                                        2018 IL App (1st) 162555

                                             No. 1-16-2555

                                    Opinion filed June 29, 2018 

                        Modified upon denial of rehearing August 24, 2018 

                                                                                         Fifth Division
______________________________________________________________________________
                                                IN THE

                               APPELLATE COURT OF ILLINOIS

                                           FIRST DISTRICT

______________________________________________________________________________
In re COMMITMENT OF STEVEN TUNGET,                             )
                                                               )    Appeal from the
(The People of the State of Illinois,                          )    Circuit Court of
                                                               )    Cook County.
        Petitioner-Appellee,                                   )
                                                               )    No. 04 CR 80005
     v. 	                                                      )
                                                               )    Honorable
Steven Tunget,                                                 )    Dennis J. Porter,
                                                               )    Judge, presiding.

        Respondent-Appellant).                                 )




        JUSTICE LAMPKIN delivered the judgment of the court, with opinion.
        Presiding Justice Reyes and Justice Hall concurred in the judgment and opinion.

                                               OPINION

¶1      Respondent, Steven Tunget, was adjudicated a sexually violent person (SVP) as defined

by the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 et seq. (West 2008))

and subsequently institutionalized in a secure setting. The trial court later conditionally released

respondent; however, the conditional release was revoked on the State’s petition. On appeal,

respondent contends that the trial court erred in revoking his conditional release and

recommitting him to institutional care. Respondent additionally claims that the trial court abused
No. 1-16-2555


its discretion in allowing expert testimony that relied upon a nonstatutory standard. Based on the

following, we affirm.

¶2                                           FACTS

¶3     Respondent, who is 61 years old, was diagnosed with paraphilia, not otherwise specified;

voyeurism; exhibitionism; and antisocial personality disorder. He was detained under the Act in

2004 after a finding that it was substantially probable that he would engage in acts of sexual

violence. Thereafter, while institutionalized in a secure setting, respondent participated in the

Illinois Department of Human Services’ (DHS) sex offender treatment program.

¶4     On October 6, 2010, respondent filed a petition for conditional release. At the hearing on

respondent’s petition, Dr. Kimberly Weitl, a DHS evaluator, and Dr. Lesley Kane, an examiner

appointed by the court, recommended respondent’s conditional release. The trial court granted

respondent’s petition. DHS then prepared a conditional release plan requiring respondent to

agree to abide by the 52 listed conditions of release. On August 20, 2012, the trial court approved

the conditional release plan, which respondent agreed to by signing and initialing the plan next to

each condition. In relevant part, the conditional release plan required that respondent (1) refrain

from having any contact with other sex offenders outside the treatment setting without prior

approval (Condition 16), (2) refrain from having any contact with a minor child without prior

approval (Condition 17), (3) “provide a daily log of activities and monthly written reports as

directed by the DHS case management team” (Condition 27), (4) comply with all conditions

imposed by the conditional release agent and DHS case management team to restrict high-risk

situations and access to potential victims (Condition 28), and (5) refrain from having anyone in

his apartment without prior approval (Condition 50).



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¶5     Respondent remained on conditional release until the State filed a petition to revoke that

status. The petition was filed on July 15, 2015, and respondent was detained in a secure facility

pending a hearing. On August 24, 2015, the State filed an amended petition to revoke

respondent’s conditional release, alleging he violated six conditions of his conditional release

plan, namely, Conditions 11 (become self supporting and gainfully employed), 16, 17, 27, 28,

and 50. The State’s petition additionally alleged respondent’s conditional release should be

revoked to protect the safety of others. More specifically, the State alleged respondent

(1) engaged in inappropriate conversations with women in the community and misinterpreted the

women’s intentions as sexual advancements, (2) failed to make sufficient progress in treatment,

(3) frequently and intently watched his neighbors, and (4) consistently failed to be honest with

his case management team. Prior to the hearing, respondent moved to strike the allegation that he

violated Condition 11 where the State failed to present a sufficient claim to support revocation of

his conditional release on that basis. The trial court granted respondent’s motion.

¶6     The State presented three witnesses at the revocation hearing: Stephen Glazier,

respondent’s conditional release agent; Rhonda Meacham, respondent’s conditional release

treatment provider; and Dr. Weitl, who had been conducting periodic reexaminations of

respondent for eight years. Prior to the hearing, respondent attempted to bar Dr. Weitl’s

testimony, arguing she had no relevant admissible opinion because her opinion differed from the

statutory standard for conditional release and she inappropriately destroyed the notes she took

during her consultation with Meacham and interview with respondent. Respondent’s motion to

bar Dr. Weitl from testifying was denied.




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¶7      At the hearing, Glazier testified that, as respondent’s conditional release agent, he

monitored and supervised respondent while on conditional release through home contact visits

and surveillance. Glazier used a written log to memorialize his contacts with respondent and

wrote violation reports when respondent violated a condition of his release. Glazier stated that

respondent was assigned an apartment by DHS and was limited to home confinement, like all

SVPs, when first released.

