instruct the jury befor e and afte r ever y witness’s testimony
, as well as prior to deliberations, about t h e l i mited purpose of their testimony about responde nt’s b ackgr ound under W ilson in explaining the bases for their opinions and not as substantive evidenc e. The State objected to the limit ing instruction being

rea d afte r eac h witness’s testimony

. Refer ring to his notes when the issue was previously raised, the trial judge denied the reque st and indicated he would issue the limit ed instruction
to the jury befor e eac h witness testified and with the closing instructions. T h e co u rt then
proce eded with o th e r p r e li mi n a r y ma tt e r s , in c luding admonishing the jury about responde nt’s innocenc e u n t i l proven guilty
, the State having the burden to prove beyond a rea sonable doubt its alleg ations, and the opening statements by the parties wer e not evidenc e. The State called Dr. L eavitt as its first witness. Be fore he testified, the tr ial judge cautioned the jury
, consistent with the order in limine , about the limited purpose of his testimony

.

¶ 12 L eavitt Testimony ¶ 13 Dr. L eavitt testified that he was a licensed psy cholog ist in I llinois and had been lice nsed
to prac tice for approximately 25 y ear s. He had his own clinical and fore ns i c p rac tice that i n volved g ener al and psy cholog ical treatment of juveniles and adults individuals, an d specia liz ed fore nsic assessments o f s e xu a ll y v io le nt persons in I llinois and other jurisdictions and of issues that may be rele v ant in court. He previously worke d for about 25 y ear s with Affiliated Psy cholog ists, a clinical and fore nsic prac tice located in Chicag o, I llinois
, that had a contract with the DOC to conduct scree nings. He described his educational background, which included a doctora l degree and a master’ s degree in clinical psy cholog y

. Over the last 25 y ear s, he specialized in the gene ral area of sex ual abuse, with the l as t 1 5 or m ore y ear s fo cu s i ng in the are a of evaluation and risk assessments of juvenile and adults who h ad committed assorted sexual offe nses. He noted that the “fa r majority” of evaluations did not result in SVP ref

err als. Since 1998, he had conducte d near ly 200 evalua tions of sex offe nders and SVPs. Moreove r, he had conducte d or overse en approximatel y s ev eral thousand

scre ening s for the DOC’s sexually violent persons unit whi le working at Affiliated Psy cholog ists. Along with membership in various prof essional org anizations, he had been
approve d by the I lli n o i s S ex Offe nder Manag ement Boa rd reg arding assessment and
treatment of adult and juvenile sex offe nders. He had testified and been qualified as an expert in clinical and fore ns ic p s yc h o lo gy , s p e c if ic a ll y r e g a rding sex offe nder evaluations, diag nosis and risk assessments, over 100 times in I ll i n o i s courts throughout the state. The State tender ed Dr. L eavitt as an expert witness. The trial court qualified him as an expert, with no objection by

the re spondent. ¶ 14 Dr

. L ea v itt testified that he was familiar with the g ener al purpose of t h e Ac t

. He

-4-explained the DOC’s responsibility related to the Act to scre en, evaluate, intervi ew , and

identify persons who met the criter ia, and repor t opinions about potentially elig ible persons to the Att o rn ey Ge n era l’s office for consideration. I n 2007, Affiliated Psy cholog ists had a
contra ct with the DOC to conduct scre ening s, evaluations, and interviews. He reiter ated that about 90% of t he indi viduals scre ened did not meet the nece ssary criter ia for commitment under the Act (due to no diag nosis and/or no risk), and that less than 5% wer e ref err ed to the next phase afte r screening

. He conducted a clinical evaluation of t he respondent, who was schedule d for rele ase on Fe bruar y 19, 2007, to deter

mine if he was a candidate for commitment under the Act. Respondent agree d to the interview, which lasted approximately 31⁄2 hours, and onl y t h e t wo of them wer e prese nt. He stated that he followed the standard protocol in evaluating re s p o n d en t. Prior to his interview with responde nt, he revie wed

rec ords made available by the DOC, such as responde nt’s master file, which consisted of d i s ciplinary repor

ts, criminal history (with details about the offe nse for his curr ent imprisonment), medical and health evalua tions, and other m aterials available in his

corr ection file, along with police repor ts and treatment evaluations. He testified that these documents we re t h e ty

pe rea sonably relied upon by experts in the field when conducting evaluations, and that he relied upon these documents in evaluating responde nt. He prepa red

a written evaluation on Fe bruary 1 2
, 2 0 0 7

. At some point afte r his repor t, he lear ned responde nt’s birth date o n t he report, which was based upon the records he revie wed, was inacc urate as re spondent was a y ear young er tha

n the date on the rec ords. ¶ 15 Dr. L eavitt testified t h at re s p o n d en t ’s cr i minal history was rele vant in forminghis opinion. He testified about a 2005 offe nse involving ag g ravated criminal sexual abuse a nd kidnapping
, to which responde nt pled guilty and for which he was sentenc ed to three y ear s’ incar cer ation afte r being char g ed with over 20 counts. When responde nt was 21 year s old, h e as ked a 9-y ear -old male whom he knew to g et into a stolen car that responde nt wa s dri v i n g an d offe red to buy g y m shoes for the minor. Respondent drove to a vaca nt or abandone d apar

tment building wher e he fondl ed the minor’s g enitals while the child was lying on the floor. Acc ording to the rec ord Dr. L eavitt revie wed, responde nt ref used to stop at the victim’s reque st. When the victim beg an cry ing, responde nt stopped, drove the victim
to a g as station, an d t o l d him to walk home. He also revie wed responde nt’s signe d handwr itten statement confe ssing to his actions and expressing experiencing sexual arousa l from the enc o u nter. Respondent denied committing the offe nse when he met with Dr. L eavitt. ¶ 16 He also considere d an offe nse that occur red on May 24, 2000, when the responde nt w as 15 y ear s and 8 months old and was riding a bicycle with a 9-year-o ld male on the back. Respondent rode into a

n alley
, turned around, and fondled the minor’s g enitals throug h his

sweat pants. Although responde nt was initially charg ed with crimi nal sexual assault, he
eventua lly pled guilty to simple battery
, was adjudicate d a delinquent, and sentenc ed to probation. The vic tim’s mother reque sted that responde nt be charg ed with a lesser offe nse if he re ceive d counseling

. Dr. L eavitt testified that re spondent also denied c ommitt ing this offe nse during their meeting

. Although the responde nt’s conviction was for simple battery
, he considere d the offe nse and stressed that viewing the details of a g iven case was important beca use many offe nses contained a sexual compon en t t h at was helpful in understanding

-5-potential mental disorder s and potential risks.

