                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                     In re Commitment of Hardin, 2013 IL App (2d) 120977




Appellate Court            In re COMMITMENT OF TOMMY O. HARDIN (The People of the
Caption                    State of Illinois, Petitioner-Appellee, v. Tommy O. Hardin, Respondent-
                           Appellant).



District & No.             Second District
                           Docket No. 2-12-0977


Filed                      September 25, 2013


Held                       On appeal from respondent’s commitment pursuant to the Sexually
(Note: This syllabus       Violent Persons Commitment Act, the appellate court held that the
constitutes no part of     admission of the testimony of his parole agent that there was a strong
the opinion of the court   probability that respondent would engage in sexual violence in the future
but has been prepared      did not result in error, the evidence showing that respondent was unable
by the Reporter of         to control his impulses and follow rules and that it was substantially
Decisions for the          probable that he would reoffend was sufficient to establish beyond a
convenience of the         reasonable doubt that he was sexually dangerous, and the trial court’s
reader.)
                           refusal to allow respondent to make a statement at the dispositional
                           hearing was not an abuse of discretion, especially in view of the
                           differences between a dispositional hearing and a sentencing hearing.


Decision Under             Appeal from the Circuit Court of Du Page County, No. 07-MR-1685; the
Review                     Hon. Bonnie M. Wheaton, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 William G. Worobec, of Law Office of William G. Worobec, P.C., of
Appeal                     Wheaton, for appellant.

                           Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
                           Solicitor General, Michael M. Glick and Erin M. O’Connell, Assistant
                           Attorneys General, of counsel), for the People.


Panel                      JUSTICE ZENOFF delivered the judgment of the court, with opinion.
                           Justices McLaren and Hudson concurred in the judgment and opinion.




                                             OPINION

¶1          Following a bench trial, respondent, Tommy O. Hardin, was found to be a sexually
        violent person pursuant to the Sexually Violent Persons Commitment Act (Act) (725 ILCS
        207/1 et seq. (West 2010)), and he was committed to the custody of the Department of
        Human Services. Respondent appeals, arguing that (1) it was improper to admit testimony
        from his parole officer; (2) the State failed to prove beyond a reasonable doubt that he is a
        sexually violent person; and (3) the trial court’s denial of his request to make a statement in
        allocution before the court committed him was an abuse of discretion. For the reasons that
        follow, we affirm.
¶2          On November 19, 2007, the State petitioned the court to have respondent declared a
        sexually violent person. Following a probable cause hearing, the trial court dismissed the
        petition, the State appealed, and this court reversed and remanded the cause for further
        proceedings. See In re Detention of Hardin, 391 Ill. App. 3d 211, 216, 221 (2009). Our
        supreme court granted respondent leave to appeal and affirmed this court’s judgment. See
        In re Detention of Hardin, 238 Ill. 2d 33, 54 (2010).
¶3          On remand, the cause proceeded with a trial on the issue of whether respondent is a
        sexually violent person. At that hearing, Agent A.J. West testified that he is a parole officer
        with the Texas Department of Criminal Justice and that he is assigned to supervise sex
        offenders. In this capacity, West began supervising respondent on March 25, 2008, as
        respondent was allowed to serve his term of mandatory supervised release (MSR) in Texas.
        According to the terms of respondent’s MSR, which were detailed in documents that
        respondent signed, respondent could “[n]ot possess *** any photographs *** that depict
        sexually explicit images,” he could “[n]ot own, maintain, or operate computer equipment,”
        and he was to have “[n]o contact with any person 17 years of age or younger in person or by
        other means.”
¶4          Three months later, West received information that respondent was using a social
        networking website to communicate with young women or teenagers. West immediately