¶8      Glazier testified that he completed a violation report on September 4, 2013, as a result of

respondent violating Condition 17 of his release plan. More specifically, Condition 17 prohibited

respondent from having any contact with a minor without prior approval, yet respondent sent a

homemade birthday card to the daughter of his former girlfriend, Takika Winston. Prior to

respondent’s conditional release, he was explicitly told that he could not have any contact with

Takika’s daughter. Takika’s daughter was believed to be 16 years old when respondent sent her

the birthday card. Respondent told Glazier that he placed the card in the mailbox as he exited his

apartment to meet Glazier. Respondent acknowledged that he was “not supposed” to mail the

card.

¶9      Glazier additionally testified that, on October 20, 2014, he completed another violation

report, resulting from three condition violations. The first was for a violation of Condition 16,

i.e., unauthorized contact outside of the treatment setting with a sex offender. Glazier explained

that, while conducting an unannounced home visit, he was standing outside respondent’s

apartment when he heard respondent’s voice engaged in a conversation. Glazier knocked on the

apartment door, but respondent failed to answer. Glazier proceeded to call respondent two times

without success. Glazier continued knocking on the apartment door until respondent eventually



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opened the door. After looking through respondent’s apartment and failing to find any occupants,

Glazier inquired whether respondent had been on the phone. Respondent said no. Respondent

acknowledged that he had been speaking through the window to another SVP named Troy K. in

the adjacent building. Respondent initially reported that he spoke to Troy K. a few times;

however, after further questioning, respondent admitted that he had been speaking to Troy K.

twice a day for a few months. According to respondent, he and Troy K. engaged in “general

conversation.” They did not plan anything illegal or commit any sex offenses. Glazier testified

that respondent previously requested authorization through the program to speak to Troy K., but

was denied approval to do so. Respondent acknowledged he was not supposed to speak to Troy

K. outside the treatment setting, yet he did anyway. Glazier stated that he was responsible for

transporting respondent and Troy K. to treatment because they were on restricted movement or

home confinement. Glazier drove them together to treatment, as well as to the grocery store and

Laundromat.

¶ 10   Glazier testified that the second violation included in the October 20, 2014, report was for

respondent’s violation of Condition 27 because he failed to include his communications with

Troy K. in his daily log of activity. Glazier described the daily event log as a log kept by the

individual on conditional release providing the details of his or her daily activities, including

finances, communications (in person and by telephone), reading habits, and television programs

watched. The daily logs were collected and reviewed on a weekly or bi-weekly basis. Glazier

explained that the purpose of the daily logs was transparency by the SVP with the conditional

release team. According to Glazier, respondent only logged two dates, October 10, 2014, and

October 15, 2014, for having communicated with Troy K.



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¶ 11   According to Glazier, the third conditional release violation included in the October 20,

2014, violation report was for Condition 28, which required respondent to comply with all

special conditions imposed by the conditional release agent and DHS management team to

restrict him from high-risk situations and access to potential victims. Respondent violated the

condition by communicating with Troy K., despite Glazier’s prior instruction to not have outside

contact with the fellow SVP. As a result of the conditional release violations, respondent’s

windows were covered on the side of the apartment adjacent to Troy K.’s building. Thereafter, in

January 2015, respondent was relocated to another apartment.

¶ 12   Glazier further testified that, on April 25, 2015, he wrote a letter of admonishment

resulting from a phone message he received from respondent. In the message, respondent

informed Glazier that he was in his kitchen with the door open to get fresh air, which had been

approved, when a neighbor knocked on his door. The female neighbor asked if she could walk

through respondent’s apartment to get to her front door because she was locked out. In the letter

of admonishment, Glazier cited Condition 50 because respondent did not have prior

authorization to have anyone in his apartment. Glazier added that respondent called him several

times after leaving the initial voicemail. Respondent did not attempt to touch the neighbor.

Glazier explained that respondent received a letter of admonishment and not a violation because

he immediately reported the interaction.

¶ 13   Meacham testified that she was a licensed clinical social worker and sex offender

treatment provider and evaluator. Meacham provided respondent’s individual and group therapy

while he was on conditional release. Meacham was deemed an expert in sex offender treatment.




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¶ 14   Meacham testified that respondent admitted violating a condition of his release in

September 2013 by contacting Takika’s minor daughter. Respondent reported that he sent the

minor Christmas and birthday cards, as well as a letter. According to Meacham, she had “many

conversations” (between 5 and 10) in which respondent was told that he could not contact

Takika’s daughter.

¶ 15   Meacham also discussed events that occurred in June, July, and August 2014. The first

interaction involved a woman who allegedly invited respondent to be her roommate. The second

interaction involved a woman that respondent had contact with in connection with his medical

transportation services. Respondent reported to Meacham that he rode in the front seat of the

vehicle while being transported. The female driver purchased ice cream for respondent and put

her hand on respondent’s leg while they shared conversations about their families. Respondent

also shared information regarding his participation in the program with the driver. According to

Meacham, respondent withheld reporting the incident for a “period of time” and did not include

the interactions in his daily logs. Meacham testified that the boundaries between respondent and

the female driver were inappropriate. Later, respondent further informed Meacham that, during

another transport with the same female driver, she disclosed that she was a victim of sexual

abuse. Respondent then shared his own history of victimization with the driver. After that

interaction, respondent requested that he only receive male medical transport drivers. Despite his

request, the next time he needed to be transported, the same female driver arrived. Respondent

told Meacham that the pair continued having personal conversations during the transport. The

third interaction involved a woman at Target. Respondent told Meacham that he would become

excited when he knew that he was going to Target, hoping he would “run into” the woman.



