ILLINOIS OFFICIAL REPORTS

Appellate Court

In re Commitment of Fields, 2012 IL App (1st) 112191

Appellate Court

Caption

In re COMMITMENT OF JUSTIN FIELDS (The People of the State of

Illinois, Petitioner-Appellee, v. Justin Fields, Respondent-Appellant).

 District & No. First District, Third Division

Docket No. 1-11-2191

Filed

Modified upon denial

of rehearing

November 14, 2012

December 28, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

In proceedings seeking the commitment of respondent as a sexually

violent person, the prosecutor’s remarks in closing argument allegedly

arguing expert’s testimony as substantive evidence did not improperly

shift the burden of proof, violate orders in limine or warrant a mistrial,

and although respondent was proved to be a sexually violent person, the

commitment order was vacated and the cause was remanded for a proper

dispositional hearing, since the trial court erred in failing to allow

respondent to present evidence at the dispositional stage.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 07-CR-80002; the

Hon. Michael B. McHale, Judge, presiding.

Judgment Affirmed in part and cacated in part; cause remanded.
Counsel on

Appeal

Law Offices of Chicago-Kent College of Law, of Chicago (Daniel T.

Coyne, Matthew M. Daniels, and Elizabeth D. Leeb, of counsel), for

appellant.

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,

Solicitor General, and Michael M. Glick and Lindsay Beyer Payne,

Assistant Attorneys General, of counsel), for the People.

Panel JUSTICE STEELE delivered the judgment of the court, with opinion.

Justices Neville and Sterba concurred in the judgment and opinion.

OPINION

¶ 1 Following a jury trial in the circuit court of Cook County, respondent Justin Fields was

found to be a sexuallyviolent person (SVP) under the SexuallyViolent PersonsCommitment

Act (Act) (725 ILCS 207/1 et seq. (West 2010)). The trial court subsequently entered an 1

order committing respondent to a secure facility for institutional care and treatment. On

appeal, respondent argues that: (1) he was denied a fair trial when the prosecution improperly

commented about his custodial status and nonparticipation in treatment, as well as

improperly argued testimony from the State’s expert witnesses as substantive evidence,

during its closing argument that shifted the burden of proof and violated orders in limine; (2)

the trial court erred in denying his motion for mistrial based upon the prosecution’s allegedly

improper remarks during closing argument; (3) the State failed to prove beyond a reasonable

doubt that he was an SVP under the Act; and (4) he was denied his right to a dispositional

hearing under the Act (725 ILCS 207/40(b) (West 2010)) before the commitment order was

entered. While we reject respondent’s challenges to the prosecutor’s remarks during closing

argument and the sufficiency of the evidence against him, we remand the cause to the trial

court to conduct a dispositional hearing allowing respondent to present testimony and

evidence for its consideration in framing the commitment order.

¶ 2 BACKGROUND

¶ 3 On August 23, 2005, the respondent, then 21 years old, was arrested and charged with

with approximately 20 counts for various offenses, including aggravated criminal sexual

The Act, which was enacted in 1998, authorizes the involuntary commitment of individuals

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beyond the time of release where the individuals are found to be sexually violent as defined by the

Act. In re Detention of Samuelson, 189 Ill. 2d 548, 551-52 (2000). Additionally, the Act provides

for periodic reexamination of such individuals to determine if they should be considered for

conditional release or discharge. 720 ILCS 207/55 (West 2010).

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abuse, aggravated kidnapping, and possession of a stolen motor vehicle, in Cook County

circuit court case number 05 CR 21674. He subsequently pled guilty to one count of

aggravated sexual abuse and one count of kidnapping stemming from the events involving

a nine-year-old male victim. He was sentenced to three years’ imprisonment in the Illinois

Department of Corrections (DOC).

¶ 4 Petition for Commitment

¶ 5 Prior to his mandatory supervised release, the State filed a petition on February 14, 2007,

for respondent’s involuntary commitment under the Act. The petition alleged, among other

things, that respondent was an SVP as defined by the Act; that respondent was diagnosed by

Barry Leavitt, Psy. D., as having the mental disorder of pedophilia; and that respondent’s

mental disorder made it substantially probable that he would engage in sexually violent acts.

Dr. Leavitt’s evaluation was attached to the petition.

¶ 6 On February 15, 2007, the trial court entered an order to have respondent detained in a

facility under the custody of the Illinois Department of Human Services (DHS). On July 25,

2007, the trial court entered a memorandum opinion and order finding probable cause for

respondent’s commitment under the Act following hearings that commenced on April 17,

2007, and concluded on June 18, 2007. Counsel for the parties filed jury demands on the

same date. Further, Lesley Kane, Psy. D., was appointed as the respondent’s expert to

conduct an assessment and evaluation of the respondent.

¶ 7 Pretrial Proceedings

¶ 8 Prior to trial, the parties engaged in discovery, including depositions and document

production, and respondent filed various motions. For the purposes of our discussion, this

section highlights motions in limine related to the issues raised on appeal. On August 30,

2010, respondent filed two motions in limine. One motion sought to limit testimony about

the respondent’s background proffered by the State’s witnesses only to show the bases for

their opinions and not as substantive evidence in accordance with Wilson v. Clark, 84 Ill. 2d

186 (1981). Respondent also requested an appropriate instruction for the jury. The second

motion sought to preclude any testimony regarding respondent’s custodial status, to which

the State objected.

¶ 9 On September 17, 2010, the trial court conducted a hearing on respondent’s motions. The

trial court granted the motion brought under Wilson, with no objection by the State. The trial

court agreed to provide a limiting instruction to the jury before each witness testified and

during closing instructions. The trial court also cautioned the State to preface comments

during closing arguments that the information was relied upon by the witnesses in forming

their opinions. As for the motion regarding respondent’s custodial status, the trial court

granted the motion in part, admonishing the State not to make “unnecessary or gratuitous”

references to respondent’s custodial status. In response to the State’s request for clarification,

the trial court indicated it was acceptable to ask routine questions, such as where an interview

with respondent occurred, and noted respondent’s custodial status would come up in

anticipated discussion regarding disciplinary tickets contained in respondent’s master file.

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Indeed, the trial court expected the term “did” would have to be used relative to respondent’s

conduct while in custody.

¶ 10 Trial Proceedings

¶ 11 After some continuances, the jury trial was scheduled to begin on March 22, 2011. On

March 22, 2011, the jury was selected. Before the trial proceedings began the following day,

respondent moved in limine for the trial court to instruct the jury before and after every

witness’s testimony, as well as prior to deliberations, about the limited purpose of their

testimony about respondent’s background under Wilson in explaining the bases for their

opinions and not as substantive evidence. The State objected to the limiting instruction being

read after each witness’s testimony. Referring to his notes when the issue was previously

raised, the trial judge denied the request and indicated he would issue the limited instruction

to the jury before each witness testified and with the closing instructions. The court then

proceeded with other preliminarymatters, including admonishing the juryabout respondent’s

innocence until proven guilty, the State having the burden to prove beyond a reasonable

doubt its allegations, and the opening statements by the parties were not evidence. The State

called Dr. Leavitt as its first witness. Before he testified, the trial judge cautioned the jury,

consistent with the order in limine, about the limited purpose of his testimony.