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     went to respondent’s residence and asked to see respondent’s computer, which respondent
     was allowed to use solely for the purposes of taking computer classes. On the computer,
     West found that respondent was apparently chatting with his daughter.1 West also found
     approximately 25 pictures of young women and teenagers who were posed in sexually
     suggestive positions. Although none of the women or girls were completely naked, they were
     dressed in bikinis or skimpy undergarments, one was topless and covering her chest with her
     arms, and, in many of the pictures, the women or girls were reclining with their legs spread
     open for the camera or they were exposing their bare buttocks. Because of these violations
     of the terms of respondent’s MSR, respondent was sent back to Illinois. Respondent never
     objected to West’s testimony.
¶5        In addition to West’s testimony, the State also presented the testimony of Dr. David Suire
     and Dr. John Arroyo, who are both certified experts in psychology. After examining various
     records and actuarial tools, both doctors determined that respondent suffered from two
     mental disorders, i.e., paraphilia not otherwise specified with a preference for nonconsenting
     teenage girls and a personality disorder not otherwise specified, and that these disorders
     created a high risk that respondent would commit sexually violent acts in the future.
¶6        Dr. Suire, who is a psychologist with the Department of Human Services, reviewed over
     17 different documents in reaching the conclusion that respondent is a sexually violent
     person. Although Dr. Suire wished to interview respondent before preparing the report,
     respondent refused. Included in the materials that Dr. Suire did review were records from the
     Department of Corrections, respondent’s criminal history, police reports, treatment records
     for respondent from the Department of Human Services, and information about respondent’s
     MSR violation in Texas.
¶7        With regard to the facts underlying respondent’s previous convictions of various sex
     offenses, Dr. Suire learned that respondent’s victims were between 12 and 15 years old.2 In
     order to assault his victims, respondent would use manipulation, threats, and alcohol. For
     example, respondent told one of his victims, who was a runaway, that he was a millionaire
     and that he could provide for her. This victim went with respondent, and, once she refused


             1
              Although no evidence was presented at trial concerning the age of respondent’s daughter,
     a report prepared by Dr. Leslie Kane, who was the expert respondent retained for the dispositional
     hearing, indicates that respondent has two daughters, one who would have been 19 in 2008 and one
     who would have been 17.
             2
               Specific details concerning the various sex offenses of which respondent was convicted are
     well known to the parties and are put forth in both this court’s and our supreme court’s prior
     opinions. As a result, we recite here only those facts pertinent to the issues raised, noting that
     respondent has indicated that he does not take issue with whether he was convicted of a qualifying
     offense. See 725 ILCS 207/15(b)(1)(A), (b)(4), (b)(5) (West 2010) (providing that, in order for
     respondent to be found sexually violent, the State has to establish that respondent (1) has been
     convicted of a sexually violent offense, (2) has a mental disorder, and (3) is dangerous to others in
     that his mental disorder creates a substantial probability that he will engage in future acts of sexual
     violence).

                                                  -3-
     respondent’s advances, respondent told the victim that his father was in the Mafia and that
     respondent could have the victim killed if she did not consent to having sex with him. On
     another occasion when respondent’s victims, who were truant from school, refused to engage
     in sexual acts with him, respondent got the victims drunk and took them to a cornfield before
     forcing himself on them. When one of the victims refused to engage in various sexual acts
     with respondent, respondent told the victim that he had a black belt in karate and that he
     would kill her if she did not comply. Respondent committed these offenses, which happened
     on two different occasions, when he was on MSR for convictions of sex offenses. Dr. Suire
     found this, along with the fact that respondent violated the terms of his MSR in Texas,
     important, because it showed that respondent has been unable to successfully complete
     supervision in the community and is unwilling to avoid high-risk situations and abide by
     rules imposed upon him.
¶8       The testimony of Dr. Arroyo, who is a forensic as well as a clinical psychologist, was
     consistent with Dr. Suire’s. Dr. Arroyo found, based on over 30 documents, including
     respondent’s treatment records and criminal history, that respondent presented a substantial
     and continuing risk for sex offense recidivism. This conclusion was based on, among many
     other things, respondent’s unwillingness to comply with the terms of MSR and complete sex
     offender treatment.
¶9       The trial court found respondent to be a sexually violent person. In doing so, the court
     stated:
         “When this case was first in front of me, it was on the probable cause hearing. The State
         presented a very poor witness. The respondent in turn had a superb attorney who made
         mincemeat of the [S]tate’s witness’s testimony, and I made a finding based on that
         testimony [that] there was no probable cause.
             Today, we are here in a different setting. In contrast, the State has presented two
         witnesses, whom I find to be credible and whose testimony was not shaken, despite the
         superb cross-examination by [respondent’s attorney]. I find both Dr. Suire and Dr.
         Arroyo’s testimony to be credible. The State has presented certified copies of the
         convictions. There is no doubt that [respondent] has been convicted of not one but
         several instances of a sexually violent crime, so that element of this case has been more
         than satisfied.
             *** I *** find the doctors’ testimony with regard to diagnosis of [respondent] has
         been proved by the standard beyond a reasonable doubt. I will find that [respondent]
         suffers from two mental disorders, namely, paraphilia not otherwise specified with a
         preference for young teenage girls, and a personality disorder not otherwise specified. So
         that element of the proceeding has also been proved beyond a reasonable doubt.
             I believe that the most telling testimony in this matter has been that of Agent West
         who testified as to [respondent’s] failure to comply with the requirements of his parole
         in the state of Texas. ***
             I think that, as well as the testimony of the State’s two witnesses, establishes beyond
         a reasonable doubt that [respondent] because of his mental disorder and his lack of
         treatment is substantially likely to reoffend unless he is committed to the Department of