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Meacham testified that respondent’s behaviors were concerning because he lacked the ability to

establish boundaries regardless of the consequences. Meacham added that she was concerned

with respondent’s decision to withhold information from his care providers.

¶ 16   Meacham further testified that respondent engaged in concerning behavior in September

2014. At that time, respondent reported his observations of other individuals in his apartment

complex to the building management. Respondent “seemed to have a great deal of information

about some of the tenants in the building.” This was concerning in light of respondent’s

voyeurism and exhibitionism diagnoses, as well as in terms of respondent’s own safety because

he was witnessing alleged criminal behavior within the building. In fact, in October 2014,

respondent reported witnessing a drug transaction through his window. He called the police and

“watched everything unfold.”

¶ 17   Meacham added that, also in October 2014, she learned respondent had been

communicating with another client in the conditional release program who was housed in the

adjacent building. The pair had been communicating once or twice per day for a “couple of

months” through the window. Meacham testified that the communications were violations of

respondent’s conditional release. According to Meacham, the pair had general conversations

about their day and what they watched on television; however, they had a couple of “fairly

negative conversations about their conditional release agents.”

¶ 18   Respondent additionally reported to Meacham that, in October 2014, he had an

interaction with a nurse at a doctor’s appointment. Respondent believed the nurse “gave him a

lingering handshake.” According to Meacham, respondent interpreted the handshake as an

“attraction.” He responded by telling the nurse she was attractive.



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¶ 19   Meacham further testified that, in December 2014, respondent reported that he walked

through his apartment naked after showering and passed two pictures of former girlfriends while

doing so. When he walked by the pictures, respondent asked “what they were looking at.”

Respondent stated that he masturbated to fantasies of the interactions. Meacham testified that

respondent did not include the sexual activity in his sexuality logs, which she required

respondent to keep. Meacham clarified that the sexuality logs were not a separate condition in his

conditional release plan but, rather, were part of the condition that required him to fully

participate in treatment.

¶ 20   Also, in December 2014, respondent had an interaction after undergoing hernia surgery.

When he woke from the surgery, he discovered his genital area had been shaved and reported

wondering “whether or not the nurse who shaved him had liked what she saw.” Respondent

additionally reported that, when asked by a hospital nurse if she could view his surgical stitches,

he fantasized that she was asking to see his penis. Respondent also lifted his clothes to reveal his

stitches to group members and the conditional release agents. Meacham testified that respondent

asked if she wanted to see respondent’s stitches. Meacham believed respondent’s behaviors

served to reinforce his interest in exhibitionism.

¶ 21   Meacham opined that respondent was in his “offending cycle,” meaning “a progressive

build up in thought and behavior and emotion typically that if not intervened on it could result in

reoffense.” Meacham did not believe respondent was aware he was in his offending cycle.

Meacham discontinued her work with respondent in May 2015 due to other responsibilities. As a

result, respondent was transitioned to a different therapist. His group therapy sessions no longer

consisted of only SVPs, but also included individuals on probation and parole. Meacham



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described respondent’s progress in the program as “variable.” Meacham explained that, initially

when he was released, there was a period of stability and progress; however, around June 2014,

respondent started to decline. Meacham observed no progress from that time until May 2015.

Meacham also described a shift in respondent’s willingness to share information close in time to

when a given event occurred.

¶ 22   On cross-examination, Meacham described respondent as “a verbally active participant”

in group therapy. Meacham testified that she was unaware of the content of the cards respondent

sent to Takika’s minor daughter. Meacham stated there was no evidence he sent unauthorized

mail to a minor after that incident. Meacham additionally testified that there was no indication

respondent touched or made inappropriate comments to the female medical transport driver, nor

was there any evidence respondent attacked, touched, flashed, or made sexual comments to the

female Target employee. Meacham stated there was no indication that respondent became

sexually aroused by watching his neighbors.

¶ 23   Dr. Weitl testified next. Dr. Weitl was qualified as an expert in clinical psychology in the

evaluation and risk analysis of sex offenders. Dr. Weitl testified that she reevaluated respondent

on an annual basis as required by the Act. In her initial evaluation in 2008, Dr. Weitl learned

respondent’s sexually violent history. The first incident of record was in 1977 wherein

respondent committed a sexual offense against a 15-year-old girl that was babysitting

respondent’s brother. Respondent was 20 years old at the time. In 1981, respondent was

convicted of public indecency after he was found peeping over a bathroom stall at a 10-year-old

girl and an 11-year-old girl while he had his pants down. In 1982, respondent was convicted of

attempted rape by force involving a 14- or 15-year-old girl. In 1984, respondent was convicted of



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aggravated battery wherein he broke into a woman’s home, dragged her to the bathroom, forced

her to undress, banged her head on the floor or sink, commanded her to get into the bathtub, and

then he fled. In 1986, respondent was found to be a sexually dangerous person after 14 charges

were filed against him, including placing obscene phone calls, exposing himself to minors,

exposing himself outside of a store, and masturbating in a parking lot. Dr. Weitl testified that

respondent was discharged from the sexually dangerous persons program in 2003. However,

approximately three months later, respondent was convicted of criminal sexual abuse in relation

to groping an 11-year-old girl’s buttocks while in a grocery store. Respondent attempted to pay

off the child’s father to not report the incident and attempted to flee. While in prison following

his conviction, respondent exposed himself to female correctional officers.

