                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                     In re Commitment of Kelley, 2012 IL App (1st) 110240




Appellate Court            In re THE COMMITMENT OF LEROY KELLEY (The People of the
Caption                    State of Illinois, Petitioner-Appellee, v. Leroy Kelley, Respondent-
                           Appellant).



District & No.             First District, Fifth Division
                           Docket No. 1-11-0240


Filed                      May 11, 2012
Rehearing denied           July 10, 2012


Held                       The commitment of respondent to a secure facility as a sexually violent
(Note: This syllabus       person was affirmed, notwithstanding his contentions that the trial court
constitutes no part of     abused its discretion in denying his motion in limine to stipulate to his
the opinion of the court   prior convictions and preclude the State from referring to those
but has been prepared      convictions by name and that he was denied a fair trial when the State
by the Reporter of         argued the details of his past crimes as substantive evidence in closing
Decisions for the          arguments, since any error arising from the denial of respondent’s motion
convenience of the         did not warrant reversal in view of the overwhelming evidence that
reader.)
                           respondent was a sexually violent person and the limiting instructions
                           given to the jury, and the State did not argue defendant’s past crimes as
                           substantive evidence but, rather, did so in response to respondent’s
                           attacks on the opinions of the State’s experts.


Decision Under             Appeal from the Circuit Court of Cook County, No. 07-CR-80003; the
Review                     Hon. Timothy J. Joyce, Judge, presiding.


Judgment                   Affirmed.
Counsel on                 Daniel T. Coyne, Matthew M. Daniels, Elizabeth D. Leeb, Michael R.
Appeal                     Johnson, and Emily D. Bock, all of Chicago, for appellant.

                           Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
                           Solicitor General, and Michael M. Glick and David H. Iskowich,
                           Assistant Attorneys General, of counsel), for the People.


Panel                      JUSTICE McBRIDE delivered the judgment of the court, with opinion.
                           Presiding Justice Epstein and Justice J. Gordon concurred in the
                           judgment and opinion.



                                              OPINION

¶1           In 2010, a jury found respondent, Leroy Kelley, to be a sexually violent person under the
        Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 to 99 (West 2010)).
        Following a subsequent dispositional hearing, the trial court ordered respondent committed
        to the Illinois Department of Human Services (DHS) for institutional care in a secure facility.
        Respondent appeals, arguing that: (1) the trial court abused its discretion when it denied
        respondent’s motion in limine to stipulate to his prior convictions for sexually violent
        offenses and to preclude the State from referring to the name of those convictions; and (2)
        he was denied a fair trial when the State argued details of his past crimes as substantive
        evidence in closing arguments.
¶2           The present action began on April 24, 2007, when the State filed a petition pursuant to
        the Act seeking to have respondent adjudicated a sexually violent person and committed to
        the care and custody of the DHS. The petition alleged that in 1977 respondent was convicted
        of the sexually violent offense of deviate sexual assault and that he was sentenced to a term
        of 40 years’ imprisonment. The petition further alleged that respondent had been diagnosed
        with the mental disorder of paraphilia, not otherwise specified, nonconsenting persons
        (paraphilia NOS), which was a congenital or acquired condition affecting respondent’s
        emotional or volitional capacity which predisposed respondent to commit acts of sexual
        violence. Finally, the petition alleged that respondent was dangerous because his mental
        disorder made it substantially probable that he would engage in acts of sexual violence.
¶3           On April 24, 2007, after reviewing the State’s petition, the trial court ordered respondent
        transferred to a DHS detention facility upon his release from the Illinois Department of
        Corrections (DOC). On June 26, 2007, following a hearing on the petition, the trial court
        found that there was probable cause to believe that respondent was a sexually violent person
        and continued the order of detention until trial.
¶4           Prior to trial, respondent filed two motions in limine that are relevant to this appeal. In
        the first, respondent sought to stipulate that he had been convicted of sexually violent