                                              -4-
            Human Services for appropriate treatment in the treatment and detention facility.”
¶ 10        Soon thereafter, respondent moved the trial court to reconsider, arguing that the court
       should not have placed so much weight on West’s testimony, because the violations of
       respondent’s MSR were not also violations of the law. The trial court denied the motion. In
       doing so, the court observed:
            “[T]he Court had the benefit of not only [West’s] testimony but the doctors[’] as well.
            I am well aware that there are many requirements of [MSR]. The violation of which does
            not constitute the violation of law.
                However, it was a violation of [MSR], and I think that that violation of the [MSR]
            is one indicator of [respondent’s] inability to control his impulses. But that, as I said was
            just a minor or one part of the evidence that was presented. I think the totality of the
            evidence established the likelihood of re-offending.”
¶ 11        The cause proceeded with a dispositional hearing. At the close of all the evidence,
       respondent, who chose not to testify, asked to make a statement in allocution. The court
       refused to allow respondent to make a statement, noting that nothing in the Act permitted
       respondent to do so. After he was committed, respondent moved the court to reconsider,
       claiming, among other things, that the court erred when it denied him the opportunity to
       make a statement in allocution. The court denied the motion, and this timely appeal followed.
¶ 12        Respondent raises three issues on appeal. Specifically, he argues that (1) West’s
       testimony should not have been admitted at the trial; (2) he was not proved to be a sexually
       violent person beyond a reasonable doubt; and (3) he was improperly denied the right to
       make a statement in allocution at the dispositional hearing. We consider each argument in
       turn.
¶ 13        The first issue we consider is whether the admission of West’s testimony was improper.
       In addressing this issue, we observe that respondent failed to object to the admission of
       West’s testimony at trial. Thus, as respondent acknowledges, he has forfeited review of his
       claim. See In re Detention of Lieberman, 379 Ill. App. 3d 585, 604 (2007) (failure to
       properly preserve issue at trial results in forfeiture of that issue on appeal). Nevertheless,
       respondent argues on appeal that his forfeiture should be excused, because the admission of
       West’s testimony constituted plain error. See In re Detention of Sveda, 354 Ill. App. 3d 373,
       377-78 (2004) (issues that are not preserved in the trial court may be considered on appeal
       if the respondent establishes plain error). In response to respondent’s plain-error argument,
       the State claims that neither the civil nor the criminal plain-error doctrine can be invoked,
       because admitting West’s testimony was not error at all. See In re Commitment of Fields,
       2012 IL App (1st) 112191, ¶ 57 (before addressing whether the plain-error rule applies, court
       must consider whether error occurred at all). We agree with the State.
¶ 14        Analyzing whether the admission of West’s testimony was error at all begins with
       examining section 35(b) of the Act (725 ILCS 207/35(b) (West 2010)). That section
       provides:
            “At the trial on the petition it shall be competent to introduce evidence of the commission
            by the respondent of any number of crimes together with whatever punishments, if any,
            were imposed. The petitioner may present expert testimony from both the Illinois