¶ 24   Dr. Weitl testified that she recommended respondent for conditional release in August

2012. According to Dr. Weitl, respondent “appeared from [her] treatment notes and from [her]

interview with him to have gained benefit from treatment. He had a long pattern of treatment

before that. He was in the final phases of treatment at the facility. So [she] recommended him for

release.”

¶ 25   Dr. Weitl stated, however, that she wrote a report in June 2015 upon which the State

based its underlying petition to revoke respondent’s conditional release. Prior to writing the

report, Dr. Weitl conducted her annual reevaluation, which consisted of reviewing the records

from the case management team, the therapist’s notes, completed assessments, polygraphs, and

penile plethysmograph examinations, which measure sexual arousal, and conducting interviews

with Meacham and respondent. Dr. Weitl testified that, as a result of her reevaluation, she

recommended that respondent required “more supervision and more intense therapy than could



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be provided in the community and that he be returned to the facility.” Specifically, in her June

2015 report, Dr. Weitl opined that respondent’s “progress in treatment [wa]s insufficient for him

to continue to be safely managed and treated in the community on Conditional Release and he

should be returned to the DHS [facility] for secure care and intense sex offender specific

treatment.” Dr. Weitl explained at trial that respondent was “engaging in high risk behaviors, in

his cycle and not recognizing it, and ready to reoffend. [Respondent] was not being honest. There

were some serious concerns about what exactly he was doing. There had been some polygraph

failures and then he would tell a little bit. So there were some serious indicators that [respondent]

was not safe out there.” Dr. Weitl added that respondent was not following the conditions of his

release and disclosed only limited details of his violations after failing multiple polygraph tests.

Moreover, after returning to the secure facility, respondent still did not admit the extent of his

conditional release violations. Dr. Weitl opined that respondent continued to be an SVP and “that

he’s substantially probable to commit another act of sexual violence if not confined to a secure

facility.”

¶ 26    Dr. Weitl continued by stating that, since having completed the June 2015 report, she had

reviewed respondent’s DHS reports through February 2016. Based on what she had learned, Dr.

Weitl did not change her opinion from that rendered in the June 2015 report. Dr. Weitl

elaborated that, in that time period, respondent had not addressed his sexual deviance and

provided “extremely vague” disclosures in his group therapy. Dr. Weitl acknowledged that

respondent had not had any “tickets for sexual misconduct” since he had been back in the

secured setting. Dr. Weitl additionally acknowledged a therapist’s monthly progress note from

October 13, 2015, which provided that respondent had “processed the violations and warnings



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that ultimately led to his return from conditional release.” Dr. Weitl, however, dismissed the

therapist’s note as “a summary” that had been “over-generaliz[ed].” Dr. Weitl also

acknowledged that respondent passed his most recent polygraph exam administered in July 2015.

¶ 27    At the close of the hearing, respondent moved for a directed finding. The motion was

granted as to the allegation related to sending a card to Takika’s minor daughter. The remainder

of the motion was denied. Respondent then moved to strike Dr. Weitl’s testimony, arguing the

State failed to disclose her opinion in its Illinois Supreme Court Rule 213 (eff. Jan. 1, 2007)

interrogatory response. The trial court denied respondent’s motion without providing a basis for

its ruling.

¶ 28    On April 11, 2016, the trial court found respondent had violated conditions of his release

and, therefore, his conditional release should be revoked. In so finding, the court stated:

                “The statute requires that at this hearing that the defendant’s conditional release

        may be revoked, *** it’s discretionary. After hearing that any rule or *** condition of

        release has been violated, or that the safety of others requires a conditional release be

        revoked. ***

                So [I] think the statute requires some *** imminent danger to somebody ***. At

        least that’s the way I’m going to take this. I don’t think the State has shown that, some

        imminent danger to a specific person.

                On the other side, that is that any rule or condition of release has been violated,

        *** I don’t see there being any issue, there have been several which have been violated.

        With regard to the woman in the apartment building, I *** cannot see revoking anyone’s

        conditional release on that set of facts, particularly where he calls the case agent while



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      she’s in the apartment. I mean there’s got to be some consideration for a little human

      decency here, I suppose.

                Looking out the window, same thing. I mean what else has he got to do, watch

      television, I suppose. There’s no evidence that he was indulging in his voyeurism out the

      window, at least I’ll give him the benefit of the doubt on that.

                With the polygraph, same thing. Sitting here now, I can’t conceive—I suppose if

      you gave me some time I can conceive of some situation where I would revoke it on the

      basis of a response to a polygraph, I suppose, but this isn’t it, that’s for sure, so—

      especially if he’s a liar about how he was feeling about the polygraph, he’s a pretty good

      one ***. ***

                Now, [d]efense has said that, you know, everything’s in treatment, which quite

      frankly seems a wee bit of a stretch to me. ***

                *** I don’t think it’s true for the defendant about being in treatment while he’s

      riding in a cab or sitting in the doctor’s office waiting to go in or talking out his window

      with someone else who is sexually violent.