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     offenses without the jury being informed of the names of those specific offenses. In the
     second motion, respondent sought to limit testimony by the State’s expert witnesses
     regarding the details of respondent’s prior sexually violent offenses. The trial court denied
     these motions but agreed to provide the jury with limiting instructions regarding how the
     testimony could be considered.
¶5       At respondent’s jury trial, the State presented the testimony of two expert witnesses: Dr.
     Ray Quackenbush and Dr. Steven Gaskell. Dr. Quackenbush testified that he was a licensed
     clinical psychologist employed by Affiliated Psychologists, Ltd. He was also approved by
     the Illinois Sex Offender Management Board to provide treatment and evaluation of sexual
     offenders. The trial court found the doctor to be an expert in the field of clinical psychology.
¶6       Dr. Quackenbush testified that the DOC referred respondent for a full psychological
     evaluation to determine if he should be recommended for possible civil commitment as a
     sexually violent person, and the doctor was appointed to conduct that evaluation. As part of
     that evaluation, Dr. Quackenbush first reviewed respondent’s master file, which was a
     “complete set of documents dealing with his criminal history and his involvement with the
     Department of Corrections.” Among other things, the file included court records, victim
     statements, medical records and respondent’s disciplinary history while in the DOC. All of
     these documents are reasonably relied upon by experts in conducting a sexually violent
     person evaluation. Dr. Quackenbush also interviewed respondent in December of 2006 at the
     Stateville Correctional Center for approximately 1 hour and 45 minutes. The doctor prepared
     a report after completing his evaluation on December 19, 2006. He then evaluated respondent
     again in April of 2007, which included updating his reading of respondent’s master file and
     interviewing respondent again at the Dixon Correctional Center for 1 hour and 15 minutes.
     The doctor prepared a second report on April 18, 2007. Finally, to keep his opinion current
     for respondent’s trial, Dr. Quackenbush reviewed additional documents as they became
     available, including records from the DHS treatment and detention facility where respondent
     was residing at the time of trial.
¶7       Dr. Quackenbush testified that in 1977 respondent was convicted of the sexually violent
     offense of deviate sexual assault and that the facts underlying that conviction were relevant
     to forming the doctor’s opinion. In that case, respondent was on probation from another case
     when he confronted a woman exiting a garage. He put a knife to her throat and said, “don’t
     scream or I’ll kill you.” He asked the woman for money, and when she said that she did not
     have any, he forced her to open the trunk of her car and stuffed a rag into her mouth. He then
     had her put his arms around him so it looked like they were together and they walked into
     her apartment. Respondent blindfolded the victim and took a number of items from her
     apartment. Respondent then opened his pants and showed the victim his penis and asked her
     to perform oral sex on him. She refused and respondent repeated his demand. When the
     victim again refused, respondent tied the victim’s hands behind her back, placed her on the
     ground, and put a step ladder on top of her and left.1 After a jury convicted him of deviate


             1
               An “Official Statement of Facts” from the case, which is contained in the record, indicates
     that after respondent took valuables from the victim’s apartment, he “forced the victim to perform