                                                  -5-
            Department of Corrections evaluator and the Department of Human Services
            psychologist.” Id.
¶ 15        In construing this section of the Act, we are guided by the well-settled rules of statutory
       construction. Specifically, the primary objective in construing a statute is to ascertain and
       give effect to the legislature’s intent. Fields, 2012 IL App (1st) 112191, ¶ 68. The
       legislature’s intent is best determined by examining the language used in the statute and
       giving the words their plain and ordinary meaning. Id. In construing the statute in this way,
       we may not read into the statute exceptions, limitations, or conditions for which the
       legislature did not provide. See id. The construction of a statute presents a question of law
       that we review de novo. Id.
¶ 16        The plain and ordinary language of section 35(b) of the Act provides that, at a trial on the
       State’s petition to have a respondent declared a sexually violent person, the State may present
       expert testimony from both an evaluator with the Department of Corrections and a
       psychologist with the Department of Human Services. Nothing in this section limits the State
       to that evidence. If the State were so limited, section 35(b) would use language indicating
       that such evidence is the only evidence that can be used to support the State’s allegation that
       the respondent is a sexually violent person. Reading section 35(b) in this way would mandate
       that we read into the statute limitations for which the legislature did not provide. As
       indicated, this is something that we may not do.
¶ 17        Supporting our position that West’s testimony was properly admitted is In re Detention
       of Isbell, 333 Ill. App. 3d 906 (2002). There, the victim of one of the respondent’s prior
       offenses was called as a witness. Id. at 908-09. The respondent objected to her testimony and
       offered instead to stipulate that he had pleaded guilty to sexually assaulting her. Id. at 909.
       The trial court overruled the objection, and the victim testified about the details of the
       assault. Id.
¶ 18        On appeal, the respondent argued that admitting the witness’s testimony was improper.
       Id. at 915. The reviewing court disagreed, noting that “the testimony of the details of the
       sexually violent offense that led to the prerequisite conviction under the Act is admissible
       ‘if relevant to the remaining issues of whether the person has a mental disorder and is
       dangerous to others because the person’s mental disorder creates a substantial probability that
       he or she will engage in acts of sexual violence.’ ” Id. (quoting People v. Winterhalter, 313
       Ill. App. 3d 972, 979 (2000)). The court emphasized that “[u]nder the Act, the only relevant
       consideration is whether a respondent presently suffers from a mental disorder creating a
       substantial probability that he will engage in acts of sexual violence in the future.” Id. at 916.
       Thus, as long as the victim’s testimony was relevant to establish these elements, the court
       concluded, it was not error to admit her testimony concerning the details of the sexual
       assault. See id.
¶ 19        Here, in line with Isbell, West’s testimony was relevant to the issue of whether
       respondent is dangerous to others in that there is a strong probability that he will engage in
       acts of sexual violence in the future. The court found that respondent presented such a danger
       after noting, among other things, that respondent, in violation of his MSR in Texas,
       possessed several sexually suggestive pictures of young women and teenagers, and was


