                                                                                  FILED
                                    2014 IL App (4th) 131069                 September 24, 2014
                                                                                 Carla Bender
                                         NO. 4-13-1069                        th
                                                                             4 District Appellate
                                                                                  Court, IL
                                 IN THE APPELLATE COURT

                                          OF ILLINOIS

                                      FOURTH DISTRICT


 THE PEOPLE OF THE STATE OF ILLINOIS,                       )      Appeal from
            Petitioner-Appellee,                            )      Circuit Court of
            v.                                              )      Champaign County
 MARK LEE HANCOCK,                                          )      No. 00CF1597
            Respondent-Appellant.                           )
                                                            )      Honorable
                                                            )      John R. Kennedy,
                                                            )      Judge Presiding.


               PRESIDING JUSTICE APPLETON delivered the judgment of the court, with
opinion.
               Justices Knecht and Holder White concurred in the judgment and opinion.

                                           OPINION
¶1             Since 2001, respondent, Mark Lee Hancock, has been in civil confinement as a

sexually dangerous person. See 725 ILCS 205/8 (West 2012). In November 2010, he filed a

recovery application (see 725 ILCS 205/9(a) (West 2012)), and in October 2013, a jury returned

a verdict against him and in favor of the State, finding, by clear and convincing evidence, that he

still was a sexually dangerous person (see 725 ILCS 205/9(b) (West 2012)).

¶2             Respondent appeals on four grounds.

¶3             First, he argues the trial court erred by denying paragraph 4 of his motion in

limine, in which he sought to bar evidence that, in 2009, a previous recovery application by him

was denied. We find no abuse of discretion in the ruling.
¶4             Second, he argues the trial court erred by declining to publish to the jury some

purported judicial admissions by the State. In our de novo review of this issue, we find the

purported judicial admissions to be nonexistent.

¶5             Third, he argues the trial court erred by denying his motion for a directed verdict.

In our de novo review, however, when we look at the evidence in the light most favorable to the

State, we are unable to say the evidence so overwhelmingly favors respondent that a verdict

against him is rationally indefensible.

¶6             Fourth, he argues the verdict against him is against the manifest weight of the

evidence. We reject this argument for the same reason we reject his argument that he was

entitled to a directed verdict. The record contains evidence to support each element of the State's

prima facie case, and it was the sole province of the jury to decide what weight to give to that

evidence.

¶7             Therefore, we affirm the trial court's judgment.

¶8                                        I. BACKGROUND

¶9                              A. Respondent's Motion in Limine

¶ 10           Before the trial began, respondent filed a motion in limine to bar certain evidence.

Paragraph 4 of the motion stated: "As to the procedural history, the State seeks to introduce that,

on two previous occasions, [respondent] was found to remain a sexually dangerous person. The

jury will infer that [respondent] filed two previous restoration petitions that were denied by

juries. This is not probative but rather is prejudicial and irrelevant to current issues." Thus, the

motion requested the trial court to bar the State from eliciting evidence that, on two previous

occasions, respondent was found to remain a sexually dangerous person.




                                               -2-
¶ 11           The assistant State's Attorney responded that "the defense counsel's argument

[might] be well-taken with respect to the 2005 recovery petition" but that the 2009 recovery

petition was "significant for purposes of *** narrowing *** the jury's inquiry." (When we refer

to the recovery petitions, or applications, of 2005 and 2009, we do not mean that the petitions

were filed in those years but, rather, that they were judicially denied in those years.) He

reasoned:

                      "I—I point out the obvious, the defense is obviously going

               to speak about the passage of time since he was first adjudicated

               sexually dangerous. If he was, in fact, as a matter of law sexually

               dangerous in 2009, that argument becomes much more limited in

               scope, the jury's inquiry becomes much more limited in scope and

               the defense becomes, I believe, significantly weaker. And for that

               reason, I believe it is significant to the jury's inquiry whether

               they're determining whether he has recovered in the last four years

               or whether he's recovered in the last decade. That's why I wanted

               to have [sic] submit the finding that he was found sexually

               dangerous in 2009."

¶ 12           The trial court concluded it was the law of the case that on July 23, 2009,

respondent was found to remain a sexually dangerous person. Therefore, the court denied

paragraph 4 as to the recovery application of 2009.

¶ 13                    B. Respondent's Request To Take Judicial Notice




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¶ 14           During the trial, respondent requested the trial court to read to the jury the

following purported judicial admissions by the State and to instruct the jury to "accept [them] as

conclusive." Ill. R. Evid. 201(g) (eff. Jan. 1, 2011):

                       "(a) Respondent has decided to change his desire for sex

               since his original commitment as a Sexually Dangerous Person.

                       (b) Respondent appears to have begun to develop an

               intervention system to reduce harmful ideation and action on his

               part.

                       (c) Respondent has participated in therapeutic groups

               designed to address his mental disorder and criminal propensities

               to commit sex offenses or molestation of children.

                       (d) Respondent has encouraged other sex offenders in their

               recovery.

                       (e) Respondent is more aware of his own behaviors and

               triggers and more sensitive to his effect on others than when he

               was originally committed as a[] [sexually dangerous person]."

¶ 15           Respondent represented to the trial court that the State had made these purported

judicial admissions by admitting certain allegations in his recovery application. When the court,

however, compared each purported judicial admission to what respondent identified as the

corresponding paragraph of his application, the court found that the two did not match: in its

language, the purported judicial admission significantly diverged from the corresponding

paragraph in the application. Consequently, the court declined to publish paragraphs (b) to (e),

quoted above. Given that ruling, respondent withdrew paragraph (a).



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¶ 16                               C. The Jury Trial (October 2013)

¶ 17                               1. The Testimony of Dale Spitler

¶ 18                           a. His Occupation and Qualifications

¶ 19           Dale Spitler testified he had a master's degree in social work and that he was a

licensed clinical social worker.

¶ 20           His first job as a social worker, in the 1970s, was with the Illinois Department of

Children and Family Services (DCFS), investigating child abuse.         Later, in the 1990s, he

developed programs at DCFS for the treatment of children who had sexually offending

behaviors.

¶ 21           He subsequently worked for the Illinois Department of Corrections (DOC).

Initially, he was a clinical supervisor at Centralia Correctional Center. There, he ran the sex

offender groups during the times when a psychologist was unavailable. Then he became a

healthcare administrator. His duties in that position included assessing and treating inmates with

mental-health problems. The treatment of sex offenders was only part of his job as clinical

supervisor and healthcare administrator at DOC.

¶ 22           In 2003, Spitler began working at the Community Resource Center, where the

evaluation and treatment of sex offenders was his full-time occupation. He testified:

                       "A. My entire duties and responsibilities at Community

               Resource Center, I went there to set up their sex offender treatment

               program. And while I was there, I oversaw and provided all of the

               sex offender assessments and sex offender treatment for the

               Community Mental Health program.




                                                -5-
                     Q. Roughly what percentage of your duties in that period

              involved the treatment or evaluation of sex offenders?

                     A. Probably 90%.

                     Q. Okay. And what would you estimate to be the total

              number of hours you spent assessing and treating sex offenders in

              that period from 2003 to 2010?

                     A. Probably was somewhere around ten thousand hours.

                     Q. Okay.     Now, part of—could you—was part of your

              duties in assessing sex offenders, assessing the risk of reoffense?

                     A. Yes.

                     Q. Okay. In—and why were you doing that? What role

              did that play in the program?

                     A. Primarily assessment and a community mental health,

              there were two things. Sometimes the local Courts would require

              an assessment prior to presentencing hearing, so that they would

              have some idea on whether or not they were going to advise

              probation or incarceration, or what have you.