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       sexual assault, respondent was sentenced to 40 years’ imprisonment.
¶8         Dr Quackenbush also considered the facts of two other sexually violent offenses for
       which respondent was convicted in 1973. In the first case, respondent and his brother and
       sister were walking down the street when they saw a woman they knew. Respondent forced
       the victim to the back of a building and then raped her. Afterwards, he told the victim he had
       been interested in her for some time and asked her to be his girlfriend. When respondent
       eventually let the victim leave, she went to her apartment and told her boyfriend what
       happened. When the boyfriend found respondent, respondent pulled a gun and then ran away.
       Respondent was convicted of rape in that case following a bench trial and was sentenced to
       four to six years’ imprisonment.
¶9         Several months after this rape, respondent was arrested for another rape. In that case,
       respondent approached a vehicle containing two women and pulled a gun and entered the
       vehicle. After driving a short distance, respondent took both women out of the car and raped
       one of them in the backyard of a residence. He forced the women back into the car, drove a
       short distance, and then forced both women out of the car and raped them. Respondent pled
       guilty to rape and was sentenced to four to six years’ imprisonment. Dr. Quackenbush
       testified that all three crimes were similar in that respondent used a weapon and forced the
       victim to engage in sexual activity against her will, and each had the potential to cause
       serious injury to the victim.
¶ 10       Dr. Quackenbush testified that in forming his opinion, he also considered the facts and
       circumstances of respondent’s nonsexual criminal history. Respondent had an “extensive
       criminal history,” including an arrest for burglary, an arrest and conviction for armed
       robbery, and an arrest and conviction for aggravated assault. During his interview,
       respondent also told Dr. Quackenbush about one sex crime that the doctor was unaware of.
       Respondent told Dr. Quackenbush that he was first arrested for statutory rape of his girlfriend
       when he was 19 and she was 16. When his girlfriend became pregnant, her father had
       respondent arrested but the charges were later dropped.
¶ 11       Dr. Quackenbush also considered the facts and circumstances of respondent’s
       institutional adjustments in the DOC in forming his opinion in this case. Respondent had an
       “extensive disciplinary history in the [DOC],” including over 250 disciplinary actions against
       him. This was an “unusually high number,” even for someone serving a long sentence. The
       facts of those disciplinary actions were important to the doctor. Several disciplinary actions
       were for sexual misconduct, and there were numerous disciplinary actions for fighting,
       intimidation or threats, arson, and throwing liquid on or attacking correctional officers. The
       sexual misconduct actions were important to the doctor because they occurred late in his
       sentence, and the most recent sexual misconduct occurred within two years of respondent’s
       release from prison. In one instance, respondent was masturbating in front of a nurse and, in
       another, respondent forced an inmate to perform oral sex on him in a prison closet.
¶ 12       The doctor also considered the facts and circumstances of respondent’s adjustment while


       oral copulation upon him. [Respondent] was arrested nineteen days later for a different incident of
       similar procedures, placed in a line-up, and then identified by the victim.”

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       on parole. Respondent had been on parole three times and he violated parole each time. His
       most recent sexual offense occurred while respondent was on parole for the two rape charges.
       While respondent was on parole the first time for his most recent conviction, he made threats
       against his “host” and the staff of the DOC. He demanded money from his host and
       attempted to get her to go to the cash machine and get money. He also attempted to have her
       submit to a full-body massage. His host finally “had enough” and went to the parole
       department. Respondent’s parole was violated and he was returned to the DOC for six
       months. After he was again released on parole, respondent was hospitalized for a period of
       time for medical reasons. During his hospitalization, respondent was masturbating in his bed
       when a nurse walked into the room. He asked her to massage him and she refused.
       Respondent then wrote his phone number out and pressed it into the nurse’s hand. On
       another occasion in the hospital, respondent propositioned a 14-year-old female hospital
       volunteer who entered his room. After she left his room, respondent tried to follow her down
       the hall shouting at and threatening her. Respondent’s parole officer happened to visit the
       hospital shortly thereafter and was informed of the incident. Respondent was again returned
       to the DOC. Respondent kicked his parole officer in the chest and he also became violent
       while being transported to the DOC.
¶ 13       Dr. Quackenbush also considered that respondent did not participate in sexual offender
       treatment while in the DOC. Such participation is relevant to the doctor’s evaluation.
       Respondent was offered treatment every year he was in the DOC but refused to participate.
       Respondent told the doctor that he did not need sexual offender treatment and that he felt
       getting treatment would interfere with getting his case back into court. On his second parole
       from his most recent case, respondent was required to attend outpatient sexual offender
       treatment. He had completed the entry evaluation to the program but he was terminated from
       the program when the program learned of his behavior at the hospital.
¶ 14       Respondent’s behavior while in the DHS treatment and detention facility was also
       relevant to the doctor’s evaluation. Respondent had attended an orientation group at the
       facility, which was positive, but he had thus far refused to enter into a core sex offender
       treatment program. Respondent had also exposed himself to staff members twice at the DHS
       facility.
¶ 15       Dr. Quackenbush used the Diagnostic and Statistical Manual of Mental Disorders IV
       (DSM-IV), which is the “authoritative reference” in his field, as part of his evaluation of
       respondent. The doctor diagnosed respondent with paraphilia, not otherwise specified,
       nonconsenting persons. The doctor explained that “the paraphilia is the disorder” and that
       “it’s a deviant sexual practice or set of fantasies.” According to the doctor, there are
       approximately 300 named paraphilias, most of which are not given a specific individual
       diagnosis but, instead, are given the paraphilia “not otherwise specified” (NOS) diagnosis.
       The “non-consenting persons” diagnosis indicates what type of paraphilia it is. There are two
       criteria for a diagnosis of parahilia NOS. The first is that the person has over a period of at
       least six months experienced either fantasies or sexual urges or behaviors involving sexual
       activity with a non-consenting person. In respondent’s case, he had engaged in sexual activity
       with nonconsenting persons for approximately 39 years. The second criterion for the
       diagnosis is that the person must have either acted on his urges or fantasies and his sexual