                Again, your argument about how he didn’t act [out] about any of these, I think the

      State is correct, the whole purpose of this is to prevent him from acting out. It would be

      pitifully redundant to say he’s got to be acting out before you can do it because then you

      might as well just prosecute him for the new crime and be done with it.

                So there we have it. Of the violations—I think there is evidence both borne by his

      statements and the fact that he admitted these things, albeit somewhat reluctantly,

      according to the testimony his contact log including the deficiencies in the masturbation

      and talking to the *** other person who was adjudicated sexually violent through his

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      window for an extended period of time, these things are violations, and the State has

      shown that by clear and convincing evidence.

                Now, the question then becomes are these actions sufficient to revoke the

      defendant’s conditional release? Every witness who testified, the case agent, his

      treatment provider, as well as Dr. Weitl has expressed concern that [respondent] is in his

      cycle for re-offending at various times and not recognizing it. And this is—they have all

      expressed a concern for it, and I do not feel that this Court is in a position to ignore the

      testimony regarding this concern for the reason that I alluded to further. It’s not that he’s

      done something, it’s the fact that they are concerned that he is going to do something

      because he doesn’t recognize he’s in this cycle.

                I must confess when I first heard the testimony regarding him masturbating

      improperly, I was a little bewildered, but having had it explained to me, I can see where

      that type of masturbation would be—they would be concerned about it, because there is

      an element of exhibitionism with it, particularly if he’s pretending like the two picked

      females, their pictures are watching him, and that is one of his diagnoses, that is one of

      his problems, and I can see where they would be concerned about that.

                So in view of the fact that all the witnesses expressed this concern, I feel it is

      necessary that [respondent’s] conditional release be revoked and that he be remanded to

      the Treatment Detention Facility.

                That’s not to say, [respondent], I don’t want to leave you with the belief there is

      no hope. The fact that I think you probably made some progress or at least potentially

      made some progress since you were back, and I would not be surprised to find that they



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       were recommending you for conditional release at some time in the future, and that’s not

       to say that I would not be disposed to grant it based upon appropriate testimony.”

¶ 29   Thereafter, respondent filed a motion to reconsider the trial court’s April 11, 2016, order.

After hearing arguments by the parties, the trial court denied respondent’s motion. This appeal

followed.

¶ 30                                        ANALYSIS

¶ 31   The Act defines an SVP as a person who has been convicted of a sexually violent offense

and who is dangerous because he “suffers from a mental disorder that makes it substantially

probable that the person will engage in acts of sexual violence.” 725 ILCS 207/5(f) (West 2004).

The State has the burden of establishing beyond a reasonable doubt that an individual is an SVP;

“once the State does so, the respondent is committed to the custody of DHS for control, care, and

treatment ‘until such time as the person is no longer a sexually violent person,’ which could

hypothetically only end upon death.” In re Commitment of Rendon, 2014 IL App (1st) 123090,

¶ 21 (quoting 725 ILCS 207/35, 40(a) (West 2010)). After an individual is found to be an SVP

and is institutionalized in a secure setting to receive treatment for his or her mental disorders, he

or she is “reexamined” on a yearly basis to determine whether he or she qualifies for conditional

release. 725 ILCS 207/50, 55 (West 2004). More specifically, the relevant statute provides that

the respondent is reevaluated “for the purpose of determining whether the person has made

sufficient progress to be conditionally released or discharged.” Id. § 55(a). In 2012, the statute

was amended to state that a respondent is reevaluated “for the purpose of determining whether:

(1) the person has made sufficient progress in treatment to be conditionally released and




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(2) whether the person’s condition has so changed since the most recent periodic reexamination

*** that he or she is no longer a sexually violent person.” Pub. Act 97-1075 (eff. Aug. 24, 2012).

¶ 32   If an individual is granted conditional release, the SVP remains within the custody and

control of the DHS and is subject to the conditions set by the court and the DHS. 725 ILCS

207/40(b)(4), (b)(5) (West 2012). These conditions require a respondent to attend and fully

participate in assessment, treatment, and behavior monitoring, including, but not limited to,

medical, psychological, or psychiatric treatment specific to sex offending to the extent

appropriate and based on DHS recommendations. Id. § 40(b)(5)(F); Rendon, 2014 IL App (1st)

123090, ¶ 25. Moreover, while on conditional release, a respondent must comply with “all other

special conditions that the [DHS] may impose,” restricting him or her from “high-risk situations”

and limiting “access or potential victims.” 725 ILCS 207/40(b)(5)(BB) (West 2012).

¶ 33   If there is an allegation by the DHS “that a released person has violated any condition or

rule, or that the safety of others requires that conditional release be revoked, he or she may be

taken into custody under the rules of the [DHS].” Id. § 40(b)(4). In the proceedings following the

filing of a petition to revoke a respondent’s conditional release, the State must prove by clear and

convincing evidence that revocation of conditional release is required. Id.