¶ 17 Dr. L eavitt t es t ified that t he details surrounding these offenses were important for two primary rea sons: both offe ns es i n v o lved nine-year -old males and the second incident ref lected a n esca lation in respondent’s be havior fr om the first offe nse. ¶ 18 Dr. L eavitt further testified he considere d responde nt’s nonsexual juvenile and cr iminal history in forming his opinions. He testified about responde nt acc ruing curf ew violations and school truanc y beg inning at ag e 10; being expelled from his home at ag e 12; being adjudg ed delinquent and char g ed with ag g ravated arson at ag e 14; selling drug s betwee n ag es 15 and 17; and being in and out of various j u v en i l e detention fac iliti es from ag es 13 to 18. Additionally
, he ref

err ed to rec ords showing responde nt repor tedly used aliases and differ ent birth dates durin g co n t ac t with law enfor ceme nt. He also testified about responde nt’s intimate life, as responde nt stated that he could not meaning fully relate, including sexually
, to anyone near his ag e. During their interview, respondent described having a relationsh ip with a much older woman prior to his imprisonment and dating older women while an adolesc ent. ¶ 19 Moreove r, Dr. L eavitt test i fi ed t h at responde nt’s behavior while in DOC custody was rele vant in forming his opinion. He testified about two particula r incidents involving sexual misconduct that o cc u rr ed while responde nt was in the DOC’s juvenile division. The first incident, which occur

red in Fe bruar

y 2002, involved the staff observing responde nt “firmly”
g rabbing another resident’ s buttocks and laughing when the staff reprimanded him. The second incident, occur

ring a few wee ks later, involved the staff observing responde nt trying
to re t aliate ag ainst another resident by grabbing the other resident’ s buttocks. Dr. L eavitt indicated that these incidents d em o n s t rate d responde nt’s inability or ref usal to control his impulses, even in a struc tured e nvironment. ¶ 20 Dr. L eavitt opined about responde nt’s behavior while in a DHS treatment and dete ntion fac ility that he found rele vant. In Marc h 2009, a draw ing of a nude child with a male figure standingover the child was discovered in responde nt’s laundry

. In April 2010, responde nt

was investigated for cre ating and distributing child pornography on a flash drive to other residents. The DVD repor tedly contained enlarg ed imag es of young children’ s private parts, 2 such as g enitals and butt ocks. Dr. L eavitt admitted that he did not see the imag es depicted in the draw ing or on the DVD. He believed that this showed responde nt’s preoc cupation with
young males. Dur i n g t he four y ear s while responde nt was there
, the rec ords showed that responde nt had numerous notations and violations of rules, including a phy sical fig ht in J uly 2 0 1 0 with a resident believed to be involved in the DVD investigation, which ex h i b i t ed responde nt’s behavior al problems consistent with antisocial a ttitude. ¶ 21 He also testified about whether responde nt participated in sex offe nder treatment. He did not know if such trea

tment w as off

ere d while re spondent was in D OC custody

. He noticed responde nt briefly attended a few sessions ear ly on befor e withdrawing

. Res p o n d en t also participated in a few g roups, but ov er al l
, Dr

. L eavitt saw no indication that responde nt

T he re cor d re fe rs to the m at er ia l as a DV D and a fl ash dri ve. We wil l use the te rm “DV D” 2 in thi s op ini on f

or con si st enc y.

-6-participated in specific sex offe nder treatment for a sustained period. When they met in 2007,

responde nt told him that treatment “would be a wa ste of time,” but that he w ould attend if require d to do so. ¶ 22 Dr. L eavitt testified that he relied upon the Diagnostic and Statist ical Manual of Mental Disorder s (F ourth Edition) Text Revised (DSM-IV-TR), an authoritative manual in his field, in making his diag nosis. He formed an opinion, within a rea sonable degree of psy cholog ical

cer tainty
, that responde nt suffe red from a mental disorder of pedophilia, wi th a seconda ry diag nosis of antisocial per sonality disorder. He also testified about the ag e of onset for an offe nder in diag nosing pedophilia disorder as responde nt was 15 y ears an d 8 months old when he committed the 2000 offe nse. He opined that the incidents in the DHS fa cility confirme d his opinion as they involved continued sexually deviant behavior
, eve n i n a structure d environment. He emphasized that pedophilia is the mental disorder aff ecting responde nt to commit future sexually violent acts and descri b ed how the two diag noses worke d toge ther, with the seconda ry diag nosis serving as an additional risk fac tor reg arding responde nt’s ref

usal or inability

to adher e to any

external controls. ¶ 23 Dr

. L ea v i t t t es t i fi ed ab o u t t h e criter ia he considere d in making his diag nosi s o f responde nt’s antisocial persona lity disorder: s i n ce ag e 15, he demonstrated a g ener al disreg ard and disdain for rules and welfa re of o t hers, manifested by the tendenc y to brea k societal rules that led to arr est and/or incar cer ation, and the disciplinary violation s t h at responde nt acc rued. ¶ 24 Dr. L eavitt used and relied upon three actua rial instruments in forming his opinion. The Static 99, which was the m ost widely used in the field f

or pl acing an indi vidual in the risk
cate g ory of rec idivism
, contained 10 items. A score of six or highe r was considere d high risk of reof fending ; responde nt score d an eig ht. The Static 99R was a rev ised version of this instrument and included an adjustment of the ag e-r elated (and first) fac tor. Respondent also

score d an eig ht on this instrument, which place d him in a high risk cate g ory

. Dr. L eavitt also utiliz ed the Minnesota Sex Offe nder Scr eeningTool Revised (MnSOST-R) that containe d 16 items. The score was ba sed on a c ombined rec ord re view and se lf-re ported infor mation
to place the indivi du al wi t h i n a risk cate g ory over a six -year period of time to deter mine whether the person would be re- arr ested for committing a sexually offe nsive act. Using this instrument, responde nt score d nine, which p l ac ed him in a high risk cate g ory

. Dr. L eavitt explained that this score translated into a 57% likelihood of an arr est for a s ex ual offe nse within six year s. He noted that the actua rial tests w ere starting points a nd wer e more likely to undere stimate the risk of re offe nding. ¶ 25 In addition to the instruments, Dr. L eavitt testified about d y n am i c fac tors (potentially chang eable fac tors) he considere d that further substantiated understanding of an individual’s risk level. He viewed r espondent’s history in applying f

ive fac tors. First, he testified about responde nt’s ear ly onset and persistenc e and/or preoc cupation with young male children and difficulty controlling impulses. Second, he noted responde nt’s lack of meaning ful sexual or dating relationships w it

h a g e

- a p p r o p ria te p e r s o n s

. T h ird
, h e cited responde nt’s difficulty with sexual impulses and urg es, ang er, and lack of appre ciation for self. Four th, he testified about

res p ondent’s long- standing history of antisocial behavior
, showing “cle ar resistanc e to supervision,” and resistanc e to persona l chang e. Finally
, he addre ssed relev an t p ro tective

-7-fa ctors, namely
, what respondent had done with respe ct t o sex offe nder specific tr ea t m en t

and the person’ s ag e. He found no protec tive fac tors applied to responde nt. He noted that responde nt was not over 50 or 60 year s old and d i d n o t have a life-thre atening health condition that wo u l d reduce the risk of rec idivism

. He stated that the actua rial score s, dy namic risk fac tors , an d protec tive fac tors worke d toge ther in forming his opinion about responde nt’s potential for reof fending

. He opined, to a profe ssional degree of cer tainty
, that due to responde nt’s pedophilia, there was a sub s ta n ti a l p r o b a b ility of responde nt reof

fending

. His conclusion was the same as when he first interviewe d responde nt in 2007, but was more solidified as of the date of his testimony
, based upon responde nt’s behavior over the past few
y ear s that included continued indications of pedophilia and antisocial behavior
, even within

a highly structure d environment, and no sustained information of any sex offe nder treatment. He updated his opinion by revie wingrec ords dated up to F ebrua ry 14, 2011. ¶ 26 On cross-e x amination, Dr. L eavitt admitted that he had not m et wi t h o r s p o k en to responde nt since the J anuar y 2007 interview. He did not speak with any other psy cholog ist who evalua

ted responde nt or any of the victims or responde nt’s friends, noting that speaking
to witnesses, victims, or persons involved in the investigation was not part of protocol. When responde nt’s counsel qu es t ioned him about how he deter mined the onset ag e for his pedophilia diagnosis, Dr. L eavitt stated that the ag e at the time of diagnosis was rele vant in making his diag nosis. Whil e he did not view the imag es on the DVD, Dr. L eavitt emphasized that the repor

ts he revie wed indicated that the DVD contained sug g estive, sexual imag es of
young male children, which matched responde nt’s victim profile. He also clarified the DVD contained downloaded imag es, enla rg ed to f ocus on particula

r body parts, and w ere unlike illust rations at issue with the other behavior al incident in DHS fa cility