                                                -5-
       behavior has caused him to suffer a major dislocation or impediment in his life. In
       respondent’s case, he had been incarcerated for most of his adult life as a result of his sexual
       behavior. Respondent’s mental disorder is also a congenital or acquired condition affecting
       his emotional or volitional capacity that predisposes him to commit acts of sexual violence.
¶ 16       Respondent also has a history of being diagnosed with three different personality
       disorders in prison: antisocial personality disorder, scats-affective disorder and paranoid
       personality disorder. None of these diagnoses has predominated, so Dr. Quackenbush
       diagnosed respondent as suffering from a personality disorder, not otherwise specified, with
       paranoid scats-affective and antisocial features. Personality disorders are difficult to diagnose
       and therefore it was not unusual for respondent to have been diagnosed with different
       personality disorders from different evaluators in the past. In terms of the criteria for
       diagnosing these personality disorders, Dr. Quackenbush relied upon respondent’s history
       of being diagnosed by the psychiatrists in the DOC. These personality disorders “seriously
       exacerbate[ ]” respondent’s paraphilia and “contribute to his inability to control his urges and
       behaviors.”
¶ 17       Dr. Quackenbush also used several methods to evaluate respondent’s risk of sexually
       reoffending. The first method used was an actuarial risk assessment. He explained that this
       involves considering things such as how many times the person has been arrested or
       convicted for a sexually violent crime, whether the victims were strangers or people known
       to the person, whether the victims were adults, male, female or children, and whether the
       person has been in treatment. All of the risk factors have been assigned statistical weights
       and those are added to arrive at a category of risk for the individual. In respondent’s case, Dr.
       Quackenbush used two actuarial instruments: the Static-99 and the Minnesota Sex Offender
       Screening Tool Revised (MNSOST-R). Respondent scored in the “high risk” category on the
       Static-99 and specifically scored a 9, which was “one of the highest scores” the doctor had
       ever seen. That was also the “highest score that in the research on the Static 99 was
       produced.” The doctor also stated that it was not unusual for evaluators using the Static-99
       to arrive at different numbers because such a “standard error” is built into all psychological
       tests. Respondent scored a 17 on the MNSOST-R, which placed him in the “high risk”
       category.
¶ 18       Dr. Quackenbush also used the Hare Psychopathy Checklist, which is a personality test
       used to measure a very narrow personality trait, psychopathy. He explained that “it’s similar
       to anti-social personality disorder, but it’s a more narrow concept and it involves a
       remorseless use of other people and leading a criminal lifestyle.” Respondent scored in the
       96th percentile, meaning he has a “higher degree of psychopathy than 96 percent of
       incarcerated prison inmates.”
¶ 19       Dr. Quackenbush also considered several dynamic risk and protective factors in
       respondent’s case that “can serve as targets for intervention and therapy.” He considered
       respondent’s “deviant sexual preference.” He also considered respondent’s “interpersonal
       difficulties, that he doesn’t relate well to other people as shown by his criminal history and
       as shown by his disciplinary history in the [DOC]. And the notes from the treatment
       detention center also showed that he’s had a lot of trouble getting along with other people
       there.” The doctor also considered respondent’s age as a factor. This was “very important”