¶ 34   As an initial matter, the parties dispute the applicable standard of review. Respondent

contends a trial court’s ruling on a petition to revoke conditional release should not be disturbed

unless it is against the manifest weight of the evidence. Respondent cites Rendon, 2014 IL App

(1st) 123090, ¶ 32, for support. In contrast, the State contends there is a two-part standard of

review. The State agrees with respondent insomuch as the trial court’s factual findings regarding

whether the respondent violated the conditions of his release is a decision that should not be



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overturned unless it is against the manifest weight of the evidence. However, the State argues the

trial court’s finding as to whether, given the violation, the respondent’s conditional release

should be revoked requires an exercise of the court’s discretion and should not be overturned

absent an abuse of that discretion. The State cites Rendon and section 40(b)(4) of the Act as

support.

¶ 35   We agree with the State that our review of whether the trial court erred in finding

respondent violated the conditions of his release and whether his conditional release should be

revoked as a result requires a two-step analysis. The trial court’s factual finding that the State

presented clear and convincing evidence to establish respondent violated the conditions of his

release will not be disturbed unless the finding was against the manifest weight of the evidence.

Id. A finding is against the manifest weight of the evidence only if the opposite conclusion is

clearly evident or the trial court’s conclusion is “unreasonable, arbitrary, and not based upon the

evidence presented.” In re Commitment of Trulock, 2012 IL App (3d) 110550, ¶ 43. However,

once a basis for revocation of conditional release has been established, whether to commit a

person to a secure facility or to continue conditional release is a matter within the discretion of

the trial court. The Act provides “[i]f the court determines *** that any rule or condition of

release has been violated, *** it may revoke the order for conditional release and order that the

released person be placed in an appropriate institution ***.” (Emphasis added.) See 725 ILCS

207/40(b)(4) (West 2012). The permissive language employed by the statute refers to a

discretionary power, which the court may exercise or not as it chooses. People v. Ousley, 235 Ill.

2d 299, 312 (2009) (citing People v. Robinson, 217 Ill. 2d 43, 51 (2005)). A trial court’s decision

following an exercise of its discretion will not be overturned absent an abuse of that discretion.



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In re Detention of Ehrlich, 2012 IL App (1st) 102300, ¶ 75 (“[w]e review the circuit court’s

decision to commit a person to a secure facility or to conditional release for an abuse of

discretion”); In re Detention of Lieberman, 379 Ill. App. 3d 585, 608-09 (2007) (applying an

abuse of discretion analysis to assess a trial court’s decision to commit the respondent to a secure

facility). An abuse of discretion will be found only if the trial court’s decision was unreasonable,

arbitrary, or no reasonable person would adopt the same view. In re Detention of Ehrlich, 2012

IL App (1st) 102300, ¶ 75.

¶ 36   Respondent contends that the trial court’s ruling was against the manifest weight of the

evidence where the conditions the court deemed had been violated were not current, where the

court’s finding that respondent was in his “cycle” was not supported by the record, and where the

record demonstrated he had shown signs of improvement at the time of the hearing. With regard

to the condition violations, respondent argues that his contact with Troy K., the other SVP,

occurred nine months before the State filed its original petition seeking to revoke his conditional

release. As a result, the condition violation was not current. In addition, respondent argues that

his conversations with Troy K. were of no concern where they lacked objectionable substance.

Respondent further argues that his masturbating fantasies in connection with the photographs of

his former girlfriends and his failure to memorialize the incidents in his sexuality log did not

provide a basis for revocation of his conditional release. According to respondent, the

masturbating incidents were not current violations where they took place seven months before

the filing of the State’s original petition to revoke his conditional release. Moreover, respondent

argues that his conditional release plan did not contain a condition requiring him to participate in

sexuality logs.



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No. 1-16-2555


¶ 37   We find the trial court’s determination that there was clear and convincing evidence

respondent violated the conditions of his release was not against the manifest weight of the

evidence. Respondent does not dispute that he spoke to Troy K. in violation of Condition 16 of

his conditional release plan. Respondent merely disputes the magnitude of the violation in light

of the time that passed, since the violation was committed and the lack of dangerous content in

the conversations. The Act, however, does not contain a time element establishing how long a

violation remains eligible to support revocation of conditional release. See 725 ILCS

207/40(b)(4) (West 2012). Moreover, respondent’s conditional release plan did not provide an

exception for conversing with fellow SVPs if the content of the conversations was “innocuous.”

Instead, Condition 16 merely stated that respondent could not have contact with any SVP outside

of a therapeutic setting without prior consent. There is no dispute that respondent spoke to Troy

K. twice per day for “a couple of months” outside the therapeutic setting, namely, through the

windows of their adjacent apartment buildings. Additionally, the record is clear that respondent

did not have authorization to converse with Troy K. in that setting. In fact, Glazier testified that

he expressly denied respondent’s request to speak to other SVPs. Furthermore, the evidence was

clear that respondent failed to log his conversations with Troy K. in his daily log in violation of

Condition 27 of his release. According to Glazier, respondent merely logged two of the

conversations at issue.