                                                  -6-
       actively chatting with a teenager online, on a computer he had solely for the permitted use
       of taking computer classes.
¶ 20        Given the substance of West’s testimony and the language of section 35(b), we conclude
       that West’s testimony was admissible and that no error occurred. Thus, we need not consider
       whether the civil or the criminal plain-error rule applies to sexually-violent-person
       proceedings. See Fields, 2012 IL App (1st) 112191, ¶ 57 (noting that decision concerning
       whether civil or criminal plain-error rule applies is unnecessary when no error arose at all).
¶ 21        The next issue we consider is whether respondent was proved guilty beyond a reasonable
       doubt of being a sexually violent person. In making this argument, respondent does not
       dispute that he has been convicted of a qualifying offense and that he suffers from a mental
       disorder. See 725 ILCS 207/15(b)(1)(A), (b)(4) (West 2010). Rather, respondent argues only
       that the State failed to establish the third element. That is, that he is dangerous to others
       because his mental disorder creates a substantial probability that he will engage in future acts
       of sexual violence. See 725 ILCS 207/15(b)(5) (West 2010).
¶ 22        When a respondent is found to be sexually violent and appeals that finding, we consider
       “whether, after viewing the evidence in the light most favorable to the State, any rational trier
       of fact could find the elements proved beyond a reasonable doubt.” Sveda, 354 Ill. App. 3d
       at 380. In determining whether the State has proved its case beyond a reasonable doubt, we
       must defer to the fact finder’s assessment of the witnesses’ credibility, resolution of conflicts
       in the evidence, and reasonable inferences from the evidence. In re Detention of Welsh, 393
       Ill. App. 3d 431, 455 (2009). As noted, here respondent takes issue only with the trial court’s
       finding that respondent is a danger to others because there is a substantial probability that he
       will engage in future acts of sexual violence. In this context, “substantial probability” means
       “ ‘much more likely than not.’ ” In re Detention of Hayes, 321 Ill. App. 3d 178, 189 (2001)
       (quoting In re Detention of Bailey, 317 Ill. App. 3d 1072, 1085-86 (2000)).
¶ 23        Here, both Dr. Suire and Dr. Arroyo testified that it was substantially probable that
       respondent would engage in future acts of sexual violence. The doctors based this opinion
       on many things, some of which had nothing to do with West’s testimony about the violations
       of respondent’s MSR. The court found both doctors credible, and, on appeal, respondent
       does not take issue with “[t]he court’s assessment of the credibility of Doctors Suire and
       Arroyo.” Accordingly, a rational trier of fact could find, based on the doctors’ testimony, that
       respondent presented a danger to the community in that it was substantially probable that he
       would commit sexually violent acts in the future.
¶ 24        Respondent, citing the fact that the court found West’s testimony “most telling,” argues
       that the court placed undue reliance on that evidence. We disagree. First, as noted, West’s
       testimony was relevant to the issue of whether respondent was likely to reoffend. The
       doctors, who considered the violations of respondent’s MSR in Texas, indicated that those
       violations, as well as the fact that he committed new crimes in Illinois when he was on MSR
       here, supported their conclusion that respondent was unable to control his impulses and
       would likely commit sexually violent acts in the future. Second, although it is true that the
       court initially considered West’s testimony “most telling,” the court clarified at the hearing
       on respondent’s motion to reconsider that, though insightful, West’s testimony was but “one