¶ 12 Leavitt Testimony

¶ 13 Dr. Leavitt testified that he was a licensed psychologist in Illinois and had been licensed

to practice for approximately 25 years. He had his own clinical and forensic practice that

involved general and psychological treatment of juveniles and adults individuals, and

specialized forensic assessments ofsexuallyviolent persons in Illinois and other jurisdictions

and of issues that may be relevant in court. He previously worked for about 25 years with

Affiliated Psychologists, a clinical and forensic practice located in Chicago, Illinois, that had

a contract with the DOC to conduct screenings. He described his educational background,

which included a doctoral degree and a master’s degree in clinical psychology. Over the last

25 years, he specialized in the general area of sexual abuse, with the last 15 or more years

focusing in the area of evaluation and risk assessments of juvenile and adults who had

committed assorted sexual offenses. He noted that the “far majority” of evaluations did not

result in SVP referrals. Since 1998, he had conducted nearly 200 evaluations of sex offenders

and SVPs. Moreover, he had conducted or overseen approximately several thousand

screenings for the DOC’s sexually violent persons unit while working at Affiliated

Psychologists. Along with membership in various professional organizations, he had been

approved by the Illinois Sex Offender Management Board regarding assessment and

treatment of adult and juvenile sex offenders. He had testified and been qualified as an expert

in clinical and forensicpsychology,specificallyregarding sex offender evaluations, diagnosis

and risk assessments, over 100 times in Illinois courts throughout the state. The State

tendered Dr. Leavitt as an expert witness. The trial court qualified him as an expert, with no

objection by the respondent.

¶ 14 Dr. Leavitt testified that he was familiar with the general purpose of the Act. He

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explained the DOC’s responsibility related to the Act to screen, evaluate, interview, and

identify persons who met the criteria, and report opinions about potentially eligible persons

to the Attorney General’s office for consideration. In 2007, Affiliated Psychologists had a

contract with the DOC to conduct screenings, evaluations, and interviews. He reiterated that

about 90% of the individuals screened did not meet the necessary criteria for commitment

under the Act (due to no diagnosis and/or no risk), and that less than 5% were referred to the

next phase after screening. He conducted a clinical evaluation of the respondent, who was

scheduled for release on February 19, 2007, to determine if he was a candidate for

commitment under the Act. Respondent agreed to the interview, which lasted approximately

31⁄2 hours, and only the two of them were present. He stated that he followed the standard

protocol in evaluating respondent. Prior to his interview with respondent, he reviewed

records made available by the DOC, such as respondent’s master file, which consisted of

disciplinary reports, criminal history (with details about the offense for his current

imprisonment), medical and health evaluations, and other materials available in his

correction file, along with police reports and treatment evaluations. He testified that these

documents were the type reasonably relied upon by experts in the field when conducting

evaluations, and that he relied upon these documents in evaluating respondent. He prepared

a written evaluation on February 12, 2007. At some point after his report, he learned

respondent’s birth date on the report, which was based upon the records he reviewed, was

inaccurate as respondent was a year younger than the date on the records.

¶ 15 Dr. Leavitt testified that respondent’s criminal history was relevant in forming his

opinion. He testified about a 2005 offense involving aggravated criminal sexual abuse and

kidnapping, to which respondent pled guilty and for which he was sentenced to three years’

incarceration after being charged with over 20 counts. When respondent was 21 years old,

he asked a 9-year-old male whom he knew to get into a stolen car that respondent was

driving and offered to buy gym shoes for the minor. Respondent drove to a vacant or

abandoned apartment building where he fondled the minor’s genitals while the child was

lying on the floor. According to the record Dr. Leavitt reviewed, respondent refused to stop

at the victim’s request. When the victim began crying, respondent stopped, drove the victim

to a gas station, and told him to walk home. He also reviewed respondent’s signed

handwritten statement confessing to his actions and expressing experiencing sexual arousal

from the encounter. Respondent denied committing the offense when he met with Dr.

Leavitt.

¶ 16 He also considered an offense that occurred on May 24, 2000, when the respondent was

15 years and 8 months old and was riding a bicycle with a 9-year-old male on the back.

Respondent rode into an alley, turned around, and fondled the minor’s genitals through his

sweat pants. Although respondent was initially charged with criminal sexual assault, he

eventually pled guilty to simple battery, was adjudicated a delinquent, and sentenced to

probation. The victim’s mother requested that respondent be charged with a lesser offense

if he received counseling. Dr. Leavitt testified that respondent also denied committing this

offense during their meeting. Although the respondent’s conviction was for simple battery,

he considered the offense and stressed that viewing the details of a given case was important

because many offenses contained a sexual component that was helpful in understanding

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potential mental disorders and potential risks.

¶ 17 Dr. Leavitt testified that the details surrounding these offenses were important for two

primary reasons: both offenses involved nine-year-old males and the second incident

reflected an escalation in respondent’s behavior from the first offense.

¶ 18 Dr. Leavitt further testified he considered respondent’s nonsexual juvenile and criminal

historyin forming his opinions. He testified about respondent accruing curfew violations and

school truancy beginning at age 10; being expelled from his home at age 12; being adjudged

delinquent and charged with aggravated arson at age 14; selling drugs between ages 15 and

17; and being in and out of various juvenile detention facilities from ages 13 to 18.

Additionally, he referred to records showing respondent reportedlyused aliases and different

birth dates during contact with law enforcement. He also testified about respondent’s

intimate life, as respondent stated that he could not meaningfully relate, including sexually,

to anyone near his age. During their interview, respondent described having a relationship

with a much older woman prior to his imprisonment and dating older women while an

adolescent.

¶ 19 Moreover, Dr. Leavitt testified that respondent’s behavior while in DOC custody was

relevant in forming his opinion. He testified about two particular incidents involving sexual

misconduct that occurred while respondent was in the DOC’s juvenile division. The first

incident, which occurred in February 2002, involved the staff observing respondent “firmly”

grabbing another resident’s buttocks and laughing when the staff reprimanded him. The

second incident, occurring a few weeks later, involved the staff observing respondent trying

to retaliate against another resident by grabbing the other resident’s buttocks. Dr. Leavitt

indicated that these incidents demonstrated respondent’s inability or refusal to control his

impulses, even in a structured environment.

¶ 20 Dr. Leavitt opined about respondent’s behavior while in a DHS treatment and detention

facility that he found relevant. In March 2009, a drawing of a nude child with a male figure

standing over the child was discovered in respondent’s laundry. In April 2010, respondent

was investigated for creating and distributing child pornography on a flash drive to other

residents. The DVD reportedlycontained enlarged images of young children’s private parts, 2

such as genitals and buttocks. Dr. Leavitt admitted that he did not see the images depicted

in the drawing or on the DVD. He believed that this showed respondent’s preoccupation with

young males. During the four years while respondent was there, the records showed that

respondent had numerous notations and violations of rules, including a physical fight in July

2010 with a resident believed to be involved in the DVD investigation, which exhibited

respondent’s behavioral problems consistent with antisocial attitude.