¶ 38   The State also established by clear and convincing evidence that respondent violated

Condition 28 of his release by failing to log the masturbating episodes he engaged in while

viewing pictures of his former girlfriends. The State acknowledges that respondent’s conditional

release plan did not include an express condition requiring him to maintain a sexuality log.



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No. 1-16-2555


Meacham, however, testified that the sexuality log was a condition she required as his therapist.

As a result, respondent’s failure to submit the masturbation episodes in his sexuality log was a

violation of Condition 28, which required respondent to comply with all conditions imposed by

his conditional release agent and DHS case management team to restrict high-risk situations and

access to potential victims.

¶ 39   Where the State provided clear and convincing evidence that respondent violated his

conditional release plan, the State was not also required to prove that “the safety of others”

required revocation of his conditional release. Contrary to respondent’s argument, the trial court

determined that respondent violated the conditions of his release and then exercised its discretion

in considering whether the condition violations required that his conditional release be revoked.

The language of the statute is clear that “[i]f the [DHS] alleges that a released person has

violated any condition or rule, or that the safety of others requires that conditional release be

revoked, he *** may be taken into custody under the rules of the [DHS].” (Emphasis added.) 725

ILCS 207/40(b)(4) (West 2012). Accordingly, a respondent’s conditional release may be revoked

either if (1) there is a violation of a condition or (2) the safety of others requires. Because we

have found the trial court did not commit manifest error in determining respondent violated his

conditional release plan, we need not undergo an assessment of whether the evidence was

sufficient to establish respondent was a danger to the safety of others.

¶ 40   We next turn to the second part of the analysis, namely, whether the trial court abused its

discretion in finding that respondent’s conditional release should be revoked. As stated, the Act

provides that “[i]f a court determines after hearing that any rule or condition of release has been

violated, *** it may revoke the order for conditional release and order that the released person be



                                               - 21 ­
No. 1-16-2555


placed in an appropriate institution until the person is discharged from the commitment under

*** this Act or until again placed on conditional release under *** this Act.” Id. The Act is silent

on the factors to consider in recommitting an individual following the revocation of his or her

conditional release and we have not found any cases on point. See 725 ILCS 207/1 et seq. (West

2008). However, in considering whether an individual shall be committed to an institutionalized

setting or granted conditional release, the relevant factors provided by the Act are “the nature and

circumstances 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 the

person has access to and will participate in necessary treatment.” Id. § 40(b)(2), 60(d). Without

additional, explicit guidance from the Act, we find these factors to be relevant in assessing

whether the trial court abused its discretion.

¶ 41   It is clear from the record that the trial court considered all of the evidence and that its

determination was well supported. Glazier and Meacham discussed the pattern of respondent’s

behavior constituting violations of his conditional release. Critically, Glazier, Meacham, and Dr.

Weitl expressed concern over respondent’s consistent failure to report his offending behaviors in

his logs, on his polygraphs, and in his individual and group therapy sessions. The record

demonstrated that, generally, respondent reluctantly and vaguely reported the behaviors only

after he failed polygraph tests. In assessing the circumstances of the behaviors underlying the

State’s allegations, the trial court did consider that a number of the behaviors did not support

findings of condition violations. The trial court additionally considered evidence demonstrating

that respondent had made some progress since his readmission into the DHS facility. The court,

however, relied on the expert opinions of Meacham and Dr. Weitl in providing that respondent



                                                 - 22 ­
No. 1-16-2555


was in a cycle of reoffense without recognizing his repeated engagement in high-risk behaviors. 1

We reject respondent’s request for this court to reweigh the evidence. In re Commitment of

Jackson, 2017 IL App (3d) 170031, ¶ 29. In light of respondent’s consistent lack of transparency

and express refusal to participate in the conditions of his release, we conclude the trial court did

not abuse its discretion in revoking respondent’s conditional release and recommitting him to the

institutionalized setting.

¶ 42    Respondent next contends that the trial court erred in allowing Dr. Weitl’s expert

testimony. More specifically, respondent argues it was an abuse of the court’s discretion to allow

Dr. Weitl to testify to an opinion based on a nonstatutory standard. Respondent additionally

argues that the trial court abused its discretion in allowing Dr. Weitl to testify, despite her failure

to maintain her notes from interviews with Meacham and respondent. Respondent finally argues

the trial court erred in admitting Dr. Weitl’s opinion testimony where it was not previously

disclosed in conjunction with the Rule 213 written interrogatory.

¶ 43    The admissibility of expert testimony is within the sound discretion of the trial court.

Thompson v. Gordon, 221 Ill. 2d 414, 428 (2006). “A person will be allowed to testify as an

expert if his experience and qualifications afford him knowledge that is not common to

laypersons, and where his testimony will aid the trier of fact in reaching its conclusions.” Id.

¶ 44    Respondent challenges the admission of Dr. Weitl’s testimony as an expert where she

testified to a “made up” standard used to determine that respondent’s conditional release should

be revoked. Respondent specifically takes issue with Dr. Weitl’s opinion, as written in her June


        1
          We acknowledge that the trial court was mistaken in stating, in its findings, that Glazier also
testified regarding respondent’s reoffense cycle. The trial court’s mistake does not invalidate or call into
question the testimony of Meacham and Dr. Weitl.