                     The second and probably the most important to me, is the

              assessment was used to guide what we were going to focus on in

              the sex offender treatment."

¶ 23          Since December 2011, he had worked at Wexford Health Sources, "perform[ing]

evaluations for the sexually dangerous persons program at Big Muddy [Correctional Center (Big

Muddy)]." Thus far, at Wexford, he had performed 41 evaluations, in 6 of which he had



                                               -6-
recommended release. In his entire career as a social worker, he had testified probably 25 to 30

times regarding sex offender assessments.

¶ 24           The trial court found Spitler qualified to offer opinions in the fields of sex

offender assessment and treatment.

¶ 25                      b. Respondent's History of Sexual Offenses

¶ 26           On contract with DOC, Wexford assigned Spitler to perform an evaluation of

respondent, to assess the risk that he would commit further sex offenses if he were released from

civil confinement. In March 2013, for that purpose, Spitler went to Big Muddy and interviewed

respondent. Two other evaluators attended the interview: a psychologist, Kristopher Klounch,

and a psychiatrist, Jagannathan Sriunivasaraghavan (otherwise known as "Dr. Van").

¶ 27           In addition to interviewing respondent, Spitler and Klounch reviewed treatment

files, police reports, court documents, and the psychiatric reports for the commitment. Van

likewise reviewed the psychiatric reports. Spitler reviewed the group therapy notes and found no

"issues" therein.

¶ 28           Of these documentary materials, the assistant State's Attorney focused on the

police reports, asking Spitler why it was important to review them. Spitler answered that the

police reports helped him understand respondent's "pattern of offending," including how he

found his victims, what types of victims he targeted, and whether he had committed sex offenses

while in treatment.

¶ 29           Actually, not only the police reports but respondent's own recollections of his

offenses were useful for that purpose. For some of the early offenses, Spitler had no police

reports or court documents, and therefore he relied on what respondent told him. In 1967,

respondent said, he was convicted of indecent exposure. The conviction was in Adams County.



                                              -7-
Spitler did not know the ages of the persons to whom respondent exposed himself on this

occasion, but by Spitler's understanding, they were under the age of 18. As a result of this

offense, respondent was referred to Quincy Mental Health Center for counseling. Spitler did not

know if the counseling respondent received there was sex offender treatment.

¶ 30           In 1969, in Adams County, respondent was again convicted of indecent exposure.

This time, the treatment was hospitalization in Jacksonville Mental Health Center. Spitler did

not review the records of this hospitalization, and therefore he was unable to say what treatment

respondent received there.

¶ 31           Respondent afterward moved from Illinois to Maryland, where he committed

another offense in 1976. Spitler testified:

               "His explanation to us during the interview on that particular case

               was that he was—he would drive around the neighborhoods in the

               evenings in a van, and he would have sexual thoughts and then

               would masturbate and look for potential victims.

                       And in '76, he happened to be driving by a park and he saw

               a lady who was standing at the bottom of a sliding board and her

               attention was on a young child that was at the top of the sliding

               board. He pulled the van over to the side, got out, ran over to her

               while she was standing there, and pulled her pants down and

               attempted to have sexual intercourse with her.         She started

               screaming and he got up and ran off."

Spitler had read the police report corresponding to this 1976 offense, and he saw no

inconsistency between the police report and respondent's description of the offense in his



                                              -8-
interview at Big Muddy. Respondent said the Maryland court ordered him to undergo sex

offender treatment, but Spitler never read the court order.

¶ 32           After being convicted in Maryland, respondent moved to Virginia, where, in

1978, he committed another sex offense, while still on probation. Spitler testified:

                       "A. The 1978 incident, he was—he broke into a home.

               He'd found a house, I believe he was able to get in through the

               screen, and he got into the house. He went into the bedroom and

               found a woman asleep in the bedroom. And he was naked and

               crawled into bed with the woman and attempted to have

               intercourse with her. She started screaming and he left."

Another thing Spitler recalled was that "when the woman started screaming, [respondent] choked

her and ran out."

¶ 33           Spitler had read the police report pertaining to the 1978 incident, and, again, he

saw no inconsistency between the police report and what respondent told him in the interview.

Respondent told him he received sex offender treatment in Virginia, in the community.

¶ 34           After enrolling in an "aversion therapy program" in the early 1980s, respondent

committed another offense in 1983. He was driving around in his van, masturbating. "He

stopped, he got out of the van, ejaculated and got back in the van." Initially, he did not think

anyone had seen him, but as it turned out, someone had seen him, as he learned when he received

a visit from the police.

¶ 35           Shortly thereafter, respondent committed yet another indecent exposure as well as

a contact offense. Spitler testified:




                                                -9-
               "This time, I believe he was driving past a park. He saw two

               people in the park. He got out of the van and exposed himself to

               them.

                       Q. Okay. Are you aware of yet another incident in 1984,

               after that?

                       A. Following that incident, also in 1984, again, I can't

               recall if he was driving at this point in time, I believe he was, but

               he saw an eleven year old girl who was walking down the street—

               and yes, he was driving because I remember he said he pulled the

               van to the side—he got out, ran over to the girl, pulled down her

               pants and her panties, and attempted to have sexual intercourse

               with her. Again, she started screaming and he got up and ran off."

Respondent was sentenced to 15 years' imprisonment in Virginia for the offense against the girl.

For approximately nine years, while in prison, he "participated in a pedophile group" and also in

a "rapist group."

¶ 36           After his release from the Virginia prison, respondent returned to Illinois, where,

in 1996, "he broke into a home and crawled in bed with a sixteen year old girl that he found in

the home." He "attempted to have sexual intercourse with her," she screamed, and he fled.

¶ 37           Then, in 1998, he "broke into a home and crawled in bed with a woman that he

didn't know and attempted to have sexual intercourse."

¶ 38           On another occasion, he was riding his bicycle down the road when he saw two

girls, one of whom was stooping and fixing the tire of her own bicycle. He got off his bicycle,




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ran up to the girl who was stooping next to her bicycle, and kissed her. The other girl started

screaming, and he fled.

¶ 39           In 2000, respondent crawled under a garage door that was partly raised. He went

into the house, "looking for sex[,] but he had no particular victim picked out." A man who lived

in the house confronted him. Respondent ran out of the house, got on his bicycle, and rode

away.

¶ 40           Respondent estimated that, on about 80 different occasions, he peeped through

windows of other people's houses, standing outside and masturbating.

¶ 41                      c. The Sex Offender Program at Big Muddy

¶ 42           The sex offender program at Big Muddy was a relapse prevention program—as,

in fact, were all sex offender treatment programs in Illinois, because research suggested that

relapse prevention was the only approach that "ha[d] any degree of efficacy with recovery and

not reoffending."

¶ 43           The relapse prevention program had four phases. The first phase was orientation,

in which the participant was informed of the goals of the program and the different treatment

groups and was introduced to some of the workbooks.

¶ 44           The second phase was the working phase, in which "a good portion of the

treatment [took] place." The treatment consisted mostly of participation in groups, with 8 to 12

people in a group. There was a victim empathy group. There was a discovery group, in which

group members discovered their "core issues or core beliefs." There was a cycle group, in which

members scrutinized their patterns of offending, breaking down the patterns into parts and

considering the thoughts, feelings, and beliefs that accompanied each part.




                                              - 11 -
¶ 45           The third phase was the prerelease phase, which "focuse[d] on control of deviant

arousal" and formulating a "relapse prevention plan." Spitler summed up:

                      "And here's what the relapse prevention plan is. We have

               the cycle and we have it broken down into, this happens at this

               time, and this happens at this time, and this leads to this and leads

               to that. What the relapse prevention plan does, is it looks at all

               those pieces and helps the person come up with some way to stop

               it at each one of those phases."