¶ 21 He also testified about whetherrespondent participated in sex offender treatment. He did

not know if such treatment was offered while respondent was in DOC custody. He noticed

respondent briefly attended a few sessions early on before withdrawing. Respondent also

participated in a few groups, but overall, Dr. Leavitt saw no indication that respondent

The record refers to the material as a DVD and a flash drive. We will use the term “DVD” 2

in this opinion for consistency.

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participated in specific sex offender treatment for a sustained period. When theymet in 2007,

respondent told him that treatment “would be a waste of time,” but that he would attend if

required to do so.

¶ 22 Dr. Leavitt testified that he relied upon the Diagnostic and Statistical Manual of Mental

Disorders (Fourth Edition) Text Revised (DSM-IV-TR), an authoritative manual in his field,

in making his diagnosis. He formed an opinion, within a reasonable degree of psychological

certainty, that respondent suffered from a mental disorder of pedophilia, with a secondary

diagnosis of antisocial personality disorder. He also testified about the age of onset for an

offender in diagnosing pedophilia disorder as respondent was 15 years and 8 months old

when he committed the 2000 offense. He opined that the incidents in the DHS facility

confirmed his opinion as they involved continued sexually deviant behavior, even in a

structured environment. He emphasized that pedophilia is the mental disorder affecting

respondent to commit future sexually violent acts and described how the two diagnoses

worked together, with the secondary diagnosis serving as an additional risk factor regarding

respondent’s refusal or inability to adhere to any external controls.

¶ 23 Dr. Leavitt testified about the criteria he considered in making his diagnosis of

respondent’s antisocial personality disorder: since age 15, he demonstrated a general

disregard and disdain for rules and welfare of others, manifested by the tendency to break

societal rules that led to arrest and/or incarceration, and the disciplinary violations that

respondent accrued.

¶ 24 Dr. Leavitt used and relied upon three actuarial instruments in forming his opinion. The

Static 99, which was the most widely used in the field for placing an individual in the risk

category of recidivism, contained 10 items. A score of six or higher was considered high risk

of reoffending; respondent scored an eight. The Static 99R was a revised version of this

instrument and included an adjustment of the age-related (and first) factor. Respondent also

scored an eight on this instrument, which placed him in a high risk category. Dr. Leavitt also

utilized the Minnesota Sex Offender Screening Tool Revised (MnSOST-R) that contained

16 items. The score was based on a combined record review and self-reported information

to place the individual within a risk category over a six-year period of time to determine

whether the person would be re-arrested for committing a sexually offensive act. Using this

instrument, respondent scored nine, which placed him in a high risk category. Dr. Leavitt

explained that this score translated into a 57% likelihood of an arrest for a sexual offense

within six years. He noted that the actuarial tests were starting points and were more likely

to underestimate the risk of reoffending.

¶ 25 In addition to the instruments, Dr. Leavitt testified about dynamic factors (potentially

changeable factors) he considered that furthersubstantiated understanding of an individual’s

risk level. He viewed respondent’s history in applying five factors. First, he testified about

respondent’s early onset and persistence and/or preoccupation with young male children and

difficulty controlling impulses. Second, he noted respondent’s lack of meaningful sexual or

dating relationships with age-appropriate persons.Third, he cited respondent’s difficultywith

sexual impulses and urges, anger, and lack of appreciation for self. Fourth, he testified about

respondent’s long-standing history of antisocial behavior, showing “clear resistance to

supervision,” and resistance to personal change. Finally, he addressed relevant protective

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factors, namely, what respondent had done with respect to sex offender specific treatment

and the person’s age. He found no protective factors applied to respondent. He noted that

respondent was not over 50 or 60 years old and did not have a life-threatening health

condition that would reduce the risk of recidivism. He stated that the actuarial scores,

dynamic risk factors, and protective factors worked together in forming his opinion about

respondent’s potential for reoffending. He opined, to a professional degree of certainty, that

due to respondent’s pedophilia, therewas a substantial probabilityof respondent reoffending.

His conclusion was the same as when he first interviewed respondent in 2007, but was more

solidified as of the date of his testimony, based upon respondent’s behavior over the past few

years that included continued indications of pedophilia and antisocial behavior, even within

a highlystructured environment, and no sustained information of anysex offender treatment.

He updated his opinion by reviewing records dated up to February 14, 2011.

¶ 26 On cross-examination, Dr. Leavitt admitted that he had not met with or spoken to

respondent since the January 2007 interview. He did not speak with any other psychologist

who evaluated respondent or any of the victims or respondent’s friends, noting that speaking

to witnesses, victims, or persons involved in the investigation was not part of protocol. When

respondent’s counsel questioned him about how he determined the onset age for his

pedophilia diagnosis, Dr. Leavitt stated that the age at the time of diagnosis was relevant in

making his diagnosis. While he did not view the images on the DVD, Dr. Leavitt emphasized

that the reports he reviewed indicated that the DVD contained suggestive, sexual images of

young male children, which matched respondent’s victim profile. He also clarified the DVD

contained downloaded images, enlarged to focus on particular body parts, and were unlike

illustrations at issue with the other behavioral incident in DHS facility.

¶ 27 Although antisocial personality disorder was not the mental disorder that rendered

respondent an SVP under the Act, the disorder was a risk factor that increased the likelihood

of increased sexual acts and displayed respondent’s general propensity to engage in criminal

behavior. He emphasized respondent’s behavior, and not the age of residents involved in the

minor violations, was key as it demonstrated inappropriate behavior and disregard for rules

within the structured setting. While he considered the actions could have been horse playing

and did not consider whether they were imitating athletes by grabbing each other’s buttocks,

he distinguished respondent’s actions as firmlygrabbing the other resident’s buttocks, which

was uncommon and inappropriate, respondent laughed it off, and respondent repeated the

behavior two weeks later.

¶ 28 Respondent’s counsel questioned him about his use of the actuarial instruments. He

clarified that the instruments assessed the likelihood of reoffending and did not predict

whether respondent would reoffend. Dr. Leavitt emphasized that he considered the overall

offending behavior involved in the 2005 offense, not just that respondent reportedly lured

the victim into the car, in determining force used. Similarly, he testified that when he

reexamined the individual dynamic risk factors, he found respondent’s nonparticipation in

sex offender treatment rendered it unlikely in assessing whether such treatment was

meaningfully impacted.

¶ 29 On redirect examination, Dr. Leavitt stated that even after he found out about the age

discrepancy, his opinion regarding respondent remained unchanged. After the trial court

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overruled the objection, Dr. Leavitt explained that the enlarged images of the private areas

of characters on the DVD led to his conclusion that, minimally, sexually suggestive pictures

of young children were consistent with respondent’s victim profile and demonstrated

unresolved and continued preoccupation with young male children.

¶ 30 Gaskell Testimony

¶ 31 The State then called Dr. Steven Gaskell to testify. The trial judge admonished the jury 3

about the limited purpose for his testimony and advised the jury that it determined the

credibility of the witness’s testimony. Dr. Gaskell testified that he had been a licensed

psychologist for 12 years and was licensed in Illinois and Georgia. He stated that he had a

contract with the DHS to perform evaluations for sexually violent persons, which included

conducting evaluations of individuals already found to be SVPs, and to prepare

predisposition investigation reports and supplemental reports.