. ¶ 27 Al t h o ugh antisocial persona lity disorder was not the mental disorder th at re n d er ed responde nt an SVP under the Act, the disorder was a risk fac tor that incre ased the likelihood of incre ased sexual acts and display ed responde nt’s g ener al propensity to eng ag e in criminal behavior

. He emphasized responde nt’s behavior
, and not the ag e of residents involved in the minor violations, was key as it demonstrated inappropriate behavior and disreg ard for rules within the structure d setting. Whil e he considere d the actions could have been horse playing and did not consider whether they wer e imitating athletes by g rabbing eac h other’s buttocks, he distinguished responde nt’s actions as firmly g rabbing the other resident’ s buttocks, which

was uncommon and inappropriate, responde nt laug hed it o ff
, and responde nt repe ated the behavior two wee ks later. ¶ 28 Respondent’s counsel question ed h i m ab o u t h i s u se of the actua rial instruments. He clar ified that the instruments assessed the likelihood of reof fending an d d i d not predic t whether responde nt would reoff end. Dr . L eavitt emphasized that he considere d the overa ll offe nding behavior involved in the 2005 offe nse, not just that re s p o n d en t repor tedly lured the victim into the car , in deter mining forc e u s ed

. S i m ilarly
, he testified that when he

ree x amined the individual dy namic risk fa ctors, he f

ound responde nt’s nonparticipa tion in

sex offe nder treatment rende red it unlikel y i n as s essi ng whether such treatment was meaning fully

impacted. ¶ 29 On redire ct examination, Dr. L eavitt stated that ev en af t er h e found out about the ag e discrepa ncy , his opinion reg arding re s pondent rema ined unchang ed. After the trial court

-8-overr uled the objection, Dr. L eavitt explained that the enlar g ed imag es of the private are as of char acte rs on the DVD led to his conclusion that, minimally
, sexually sug g estive pictures of y o u n g ch i l dren wer e consistent with responde nt’s victim profile and demonstrated unresolved a

nd continued pre occupation with y oungmale childre n.

¶ 30 Gaske ll Testimony ¶ 31 The State then called Dr. Steven Gaske ll to testify

. The trial judge admonished the jury 3 about the limit ed purpose for his testimony and advised t h e j ury that it deter mined the

cre dibilit y of the witness’s testimony

. Dr. Gaske ll testified that he had been a licensed
psy cholog ist for 12 y ear s and was licensed in I llinois and Georg ia. He stated that he had a contra ct with the DHS to perf orm evaluations for sexually violent pe rsons, which included

co n du cti ng evaluations of individuals alre ady found to be SVPs, and to prepa re predisposition investigation re ports and supplementa l reports. ¶ 32 Dr. Gaske ll testified that he rec eived his bache lor’s degree in ps y ch o l o gy fr o m the University of Minnesota a nd completed his doctora l degree from the Minnesota S chool of Professional P sy cholog y

. He conducted evaluations for courts while wo rking at a Geor g ia hospital, and he perf

ormed SVP evaluations and g ave expert testimony in Kansa s courts. As part of a contra ct with the DHS since J uly 2005 to perf orm evaluations for sex offe nders and potential SVPs, he conducte d 325 evaluations for 150 sex offe nders. In a clinical internship
at Florida State Hospital, he conducte d pretria l evaluations and risk assessments. He was an approve d member of the I llinois Sex Offe nder Manag ement Boa rd for evaluations a

nd had training in use of actua

rial instruments. He noted that he had been previously qualified as an expert in clinical psy cholog y , specific ally reg arding sex offe nder evaluation and risk assessment. At this point, Dr. Gaskell was tende red and qualified as an ex pert in the field, with no objection by

responde nt. ¶ 33 Dr. Gaske ll t es t i fi ed that he conducte d a clinical evaluation of responde nt in 2007 to deter mine if he was a candidate for commitment under the Act. He also testified th at he revie wed the responde nt’s master file, prior repor ts, and behavior al and trea tment rec ords in forming his opinion. His int er v i ew with responde nt in late August 2007 lasted about 21⁄2 hours afte r responde nt consente d to the interview in an initi al m ee t i n g wi th him in ear ly August 2007 that lasted about 11⁄4 hours. His interview was redu ced to writing in a repor t dated September 5, 2007. He prepa red a subsequent re port dated F ebrua ry 17, 2009, based
upon his revie w of responde nt’s behavior al and t re at m en t rec ords. He also rende red an addendum to the subsequent repor t (date d Fe bruar

y 22, 2009) afte r con du ct i n g a psy cholog ical status examination. Prior to his t es t i m o n y , he indicated he revie wed the

rec ords from the last examination on Fe bruar y 22, 2009, and dated up to Fe bruar y 14, 2011. ¶ 34 Dr. Gaske ll testified about the documents and materia ls he considere d in fo rm i n g his opinion. He noted that information reg arding responde nt’s criminal history was rele vant for

Shor tl y bef

ore tr ia l, the tr ia l cou rt grant ed re spo nde nt’ s m oti on in li mine to exc lud e 3
te st imony fr om Dr. Gaskel l re gardi ng a re sco re d te st tha t he con duc te d. He was per m it te d to te st if y abo ut his opi nio n bas ed upon m at er ia ls dis cl ose d in dis covery as of the Februar y 14, 2011
, dea dli ne.

-9-forming his opinion. He testi fi ed about the 2000 offe nse and the 2005 offe nse, to which

responde nt entere d a guilty plea. He noted that both incidents involved nine-year -old male victims. Fur

thermore
, he considere d at least eig ht finding s of juvenile delinquency
, with half

occur ring prior to ag e 15 and the other h alf occur ring afte r that ag e. He char acte rized the fin d i n gs as four for battery
, one for arson, two for damag e to proper ty , and one for a probation violation. He also discussed incidents that led to major violat i o n s fo r events

occur ring in 2010 while responde nt was in DHS custody

. He stated that responde nt participated for one day

in sex offe nder tre atment while in custody

. ¶ 35 Fu rthermor e, Dr. Gaske ll testified that he diagnosed responde nt with pedophil i a an d antisocial persona lity disorder to a rea sonable degree of psy cholog ical ce rt aint y , both of which made it s ub s t an tially probable that responde nt would commit future acts of sexual violence. H e also re lied upon the DS M-IV-TR i n makinghis diag noses. He e x plained that
p edophil ia usually beg an in adolesc ence and continued into adulthood. A pedophilia diag nosis involved a person having
, over a period of at least six months, rec urring
, intense, sexually arousing urg es, fanta sies or behavior s involving sexual activity with a prepube scent child, the individual e ither had to ha ve acte d upon the urg es or the urg es themselves had to have cause d the person impairment or distress, and the individual had to be at least 16 y ear s old a nd at least 5 y ear s older than the victim. He clar ified that the 16-year -old ag e criter ion was the a g e at the time of diag nosis and applied to responde nt beca use hi s behavior be g an at age 15 y ear s and 8 months and continued to the second offe nse, which occurre d fo r a period over five y ear s

. Respondent’s pedophilia was a cong enital or acquir ed condition aff ectingresponde nt’s emotional volitional capac ity