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       because for some individuals age can be a mitigating protective factor but this was not the
       case with respondent because his most recent sexual behavior with nonconsenting persons
       had been about a year before, and so respondent “still seem[ed] to be very active in
       committing sex offenses.” Dr. Quackenbush also considered respondent’s failure to complete
       a treatment program because research indicates “that a good sex offender treatment program
       can reduce the likelihood of someone committing an act of sexual violence in the future.”
       Ultimately, all of the items the doctor considered in his risk assessment were consistent with
       respondent’s total risk assessment and indicated that respondent was at a high risk of
       committing future acts of sexual violence.
¶ 20        Based upon all of his considerations, and in his opinion to a reasonable degree of
       psychological certainty, Dr. Quackenbush opined that it was substantially probable that
       respondent would commit future acts of sexual violence. By “substantially probable,” the
       doctor meant “much more likely than not.”
¶ 21        On cross-examination, Dr. Quackenbush acknowledged that respondent had not been
       charged with or convicted of any criminal offense since 1977. He also agreed that his
       understanding of respondent’s parole violations was based entirely on records generated by
       parole officers.
¶ 22        The State’s next witness was Dr. Steven Gaskell, a clinical and forensic psychologist who
       specialized in the assessment and treatment of mental disorders. Dr. Gaskell testified that he
       is also a registered evaluator with the Illinois Sex Offender Management Board. The trial
       court accepted Dr. Gaskell as an expert in the field of clinical psychology.
¶ 23        Dr. Gaskell evaluated respondent pursuant to a court order. He did not interview
       respondent because respondent would not participate in the interview. Dr. Gaskell testified
       that he considered respondent’s master file as part of his evaluation, and his testimony
       regarding the facts and circumstances of respondent’s criminal history was essentially the
       same as the testimony given by Dr. Quackenbush. He added that in the 1973 rape case,
       respondent beat and sexually assaulted the victim after telling the victim that he had a gun
       and that he would kill her if she did not submit to his sexual advances. The doctor testified
       that in the 1977 case respondent forced the victim to perform oral sex on him. Regarding
       respondent’s past nonsexual criminal history, Dr. Gaskell testified that in 1965, when
       respondent was 13 years old, he was convicted of aggravated assault and possession of a
       deadly weapon after he took a gun to school with the intent to kill a 16-year-old male who
       had been picking on him. Respondent had a “run away charge” as a juvenile that was a
       violation of his probation. He was convicted of robbery in 1970 and he had a “warrant
       failure” in the early 1970s. Respondent had another offense three weeks after the 1977
       robbery and deviate sexual assault. It was a similar case in that he approached a woman and
       asked her for money. She said she did not have any money and respondent began to lead her
       down an alley until a car drove by and scared him off. He was convicted of attempted armed
       robbery and sentenced to 15 years’ imprisonment.
¶ 24        Dr. Gaskell also considered respondent’s behavior and the disciplinary actions taken
       against him in the DOC, and his testimony closely tracked the testimony of Dr.
       Quackenbush. He added that during respondent’s 2005 parole, he went to the home of a DOC