¶ 32 Dr. Gaskell testified that he received his bachelor’s degree in psychology from the

University of Minnesota and completed his doctoral degree from the Minnesota School of

Professional Psychology. He conducted evaluations for courts while working at a Georgia

hospital, and he performed SVP evaluations and gave expert testimony in Kansas courts. As

part of a contract with the DHS since July 2005 to perform evaluations for sex offenders and

potential SVPs, he conducted 325 evaluations for 150 sex offenders. In a clinical internship

at Florida State Hospital, he conducted pretrial evaluations and risk assessments. He was an

approved member of the Illinois Sex Offender Management Board for evaluations and had

training in use of actuarial instruments. He noted that he had been previously qualified as an

expert in clinical psychology, specifically regarding sex offender evaluation and risk

assessment. At this point, Dr. Gaskell was tendered and qualified as an expert in the field,

with no objection by respondent.

¶ 33 Dr. Gaskell testified that he conducted a clinical evaluation of respondent in 2007 to

determine if he was a candidate for commitment under the Act. He also testified that he

reviewed the respondent’s master file, prior reports, and behavioral and treatment records in

forming his opinion. His interview with respondent in late August 2007 lasted about 21⁄2

hours after respondent consented to the interview in an initial meeting with him in early

August 2007 that lasted about 11⁄4 hours. His interview was reduced to writing in a report

dated September 5, 2007. He prepared a subsequent report dated February 17, 2009, based

upon his review of respondent’s behavioral and treatment records. He also rendered an

addendum to the subsequent report (dated February 22, 2009) after conducting a

psychological status examination. Prior to his testimony, he indicated he reviewed the

records from the last examination on February 22, 2009, and dated up to February 14, 2011.

¶ 34 Dr. Gaskell testified about the documents and materials he considered in forming his

opinion. He noted that information regarding respondent’s criminal history was relevant for

Shortly before trial, the trial court granted respondent’s motion in limine to exclude

3

testimony from Dr. Gaskell regarding a rescored test that he conducted. He was permitted to testify

about his opinion based upon materials disclosed in discovery as of the February 14, 2011, deadline.

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forming his opinion. He testified about the 2000 offense and the 2005 offense, to which

respondent entered a guilty plea. He noted that both incidents involved nine-year-old male

victims. Furthermore, he considered at least eight findings of juvenile delinquency, with half

occurring prior to age 15 and the other half occurring after that age. He characterized the

findings as four for battery, one for arson, two for damage to property, and one for a

probation violation. He also discussed incidents that led to major violations for events

occurring in 2010 while respondent was in DHS custody. He stated that respondent

participated for one day in sex offender treatment while in custody.

¶ 35 Furthermore, Dr. Gaskell testified that he diagnosed respondent with pedophilia and

antisocial personality disorder to a reasonable degree of psychological certainty, both of

which made it substantially probable that respondent would commit future acts of sexual

violence. He also relied upon the DSM-IV-TR in making his diagnoses. He explained that

pedophilia usually began in adolescence and continued into adulthood. A pedophilia

diagnosis involved a person having, over a period of at least six months, recurring, intense,

sexually arousing urges, fantasies or behaviors involving sexual activitywith a prepubescent

child, the individual either had to have acted upon the urges or the urges themselves had to

have caused the person impairment or distress, and the individual had to be at least 16 years

old and at least 5 years older than the victim. He clarified that the 16-year-old age criterion

was the age at the time of diagnosis and applied to respondent because his behavior began

at age 15 years and 8 months and continued to the second offense, which occurred for a

period over five years. Respondent’s pedophilia was a congenital or acquired condition

affecting respondent’s emotional volitional capacity.

¶ 36 As for the antisocial personality disorder, Dr. Gaskell described the criteria as a

“pervasive pattern of disregard for and violation of the rights of others” occurring since the

individual was 15 years old and prior to that age. Based upon his review of the materials

provided to him about respondent, Dr. Gaskell opined that the materials showed the disorder

conduct manifested prior to age 15 due to his juvenile delinquency findings. He noted that

respondent had four or five juvenile delinquency findings prior to age 15. As an adult,

respondent had shown a failure to conform to social norms based upon his repeated acts

leading to arrests over 10 times and 3 convictions. He also discussed various other criteria

including deceitfulness, evidenced by repeated lying, use of aliases, and manipulating others

for personal gain or pleasure. Here, he cited respondent’s various aliases and birthdates, and

the manipulation involved in the 2005 offense leading to his conviction. Respondent

exhibited reckless disregard for the safety of others, evidenced by the 2000 and 2005

offenses, as well as several batteries and assaults on others.

¶ 37 Dr. Gaskell testified that respondent’s pedophilia predisposed him to commit future acts

of sexual violence, in that he had recurrent, sexual urges and fantasies to act with a child.

¶ 38 Dr. Gaskell testified about how he reached his opinion about respondent’s recidivism.

He stated that respondent scored in the high risk range on the two actuarial instruments used

to conduct a risk assessment. He also considered other risk and protective factors to reach

a total risk assessment. He utilized the Static 99 and the MnSOST-R, on both of which the

respondent scored an eight. He used two instruments, because neither instrument covered all

of the risk factors associated with sexual reoffending as they both had a different set of risk

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factors. In addition to the risk factors covered under the actuarials, Dr. Gaskell also used the

five dynamic risk factors based upon research affiliated with sex offender recidivism: sexual

interest in children, antisocial personality disorder, employment instability, early onset of

sexual reoffending, and separation from parents. He also considered factors that would show

a decreased risk of reoffending, such as age, health status, and progress in sex offender

treatment. As to respondent, none of the decreased risk factors were present, given that

respondent’s age was associated with the highest risk of recidivism, he had no health or

medical condition that would prevent him from reoffending, and he had only been in

treatment for one day. Based upon his review of the master file and all of the records, and the

results of the risk assessments utilized, Dr. Gaskell opined, with a reasonable degree of

psychological certainty, that respondent was substantially probable, or more likely than not,

to commit future acts of sexual violence. He also opined, to a reasonable degree of

psychological certainty, that respondent was dangerous due to his mental disorders that

predisposed him to commit such acts.

¶ 39 On cross-examination, Dr. Gaskell clarified that respondent’s pedophilia, coupled with

his antisocial personality disorder, predisposed respondent to commit future acts of sexual

violence. He stated that the personality disorder alone could serve as a basis for recidivism.

¶ 40 Respondent’s Case

¶ 41 Afterthe trial judge’s admonishments to respondent, respondent indicated that he did not

wish to testify. Although the State had not yet rested, respondent moved for a directed

finding, arguing about the witnesses’ conflicting testimony regarding which mental disorder

caused the risk of reoffending and the age onset of the mental disorder (pedophilia) at issue.

The trial judge denied the motion. At the end of the State’s case, the State sought to enter a

certified copy of respondent’s 2005 conviction into evidence. During a sidebar, respondent’s

counsel objected to the entire document being published to the jury, because it contained the

other counts for which he was not convicted. When the jury returned, the prosecutor noted

to the jury, once the exhibit was admitted, that the certification established that respondent

had been convicted of the sexual offense counts in 2005. The State then rested.