Those "pieces" had to be carefully identified in the preceding phase, in the cycle group. The

efficacy of the relapse prevention plan was directly dependent on the quality of the cycle

analysis. Spitler explained:

               "[T]he cycle has to be completed before you can have any type of

               accurate relapse prevention plan. You have to understand all of the

               pieces from the beginning.             What—what triggered certain

               thoughts, what triggered certain feelings, like I had mentioned

               before. *** And it's important that every piece be *** explicit

               because the idea is that the more that you can make these pieces

               distinct, the more that you can put in an intervention at each single

               one of those."

¶ 46           The fourth phase was aftercare, which began after the person was released from

confinement.

¶ 47                   d. Respondent's Progress in the Treatment Program




                                                  - 12 -
¶ 48           Respondent currently was in the second phase of the treatment program, in the

working cycle. He had not yet reached the third phase, the prerelease phase. To advance to the

third phase, he had to break down his cycle of offending, and he had not done that—as Spitler

had perceived from interviewing him.

¶ 49           When interviewing persons adjudged to be sexually dangerous, Spitler always

asked them about their cycle. So, he asked respondent to describe his cycle. Spitler testified:

                       "Basically, what was said to me is ['T]he cycle starts when

               I start having sexual thoughts. I have sexual thoughts, and then I

               use pornography and I masturbate and I look for a victim.['] And I

               asked him, ['A]t that point in time, what other kinds of things are

               you thinking at these various stages?['] And he basically said that

               ['W]hat happens is, that I get the urge, I can't control it, and I don't

               think about any of these other things.[']

                       Q. Was he able to bring his cycle down explicitly like you

               described?

                       A. No."

¶ 50           Although respondent was able to identify a number of core issues—"fear of

women, women who [were] in authority, homophobia, the need to feel strong and self-esteem"—

he could not relate any of those core issues to his cycle. The assistant State's Attorney asked

Spitler:

                       "Q. In fact, did he state, 'I haven't really figured out how to

               resolve core issues?'

                       A. Yes.



                                                - 13 -
                      Q. Okay. And when asked how his core issues relate to his

              offending behavior, was his response, '[I]t doesn't really matter, I'm

              already aroused?'

                      A. Yes.

                      Q. What does that tell you about his progress [as a]

              recovering sex offender?

                      A. Well again, it says to me that for him, and this happens a

              lot with certain types of behavior, that they feel that the behavior

              just happens. They don't see a beginning, a middle or an end to[]

              it. It just happens.

                      Q. And it—okay. Is that inconsistent with recovery then?

                      A. Yes."

¶ 51          On the basis of his interview of respondent and his review of the documentation,

Spitler gave the following four opinions in his testimony.       First, respondent currently was

incapable of devising effective relapse prevention techniques. Second, no form of conditional

release would allow him to safely manage his behavior. Third, he had a propensity to commit

sex offenses, including offenses against children. Fourth, there was a substantial probability he

would commit further sex offenses if he were released.

¶ 52                            2. The Testimony of Thomas Walton

¶ 53             a. The Houses on Arden Drive and Alton Drive in Champaign

¶ 54          Thomas Walton testified that, in 2000, when he was a detective with the

Champaign police department, he received a report that an intruder had entered a house on Arden




                                              - 14 -
Drive. The investigation led to respondent as a possible culprit. In August 2000, Walton and a

couple of other police officers went to respondent's apartment and questioned him.

¶ 55           Respondent admitted to them he was indeed the person who had entered the house

on Arden Drive. He said he had been bicycling through the neighborhood when he noticed that

the garage door at this house was raised partway. He laid his bicycle down some distance from

the house, and even though he knew no one at that address, he crawled in, under the garage door,

and entered the living quarters. Everyone in the house appeared to be sleeping. He opened a

bedroom door, and a man sprang out of bed and asked him what he was doing. Respondent fled,

going out the way he had entered. He climbed on his bicycle and took off down the street.

¶ 56           Respondent said that, next, he stopped at a house on Alton Drive. He did not

know anyone there, either.     Nevertheless, he entered the house.       A dog began growling,

whereupon he walked out of the house, got back on his bicycle, and rode away.

¶ 57           As Walton testified, recounting what respondent had told him, "[respondent's]

intent *** had crystallized, and in his mind, he wanted to have sex with the man [who had]

confronted him in the house on Arden Drive." So, respondent returned to the house on Arden

Drive, went in, and told the man he wanted to have sex. According to the man's report to the

police, that is exactly what the intruder told him upon returning: that he wanted to have sex.

¶ 58           Respondent explained to Walton that he was fighting an overwhelming,

irresistible compulsion to have sex, a compulsion which caused him to stand outside people's

houses, peering into windows and masturbating, and which even took him inside their houses.

He said he preferred girls who were 9 to 13 years old. He longed to hold them, kiss them, cuddle

with them, and have sex with them.




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¶ 59           He had done window-peeping in the Champaign/Urbana area more times than he

could estimate. Not only that, but more than once every six months, he actually entered people's

residences without their knowledge. He hoped that by surreptitiously entering residences, he

eventually would find a young girl who was willing to have sex with him.

¶ 60                                  b. Incidents in Urbana

¶ 61           Respondent divulged to Walton and his colleagues that, in addition to the

foregoing incidents in Champaign, there had been some incidents in Urbana. He accompanied

some police officers to Urbana and pointed out to them the houses.

¶ 62           One house was on Mumford Drive. Respondent said that, during the past few

months, he was outside that house many times, masturbating. He said he also entered that house

on at least three occasions.

¶ 63           Another house was on East Colorado Avenue. Respondent said that, a couple of

years ago, he entered that house and found a girl, 11 or 12 years old, in bed, sleeping. He said he

masturbated in her presence and that when he tried to kiss her, she woke up and began

screaming.

¶ 64           After respondent recounted an incident such as this, Walton would follow up by

looking for a corresponding police report. As it turned out— judging from one of these police

reports—respondent left out something significant that he did in the house on East Colorado

Street. As he admitted when Walton pressed him in a subsequent interview, he choked the girl

before fleeing out the window of her bedroom. He put his hands around her throat and stifled

her scream.

¶ 65           When Walton began really probing down and talking with respondent about the

emotional trauma this young girl undoubtedly suffered and how she would have been in terror



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for her life, respondent showed some signs of remorse. He never actually expressed regret,

however, and he never took responsibility for any specific acts of wrongdoing.

¶ 66           Although respondent at first edited out the choking and, for that reason, Walton

was less than confident about his candor, respondent otherwise appeared to be forthright in

confessing to sex offenses in which, apparently, he had not yet been implicated. He told Walton

about another incident when he was bicycling in Urbana and encountered two girls in the vicinity

of George Huff Drive and Race Street. One of the girls—nine years old according to the police

report—was kneeling beside her bicycle. He dismounted from his bicycle, took her face in his

hands, and kissed her on the mouth.        He added that, on several occasions thereafter, he

masturbated while remembering this incident.

¶ 67                               c. The Stripper's Apartment

¶ 68           Respondent told Walton he met a stripper at the Silver Bullet and that she resided

in his apartment complex. He said he entered her apartment one time, when she was not home,

and that he stayed for a few minutes. All he did was touch her bed.

¶ 69                                   d. Trips Elsewhere

¶ 70           As respondent told Walton in one of the interviews, there were times when he

loaded his bicycle into the trunk of his car and took trips to Indianapolis, Indiana, and

Springfield, Illinois. Upon arrival, he would park his car, take his bicycle out of the trunk, and

use the same " [']modus operandi,['] ": the disarming spectacle of an older gentleman in a

bicycle helmet, pedaling through the neighborhood.