                                                -7-
       employee and harassed the employee’s daughter. In November of 2005, he swore at an
       “AMS operator” and on another occasion propositioned an AMS operator. An AMS operator
       is someone connected with respondent’s parole. The final incident, described by
       Quackenbush, was when he tried to get his “host” to submit to a body massage and then go
       to a cash machine and get him money. Dr. Gaskell also added that when respondent was on
       parole in 2006, he kicked the door in on the cage of the state vehicle taking him to prison and
       threatened to kill his parole officer and the officer’s family. Like Dr. Quackenbush, Dr.
       Gaskell also considered respondent’s behavior while in the DHS treatment and detention
       facility and his testimony was substantially the same as the testimony of Dr. Quackenbush.
¶ 25       Dr. Gaskell also employed the DSM-IV and diagnosed respondent with paraphilia, not
       otherwise specified, sexually attracted to nonconsenting females and antisocial personality
       disorder. These mental disorders predispose respondent to commit acts of sexual violence
       and were congenital or acquired conditions that affected his emotional or volitional capacity
       in that respondent “has urges and fantasies to have sexual contact with non-consenting
       persons.” Respondent also has “a failure to conform to social norms” so that “he doesn’t
       really have a filter or something that’s going to stop him from making a different decision
       when he has those urges.” The doctor defined the antisocial personality disorder as “a
       pervasive pattern of disregard for and violations of the rights of others occurring since at
       least the age of 15.” Dr. Gaskell also diagnosed respondent with cannabis abuse in a
       controlled environment and psychotic disorder, not otherwise specified.
¶ 26       The doctor acknowledged that respondent had not sexually attacked anyone while in
       custody but testified that this did not alter his opinion because “it’s a really infrequent event
       that someone would actually sexually assault someone within a facility.” Respondent also
       has not had the opportunity to arm himself within the DOC or the DHS treatment and
       detention facility.
¶ 27       Dr. Gaskell employed the Static-99 and respondent fell into the “high risk” category for
       that test. Respondent scored an 8 on the Static-99 and other sexual offenders have an average
       score of 2. Dr. Gaskell also used the MNSOST-R and respondent again placed in the “high
       risk” range. The doctor then considered seven additional risk factors that pertained to
       respondent, including antisocial personality disorder, high score on the “PCLR,” substance
       abuse, general self-regulation problems, impulsiveness, recklessness, any deviant sexual
       interests and employment stability. A consideration of these factors placed respondent at an
       even higher level of risk. The doctor did consider protective factors that could reduce
       respondent’s risk of sexually reoffending. These included his age, his health, and any
       progress in sex offender treatment. However, respondent had refused to participate in sex
       offender treatment while in the DOC. In 2006, he was in treatment in Will County for five
       weeks but he had poor progress and was terminated from the program. Since that time, he
       has not participated in sex offender treatment in the DOC or in the DHS treatment and
       detention facility.
¶ 28       The doctor testified that in his opinion, to a reasonable degree of psychological certainty,
       it was substantially probable that respondent would commit future acts of sexual violence.
       According to the doctor, “substantially probable” meant more likely than not.