¶ 42 The respondent rested without presenting any witnesses or other evidence on his behalf.

¶ 43 Closing Arguments, Jury Deliberations and Commitment Order

¶ 44 Following closing arguments and the trial judge’s instruction to the jury, the jury

deliberated and returned a verdict finding respondent was a sexually violent person as

defined by the Act. Immediately following the trial court’s entry of judgment on the verdict,

the State then requested entry of an order committing respondent to a secure facility for

detention and treatment. Respondent’s counsel objected, indicating that he had a witness he

wanted to present in support of a request for conditional release and requested a

predisposition evaluation be conducted. The trial judge overruled the respondent’s objection

and determined that he had sufficient information based upon the testimony presented at trial

to enter an order committing respondent to a secure facility for treatment.

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¶ 45 Posttrial Proceedings

¶ 46 On April 22, 2011, respondent filed a posttrial motion seeking a new trial, or

alternatively, to set aside the verdict and vacate the order of commitment to provide for his

conditional release. The motion contended that the trial court committed various errors,

including allowing the State to shift the burden improperly to him by the prosecutor’s

remarks about his custodial status and denying his motion for retrial after the prosecutor’s

improper comments that violated the orders in limine regarding the limited use of the

experts’ testimony during closing argument, and that the State failed to prove that he suffered

from a mental disorder that made it substantially probable he would commit future acts of

sexual violence as required by the Act. Following a hearing on June 13, 2011, the trial court

denied respondent’s motion. The respondent filed a timely notice of appeal with this court

on July 12, 2011.

¶ 47 DISCUSSION

¶ 48 In the instant appeal, respondent argues that the State’s improper remarks during its

closing argument violated the orders in limine and denied him a fair trial, contends the trial

court erred in denying his motion for mistrial following the State’s improper remarks,

challenges the sufficiency of the evidence that he was an SVP under the Act, and asserts that

the trial court denied him his right to a dispositional hearing under the Act. We will address

each argument in turn.

¶ 49 Propriety of Prosecutor’s Remarks During Closing Argument

¶ 50 We first consider respondent’s claim that the prosecutor impermissibly commented on

his custodial status and argued expert testimonyallowed under Wilson v. Clark, 84 Ill. 2d 186

(1981), as substantive evidence during its closing argument that violated orders in limine and

deprived him of a fair trial. Before we discuss the merits of respondent’s argument, however,

we address the appropriate standard of review.

¶ 51 As the parties’ briefs reflect, there is an apparent conflict among the districts in this court,

including within our own First District, regarding the applicable standard of review on this

issue following our supreme court’s rulings in People v. Blue, 189 Ill. 2d 99 (2000), and

People v. Wheeler, 226 Ill. 2d 92 (2007). It is well established that prosecutors have wide

latitude in making closing argument. Wheeler, 226 Ill. 2d at 123. The prosecution is allowed

to comment on the evidence and draw reasonable inferences from the evidence. In re

Commitment of Kelley, 2012 IL App (1st) 110240, ¶ 42. Prosecutorial misconduct in closing

argument warrants a new trial and reversal if the improper comments were a material factor

in the respondent’s conviction. Wheeler, 226 Ill. 2d at 123. “If the jury could have reached

a contrary verdict had the improper remarks not been made, or the reviewing court cannot

say that the prosecutor’s improper remarks did not contribute to the defendant’s conviction,

a new trial should be granted.” Wheeler, 226 Ill. 2d at 123 (citing People v. Linscott, 142 Ill.

2d 22, 28 (1991)). Our supreme court has repeatedly denounced and affirmed its intolerance

for prosecutorial misconduct. See Wheeler, 226 Ill. 2d at 121-22 (and discussion and cases

cited therein).

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¶ 52 In Wheeler, 226 Ill. 2d at 121, which respondent cites, the supreme court found that

determining whether the prosecutor’s remarks were so egregious as to warrant a new trial is

an issue reviewed de novo. Although the State acknowledges Wheeler, the State reasons that

our review of such comments is for an abuse of discretion since the ultimate determination

revolves around questions of fact. The State asserts that Wheelerfavorably cited Blue, which

pronounced the abuse of discretion standard for reviewing a prosecutor’s remarks during

closing argument. See Wheeler, 226 Ill. 2d at 121-22. In People v. Land, 2011 IL App (1st)

101048, ¶¶ 148-50, the sixth division of the First District discusses various opinions,

including rulings from different divisions of the First District, containing different analyses

of the standard of review when considering the propriety of the prosecutor’s remarks in

closing argument. We need not weigh in on the disagreement, as we conclude that the State’s

remarks were proper under both standards. See Land, 2011 IL App (1st) 101048, ¶ 151.

¶ 53 Having addressed the standard of review, we now consider the specific remarks made by

the prosecutor that the respondent challenges. The State argues, however, that the respondent

has forfeited review of certain remarks 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 preserve an issue

for appeal, the party must state objections during trial and in a written posttrial motion.

People v. Enoch, 122 Ill. 2d 176, 186 (1988). A failure to do so results in forfeiture of the

claim on appeal. Id. Nonetheless, we consider the complained-of comments, even those

remarks that were not timely objected to, made in the entire context of the closing argument.

In considering respondent’s claim, we focus on the remarks properly preserved for appeal.

See Wheeler, 226 Ill. 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 warrant a new trial. Respondent challenges the State’s following remarks made

during closing arguments:

“THE STATE [Assistant State’s Attorney]: [Respondent] has been you have heard

since 2007, in a department of human services facility that focuses in–

MR. COYNE [respondent’s counsel]: Objection.

THE COURT: Overruled.

THE STATE: That focuses in specifically on sex offender treatment. And he has

refused to participate in sex offender treatment.”

¶ 55 Respondent also challenges the prosecutor’s continued closing remarks that, “[y]ou heard

he’s had over 25 probation violations.” The trial court overruled respondent’s objection. This

statement was made at the end of the following remarks by the State, which provide the

context in which the statement was made:

“Now we all know that people can touch other people inadvertently.

But this touching was such that this little boy felt so uncomfortable that he went to

his mother. And his mother was reasonable in that case. You heard that from the doctors.

And said to the police, look, even though you’re qualifying this as criminal sexual abuse,

I will agree to have it go into the juvenile system as a battery if he gets help.

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***

You heard how he continued, even after that sexual contact with the police, with this

sexual offense, he continued to be in and out of juvenile detention during his juvenile

years, into his adulthood. You heard how he committed cases of arson and criminal

damage to property, how he possessed stolen motor vehicles. He has criminal trespass

to vehicles. He’s had assaults.”

¶ 56 Respondent then asserts that the State concluded its remarks by stating, “[l]adies and

gentlemen, just all that in and of itself before you, without an expert opinion, anyone can say

there’s something wrong here.” While respondent’s argument continues that the State

commented in detail about respondent’s behavior in the DHS facility, the text provides the

relevant context in which the statements were made that we must consider. In particular, the

prosecutor then refers to the two expert opinions proffered from psychologists whose

opinions on the diagnoses were “solidified” because of respondent’s behavior at the DHS

facility. Clearly, the State was arguing about respondent’s behavior considered bythe doctors

in forming their respective opinions, which was in line with Wilson and the orders in limine.