. ¶ 36 As fo r t h e an tisocial persona lity disorder, Dr. Gaske ll descr ibed the crit er i a as a “per vasive pattern of disreg ard for and violation of the rig hts of others” occur ring since the individual was 15 y ear s o l d an d p rior to that ag e. Ba sed upon his revie w of the materia ls provided to him about responde nt, Dr. Gaske ll opined that the materia ls showed the disorder conduct manif

ested prior

to ag e 15 due to his j uvenile delinquenc y finding s. He noted that responde nt had four or five juvenile delinq u en cy fi n d i ng s prior to ag e 15. As an adult, responde nt had shown a failure to confor m to s o ci al norms based upon his repe ated acts leadingto arre sts over 10 times and 3 convic tions. He also discussed various other c riteria including dece itfulness, evidenc ed by repe ated lying, use of aliases, and manipulating others for persona l g ain or pleasure

. Her e, he cited responde nt’s various aliases and birthdates, and the manipulation involv ed i n the 2005 offe nse leading to his conviction. Respondent exhibi ted re ck l es s d i sreg ard for the safe ty of others, evidenc ed by the 2000 and 2005 offe nses, as we ll as sever al batter ies and a ssaults on others. ¶ 37 Dr. Gaske ll testified that responde nt’s pedophilia predisposed him to commit future acts of sexual violence, in that he ha d rec urre nt, sex ual urg es and f antasies to ac t with a child. ¶ 38 Dr. Gaske ll testified about how he rea ched his opinion about respondent’s re cid i v i s m

. He stated that responde nt score d in the high risk rang e on the two actua rial instruments used
to conduct a ri s k assessment. He also considere d other risk and protective factors to rea ch

a total r isk assessment. He utilized the Static 99 a nd the MnSOST-R, on both of which the responde nt score d an eig ht. He used two instruments, beca use neither instrument cover ed all of the risk fac tors associate d with sexual reof fending as they both had a differ ent set of risk

-10-fac tors. In addition to the risk fac tors cover ed under the actua rials, Dr. Gaske ll also used the five dy namic risk fac tors based upon rese arc h aff iliated with sex offe nder rec idivism : sexual interest in children, antisocial persona lity disorder, employ ment instabilit y , ear ly onset of sexual reof

fending
, and separ ation from pare nts. He also considere d fac tors that would show

a decr ease d risk of re o ff en d i n g , such as ag e, health status, and prog ress in sex offe nder
treatment. As to responde nt, none of the decr ease d risk fac tors wer e prese nt, g iven that responde nt’s age wa s associate d with the highe st risk of rec idivism
, he had no health or medical condition that would preve nt him fro m re o ff en d ing, and he had only been in
treatment for one day

. Ba sed upon his revie w of the master file and all of the rec ords, and the results of the risk assessments utiliz ed, Dr. Gaske ll opined, with a rea sonab l e d egree of
psy cholog ical cer

tainty
, that responde nt was substantially probable
, or more likely than not, to commit future acts of sexual violence. He also opined, to a rea sonabl e d egr ee of
psy cholog ical cer

tainty
, that responde nt was dang erous due to his mental disorders that predisposed him to commit such acts. ¶ 39 On cross-e x amination, Dr. Gaske ll clarified that responde nt’s pedophilia, coupled with his antisocial persona lity

disorder, pr edisposed re spondent to commit future ac ts of sexual violence. He stated that the persona lity disorder alone could serve as a basis for rec idivism

.

¶ 40 Respondent’s Case ¶ 41 After the trial judge ’s admonishments to responde nt, responde nt indicated that he did not wish to testify

. Although the State had not y et re s t ed
, re s pondent moved for a direc ted finding
, arguing about the witnesses’ conflicting testimony reg arding which mental disorder

cause d the risk of reof

fending and the ag e onset of the mental disorder (pedophilia) at issue. The trial judge denied the motion. At the end of the State’s case , the State soug ht to enter a

cer tified copy of responde nt’s 2005 conviction into evidenc e. During a sidebar, responde nt’s counsel objected to the entire document being published to the jury
, beca use it contained the other counts for which he w as not convicte d. When the jury returne d, the prosec utor noted to the jury
, once the exhibi t w as admitted, that the cer tification established that responde nt had bee n convicted of

the sexual offense counts in 2005. The State then r ested. ¶ 42 The responde nt rested without prese nting any witnesses or other evidenc e on his be half.

¶ 43 Closing Arguments, J ury Deliber ations and Commitm ent Orde r ¶ 44 Following closing arguments and the trial judge ’s i n s t ru ct i o n t o t h e j u ry , t h e jury d el i b er at ed and returne d a verdic t finding responde nt was a sexually violent person as define d by the Act. Immediately following the trial court’s entry of judgme nt on the verdic t, the State then reque sted entry of an ord er committing responde nt to a secur e fac ility for detention and treatment. Respondent’s counsel objected, indicating that he had a witness he wanted to prese nt in support of a reque st for conditional rele ase and reque sted a predisposition evaluation be conducte d. The trial judge overr uled the responde nt’s objection and deter mined that he had sufficie nt information based upon the testimony prese nted at trial
to enter a n order committing re spondent to a sec ure f acility for tre atment.

-11-¶ 45 Postt rial Proce eding s

¶ 46 On April 22, 2 0 1 1
, re s p o n d en t fi l ed a p o s t t ri al motion seeking a new trial, or alternatively
, to set aside the verdic t a nd vacate the order of commitment to provide for his conditional rele ase. The motion conte n d ed t h at the trial court committed various err ors, including allowing the Sta t e to shift the burden improperly to him by the prosec utor’s

rema rks about his custodial status and denying his motion for r etrial after the prosec utor’s improper comments that violated t h e o rders in limine reg arding the limit ed use of the experts’ testimony during closing argument, and that the State failed to prove that he suffe red from a mental di sorder that made it substantially probable he would commit future a cts of sexual violence as require d by the Act. Following a hear ing on J une 13, 2011, the trial court denied r espondent’s motion. The respondent filed a timely notice of a

ppeal with this court on J uly 12, 2011.

¶ 47 DI SCUS SI ON ¶ 48 In the instant appea l, responde n t ar gu es t hat the State’s improper rema rks duringits closing argument violated the order s in limine and denied him a fair trial, contends the trial
court err ed in denying his motion for mistrial foll o wi n g t h e State’s improper rema rks, challeng es the sufficie ncy of the evidenc e that he was an SVP under the Act, and asser ts that the trial court denied him his rig ht to a dispositi onal hear ing under the Act. We will addre ss

eac h argument in turn.

¶ 49 Propriety of Prosec utor’s Remar

ks DuringClosing Argument ¶ 50 We first consider r espondent’s c laim that the prosec utor impermissibly commented on his custodial status and argued expert testimony allowed under W ilson v. Clark
, 84 I ll. 2d 186 (1981), as substantive evidenc e during its closing argument that violated order s in limine and deprive d him of a fair trial. Be fore we discuss the merits of responde nt’s arg ument, howeve r,

we a ddress the a

ppropriate standard of

revie w. ¶ 51 As the parties’ briefs ref lect, there is an appar ent conflict among the districts in this c ourt, including within our own First District, reg arding the applicable standard of revie w on this issue following our supreme court’s ruling s i n P eo ple v. Blue
, 189 I ll. 2d 99 (2000), and People v. W

heele r , 226 I ll. 2d 92 (2007). I t i s we l l established that prosec utors have wide latitude in making closing argument. W heele r , 226 I ll. 2d at 123. The prosec ution is allowed
to comment on the evidenc e and draw rea sonable infere nces from th e evidenc e. In re Commitment of

Kelley
, 2012 I L App (1st) 110240, ¶ 42. Prosecutoria l misconduct in closing
argument war

rants a new trial and reve rsal if the improper comments wer e a materia l fac tor in the responde nt’s conviction. W heele r , 226 I ll. 2d at 123. “I f the jury could have rea ched a contrary verdic t had the improper remarks not been made, or the reviewing court cannot say that the prosec utor’s improper rema rks did not contribute to the defe ndant’s conviction,

a new trial should be grante d.” W heele r , 226 I ll. 2d at 123 (citing People v. Linscott
, 142 I ll. 2d 22, 28 (1991))

. Our supreme court has repe atedly denounce d and aff irmed its intoleranc e for prosec utorial misconduct. See W heele r , 226 I ll. 2d at 121-22 (and discussion a nd case s cited ther ein).