¶ 71           It was Walton's impression that respondent knew, quite clearly, that he had a

problem. Respondent thought it might help if he got rid of the bicycle.

¶ 72                           3. The Testimony of Jessica Stover



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¶ 73                           a. Her Occupation and Qualifications

¶ 74           Jessica Stover testified she was a social worker IV with DOC and that her

assignment was to provide treatment to persons whom the State had civilly committed as

sexually dangerous.

¶ 75           All such persons, including respondent, were confined at Big Muddy. Stover

presided over therapy groups there. She was a "facilitator."

¶ 76           Her qualifications to do this kind of work were as follows. She had a master's

degree in social work, a field in which she had been working since 2004. From 2004 to 2008,

she was a licensed social worker. From 2008 to the present, she was a licensed clinical social

worker. She also was approved as a treatment provider and an evaluator for sex offenders. See

225 ILCS 109/35 (West 2012) (qualifications for licensure by the Department of Financial and

Professional Regulation as a sex offender evaluator and sex offender treatment provider). She

had been working with sex offenders since 2006, first in the "community setting" and then for

DOC. She had done over 20 sex offender evaluations for the court and over 20 sex offender

evaluations for Big Muddy. At least 10 times, she had testified as an expert in the field of sex

offender treatment and evaluation.

¶ 77           Over respondent's objection, the trial court found Stover sufficiently qualified to

testify as an expert in the fields of sex offender treatment and evaluation and to give testimony in

the form of opinions in those fields.

¶ 78               b. Her Description of the Treatment Program at Big Muddy

¶ 79           The treatment program at Big Muddy consisted primarily of group therapy, of

which there were three phases. (The fourth phase of treatment, called "aftercare," was not group

therapy.)



                                               - 18 -
¶ 80           The first phase was orientation, the goals of which were to inform the participants

of what they could expect from treatment and to lead them to accept responsibility for their

offenses.

¶ 81           The second phase contained most of the treatment, and this phase included an

exercise called "cycling." The participant chose an offense and put together a cycle or timeline

of the offense, starting two weeks before the offense and describing various events on that

timeline: thoughts, feelings, and behaviors. The hope was that, in dissecting the process that had

taken the participant from two weeks before the offense to a short time after the offense, he or

she would begin recognizing the patterns in his or her offending behavior: the deviancies, the

inadequately managed stressors, and the beliefs leading or enabling the participant to commit

sexual offenses against others. Also in the second phase, the participant was expected to learn

empathy: not merely to coldly and intellectually understand the trauma he or she had inflicted on

the victim, but to have an emotional experience of empathy—to genuinely feel remorse, remorse

for hurting the victim as well as people associated with the victim.

¶ 82           The third phase was the relapse prevention phase. In this phase, the object was

for the participant to learn interventions, or ways to avoid offending. To really benefit from the

third phase, the participant had to successfully complete the second phase (although, to some

extent, the second phase likewise addressed interventions).         It would be difficult for the

participant to devise interventions unless the participant first had a solid understanding of his or

her cycle or pattern of offending, the distortions of thought and belief that led him or her to make

the decision to offend.

¶ 83                      c. Respondent's Progress in the Treatment Program




                                               - 19 -
¶ 84           Stover testified she had been providing treatment to respondent for the last three

years. He had been participating in therapy groups, which met once a week. He currently was in

the empathy group, which she was facilitating.

¶ 85           Until September 2013, the month before the trial, respondent was in the cycle

group, which Stover also facilitated, but that group was finished for now: the participants had

presented their cycles to the other group members and the facilitator. After hearing respondent's

presentation of his cycle, Stover had concluded he was not yet ready for the third phase—even

though previously, in periodic reports, staff members gave him high marks in many areas, such

as attendance, motivation, commitment, offense disclosure, identifying deviant arousal,

regulating arousal, accepting responsibility, and decreasing criminal behavior and exploitation.

¶ 86           Respondent's presentation of his cycle, in September 2013, caused Stover to

revise downward her assessment of his progress. The cycle appears to be the final exam, so to

speak, in phase II. Respondent chose, as the subject of his presentation, a sexual offense he had

committed against a girl named T., an offense of which he was convicted in 1984. Because he

was quite detailed about certain things, he evidently had no memory problem; he had no trouble

remembering the incident. He began describing his cycle in vivid detail: how he deceived his

probation officer by paying the probation fee several months in advance and telling her whatever

she wanted to hear so that she would think he was a good guy and would be easy on him; how,

upon his release from prison, things were going pretty well for him in that he had a job and a car

and he was in a sexual relationship with an adult woman; how he almost was late for work

because he wanted to go down one more street in the hope of finding a woman or young girl to

whom he could expose himself; how he found T. out walking; how he circled back around the

block, parked the car, and took his pants off in the car; how he hoped he would find her where he



                                              - 20 -
last saw her and that she would be as beautiful as she first appeared to be; how he walked up to

her and committed the offense; and how he then ran away, got back in his car, put his pants on,

and went to work as if nothing had happened, other than he was running a little late, as usual.

Stover testified:

                "[He was] [v]ery detailed in certain aspects of his offense.

                       However, in the buildup stages of his offense, he omitted

                any deviancy that was going on, any fantasies, any sexual arousal

                that he was having. At several points in the cycle, myself and the

                other group members would question him about this and he

                continued to very much minimize it, to devalue the importance of

                it. He would make statements that it was always there. So if he

                would put it into a cycle, he would be rewriting the same thing

                over and over again.

                       After several weeks of this, [respondent] then came to

                group with one event that he was going to add to his cycle. And so

                we read the event, and it was the on-going deviancy. But he just

                asked that we, as a group, go ahead and plug that into the

                individual events instead of him, himself, taking responsibility and

                including those in. There were also parts in his cycle where he

                would be very detailed, about the clothing that his victim [T.] was

                wearing. But when we, as a group, would ask about the trauma,

                the pain that was evidenced from the offense itself, he would state

                that, well, it was so many years ago, he can't remember the details.



                                                - 21 -
               But yet, continued providing very specific details in other parts of

               his cycle.

                      ***

                      *** [W]hen we asked about [T.], herself, [respondent] was

               very cutoff [sic] from—from her pain, her suffering. He couldn't

               recall if she had tried to fight him off. He could not recall if she

               was screaming for help when the offense happened. ***

                      Some statements he made was, ['W]ell, that's where I was

               then. You know, I—I don't know now what she's going through

               because I don't know her now.['] And so when we would try to

               explore with him that empathy is putting yourself in the other

               person's position and what do you think they're suffering is, he was

               very resistant to exploring that possibility."

He did not, or would not, understand how being flashed could be traumatic for a child, although

he could intellectually (as distinct from emotionally) understand a possible long-term effect in

that the child, when she was grown and had become a mother herself, could be in continual fear

for her own child.

¶ 87           According to Stover, respondent also was "very resistant to talking about his core

issues." He had "identified his core issues as homophobia, fear of women, women in authority, a

need to be tough[,] and [low] self-esteem." He did not display any insight, however, into how

those core issues led to his sexual misbehavior, other than that "he believed he had to have sex

with women so he would not think he was gay." Stover testified:




                                                - 22 -
               "[W]hen he was presenting the cycle, somebody in the cycle group

               asked [respondent] if he had issues with women, if that was a core

               issue. And [respondent's] replay [sic] was, ['O]f course I do.[']

               And when we followed that up with, ['W]hat are those issues with

               women[?'] he—he was very resistive. That indicated that he didn't

               know. When we followed up, ['W]ell, then why did you agree that

               [you] had women issues[?'] his reply was, ['B]ecause you guys are

               telling me I do.['] So very resistive in seeing how different things

               play into his own life or his own belief system, and very quick at

               different times to just agree with what myself or the group said.