Similarly, the State’s remarks did not improperly shift the burden of proof to respondent, but

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

sex offender treatment was considered in their risk assessment to determine the substantial

probability of respondent committing future acts of sexual violence. We also agree with the

State that respondent’s reliance upon People v. Johnson, 218 Ill. 2d 125 (2005), and People

v. Beasley, 384 Ill. App. 3d 1039 (2008), is misplaced.

¶ 57 Respondent concedes that he failed to object to the prosecutor’s comments in rebuttal,

but urges us to consider them in the context of the entire argument (Wheeler, 226 Ill. 2d at

123) and for plain error under Illinois Supreme Court Rule 615(a) (eff. Jan. 1, 1967). Yet,

the State argues that because the SVP commitment proceedings are civil in nature, this court

should not consider plain error under the civil forfeiture doctrine. As we have found that the

prosecutor’s remarks were proper and not erroneous, we also need not resolve which plain

error analysis applies in the instant case. See People v. Sargent, 239 Ill. 2d 166, 189 (2010)

(in criminal case, reviewing court must first determine if error occurred in determining

applicability of plain error analysis); Reed v. Ault, 2012 IL App (2d) 110744, ¶ 33 (same for

civil appeal); see also In re Commitment of Curtner, 2012 IL App (4th) 110820, ¶¶ 26-27

(briefly discussing application of plain error doctrine in proceedings under the Act).

¶ 58 Additionally, we do not find that the prosecutor’s remarks violated the orders in limine.

We review the judge’s ruling for an abuse of discretion. Kelley, 2012 IL App (1st) 110240,

¶ 33. An abuse of discretion occurs where the ruling is arbitrary, fanciful, or so unreasonable

that the opposite conclusion is obvious. Id. The State’s comments regarding respondent’s

custodial status and the expert witnesses’ conclusions did not clearly violate the orders in

limine.

¶ 59 Motion for Mistrial

¶ 60 The respondent argues that the trial judge abused his discretion in denying his motion for

mistrial due to the prosecutorial remarks during closing argument as discussed previously

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herein. We review a trial court’s ruling on a motion for mistrial for an abuse of discretion.

People v. Nelson, 235 Ill. 2d 386, 435 (2009). “A trial court abuses its discretion when its

decision is ‘fanciful, arbitrary, or unreasonable to the degree that no reasonable person would

agree with it.’ ” People v. Zirko, 2012 IL App (1st) 092158, ¶ 32 (quoting People v. Ortega,

209 Ill. 2d 354, 359 (2004)); In re Detention of Lieberman, 379 Ill. App. 3d 585, 609 (2007).

As we have concluded that the prosecutor’s comments were not improper and did not

warrant a new trial, we similarly conclude that the trial judge did not abuse his discretion

when he denied respondent’s motion based upon the comments.

¶ 61 Sufficiency of the Evidence

¶ 62 Next, respondent contends that the State failed to prove beyond a reasonable doubt that

he was an SVP as defined by the Act. When reviewing claims challenging the sufficiency of

the evidence, we consider whether any rational trier of fact would have found the evidence,

drawing all reasonable inferencesin the State’s favor, established the elements of the offense.

Lieberman, 379 Ill. App. 3d at 598. When considering such claims, the reviewing court does

not retry the respondent, as the trier of fact (the jury in this instance) was in the best position

to weigh evidence and assess the credibility of the testimony and evidence presented at trial.

Wheeler, 226 Ill. 2d at 114-15.

¶ 63 In orderto establish that respondent was an SVP under the Act, the State had to show that

he was a person convicted of a sexual offense, he had a mental disorder, and he was

dangerous to others because his mental disorder created a substantial probability that he

would engage in acts of sexual violence. 725 ILCS 207/5(f), 15(b)(1)(A), (b)(4), (b)(5) (West

2010). At trial, the State had the burden of proving beyond a reasonable doubt the above

criteria. 725 ILCS 207/35(d)(1) (West 2010). Respondent does not dispute that the State

established the first criterion–that he was convicted of a sexually violent offense. Rather,

respondent asserts that the State failed to establish the second and third criteria.

¶ 64 Respondent maintains that because the State’s expert witnesses’ testimony about the

mental disorder that he was diagnosed with–pedophilia–conflictedwith theDSM-IV-TR, the

State failed to show that respondent had a mental disorder. In particular, respondent asserts

that the State’s experts diagnosis conflicted with the manual, because the onset age differed

from that in the manual. Notably, both Dr. Leavitt and Dr. Gaskell initially stated that

respondent met the criteria for pedophilia, because of the onset age of 16 as reflected in the

manual. Yet, they discovered after their evaluation that the respondent was actually 15 years

old and 8 months when he committed the first offense that they considered in forming their

opinions.

¶ 65 Additionally, respondent maintains that the State’s experts contradicted each other to the

extent that one expert testified that respondent’s pedophilia alone created the substantial

probability of recidivism, whereas the other indicated that his pedophilia and the antisocial

personality disorder created the substantial probability that he would commit future acts of

sexual violence. While respondent insists that his argument does not attack the credibility of

the witnesses, we disagree. The jury, as the trier of fact, was free to determine the credibility

of the State’s witnesses in considering whether the State proffered sufficient evidence to

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show that respondent suffered from a mental disorder. The jury’s findings regarding

credibility are accorded great weight. Wheeler, 226 Ill. 2d at 115. As the record contains

sufficient, uncontroverted testimonyfrom the State’s witnesses that respondent suffered from

a mental disorder of pedophilia, we reject respondent’s argument.

¶ 66 Furthermore, respondent asserts that the State failed to prove the third element–that the

mental disorder created a substantial probability that he would commit future acts of

violence. For purposes of the Act, substantial probabilityis defined as “more likely than not.”

(Internal quotation marks omitted.) In re Detention of Bailey, 317 Ill. App. 3d 1072, 1086

(2000). In particular, respondent challenges the experts’ use of the actuarial instruments in

making their diagnosis, claiming that the instruments were not reliable sources in the field.

Again, we find respondent’s arguments attack the credibility of the witnesses’ testimony. As

we previously stated, the jury, as the trier of fact, was free to assess credibility of the

witnesses’ testimony about why they utilized certain actuarial instruments. Wheeler, 226 Ill.

2d at 114-15. Respondent’s counsel vigorously cross-examined the witnesses about the

reliability of the actuarial instruments, how they scored respondent based upon the actuarial

tools, and the ultimate conclusion reached about the respondent’s high risk of reoffending.

Both also testified that they considered dynamic factors, along with the actuarial instruments

used, in forming their opinions. The jury was free to consider their testimony and assess the

appropriate credibility of their testimony. Apparently, the jury found their unrefuted

testimony credible as it returned a verdict in the State’s favorfinding that these two elements,

along with the first regarding the underlying conviction for a sexual offense, had been proven

beyond a reasonable doubt. Accordingly, respondent’s challenge to the sufficiency of the

evidence against him fails.