                                                 -7-
       indicator of [respondent’s] inability to control his impulses” and “just a minor or one part of
       the evidence that was presented.” This greatly deflates respondent’s claim that the finding
       that he is a sexually violent person rested unduly on West’s testimony.
¶ 25       Additionally, respondent argues at length that the State failed to prove beyond a
       reasonable doubt that the pictures West seized were sexually suggestive and were of
       underage girls and that he was conversing with a minor via his computer. Resolving such
       issues is not directly relevant to whether respondent is a sexually violent person. See 725
       ILCS 207/5(f) (West 2010) (defining the term “ ‘[s]exually violent person’ ”). The terms of
       respondent’s MSR prohibited him from possessing any type of sexually explicit pictures and
       using a computer for social networking of any kind. These violations are relevant because
       they show that respondent is unable to control his impulses and follow rules, and, as the trial
       court found, they suggest that respondent is a danger to the community because it is
       substantially probable that he will reoffend.
¶ 26       Last respondent asserts that the trial court abused its discretion in denying him an
       opportunity to make a statement in allocution at the dispositional hearing. As the parties
       indicate, nothing in the Act allows a respondent to make a statement in allocution at the
       dispositional hearing. Nevertheless, likening the dispositional hearing to a criminal
       sentencing hearing, where the legislature has provided that a defendant may make a
       statement in allocution (730 ILCS 5/5-4-1(a)(6) (West 2010)), respondent claims that he
       should have been afforded that option before the court decided whether to commit him to a
       secure facility or place him on conditional release. See 725 ILCS 207/40(b)(2) (West 2010)
       (“An order for commitment under this Section shall specify either institutional care in a
       secure facility, as provided under Section 50 of this Act, or conditional release.”). We
       disagree.
¶ 27       As the State indicates, the dispositional hearing, which is a civil proceeding (see 725
       ILCS 207/20 (West 2010); see also Hardin, 238 Ill. 2d at 41), is drastically different from
       a criminal sentencing hearing. At criminal sentencing hearings, courts are concerned with
       imposing punishment in light of mitigating and aggravating factors. See People v. Latona,
       184 Ill. 2d 260, 272 (1998) (noting that, at a criminal sentencing hearing, “[i]t is the province
       of the trial court to balance relevant factors and make a reasoned decision as to the
       appropriate punishment in each case”). In contrast, “the Act is aimed at care and treatment,
       rather than punishment and deterrence.” In re Detention of Hunter, 2013 IL App (4th)
       120299, ¶ 29. Given these differences and the fact that the Act does not provide that a
       respondent may make a statement in allocution at the dispositional hearing, we conclude that
       the trial court did not abuse its discretion when it denied respondent the opportunity to make
       a statement.
¶ 28       Citing People v. Fisher, No. C065889, 2011 WL 3038687 (Cal. Ct. App. July 25, 2011),
       respondent claims that he should have been afforded the option of making a statement in
       allocution. In Fisher, the defendant argued that, like a defendant facing imposition of a
       sentence in a criminal case, he should have been allowed to make a statement in allocution
       before the court decided whether he was a sexually violent predator. Id. at *2. The appellate
       court disagreed, noting, among other things, that criminal sentencing hearings (where the
       issue is punishment) are different from sexually-violent-predator proceedings, and that, given

                                                 -8-
       the evidence presented, nothing the defendant would have said in allocution would have
       altered the court’s finding that he was a sexually violent predator. Id. The court then noted
       that, “[u]nlike a criminal sentencing hearing, where a trial court may have a number of
       discretionary choices to make, in this [sexually-violent-predator] proceeding, the only
       authorized act that could follow [a sexually-violent-predator] finding was an indeterminate
       commitment.” Id.
¶ 29       Respondent claims that Fisher is helpful because, given that a court in Illinois at the
       conclusion of a dispositional hearing can choose commitment to a secure facility or
       conditional release, which choice is unavailable in California, respondent here should have
       been allowed to make a statement in allocution to help the court decide which choice to
       make. We disagree. To the extent that Fisher can be considered persuasive authority at all,
       it supports our conclusion that the trial court did not abuse its discretion when it did not
       permit respondent to make a statement in allocution.3 That is, as we and the court in Fisher
       observed, the purposes of a criminal sentencing hearing and a dispositional hearing are
       different. Thus, any comparison between a defendant facing imposition of a criminal
       sentence and a respondent facing treatment after being found to be a sexually violent person
       is questionable. The fact that a trial court may impose one of two different types of treatment
       following a dispositional hearing does not somehow transform the dispositional hearing into
       something more akin to a criminal sentencing hearing where a defendant has the right to
       make a statement in allocution. Further, unlike what a defendant might say at the conclusion
       of a sentencing hearing, such as that he is remorseful for having committed the crime,
       perhaps justifying a reduced sentence, respondent has not established that any self-serving
       statement he would have made in allocution would have been relevant to the issue raised at
       his dispositional hearing. If respondent wished to present evidence to the trial court, he
       should have exercised his right to do so at the dispositional hearing. See Fields, 2012 IL App
       (1st) 112191, ¶ 73.
¶ 30       For these reasons, the judgment of the circuit court of Du Page County is affirmed.

¶ 31      Affirmed.




              3
                  Fisher is questionably persuasive given, among other things, the fact that it is unpublished.

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