               But then is unable to—to explain that."

¶ 88           Instead of regarding his sexual offenses as proceeding from his own thought

distortions and blameworthy choices, respondent tended to blame some version of fate. At

different points when he was presenting his cycle, he "downplay[ed] his responsibility" by

saying something to the effect of [']it just came over me,['] "describing the deviancy as

something outside of him, something that ha[d] control over him rather *** than something that

he [could] control in himself." By way of illustration, Stover testified:

                       "A. There have been several times recently in the victim

               empathy group where [respondent] will bring a story or a news

               report that he's either heard on the radio or seen on [television],

               he'll bring those situations to group. One of the recent ones he

               came to group with several months ago, he had heard a radio

               program where there was a young woman who was describing that



                                               - 23 -
               she—she never felt comfortable with herself, always believed

               herself to be a man. And had actually progressed to the point

               where she was starting to take treatment to develop into more of a

               man, which she felt more comfortable with. She began taking

               testosterone injections. [Respondent] started describing this story

               of this young woman and saying that when she began receiving the

               testosterone injections, she started noticing herself, objectifying

               women, noticing women's body parts and really struggling with

               what she felt was inappropriate.

                       [Respondent] connected to that in saying, more or less, that

               possibly his deviancy is due to an increased level of testosterone in

               his own body. This individual, I believe, also indicated that she

               had Native American ancestry. And [respondent] connected to that

               as well, stating his mother had Native American ancestry and his

               mother always believed that it was that ancestry that led to his

               deviancy."

¶ 89           In a word, respondent tended to think of himself as being acted upon rather than

acting. Thus, in Stover's opinion, if respondent were released from civil confinement, he would

have difficulty controlling his behavior, because he did not yet understand where that behavior

came from. He did not yet understand "the thinking distortions, the core issues that fuel[ed] the

belief system [whereby it was] okay to sexually offend against somebody else." Without such an

understanding, it was "very difficult, if not impossible, to then learn the appropriate interventions

*** to deter him from sex offending."



                                               - 24 -
¶ 90          Respondent's intended strategy of "avoid and escape," that is, simply avoiding

women and children, was "one useful intervention"; but it was not enough, considering that,

outside Big Muddy, it would be impossible for him to totally avoid women and children. He

also put a lot of stock in Buddhist chanting, but, for him, this was merely another form of avoid

and escape.

¶ 91          Stover summed up:

                      "A.   [Respondent]     currently    displays    difficulty   in

              controlling fantasies, flash fantasies. He has difficulty identifying

              [and] using appropriate interventions, other than avoid and escape,

              in —in minimizing and reducing the intensity of these fantasies.

                      Q. In your expert opinion, if [respondent] is released, is it

              substantially probable that he will engage in the commission of sex

              offenses if the future?

                      A. It is my opinion, that yes.

                      Q. And why?

                      A. [Respondent] is in a restricted setting currently, a setting

              where he has limited contact with females. He has limited ability

              in regards to movement, opportunities to offend.            [He] still

              struggles, very much so, with flash fantasies, with deviant

              thoughts, with objectifying women and children. In the setting that

              he's in right now, it is difficult for him to go past the point of

              objectifying. It's my opinion that at this time he does not have the

              skills, that if he were in a community setting where if he would



                                              - 25 -
               have more opportunity and fewer restrictions, that he would have

               the appropriate skills to deter him from future recidivism."

¶ 92                  4. The Testimony of Jagannathan Sriunivasaraghavan

¶ 93                           a. His Occupation and Qualifications

¶ 94           Jagannathan Sriunivasaraghavan, who, again, went by the shortened surname "Dr.

Van," testified that he was a forensic psychiatrist. He had been practicing psychiatry since 1980,

and he was board-certified in both psychiatry and forensic psychiatry. He had been board-

certified in forensic psychiatry since 1996. He had been working with sex offenders since 1998,

mostly doing evaluations of sexually dangerous persons—although he admitted that sex offender

evaluation was not of much academic interest to him and that he had published nothing on the

subject. He was a professor emeritus at the School of Medicine of Southern Illinois University.

For the past 1 1/2 years, he had been doing sex offender release evaluations for Big Muddy,

working as a contract psychiatrist from Wexford. It was part-time work.

¶ 95           The trial court found Van to be qualified to testify in the fields of psychiatry and

forensic psychiatry and to offer opinions in those fields.

¶ 96                             b. His Evaluation of Respondent

¶ 97           The State had hired Wexford to perform a sex offender release evaluation of

respondent, and Van was one of a team of three evaluators from Wexford assigned to perform

this evaluation. The other two evaluators were Spitler and Klounch. Each of them wrote a

different section of the report. Van wrote the section discussing the psychiatric history, the

medical history, the substance-abuse history, the mental status examination, and the diagnoses.

Spitler wrote the section discussing the "sex offender treatment, history and compliance and




                                               - 26 -
progress." Klounch wrote the section discussing the Static 99R evaluation and the dynamic risk

factors.

¶ 98            The report was based in part on an interview of respondent. The three of them—

Van, Spitler, and Klounch—met with respondent and interviewed him for three hours. This was

the first time Van ever met respondent. The three evaluators also met with the treatment

providers at Big Muddy, including Stover. Van reviewed the following documents: the two

evaluations originally concluding that respondent was a sexually dangerous person, an evaluation

from 2009, and some police reports. According to Van, "each of these sources of information

[was] typically and reasonably relied upon in [his] field in forming an expert opinion." He did

not recall reviewing the evaluation from 2005.

¶ 99            On the basis of his interview of respondent and his review of the documentation,

Van gave six opinions in his testimony. First, respondent suffered from pedophilia, sexually

attracted to females, nonexclusive type; exhibitionism; voyeurism; and alcohol dependence, and

he had been suffering from these mental disorders for well over a decade. Second, respondent's

mental disorders gave him a propensity to commit sex offenses. Third, aversion therapy and

religious practice would be insufficient in themselves to prevent him from committing further

sex offenses.   Fourth, his mental disorders caused him serious difficulty in controlling his

behavior. Fifth, it was substantially probable that if he were released from confinement, he

would commit further sex offenses. Sixth, no set of conditions would allow him to be safely

released into the community at this time.

¶ 100                        5. The Testimony of Kristopher Klounch

¶ 101                         a. His Occupation and Qualifications




                                              - 27 -
¶ 102          Kristopher Klounch testified he was a clinical psychologist. He had a master's

degree and a Ph.D. in clinical psychology. The title of his dissertation was " ['S]ex [O]ffender

[A]ssessment[:] [C]linical [U]tility and [P]redictability.['] "   From 2004 to 2007, he was a

psychometrist for the "Missouri Sex Offender program," doing actuarial psychological

assessments of incoming sex offenders: 40 to 50 assessments a month, for a total of about 1,700

assessments during the three-year period.        Afterward, for several years, he did various

psychological assessments for different employers, including but not limited to sex offender

assessments. Finally, in 2012, he began working for Wexford, and the only thing he did there

was "complete evaluations for the sexually dangerous persons program," including "assessing the

risk of reoffense."

¶ 103          The trial court found Klounch to be qualified as an expert in the fields of sex

offender assessment and treatment.

¶ 104                            b. His Evaluation of Respondent

¶ 105          Klouch testified: "We interviewed [respondent] on March 28th, 2013. And we

completed our report for April 26th, 2013." In the interview, respondent estimated he had

exposed himself to 70 to 80 people. He "indicated that two days prior to the evaluation he had a

sexual fantasy about a fourteen year old." Klounch diagnosed respondent as suffering from the

following mental disorders: pedophilia, exhibitionism, and voyeurism.