-12-¶ 52 In W heele r , 226 I ll

. 2 d at 1 2 1
, which responde nt cites, the supreme court found that deter mining whether the prosec utor’s rema rks wer e so egreg ious as to war rant a new trial is

an issue revie wed de novo

. Although the State acknow ledg es W heele r , the State rea sons that

our revie w of such comments is for an abuse of discretion since the ultimate de termination revolve s around questions of fac t. The State asser ts that W heele r favor ably cited Blue
, which
pronounce d t he abuse of discretion standard for revie wing a prosec utor’s rema rks during closing argument. See W

heele r , 226 I ll. 2d at 121-22. In People v. Land
, 2011 I L App (1st) 101048, ¶¶ 148-50, the six th division of the First District discusses var i o u s o pinions, including ruling s from differ ent divisions of the First District, containing differ ent analy ses of the standard of revie w when considering the p ro p ri et y of the prosec utor’s rema rks in closing argument. We need not weigh in on the disag ree ment, as we conclude that the State’s

rema rks wer e prope r under

both standards. See Land , 2011 I LApp (1st) 101048, ¶ 151. ¶ 53 Having addre ssed the standard of revie w, we now consider the specific rema rks made by the prosec utor that the responde nt challeng es. The State argues, howeve r, that the responde nt has forf eited revie w of cer

tain rema rks as he failed to object at trial and raise the objections in his written posttrial motion. The law is well established that in order to prese rve an issue for appea l, the party must state objections duri n g trial and in a written posttrial motion. P eo p l e v. Enoch
, 122 I ll. 2d 176, 186 (1988). A failure to do so results in forf eiture of t h e claim on appea l. Id. Nonethele ss, we consider t h e complained- of comments, even those

rema rks that wer e not timely objected to, made in the entire context of the closing argument. In consideringresponde nt’s claim, we f ocus on the re marks prope rly prese rved f

or appe al. See W heele r , 226 I ll. 2d at 122-23. ¶ 54 Respondent argues that the State devoted the first nine minutes of its closing argument to making improper comments, which individually or collectively
, caused him undue prejudice and w a

r r a nt a new trial. Respondent challeng es the State’s following rema rks made duringclosingarguments: “THE STATE [Assi stant State’s Attorney]: [R espondent] has bee n you have he ard since 2007, in a de partment of huma n service s fac ility

that focuse s in– MR. COYNE [respondent’s counse l] : Objection.
THE COURT: Over

ruled.
THE STATE: That focuse s in specific ally on sex o ff en d er trea

tment. And he has ref used to participate in sex offender treatment.” ¶ 55 Re s p o n d e nt a lso challeng es the prosec utor’s continued closing rema rks tha t, “ [y]o u h e a r d he’s had over 2 5 probation violations.” The trial court overr uled responde nt’s objection. This
statement wa s m ad e at the end of the following rema rks by the State, which provide the context in which the statement was made : “Now w e all know that pe ople ca n touch other pe ople inadver tently

. But this touchingwas such that this littl e boy felt so uncomfor table that he w ent to his mother. And his mother was rea sonable in that case

. You hear d that from the doctors. And said to the police, look, even though you’re qualifying this as criminal sexual abuse, Iwill ag ree to have it g o into the juvenile sy stem as a battery if he g ets help.

-13-***
You hear d how he continued, even afte r that sexual contac t with the police, with this

sex u al o ff

en s e, he continued to be in and out of juvenile detention during his juvenile
y ear s, into his adu l thood. You hear d how he committed case s of arson and criminal damag e to proper

ty , how he possessed st olen m otor vehicle s

. He has criminal t respa ss to vehicles. He ’s had a ssaults.” ¶ 56 Respondent then asser ts that the State conclude d i t s re m arks by stating, “[l] adies a nd
g entlemen, just all that in and of itself befor e you, without an expert opinion, anyone can say there ’s somet h i ng wrong here .” Whil e responde nt’s argument continues that the State commented in detail about responde nt’s behavior in the DHS fac ility
, the text provides the rele vant context in which the statements wer e made that we must consider. In particula r, the
p rosecutor then ref

ers to the two expert opinions proff ere d from psy cholog ists whose opinions on t h e d i agnoses wer e “solidified” beca use of responde nt’s behavior at the DHS fac ility

. Clearly
, the State was arguing about responde nt’s behavior consi d e r e d b y the doctors in forming their respe ctive opinions, which was in line with W ilson and the order s in limine

. Simi larly
, the State’s rema rks did not improperly shift the burden of proof to responde nt, but

mere ly summarized the bases for the expert witnesses’ opinions, including how the lack of

sex offe nder treatment was considere d in the ir risk assessment to de termine the substantial probability of responde nt committing future acts of sexual violence. We also agree with the State that responde nt’s relianc e upon People v. Johnson
, 218 I ll. 2d 125 (2005), and People v. Be asley , 384 I ll. App. 3d 1039 (2008), is misplaced. ¶ 57 Respondent conc edes that he failed to object to the prosecutor’s comments in rebuttal, but urg es us to consider the m in the context of the entire argument ( W heele r , 226 I ll. 2d at 123) and for p lain err or under I llinois Supreme Court Rule 615(a) (ef f. J an. 1, 1967). Yet, the State argues that beca

use the SVP commitment proce eding s are civil in nature , this court should not consider plain err or under the civil forf eiture doctrine. As we have found that the
prosec utor’s rema

rks wer e proper and not e rrone ous, we a lso need not re solve which plain

err or analy sis applies in the instant case

. See People v. Sargent
, 239 I ll. 2d 166, 189 (2010) (in criminal case , revie wing court must fi rs t d etermine if err or occur red in deter

mining applicability of plain err or analy sis); Ree d v. Ault
, 2012 I L App (2d) 110744, ¶ 33 (same for civil appea l); see also In re Commitment of Curtner
, 2012 I L App (4th) 1 1 0 8 2 0
, ¶¶ 26-27 (brief ly discussing a

pplication of plain er

ror doc trine in proce eding s under the A ct). ¶ 58 Additionally
, we do not find that the prosec utor’s rema rks violated the order s in limine

. We r eview the judge ’s ruling for an abuse of discretion. Kelley
, 2012 I L App (1st) 110240, ¶ 33. An abuse of discretion occur s wher e the ruling is arbitra ry , fanc iful, or so unrea sonable that the op p o site conclusion is obvious. Id

. The State’s comments reg arding responde nt’s custodial status and the expert witnesses’ conclus i o n s d i d not clea rly violate the order s in limine

.

¶ 59 Motion for Mistrial ¶ 60 The responde nt argues that the trial judge abused his discretion in denying his motion for mistrial du e to the prosec utorial rema rks during closing argument as discussed previously

-14-here in. We reviewa trial c ourt’s rulingon a motion for mi strial for an abuse of discretion.