¶ 67 Dispositional Hearing

¶ 68 Finally, we consider respondent’s claim that the trial judge denied him a dispositional

hearing as mandated by the Act (725 ILCS 207/40(b)(1) (West 2010)) before entering the

commitment order. Alternatively, he argues that the trial court failed to conduct a

“meaningful” disposition hearing following the entry of a judgment on the jury’s verdict

finding him to be an SVP. As respondent’s claim presents a question of statutory

interpretation, our review is de novo. People v. Gutman, 2011 IL 110338, ¶ 12; Taddeo v.

Board of Trustees of the Illinois Municipal Retirement Fund, 216 Ill. 2d 590, 595 (2005).

The primary objective in construing a statute is to ascertain and effectuate the intent of the

legislature, best accomplished by viewing the statute’s plain and ordinary language. People

v. Amigon, 239 Ill. 2d 71, 84-85 (2010). The statute is considered as a whole, with words and

phrases considered in light of other statutory provisions; each word and phrase is given its

reasonable meaning and not considered superfluous. People ex rel. Sherman v. Cryns, 203

Ill. 2d 264, 279-80 (2003). “We may not depart from the statute’s plain language by reading

in exceptions, limitations, or conditions that conflict with the legislature’s intent.” Amigon,

239 Ill. 2d at 85. Furthermore, we do not construe a statutory provision to intend absurd,

inconvenient, or unjust results. People v. Christopherson, 231 Ill. 2d 449, 454 (2008).

¶ 69 The provision regarding dispositional hearings under the Act provides in relevant part: 

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“The court shall enter an initial commitment order under this Section pursuant to a

hearing held as soon as practicable after the judgment is entered that the person ***

is a sexually violent person. If the court lacks sufficient information to make the

determination required by paragraph (b)(2) of this Section immediately after trial, it

may adjourn the hearing and order the Department [of Human Services] to conduct

a predisposition investigation or a supplementary mental examination, or both, to

assist the court in framing the commitment order.” 725 ILCS 207/40(b)(1) (West

2010).

Immediatelyafter entering the judgment on the jury’s verdict finding respondent was an SVP

under the Act, the trial judge asked respondent’s counsel, “what’s next?” Respondent’s

counsel responded that “I believe we have to select a date.” The State then moved for

immediate entry of an order committing respondent to institutional care and treatment in a

secure DHS facility. Respondent’s counsel objected, indicating that he wished to present

certain evidence that had not been adduced at trial. In overruling the objection, the trial judge

stated:

“Based on the evidence that I heard 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 go to the [treatment and

detention facility] for treatment pursuant to statute.”

Further, respondent points to the trial judge’s continued comments following respondent’s

objection:

“If we have a dispositional hearing. I think pursuant to statute I’m entitled at this stage

based on what I heard, to make that determination independently. So that’s what I am

going to rule.”

¶ 70 Respondent maintains that the Act required a hearing that enabled him to present

additional evidence and testimony before the commitment order was entered. Respondent

argues that the proceeding was necessary, because he could not present evidence against

commitment or for conditional release in his case-in-chief as he would be admitting that he

was an SVP. He also insiststhat the trial judge’s commitment order here was entered without

considering the criteria set forth in section 40(b)(2) of the Act (725 ILCS 207/40(b)(2)(West

2010)). Section 40(b)(2) of the Act provides, in relevant part:

“In determining whether commitment shall be for institutional care in a secure facility

or for conditional release, the court shall consider the nature and circumstance of the

behavior that was the basis of the allegation in the petition***, the person’s mental

history and present mental condition, *** and what arrangements are available to ensure

that the person has access to and will participate in necessary treatment.” 725 ILCS

207/40(b)(2) (West 2010).

¶ 71 Respondent correctly notes that this statutory question presents an issue of first

impression for the First District of this court. In support of his contention that the Act

requires a separate dispositional hearing, respondent cites the Third District’s ruling in

People v. Winterhalter, 313 Ill. App. 3d 972 (2000). He also provides the dictionary

definitions of selected words, such as “shall,” “hearing,”and “pursuant,” contained in section

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40(b) of the Act to buttress his argument. While noting a contrary ruling was issued by the

Second District of this court in In re Detention of Tittlebach, 324 Ill. App. 3d 6 (2001),

respondent argues Tittlebach was wrongly decided, because the Tittlebach court failed to

comply with statutory interpretation rules, including ignoring language in section (40)(b)(1)

of the Act by considering language in the preceding section (see 725 ILCS 207/40(a) (West

2010)).

¶ 72 The State, on the other hand, describes the conflict in rulings as “illusory,” agrees that

the statute requires a hearing in entering the commitment order, and frames the germane

issue as whetherthe provision vests the trial court with discretion over the scope of hearing.4

We need not determine whether Tittlebach was decided wrongly, which we do not, as we

review this question of law de novo. Gutman, 2011 IL 110338, ¶ 12. Additionally, we are not

bound by the decisions of other appellate districts (O’Casek v. Children’s Home & Aid

Society of Illinois, 229 Ill. 2d 421, 440 (2008)) or the trial court’s implied interpretation as

part of our de novo review (see Hartz Construction Co. v. Village of Western Springs, 2012

IL App (1st) 103108, ¶ 23 (de novo review involves examining evidence unconstrained by

the trial court’s reasoning)).

¶ 73 Guided by well-established statutory interpretation rules, we hold that the Act’s plain

language requires the trial court to conduct a hearing before entering the commitment order.

725 ILCS 207/40(b)(1)(West 2010). Similarly, we construe the Act as granting the trial court

discretion not to adjourn the proceedings where the court believes neither a supplemental

examination nor a predisposition investigation is required in framing its commitment order.

725 ILCS 207/40(b)(1) (West 2010). Continuation of a hearing lies within the trial court’s

discretion. People v. Weeks, 2011 IL App (1st) 100395, ¶ 30; Somers v. Quinn, 373 Ill. App.

3d 87, 96 (2007). However, we find that the language in the Act does not allow the trial court

to deny a respondent his right to present evidence and testimony addressing the factors set

forth in section 40(b)(2) of the Act (725 ILCS 207/40(b)(2) (West 2010)) or in mitigation of

commitment to a secure facility during the dispositional phase.

¶ 74 In the case sub judice, the trial court proceeded with an immediate dispositional hearing

following the entry of a judgment on the jury’s verdict, despite respondent’s request to

At the end of its response brief, the State baldly asserts that even if the trial court failed to 4

conduct a dispositonal hearing, any such failure should be considered harmless error. Without

elaborating on and citing to authority in support of this argument, the point is forfeited. See Ill. S.

Ct. R. 341(h)(7) (eff. July 1, 2008); Walters v. Rodriguez, 2011 IL App (1st) 103488, ¶¶ 5-6.

However, the State contends, in a petition for rehearing, that this court overlooked the

authority cited for its assertion. While we acknowledge that the State cited Tittlebach, 324 Ill. App.

3d at 12-13, and Winterhalter, 313 Ill. App. 3d at 980, prior to its conclusory statement, we note that

the Winterhalter and Tittlebach courts did not find that the trial courts erred at all or even applied

harmless error analysis in how the courts proceeded with the dispositional phase following the SVP

verdicts and judgments thereon. As we concluded that the trial court erred in the manner in which

it proceeded with the dispositional hearing based upon the record before us (see ¶¶ 73-74 herein),

we find the State’s reliance on the cases for this point is misplaced.