¶ 106          Before interviewing respondent, Klounch and the other evaluators reviewed

police reports, prior evaluations done by two doctors named Traugott and Jeckyll, and a recovery

evaluation from 2009. Klounch admitted, on cross-examination, that he had not reviewed police

reports for every offense that respondent had recounted. Nor had he read all the case notes by

treatment providers. Nor had he reviewed the assessment from 2005. On redirect examination,



                                              - 28 -
however, he testified that further police reports would not have changed the results of the Static

99R.

¶ 107          The Static 99R was an actuarial instrument designed to assess the risk of

reoffense. It was comparable to an insurance company's assessment of the risk that someone

would have an accident. "[C]ertain variables [had] been shown to be predictive of future

reoffense for sex offenders." The Static 99R "put [those variables] into a measure and scored

[them] accordingly." The instrument was named "Static" because it "measure[d] static risk

factors," factors that were "not ultimately going to change anytime in the future." The letter "R"

signified that the instrument was a revised version. According to Klounch, the Static 99R was

"reasonably relied upon in [his] field in forming an expert opinion as to whether someone

[would] reoffend."

¶ 108          Klounch testified that respondent scored seven on the Static 99R. The assistant

State's Attorney asked Klounch:

                      "Q. And what does that mean?

                      A. It places [respondent] in the high risk category. And

               research has shown that individuals that have the same score as

               [respondent] have reoffended at 5.25 times the rate of the average

               sex offender.

                      Q. Now, this score of seven on this measure, would have

               been much high[er] if not for his age. Is that correct?

                      A. Yes, it would.

                      Q. And what would his score have been had it not been for

               his age?



                                              - 29 -
                       A. If he was under the age of sixty, it would have been a

               score of ten.

                       Q. Is there any age adjustment that occurs after age sixty on

               the Static 99R?

                       A. No, there is not.

                       Q. Is there—okay. So there's no statistic[al] reduction in

               risk with age, after that—after age sixty, according to the Static

               99R?

                       A. No, there is not."

At the time of his recovery evaluation in 2009, respondent "would have been 58 [years old]," and

consequently his score on the Static 99R "would have been two points higher."

¶ 109          In addition to considering static risk factors via the Static 99R, Klounch

considered dynamic risk factors, factors which could change and which, statistically, had been

shown to enhance the risk of reoffense. Klounch found six dynamic risk factors applicable to

respondent:   (1) sexual preoccupation; (2) a sexual preference for children; (3) multiple

paraphilias, or multiple sexually deviant behaviors, i.e., pedophilia, exhibitionism, and

voyeurism; (4) offense-supported attitudes, i.e., that "women [were] sexual objects" who did not

"communicate appropriately with men" and that "children [were] sexual beings"; (5) a lack of

emotionally intimate relationships with adults; and (6) resistance to rules and supervision.

¶ 110          On cross-examination, Klounch acknowledged that, from 1978 to 1982,

respondent dated a woman named Penny and that they had a sexual relationship, as noted in the

Wexford report. Klounch explained:




                                               - 30 -
                       "A. Well, we knew about that relationship. It was really,

               that factor has a lot to do with actual marriage. And then also it

               would be living with the partner as well.           So the long—he

               indicated that he did not live with that partner, it wasn't like they

               shared a residence. He would spend the night at her home, if I

               recall, but there was nothing further than that. So there wasn't that

               type of marital, cohabitation type relationship."

¶ 111          Likewise, on cross-examination, Klounch admitted that, since 2009, respondent

"ha[d] been in no trouble on the unit and ha[d] received no disciplinary tickets."     On redirect

examination, however, Klounch clarified that "all of [respondent's] problems in following rules

in the past ha[d] related specifically to sexual behavior."

¶ 112          In Klounch's opinion, respondent's mental disorders gave him a propensity to

commit sex offenses, he had serious difficulty controlling his sexual behaviors, there was a

substantial probability he would commit further sex offenses if he were released from

confinement, and no conditions would enable him to be safely released into the community.

¶ 113          After the State rested, respondent moved for a directed verdict. The trial court

denied the motion.

¶ 114          The jury found that respondent still was a sexually dangerous person.

¶ 115          The trial court subsequently denied respondent's motion for a new trial.

¶ 116          This appeal followed.

¶ 117                                      II. ANALYSIS

¶ 118            A. The Denial of Paragraph 4 of Respondent's Motion in Limine




                                                - 31 -
¶ 119          Respondent claims the trial court "erred" by denying paragraph 4 of his motion in

limine, thereby "allowing the jury to be told that [he] was found to remain a sexually dangerous

person in 2009."

¶ 120          Once respondent makes that claim, the very next question is, What is our standard

of review when we review the denial of a motion in limine? Respondent does not say. See Ill. S.

Ct. R. 341(h)(3) (eff. Feb. 6, 2013) ("The appellant must include a concise statement of the

applicable standard of review for each issue, with citation to authority, either in the discussion of

the issue in the argument or under a separate heading placed before the discussion in the

argument."). That omission is a mistake because respondent's task is to convince us that our

standard of review obliges us to find error in the denial of his motion in limine. Leaving out the

standard of review is not the ideal way to go about that task.

¶ 121          We ask whether the denial of paragraph 4 of the motion in limine was an abuse of

discretion. See Noble v. Earle M. Jorgensen Co., 2013 IL App (5th) 120248, ¶ 21. This is the

most deferential standard of review recognized by law. Cholipski v. Bovis Lend Lease, Inc.,

2014 IL App (1st) 132842, ¶ 39. Our mere disagreement with the trial court's decision would not

be enough to make the decision an abuse of discretion. Id. Rather, the trial court abused its

discretion only if the court "acted arbitrarily, exceeded the bounds of reason, or ignored or

misapprehended the law." Id.

¶ 122          Respondent argues that, by denying paragraph 4 of his motion in limine, the trial

court violated the rule that only relevant evidence is admissible (Ill. R. Evid. 402 (eff. Jan. 1,

2011)). Before addressing that argument (within the context of our deferential standard of

review), we need to clarify exactly what argument we understand respondent to be making. We

do not understand him to be challenging an evidentiary ruling in the trial itself. We do not



                                               - 32 -
understand him to be challenging the overruling of an objection he made during the testimony of

a witness. In his argument, he does not discuss any objection and the ruling thereon; nor does he

cite any page of the trial transcript where he objected. See Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6,

2013) ("Argument, which shall contain the contentions of the appellant and the reasons therefor,

with citation of the authorities and the pages of the record relied on."). Instead, we understand

him to be challenging the pretrial ruling on paragraph 4 of his motion in limine—and nothing

more.

¶ 123          With the issue thus circumscribed, we have even greater difficulty finding an

abuse of discretion. If the ruling is only provisional and made "in a vacuum" (Cunningham v.

Millers General Insurance Co., 227 Ill. App. 3d 201, 205 (1992)), it is difficult to condemn it as

arbitrary and unreasonable. No actual prejudice is inflicted by the denial of a motion in limine,

in itself, because the ruling "is always subject to reconsideration during trial." People v. Drum,

321 Ill. App. 3d 1005, 1008 (2001). Perhaps that is why the supreme court has held: "The denial

of a motion in limine does not in itself preserve an objection to disputed evidence that is

introduced later at trial. When a motion in limine is denied, a contemporaneous objection to the

evidence at the time it is offered is required to preserve the issue for review." (Internal quotation

marks omitted.) Simmons v. Garces, 198 Ill. 2d 541, 569 (2002). In other words, for appellate

purposes, the denial of a motion in limine is a nonevent, considering that the motion serves

merely as the preview of an objection that must be made during the trial, in response to some

particular evidence that the opposing party offers.