People v. Nelson
, 235 I ll. 2d 386, 435 (2009). “A t rial c o u rt ab u ses i ts discretion when its decision is ‘fa

nciful, arbitra

ry , or unrea sonable to the degree that no rea sonable person would
ag ree with it.’ ” People v. Zirko
, 2012 I L App (1st) 092158, ¶ 32 (quoting People v. Ortega
, 209 I ll. 2d 354, 359 (2004)) ; In re Detention of Lieberman
, 379 I ll. App. 3d 585, 609 (2007). As we have conclude d that the prosec utor’s comments wer e not improper and did n o t

warra nt a new trial, we simil arly conclude that the trial judge did not abuse his discretion when he denied r espondent’s motion based upon the comments.

¶ 61 Sufficienc y of the Evidenc e ¶ 62 Next, responde nt contends that the State failed to prove beyond a rea sonable doubt that he was an SVP as define d by the Act. When revie wing claims challeng ing the sufficie ncy of the evidenc e, we consider whether any rational trier of fac t would have found the evidenc e, draw ing all rea sonable infere nc e s in th e State’s favor
, established the elements of the offe nse. Lieberman
, 379 I ll. App. 3d at 598. When considering such claims, the revie wing court does
not retry the responde nt, as the trier of fac t (the jury in this instance) was in the best position
to weig h evidenc e and assess the cre dibilit y of the testimony and evidenc e prese nted at trial. W heele r , 226 I ll. 2d at 114-15. ¶ 63 In order to establish that responde nt was an SVP under the Act, the State had to show that he was a person convicted of a s ex u al o ff ense, he had a mental disorder, and he was dang erous to others beca use his mental disor d er cre ated a substantial probability that he would eng ag e in acts of sexual violence. 725 I L CS 207/5(f), 15(b)( 1)(A)
, (b)( 4), (b)( 5) (West 2010). At trial, the State had the burden of proving beyond a re as o n ab l e d oubt the above criter ia. 725 I L CS 207/35(d)(1) (West 2010). Responden t d o es not dispute that the State established t h e fi rst criterion–that he was convicted of a sexually violent offe nse. Rather, responde nt asserts that the State f ailed to establish the sec ond and third cr iteria. ¶ 64 Respondent maintains that b ec au s e t h e S t ate’s expert witnesses’ testimony about the mental disorder that he was diag nosed with–pedophilia–conf li c te d w it h the DSM-IV-TR, the State failed to show that responde nt had a mental disorder. In particula r, responde nt asser

ts that the State’s experts diag nosis conflicte d with the manual, beca use the onset ag e differ ed from that in the manual. Notably
, both Dr. L eavitt and Dr. Gaskell initially stated that responde nt met the criter ia for pedophilia, beca use of the onset ag e of 16 as ref lected in the manual. Yet, they discovere d afte r their evaluation that the responde nt was actua lly 15 y ear s old and 8 months when he committed the first offe nse that they considere d in forming their opinions. ¶ 65 Additionally
, responde nt maintains that the State’s experts contra dicted eac h other to the
extent that one expert testified that responde nt’s pedophilia alone cr eate d the substantial probability of rec idivism
, wher eas the other indicated that his pedophilia and the antisocial
persona lity disorder cre ated the substantial probability that he would commit f uture acts of sexual violence. Whil e responde nt insists that his arg ument does not attack the cre dibilit y of the witnesses, we disag ree

. The jury
, as the trier of fac t, was fre e to deter mine the cre dibilit y of t h e State’s witnesses in considering whether the State proff ere d sufficie nt evidenc e to

-15-show that responden t suffe red from a mental disorder. The jury ’s finding s reg arding

cre dibilit y are acc orded g reat weight. W heele r , 226 I ll. 2d at 115. As the rec ord contains

s u fficie nt, uncontrove rted testimony from the State’s witnesses th a t r e s p o n d e nt s u f

f e r e d f r o m a mental disorde r of pe dophilia, we re ject re spondent’s ar gument. ¶ 66 Fur

thermore
, responde nt asser ts that the State failed to prove the third element–that the mental disorder cre ated a substantial probability that he would commit future acts o f violence. For purposes of the Act, substantial probability is define d as “more likely than not.” (Interna l quot at i o n marks omi tted.) In re Detention of Bailey
, 317 I ll. App. 3d 1072, 1086 (2000). In particula

r, re spondent cha lleng es the experts’ use of the actua rial instruments in making their diag nosis, claiming that the instruments wer e not reliable source s in the field. Ag ain, we find responde nt’s arg uments attack the cre dibilit y of the witnesses’ testimony

. As

we prev i o u s ly stated, the jury
, as the trier of fac t, was fre e to assess cre dibility of the witnesses’ testimony about why they utiliz ed cer tain actua rial instruments. W

heele r , 226 I ll. 2d at 114-15. Respondent’s counsel vigor ously cross-e x amined the witnesses about the reliability of the actua

rial instruments, how they score d responde nt based upon the actua rial tools, a nd the ultimate conclusion re ache d about the responde nt’s high risk of reof fending

. Both also testified that they considere d dy namic fac tors, along with the actua rial instruments used, in forming their opinions. The jury was fre e to consider their testimony and assess the
appropr iate cre dibilit y of their testimony

. App ar en tly
, the jury found their unref uted testimony cre dible as it returne d a verdic t in the State’s favor finding that these two elements, along with the first reg arding the underly ing conviction for a sexual offe nse, had been proven beyond a rea sonable doubt. Acc ording ly
, responde nt’s challeng e to the sufficie ncy of the evidenc e ag ainst him fails.

¶ 67 Dispositional Hearing ¶ 68 Finally
, we consider responde n t ’s claim that the trial judge denied him a dispositional hear ing as mandated by the Act (725 I L CS 207/40(b)(1) (West 2010)) befor e enter ing the commitment order

. Alternatively
, he argues that the trial court fa i l ed to conduct a “mea ningf ul” dispositi on hearing following the entry of a judgme nt o n the jury ’s verdic t fi nding him to be an SVP. As responde nt’s claim prese nts a question of st at u t o ry interpre tation, our review is de novo

. P eo p l e v. Gu tman , 2011 I L 110338, ¶ 12; Taddeo v. Board of T

r u s t ee s of the Illinois Municipal Retireme nt Fund
, 216 I ll. 2d 590, 595 (2005). The primar

y objective in construinga statute is to asce rtain and e ffe ctuate the intent of the leg islature, best acc omplished by viewing the statute’s plain and ordinary languag e. People

v. Amigon
, 239 I ll. 2d 71, 84-85 (2010). The statute is considere d as a whole, with words and phrase s considere d in light of other statutory provisions; each w ord and phrase is g iven i ts

rea sonable meaningand not consider ed super fluous. People e x rel. She rman v. Cryns
, 203 I ll. 2d 264, 279-80 (2003). “We may not depar t from the statute’s plain languag e by rea ding in exceptions, limit ations, or conditions that conflict with the leg islature’s intent.” Amigon
, 2 3 9 I l l. 2d at 85. Fur

thermore
, we do not construe a statutory provision to intend ab s u rd
, inconvenient, or

unjust results. People v . Christ opherson , 231 I ll. 2d 449, 454 (2008). ¶ 69 The provision re g ardingdispositi onal hear ings under the Act provides in releva nt part:

-16-“The court shall ente r an initial commitment order unde r t his Section pursuant to a hear ing held as soon as prac ticable afte r the judgme nt is enter ed that the person *** is a sexually violent person. I f the court lacks sufficie n t i n fo rm ati on to make the deter mination require d by para g raph (b)( 2) of this Section immediately afte r trial, it
may adjourn the hear ing and order the Depa rtment [of Huma

n Service s] to conduct

a predisposition investiga tion or a supplementary mental ex amination, or both, to assist the court in fra

ming t h e commitment order .” 725 I L CS 207/40(b)(1) (West 2010).
Immediately afte r enter ing the judgme nt on the jury ’s verdic t finding responde nt was an SVP under the Act, t h e t ri al judge asked responde nt’s counsel, “what’s next? ” Respondent’s

co u n s el responde d that “I believe we have to selec t a date.” The State then mo v ed fo r immediate entry

of an or der c ommitt ing r espondent to instituti onal ca re a nd treatment in a

secur e DHS fac ility

. Respondent’s counsel o b j ec t ed, indicating that he wished to prese nt

cer tain evidenc e that had not been adduce d at trial. In overr uling the objection, the trial judge stated:
“B ased on the evidenc e that I hear d from the two expert witnesses, about the substantial background and pattern of behavior
, I believe I am allowed statutorily to find that he now be sent for treatment. That’s what I am ordering, that he g o to the [t reatment and detention fa cility ] for treatment pur suant to statute.”
Fur ther, responde nt points to the trial judg e’s continued comments following responde nt’s objection:
“I f we have a

dispositi onal hea

ring . Ithink pursuant to statute I ’m entitled at this stage based on what I hear d, to make that deter mination independe ntly

. So t h at ’s wh at I am g oing to r ule.” ¶ 70 Respondent maintains that the Ac t re q u i re d a h ea ri ng that enable d him to present additional evidenc e and testimony befor e the commitment order was enter ed

. Respondent

ar gues that the proce eding was nece ssary , beca use he could not prese nt evidenc e agai n s t commitment or for conditional rele ase in his case -in-chie f as he would be admitting that he

was an SVP. He also insists that the trial judge ’s commitment order here was enter ed without considering the criter ia set forth in section 40(b)( 2) of the Act (725 I L CS 207/40(b)(2) (West 2010)). Sec tion 40(b)(2) of the Act pr ovides, in releva nt part: “In deter mining whether commit ment shall be for ins t i tu tional car e in a secure fac ility

or for co n d i t i o n al rele ase, the court shall consider the nature and circ umstance of the b eh av i o r 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 treatment.” 725 I L CS 207/40(b)(2) (West 2010). ¶ 71 Respondent corr ec t l y n o t es t h at t h i s s t at u t o ry q uestion prese nts an issue of first impression for the First District o f t h i s court. In support of his contention that the Act require s a separ ate dispositi onal hearing, responde nt cites t h e Third District’s ruling in People v. W

i n terhalter
, 313 I ll. App. 3d 972 (2000). He also provides the dictionary definitions of selec ted words, such as “shall,” “hea ring ,”and “pursua

nt,” contained in section

-17-40(b) of the Ac t to buttress his argument. Whil e notinga contra ry ruling was issued by the Seco n d Di s t ri ct of this court in In re Detention of Titt lebach
, 324 I ll. App. 3d 6 (2001), responde nt argues Titt lebach was wrong ly decide d, beca use the Titt lebach co u rt failed to comply with statutory interpre tation rules, including ignor ing languag e in section (40)( b)(1) of the Act by considering languag e in the prec eding section (see 725 I L CS 207/40(a) (West 2010)). ¶ 72 The S tate, on the ot her h an d
, descr ibes the conflict in ruling s as “ill usory ,” agr ees that the stat u t e require s a hearing in enter ing the commitment order
, and frames the g erma ne issue as whether the provision vests the trial court with discretion over the scope of hear ing. 4 W e need not deter

mine whether Titt lebach was decide d wrong ly
, which we do no t , as we revie w this question of law de novo

. Gutman
, 2011 I L 110338, ¶ 12. Additionally
, we are not bound by the decisions of o t h er ap pellate districts ( O’Casek v. Children’s Home & Aid Society of I

llinois , 229 I ll. 2d 421, 440 (2008)) or the trial c ourt’s implied interpre tation as part of our de novo revie w (see Hartz Construction Co. v. Village of W estern Springs
, 2012 I LApp (1st) 103108, ¶ 23 ( de novo revie w involves examining evidenc e unconstra ined by the trial cour

t’s rea soning) ). ¶ 73 Guided by well-e stablished statutory interpre tation rules, we h o l d t h at the Act’s plain languag e require s the trial court to conduct a hearing befor e entering the commitment order

. 725 I L CS 207/40(b)(1) (West 2010). Simi larly
, we construe the Act as g ranting the trial court discretion not to adjourn the proce eding s wher e the court b el ieves neither a supplemental examination nor a predisposition investigation is require d in fra ming its commitment order

. 725 I L CS 207/ 40(b)( 1) (West 2010). Continuation of a hea ringlies within the trial court’s discretion. People v. W

eek s , 2011 I L App (1st) 100395, ¶ 30; Somers v. Quinn
, 373 I ll. App. 3d 87, 96 (2007). Howeve r, we find that the languag e in the Act does not allow the trial court to deny a re spondent his rig ht to present evidence and t estimony addre ssing the fac tors set forth in section 40(b)( 2) of the Act (725 I L CS 207/40(b)(2) (West 2010)) or in mitigation of commitment to a secure fac ility duringthe dispositional phase. ¶ 74 In the case sub judice
, the trial court proce eded with an immediate dispositi onal hea ring following the entry of a judgme nt on the j u ry ’s verdic t, despite responde nt’s reque st to

At the end of it s re spo nse bri ef
, the Sta te bal dly ass er ts tha t even if the tr ia l cou rt fa il ed to 4

c o n d uct a dis pos it ona l hea ri ng, any suc h fa il ure sho uld be con si der ed har m le ss error

. Wi tho ut el abo ra ti ng on an d ci ti ng to auth ori ty in sup por t o f t his ar gum ent , the poi nt is for fe it ed. See I ll

. S. Ct. R. 341 (h) (7) (e ff

. J uly 1, 2 008) ; W

alt ers v. R odr igu ez , 201 1 I L App ( 1st ) 1 0348 8, ¶¶ 5- 6. However, the Sta te con te nds
, in a pet it ion for re hea ri ng, tha t t h i s c o u r t overl ooked the
aut hor it y ci te d for it s ass er ti on. Wh il e we acknowl edge tha t the Sta te ci te d Tit tl eba ch
, 324 I ll

. App. 3d at 12- 13, and W

int erh alt er , 313 I ll

. App. 3d at 980, pri or to it s con cl uso ry st at ement, we not e tha t the W int erh alt er

and Tit tl eba ch cou rt s di d no t fi nd tha t the tr ia l cou rt s erre d at al l o r e ven app li ed har m le ss error ana lysis in how the cou rt s pro cee ded wit h the dis pos it ion al pha se fol lowi ng the SV P verdi ct s a nd j udgm ent s t her eon . As we con cl ude d that th e t ri al cou rt erre d i n the m ann er in whic h it pro cee ded wit h the dis pos it ion al hea ri ng base d up on t he r eco rd bef ore us (s ee ¶¶ 73- 74 her ei n), we f indth e St at e’ s r el ia nce on t he c ase s f or thi s po int is m is pla ced

.
-18-schedule a hear ing to allow him to prese nt a witness and have a predisposition eval u at i on

conducte d befor e the commitment order was enter ed. Even if the trial court deter mined that a predispositi on evaluation was u n nece ssary , the t rial court err ed and did not comply with the languag e in the Act when it failed to hold an immediate hear i n g o r adjourn the
proce eding s to aff

ord responde nt the opportunity to prese nt testimony to addre ss the fac tors outlined in section 40(b)( 2) of the Act befor e the commitment order was enter ed. Unlike the responde nts in W

interhalter and Titt lebach
, re s pondent here indicated that he wished to prese nt testimony for th e trial c o u r t’ s c o n s id e r ation reg arding the appropr iate dispositi on. See Titt lebach
, 324 I ll. App. 3d at 12; W interhalter
, 313 I ll. App. 3d at 981. Simpl y put, holding

an immediate heari n g or continuing the hear ing to allow responde nt to proff er additional evidenc e and testimony wo uld have serve d the interests of justice, namely
, framing the
appropr iate commitment order following the SVP finding