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schedule a hearing to allow him to present a witness and have a predisposition evaluation

conducted before the commitment order was entered. Even if the trial court determined that

a predisposition evaluation was unnecessary, the trial court erred and did not comply with

the language in the Act when it failed to hold an immediate hearing or adjourn the

proceedings to afford respondent the opportunity to present testimony to address the factors

outlined in section 40(b)(2) of the Act before the commitment order was entered. Unlike the

respondents in Winterhalter and Tittlebach, respondent here indicated that he wished to

present testimonyforthe trial court’s consideration regarding the appropriate disposition. See

Tittlebach, 324 Ill. App. 3d at 12; Winterhalter, 313 Ill. App. 3d at 981. Simply put, holding

an immediate hearing or continuing the hearing to allow respondent to proffer additional

evidence and testimony would have served the interests of justice, namely, framing the

appropriate commitment order following the SVP finding. People ex rel. Reid v. Adkins, 48

Ill. 2d 402, 406 (1971).

¶ 75 The State insists that respondent’s counsel should have been prepared to present any

additional testimony or evidence at dispositional hearing immediately after trial as the trial

dates were set. While the trial dates may have been set, respondent was not required to

present any evidence during trial as he was presumed innocent and the State had the burden

of proof during trial. 725 ILCS 207/35(d)(1) (West 2010); but see Tittlebach, 324 Ill. App.

3d at 9 (during bench trial, respondent introduced testimony from doctor that addressed

element of substantial probability of reoffending); Winterhalter, 313 Ill. App. 3d at 975

(during trial, psychiatrist testified for respondent that he was unlikely to commit future acts

of sexual violence). Thus, respondent did not have to prepare a witness for a dispositional

hearing that may not have occurred. Additionally, the Act provides for the initial

commitment order to be entered “pursuant to a hearing held as soon as practicable after the

judgment is entered that the person *** is a sexually violent person.” (Emphasis added.) 725

ILCS 207/40(b)(1) (West 2010). “As soon as practicable” does not necessarilymean that the

hearing had to occur immediately after trial. Adjourning the proceedings, even if for a day,

would have been practicable to allow introduction of additional testimony or evidence for

the trial judge’s consideration in framing the commitment order. Since respondent was

ordered detained in a secure DHS facility pending the proceedings, there was no danger that

respondent would be released before the dispositional hearing concluded.

¶ 76 In its petition for rehearing, the State also urges us to reconsider our finding regarding

respondent’s claim about the dispositional hearing conducted following the trial court’s

judgment on the jury’s verdict finding him to be an SVP. From the outset, we note, and the

State acknowledges, that its citation to an unpublished order in this court lacks precedential

value as Illinois Supreme Court Rule 23(e)(1) (eff. July 1, 2011) expressly provides that

“[a]n order entered under *** this rule is not precedential and may not be cited by any party.”

See also People v. Powell, 2012 IL App (1st) 102363, ¶ 14 n.3; Voris v. Voris, 2011 IL App

(1st) 103814, ¶ 17. However, a party can cite to such an order “to support contentions of

double jeopardy, res judicata, collateral estoppel or law of the case.” Ill. S. Ct. R. 23(e)(1)

(eff. July 1, 2011). According to the State, the unpublished order involves “nearly identical

facts” to those presented in the instant appeal, the same trial court judge, and the same trial

counsel who represented respondent there also represents the respondent here, in bolstering

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its argument that we consider the unpublished order’s analysis and conclusion. However, the

law of the case doctrine would bind us to the ruling where the same issue and identical

parties were before this court. See, e.g., People v. Young, 263 Ill. App. 3d 627, 633 (1994).

While the issue regarding the dispositional hearing presented in the appeals is the same, the

separate cases involve different respondents; thus, we are not bound by the ruling of the

unpublished order cited by the State.

¶ 77 Additionally, the State requests that we clarify our ruling concerning dispositional

hearings conducted under the Act as the bases for our decision “will lead to confusion

regarding the timing and scope of dispositional hearings within the [First] District.” In

support of its assertion, the State quotes from this court’s opinion finding that the “trial court

erred and did not comply with the language in the Act when it failed to hold an immediate

hearing or adjourn the proceedings.” Supra ¶ 74. Yet, the State overlooks the remainder of

the sentence to provide the full context of our finding that “[e]ven if the trial court

determined that a predisposition evaluation was unnecessary, the trial court erred and did not

comply with the language in the Act when it failed to hold an immediate hearing or adjourn

the proceedings to afford respondent the opportunity to present testimony to address the

factors outlined in section 40(b)(2) of the Act before the commitment order was entered.” Id.

Contrary to the State’s assertion, this finding does not force a trial court to order a

supplemental evaluation. As we previously stated, we interpret the relevant statutory

provision as granting a trial court discretion to proceed without ordering a preliminary

examination in framing its commitment order. Supra ¶ 73. Our finding relates to a

disposition hearing that does not afford the respondent the opportunity to present other

testimony or evidence regarding disposition, i.e., testimony or evidence in favor of

conditional release versus detention in a secure facility. Id.

¶ 78 Similarly, our finding does not aggravate the practical consequences of timely conducting

dispositional hearings, entering commitment orders, or scheduling subsequent examinations

to frustrate the purposes of the Act. Particularly, we disagree that our finding would create

“lengthy continuances” or undue delays. As most parties, namely, the State and respondents’

attorneys, will be familiar with the Act and proceedings thereunder, judicial economy and

the timely administration of justice can be met in the planning of witnesses in the event of

an immediate dispositional hearing following entry of judgment on the jury’s verdict.

Likewise, a trial court can adjourn the proceedings to conduct or schedule a dispositional

hearing to afford the respondent the opportunity to present and prepare any witnesses in an

expeditious manner and avoid undue delay in framing and entering the appropriate

commitment order. Notwithstanding the State’s implication, the two concepts are not

mutually exclusive.

¶ 79 CONCLUSION

¶ 80 In sum, we conclude that the challenged remarks by the prosecutor during closing

argument, including allegedly arguing testimony from expert witnesses as substantive

evidence in violation of Wilson v. Clark, 84 Ill. 2d 186 (1981), were proper and did not

violate orders in limine or improperly shift the burden of proof to respondent to warrant a

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new trial. Consequently, we also conclude that the trial court did not abuse its discretion in

denying respondent’s motion for a mistrial based upon the allegedly improper comments.

Further, we find that the State proved beyond a reasonable doubt that respondent was an SVP

as defined bythe Act. However, we conclude, based upon our interpretation and construction

of the Act, that the trial court erred by not holding a hearing to afford respondent the

opportunity to introduce testimony and evidence as part of the dispositional phase.

Accordingly, we vacate the commitment order and remand the cause to the circuit court to

conduct a dispositional hearing allowing respondent to present evidence and testimony for

the trial judge’s consideration in framing its commitment order in accordance with section

40(b)(2) of the Act (725 ILCS 207/40(b)(2) (West 2010)).

¶ 81 Affirmed in part and vacated in part; cause remanded.

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