¶ 124          In our review of the trial transcript, we do not see where respondent made any

objection to evidence that, in 2009, he was found to remain a sexually dangerous person. Even

so, the State does not raise forfeiture resulting from the lack of a contemporaneous objection.



                                               - 33 -
"[B]ecause forfeiture is in the nature of an affirmative defense that the State may either raise,

waive, or forfeit [citation], the forfeiture argument is itself forfeited." (Internal quotation marks

omitted.) People v. Beachem, 229 Ill. 2d 237, 241 n.2 (2008).

¶ 125          Consequently, we will consider whether the denial of paragraph 4 of respondent's

motion in limine was, in itself, an abuse of discretion. Considering that the trial court made its

decision outside any evidentiary context and with the awareness that it was doing nothing

irrevocable (see Drum, 321 Ill. App. 3d at 1008), we are unable to say that the denial of

paragraph 4 of the motion in limine was arbitrary or unreasonable (see Cholipski, 2014 IL App

(1st) 132842, ¶ 39). The court might have foreseen the possibility that, in the trial, respondent

would present evidence of his recovery years ago: evidence that in, say, 2008, he began feeling

genuine empathy for his victims and that he no longer was a sexually dangerous person as of that

time. Such evidence would tend to make it "less probable" that he currently was a sexually

dangerous person. Ill. R. Evid. 401 (eff. Jan. 1, 2011). In all fairness, the State would have the

right to respond with evidence that, in 2009, he was judicially found to remain a sexually

dangerous person. See Klingelhoets v. Charlton-Perrin, 2013 IL App (1st) 112412, ¶ 50. At a

minimum, such evidence would be relevant as rebuttal, and the court could reasonably decline to

impose a blanket interdiction that might later be problematic if the need for such rebuttal arose.

¶ 126          Alternatively, respondent argues that, even if the 2009 decision were relevant, "its

probative value [was] substantially outweighed by the danger of unfair prejudice, confusion of

the issues, or misleading the jury." Ill. R. Evid. 403 (eff. Jan. 1, 2011). Quoting People v.

Walker, 211 Ill. 2d 317, 331 (2004), he compares the 2009 decision to a prior conviction in a

criminal case, which, the supreme court said, "will generally present a danger of unfair prejudice

because this evidence has the capacity to lure the factfinder into declaring guilt on a ground



                                               - 34 -
different from proof specific to the offense charged." (Internal quotation marks omitted.) In this

passage from Walker, however, the supreme court was concerned that evidence of a prior

conviction would lure the jury into finding the defendant guilty of committing the charged

offense because it perceived him or her as having the propensity to commit crime.                Id.

Respondent attempts to analogize that concern to a significantly different context, a recovery

proceeding, a civil proceeding, in which the ultimate issue is the respondent's psychological

status, including his "propensities" (see 725 ILCS 205/1.01 (West 2012)), instead of whether he

committed a yet-to-be-proved offense. In a criminal case, propensity evidence is "[e]vidence of

other crimes, wrongs, or acts" offered to "prove the character of a person in order to show action

in conformity therewith" on a particular occasion. Ill. R. Evid. 404(b) (eff. Jan. 1, 2011). By

contrast, in the present civil proceeding, the 2009 decision was not evidence of a crime, wrong,

or act by respondent; nor did the State intend to offer the 2009 decision as proof that respondent

committed another wrongful act on a particular occasion. Rather, the State intended to offer the

2009 decision as evidence that, if respondent recovered at all, the recovery would have had to

occur sometime after the 2009 decision, not before.

¶ 127          The trial court did not have to conclude that, by offering the 2009 decision for that

purpose, the State would cause a "confusion of the issues." Ill. R. Evid. 403 (eff. Jan. 1, 2011).

The instructions plainly required the jury to presume that (since 2009) respondent had recovered,

and the instructions placed the burden on the State to rebut that presumption by clear and

convincing evidence. The trial court instructed the jury:

                      "The Respondent is presumed to have recovered and to no

               longer be a sexually dangerous person. This presumption remains

               with him throughout every stage of the trial and during your



                                              - 35 -
               deliberations on the verdict and is not overcome unless from all the

               evidence in this case you are convinced by clear and convincing

               evidence that the Respondent is still a sexually dangerous person.

                         The State has the burden of proving the Respondent is still

               a sexually dangerous person by clear and convincing evidence, and

               this burden remains on the State throughout the case.            The

               Respondent is not required to prove he has recovered." (Emphases

               added.)

Thus, there should have been no confusion of the issues. Although the jury had heard evidence

that respondent was judicially found to remain a sexually dangerous person in 2009, the trial

court instructed the jury to presume he had recovered—meaning, logically, that he had recovered

since 2009—and the court further instructed the jury that this presumption was to prevail unless

the State had proved, by clear and convincing evidence, that respondent was "still," presently, a

sexually dangerous person.

¶ 128          In sum, we are unconvinced that the denial of paragraph 4 of respondent's motion

in limine was in itself an abuse of discretion.

¶ 129                B. Refusing To Publish So-Called "Judicial Admissions"

¶ 130          Respondent requested the trial court to read to the jury purported judicial

admissions the State had made in its answer to his recovery application. When the court,

however, compared the purported judicial admissions to what respondent identified as the

corresponding paragraphs of his application, the court found that the judicial admissions

significantly departed, in their language, from the paragraphs of the application that the State had

admitted. For that reason, the court denied respondent's request.



                                                  - 36 -
¶ 131           In his argument, respondent fails to interact with, or even acknowledge, this

rationale by the trial court. Because he gives us no reason to gainsay the court's rationale, we

will accept that rationale as correct.

¶ 132           The trial court is correct for an additional reason: in order for a statement to

qualify as a judicial admission, it must be a party's "statement *** about a concrete fact within

that party's peculiar knowledge." (Internal quotation marks omitted.) In re Marriage of Smith,

265 Ill. App. 3d 249, 253 (1994). Inferences, appearances, and opinions do not qualify. Vincent

v. Wesolowski, 87 Ill. App. 2d 477, 480 (1967); Huber v. Black & White Cab Co., 18 Ill. App. 2d

186, 190 (1958).      By their own terms, the statements that respondent offered as judicial

admissions drew inferences as to what had been going on in respondent's mind (what he had

decided and what he was aware of), or they stated what "appear[ed]" to be the case, or they

concerned matters of which respondent also would have knowledge as opposed to matters within

the State's peculiar knowledge. Consequently, in our de novo review of this issue (Herman v.

Power Maintenance & Constructors, LLC., 388 Ill. App. 3d 352, 360 (2009))—a standard of

review which, by the way, respondent likewise neglects to identify (see Ill. S. Ct. R. 341(h)(3)

(eff. Feb. 6, 2013))—we find no error in the trial court's refusal to take judicial notice of the

purported judicial admissions.

¶ 133                   C. The Denial of the Motion for a Directed Verdict

¶ 134                      1. The High Standard for Directing a Verdict

¶ 135           Respondent contends that the trial court erred by denying his motion for a

directed verdict.