. People ex rel. Reid v. Adkins
, 48 I ll. 2d 402, 406 (1971). ¶ 75 The State insists that responde nt’s counsel sh o u l d h av e b ee n prepa red to prese nt any additional testimony or evidenc e at dispositi onal hearing immediately afte r trial as the trial d at es wer e set. Whil e the trial dates may have been set, responde nt was not required t o prese nt any evidenc e during trial as he was presumed innocent and the State had the burden of proof during trial. 725 I L CS 207/35(d)( 1) (West 2010) ; but see Titt lebach
, 324 I ll. App. 3 d at 9 (during bench trial, responde nt introduced testimony from doctor that addre ssed element of substantial probabilit y o f reof fending ); W

interhalter
, 313 I ll. App. 3d at 975 (during trial, psy chiatrist testified for responde nt that he was unlikely to commit future acts

o f sexual violence)

. Thus, responde nt did not have to prepa re a witness for a dispositi onal hear ing that may not have occur red. Additionally
, the Act provides for the initial commitment order to be enter ed “pursua nt to a hear ing held as soon as practicable after the judgment is entere d that the person *** is a sexually violent person.” (Emphasis added.) 725 I L CS 207/40(b)(1) (West 2010). “As soon as prac ticable” does not nece ssarily mean that the hear ing had to oc cur immediately afte r trial. Adjourning the proce eding s, even if for a day
, wo u l d have been practica ble t o allow i ntroduction of additi onal t estimony or evidence f o r the trial judge ’s considera tion in framing the commitment order

. Since respond en t wa s order ed detained in a secur e DHS fac ility pending the proce eding s, there was no dang er that responde nt would be re lease d befor e the dispositional hearing c oncluded. ¶ 76 I n its petition for rehea ring
, the S tate also urg es us to rec onsider our findingreg ar d i n g responde nt’s claim about the dispositi onal hear ing co n ducted following the trial court’s judgme nt on the jury ’s verdic t finding him to be an SVP. Fr om the outset, we note, and the State acknow ledg es, that its citation to an unpublished order in this court lacks prec edential value as I llinois Supreme Court Rule 23(e) (1) (ef f. J uly 1, 2011) expressly p ro v i d es that “[a]n order enter ed under *** this rule is not prec edential and may not be cited by any party .” See also People v. Powell
, 2012 I L App (1st) 102363, ¶ 14 n.3; Voris v. Voris
, 2011 I L App (1st) 103814, ¶ 17. Howeve r, a party can cite to such an order “to support co n t en t ions of double jeopar dy
, res judicata , collater al estoppel or la w of the c ase.” I ll. S. C t. R. 23(e)(1) (ef f. J uly 1, 2011). Acc ording to the State, the unpublished order involves “nea rly identical fac ts” to those prese nted in the instant appea l, the same trial court judge
, and the same trial counsel who repr esente d responde nt there also repr esents the responde nt here
, in bolstering

-19-its argument that we consider the unpublished order ’s analy sis and conclusion. Howeve r, the

law of the case doctrine would bind us to the ruling wher e t h e s ame issue and identical parties wer e befor e this c ourt. See, e.g. , People v. Y oung , 263 I ll. App. 3d 627, 633 (1994). Whil e the issue reg arding the dispositi onal hear ing prese nted in the appea ls is the same, the
separ ate case s invol v e d i ff er en t responde nts; thus, we are not bound by the ruling of the unpublished order

cited by the State. ¶ 77 Ad d i t i o nally
, the State reque sts that we clar ify our ruling conce rning d i s p o s i t i o n al hear ings conducte d under the Act as the bases for our decision “will lead to confusion
reg arding the timing and scope of dispositi onal hear ings within the [F i rs t ] Di s t rict.” In support of its asser

tion, the State quotes from this court’s opinion finding that the “trial court

err ed and did not comply

with the languag e in the Act when it failed to hold an immediate hear ing or

adjourn the proce eding s.” Supra ¶ 74. Yet, the State overlooks the rema inder of the sentenc e to provide the full context of our finding that “[e]ven if the t ri al court deter mined that a predisposition evaluation was unnece ssary , the trial court err ed and did not comply with the languag e in the Act when it failed to hold an immediate hear ing or adjourn the proce eding s to aff

ord responde nt the opp o rt u n i t y t o prese nt testimony to addre ss the fac tors outlined in section 40(b)( 2) of the Act befor e the commitment order was enter ed.” Id

. Contrary to the State’s asser tion, this finding does not forc e a trial court to order a

sup p l em en tal evaluation. As we previously stated, we interpre t the rele vant statutory provision as g ranting a trial court discretion to proce ed without order ing a p re liminary examinati o n i n fra

ming its commitment order

. Supra ¶ 73. Our finding relates to a dispositi on hear ing that does not aff ord the resp o n d en t the opportunity to prese nt other testimony or ev i d en ce reg arding dispositi on, i.e.
, testimony or evidenc e in favor of conditional rele ase ve rsus detention in a sec ure f acility

. Id

. ¶ 78 Simi larly
, our finding does not a g gr a v a te th e p r a c ti c al conseque nces of timely conducting dispositi onal hearings, enter ing commitment order s, or scheduling subsequent examinations to frustrate the purposes of the Act. Particularly
, we disag ree that our findingwould cre ate “leng thy continuance s” or undue delay s. As most parties, namely
, the State and responde nts’ attorney s, will be familiar with the Act and proceed i n gs there under, judicial economy and the timely administration of justice ca n be met in the pl anning of wit nesses in the eve nt of

an i m mediate dispositi onal hear ing following entry of judgme nt on the jury ’s verdic t

. L ikewise, a trial court can adjourn the proce eding s to conduct or schedule a dis p o s i t i o n al hear ing to aff

ord the responde nt the opportunity to pr esent and prepa re any witnesses in an expeditious manne r and avoid undue delay in fra ming and enter ing the appropr iate commitment o rd er

. Notwithstanding the State’s implication, the two conce pts are not mutually exclusive.

¶ 79 CONCLUSI ON ¶ 80 I n s u m , we conclude that the challeng ed rema rks by the prosec ut o r du ri n g cl o s i n g argument, including alleg edly arguing testimony from expert witnesses as substantive evidenc e i n v i o l at i o n of W ilson v. Clark
, 84 I ll. 2d 186 (1981), wer e proper and did not

v i olate order s in limine or improperly shift the burden of proof to responde nt to war rant a

-20-new trial. Consequently
, we also conclude that the trial court did not abuse its discr etion in

denying responde nt’s motion for a mistrial based upon the alleg edly improper comm ents. Fur ther, we find that the State proved beyond a rea sonable doubt that responde nt was an SVP

as define d by the Act. Howeve r, we conclude
, based upon our interpre tation and construction of the Act, that the trial court err ed by n o t h o l ding a hear ing to aff ord responde nt the opportunity to introduce tes timony and evidenc e as part of the dispositi onal phase. Acc ording ly , we va cate the commitment order a nd rema nd the ca use to the circ uit court to conduct a dispositi onal hear ing allowingresponde nt to present evide nce a nd testimony

for the trial judg e’s c onsideration in fra ming its commitment or der in a ccor dance with section 40(b)( 2) of the A ct (725 I L CS 207/ 40(b)( 2) (West 2010)).

¶ 81 Affir

med in part a

nd vacated in part; ca

use re manded.

-21-