                                                    - 23 ­
No. 1-16-2555


2015 report, that respondent’s “progress in treatment [wa]s insufficient for him to continue to be

safely managed and treated in the community on conditional release.”

¶ 45   We find there was no abuse of discretion in admitting Dr. Weitl’s expert opinion. There

is no dispute that Dr. Weitl had the experience and qualifications providing her knowledge

uncommon to laypeople. Additionally, there is no dispute that her knowledge and qualifications

aided the trial court in reaching its conclusion. Moreover, the record was clear that Dr. Weitl was

familiar with respondent’s case after having performed eight annual reevaluations of his SVP

status. The dispute is whether Dr. Weitl’s opinion was relevant because she used nonstatutory

language in rendering that opinion. Respondent does not cite any cases, and we are unaware of

any, that require an expert to constrain his or her opinion to precise statutory language.

Additionally, contrary to respondent’s argument, there is nothing in the record to suggest that Dr.

Weitl created a new standard for determining whether revocation was required. Instead, Dr.

Weitl’s June 2015 report and her testimony at the revocation hearing consistently complied with

the statutory requirement for the revocation of conditional release. More specifically, Dr. Weitl,

both in her report and at the hearing, repeatedly discussed respondent’s condition violations,

which formed the basis of his conditional release revocation. See 725 ILCS 207/40(b)(4) (West

2012). In addition to those findings, Dr. Weitl expressed her opinion that respondent’s “progress

in treatment [wa]s insufficient for him to continue to be safely managed and treated in the

community on conditional release.” Considering the challenged opinion in light of the testimony

directly establishing the statutory requirement for revocation, we find respondent failed to

establish the trial court abused its discretion in admitting Dr. Weitl’s expert opinion.




                                                - 24 ­
No. 1-16-2555


¶ 46   We additionally find respondent cannot demonstrate the trial court abused its discretion

in allowing Dr. Weitl to testify regarding her interviews of Meacham and respondent where she

failed to maintain her notes from those interviews. Dr. Weitl addressed her process following

reexamination, such that she destroyed the notes from her interviews once she drafted her written

reexamination report. Dr. Weitl clarified that all of the information from her notes was included

in the report. Respondent fails to argue what, if any, relevant information may have been

contained in the doctor’s notes in addition to that which appeared in her report. To the extent

respondent wished to, and did, challenge Dr. Weitl on the interviews and the veracity of her

report, the expert was available for cross-examination. The supreme court adopted Federal Rule

of Evidence 705 in Wilson v. Clark, 84 Ill. 2d 186 (1981). In January 2011, the Illinois Rules of

Evidence became effective, including Illinois Rule of Evidence 705, which is nearly identical to

the federal version. See Ill. R. Evid. 705 (eff. Jan. 1, 2011). The rule provides, “ ‘[t]he expert

may testify in terms of opinion or inference and give his reasons therefor without prior disclosure

of the underlying facts or data, unless the court requires otherwise.’ ” Wilson, 84 Ill. 2d at 194

(quoting Fed. R. Evid. 705). The supreme court explained, “[u]nder Rule 705 the burden is

placed upon the adverse party during cross-examination to elicit the facts underlying the expert

opinion.” Id. We, therefore, find the trial court did not abuse its discretion in allowing Dr. Weitl

to testify about the challenged interviews.

¶ 47   We finally conclude the trial court did not abuse its discretion in finding that the State did

not violate Illinois Supreme Court Rule 213.When asked by the State whether the safety of

others required the revocation of respondent’s conditional release, Dr. Weitl responded in the




                                               - 25 ­
No. 1-16-2555


affirmative. Respondent argues Dr. Weitl’s response was a violation of Rule 213 because the

State did not disclose that testimony.


¶ 48   When using an independent expert witness, Rule 213(f)(2) requires the party to identify 


the subjects on which the witness will testify and the opinions the party expects to elicit. Ill. S. 


Ct. R. 213(f)(2) (eff. Jan. 1, 2007). “An answer is sufficient if it gives reasonable notice of the


testimony, taking into account the limitations on the party’s knowledge of the facts known by


and opinions held by the witness.” Id.


¶ 49   The State’s Rule 213 interrogatory provided that Dr. Weitl’s “reports have previously


been disclosed to respondent containing her opinions and the bases for her opinions. ***. She


will be testifying in the areas of forensic psychology as well as the evaluation and treatment of


sex offenders. Dr. Weitl may offer an opinion that she believes respondent’s conditional release


should be revoked.” As stated, Dr. Weitl’s June 2015 report provided that respondent’s “progress


in treatment [wa]s insufficient for him to continue to be safely managed and treated in the


community on conditional release.” Moreover, in both its initial and amended revocation


petitions, the State alleged, “in accordance with the opinion of Dr. Weitl, the safety of others in 


the community requires that Respondent’s conditional release be revoked.” We conclude the


State sufficiently disclosed Dr. Weitl’s testimony, such that respondent was given reasonable


notice of the testimony. We, therefore, find there was no abuse of discretion. 


¶ 50                                      CONCLUSION


¶ 51   We affirm the judgment of the trial court in revoking respondent’s conditional release.


¶ 52   Affirmed.





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