¶ 136           As respondent says, a court should grant such a motion only if all the evidence,

regarded in the light most favorable to the nonmovant, so overwhelmingly favors the movant that



                                              - 37 -
no contrary verdict could possibly stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494,

510 (1967). Because our standard of review is de novo when we review the ruling on a motion

for a directed verdict (Hemminger v. LeMay, 2014 IL App (3d) 120392, ¶ 18), we likewise view

the evidence in the light most favorable to the nonmovant (see Khan v. BDO Seidman, LLP, 408

Ill. App. 3d 564, 578, (2011) ("A de novo review entails performing the same analysis a trial

court would perform.")). This means that, instead of deciding for ourselves how credible a

witness is and instead of deciding for ourselves which evidence to believe or disbelieve (Maple

v. Gustafson, 151 Ill. 2d 445, 452 (1992)), we construe the evidence in a way that supports the

nonmovant's case, and we draw inferences in the nonmovant's favor insomuch as it would be

reasonably defensible to do so (Hamilton v. Hastings, 2014 IL App (4th) 131021, ¶ 22).

¶ 137          If all we can say is that, given the conflicting evidence, the opposite verdict would

have been more reasonable, we should affirm the denial of the motion for a directed verdict. Id.

A trial court should direct a verdict only if it finds "a total failure or lack of evidence to prove

any necessary element of the plaintiff's case." Perfetti v. Marion County, Illinois, 2013 IL App

(5th) 110489, ¶ 15. If, instead of being presented with no evidence whatsoever to support an

element of the plaintiff's prima facie case, the jury has to choose among conflicting pieces of

evidence, some of which support the element and others of which undermine the element, the

trial court should deny the motion for a directed verdict, and we should affirm the denial.

Hamilton, 2014 IL App (4th) 131021, ¶ 23.

¶ 138                    2. The Elements of the State's Prima Facie Case

¶ 139          Section 9(a) of the Sexually Dangerous Persons Act (725 ILCS 205/9(a) (West

2012)) provides: "An application in writing setting forth facts showing that such sexually

dangerous person or criminal sexual psychopathic person has recovered may be filed before the



                                               - 38 -
committing court." In a hearing on the application, "[t]he sexually dangerous person or the State

may elect to have the hearing before a jury," and "[t]he State has the burden of proving by clear

and convincing evidence that the applicant is still a sexually dangerous person." 725 ILCS

205/9(b) (West 2012).

¶ 140          Thus, the State has the burden of proving, by clear and convincing evidence, that

the civilly committed person, the respondent, still meets the statutory definition of a "sexually

dangerous person." Id. That statutory definition has the following four elements, which are the

elements of the State's prima facie case. First, the respondent suffers from a mental disorder.

Second, the respondent has suffered from the mental disorder for a year or longer. Third, the

mental disorder is accompanied by criminal propensities to the commission of sex offenses.

Fourth, the respondent has demonstrated propensities toward acts of sexual assault or acts of

sexual molestation of "children" (meaning any person under the age of 18 (People v. Beksel, 125

Ill. App. 2d 322, 329 (1970)). 725 ILCS 205/1.01 (West 2012); People v. Burns, 209 Ill. 2d 551,

553 (2004).

¶ 141          We may overturn the denial of respondent's motion for a directed verdict only if

we find, in our de novo review, "a total failure or lack of evidence" to prove any of these four

elements of the State's prima facie case. Perfetti, 2013 IL App (5th) 110489, ¶ 15.

¶ 142          3. Respondent's Argument That the State's Witnesses Lack Credibility

¶ 143          Respondent argues:

               "While Spitler, Stover, Dr. Van, and Klounch all said the magic

               words, their bases for doing so were formulaic. Spitler testified at

               length about [respondent's] decade-and-more-old criminal history

               but [h]ad nothing credible to say about so-called sex offender



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               treatment he received before 2000, and his contact with

               [respondent] lasted a sum total of 3 hours, during which he found

               him to be truthful and cooperative.        Stover testified about an

               evaluation process that falls just short of risible. Metrics change

               from evaluation to evaluation.           Offenders are subjectively

               evaluated by different people. Evaluations vary like sine waves."

¶ 144          It is unclear why respondent regards the "bases" of the witnesses' testimony as

"formulaic," but, essentially, he seems to be suggesting that the bases are unconvincing. In fact,

all respondent does in the quoted passage is assert, either explicitly or in so many words, that the

witnesses, declared by the trial court to be experts, are unbelievable. Spitler supposedly is

unbelievable because he interviewed respondent for only three hours, during which respondent

was truthful and cooperative, and because Spitler did not know much about the treatment

respondent received before 2000. Stover supposedly is unbelievable because she testified to an

evaluation process that is subjective and inconsistent.

¶ 145          Similarly, respondent challenges the credibility of Van and Klounch. He argues:

               "To stay busy in retirement, Dr. Van does evaluations in a field

               that interested him not at all during his professional career. Mr.

               Klounch parroted the same opinions as his colleagues, based

               primarily on an actuarial test that goes to elaborate lengths to

               conclude that the future is the past; once a sex offender, always a

               sex offender."

In other words, Van supposedly is unbelievable because he merely dabbles in sex offender

evaluation as a lucrative hobby in his retirement and because the subject did not interest him,



                                               - 40 -
academically, in his professional career. Klounch supposedly is unbelievable because he relies

on the Static 99R, an actuarial instrument, which, in respondent's crude caricature, operates on

the principle of "once a sex offender, always a sex offender." So, immediately after warning us

in his brief that we must not "re-weigh the *** credibility of the witnesses," respondent turns

around and invites us to do just that. We decline the invitation. We must scrupulously refrain

from deciding whether the witnesses were credible. See Maple, 151 Ill. 2d at 452.

¶ 146                       4. Conflicting Evidence on How Well
                         Respondent Did in Phase II of the Treatment

¶ 147         Respondent perceives a conflict in the evidence. On the one hand, in periodic

written reports, evaluators, including Stover, gave him some good scores during phase II of his

treatment. On the other hand, Stover testified to what she regarded as grave deficiencies in

respondent's presentation of his cycle. Respondent argues:

              "Even a single evaluator, (namely, Stover), changes her opinions

              on evaluations wildly as often as every six months. From one side

              of the Expert Mouth, we hear that [respondent] is making progress

              over time; the other side tells us that, (coincidentally just before

              there is to be hearing on his application showing recovery), he is

              regressing on his road to recovery. ***

                      After nearly a decade-and-a-half, the State gave the jury to

              believe, [respondent]—an intelligent, cooperative, mature man—

              has, as a captive audience of Big Muddy's programmers, made (a)

              some progress or (b) some progress but has back-slid dramatically

              just over the past six months."




                                                - 41 -
¶ 148          Thus, there is an apparent conflict in the evidence. At first, evaluators said in

their written reports that respondent was making progress. (It is worth noting, however, that the

trial court instructed the jury to regard these written reports not as substantive evidence but only

as part of the bases for the expert opinions. But let us assume, for the sake of argument, that they

are evidence.) Then, six months later, there was a reassessment, which yielded the conclusion

that he had made inadequate progress to graduate to phase III, the prerelease phase. Far from

meriting a directed verdict, such a conflict in the evidence precludes a directed verdict. "A trial

court is not free to enter a directed verdict *** where *** the determination regarding conflicting

evidence is decisive to the outcome." (Internal quotation marks omitted.) Hamilton, 2014 IL

App (4th) 131021, ¶ 23.

¶ 149          5. Whether the Verdict Is Against the Manifest Weight of the Evidence

¶ 150          In a short concluding paragraph of his argument, respondent says that, "[f]or

substantially the reasons set forth in the preceding sections [of his brief]," the jury's verdict was

against the manifest weight of the evidence and hence the trial court should have granted his

motion for a new trial. See Maple, 151 Ill. 2d at 454. We have already addressed the reasons set

forth in the preceding sections of respondent's brief, and therefore we are unconvinced that the

verdict is against the manifest weight of the evidence or that a new trial is merited.

¶ 151                                   III. CONCLUSION

¶ 152          For the foregoing reasons, we affirm the trial court's judgment.

¶ 153          Affirmed.




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