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¶ 29       The State concluded its case by presenting a stipulation that respondent had been
       convicted of three sexually violent offenses: (1) deviate sexual assault, in Cook County case
       number 77 I 40396, which resulted in a 40-year term of imprisonment; (2) rape, in Cook
       County case number 73 C 2980, for which he was sentenced to 4 to 6 years’ imprisonment;
       and (3) rape, in Cook County case number 73 C 3176, for which he was sentenced to a term
       of 4 to 6 years’ imprisonment to run concurrently with the sentence in case number 73 C
       2980. The defense rested without presenting any evidence on respondent’s behalf.
¶ 30       After closing arguments, the trial court denied respondent’s motion for a mistrial based
       on allegedly improper remarks made by the State during its rebuttal argument. The jury
       returned a verdict finding that respondent was a sexually violent person. Following a
       subsequent dispositional hearing, at which Dr. Gaskell opined that respondent should be
       placed in secure care in the DHS, the trial court ordered respondent be held in institutional
       care in a secure facilty. This appeal followed.
¶ 31       The Act defines a sexually violent person as an individual who “has been convicted of
       a sexually violent offense *** and who is dangerous because he or she suffers from a mental
       disorder that makes it substantially probable that the person will engage in acts of sexual
       violence.” 725 ILCS 207/5(f) (West 2006). To show that respondent is a sexually violent
       person, the State is required to prove beyond a reasonable doubt that respondent: (1) has been
       convicted of a sexually violent offense; (2) has a “mental disorder” as defined by the Act;
       and that (3) he “is a danger to others because the mental disorder causes a substantial
       probability that the subject will commit acts of sexual violence.” In re Detention of Hardin,
       238 Ill. 2d 33, 43 (2010) (citing 725 ILCS 207/5(f), 15(b) (West 2006)). The Act defines a
       “mental disorder” as a “congenital or acquired condition affecting the emotional or volitional
       capacity that predisposes a person to engage in acts of sexual violence.” 725 ILCS 207/5(b)
       (West 2006). On review, we ask only 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. In re Detention of Lieberman, 379 Ill. App. 3d 585, 598 (2007).
¶ 32       Respondent first contends that the trial court erred by denying his motion in limine to
       stipulate to his prior convictions for sexually violent offenses and to preclude the State from
       referring to the name of those convictions.
¶ 33       A ruling on a motion in limine is a matter within the discretion of the trial court and will
       not be reversed absent an abuse of that discretion. People v. Nelson, 235 Ill. 2d 386, 420
       (2009). An abuse of discretion occurs only when the trial court’s ruling is “arbitrary, fanciful,
       or unreasonable or where no reasonable [person] would take the view adopted by the trial
       court.” (Internal quotation marks omitted.) People v. Santos, 211 Ill. 2d 395, 401 (2004).
¶ 34       In his motion, respondent analogized his situation to criminal cases where proof of a prior
       felony conviction is an element of the offense and claimed that, in his case as well, he would
       be unfairly prejudiced by allowing the State to discuss and elicit testimony regarding the
       names and nature of his prior convictions. See Old Chief v. United States, 519 U.S. 172, 191-
       92 (1997) (holding that when felon status is all the prosecution is required to prove, evidence
       of the name and nature should be excluded because it has no probative value and carries a
       high risk of unfair prejudice); People v. Walker, 211 Ill. 2d 317, 338 (2004) (applying Old


                                                 -9-
       Chief to Illinois law).
¶ 35       In Walker, 211 Ill. 2d at 320, 328, the defendant was charged with possession of a
       weapon by a felon and the issue on appeal was whether the trial court abused its discretion
       by allowing the prosecution to present evidence of the name and nature of defendant’s prior
       conviction when a stipulation was available. The court held that “where the prosecution’s
       sole purpose for introducing evidence of a defendant’s prior felony conviction is to prove his
       status as a convicted felon and the defendant offers to stipulate to this element, the probative
       value of the name and nature of the prior conviction is outweighed by the risk of unfair
       prejudice and, thus, should be excluded.” Walker, 211 Ill. 2d at 341. The court reasoned that
       in cases requiring proof of felon status, the admission of the defendant’s record of
       convictions creates a risk that he will be unfairly prejudiced that “because the only purpose
       for admitting a defendant’s prior-conviction record is to establish felon status, the name and
       nature of the prior convictions is unnecessary surplusage without any evidentiary
       significance.” Walker, 211 Ill. 2d at 338. The court concluded that “when proving felon
       status is the only purpose for admitting evidence of a defendant’s prior convictions, and the
       defendant offers to stipulate or admit to his prior felon status, a trial court abuses its
       discretion when it admits the defendant’s record of conviction, thus informing the jury of the
       name and nature of the defendant’s prior convictions.” Walker, 211 Ill. 2d at 338.
¶ 36       In this case, in his motion in limine, respondent relied upon Walker to assert that he
       would be unfairly prejudiced if the State were allowed to inform the jury of the names and
       nature of his convictions for sexually violent offenses. The trial court denied respondent’s
       motion because the Act required proof that defendant had been convicted of specific sexually
       violent offenses and because “the manner in which any offenses were committed may all be
       much more highly relevant than any particulars regarding a particular conviction in the Old
       Chief or Walker context.”
¶ 37       Respondent claims the trial court’s ruling was an abuse of discretion. He asserts that the
       names of his prior convictions were relevant only to prove that he had been convicted of a
       sexually violent offense, that this requirement could have been satisfied by a stipulation, and
       that the names and nature of his prior convictions were “unnecessary surplusage” that should
       have been barred as unfairly prejudicial.
¶ 38       After reviewing the record, we find that the present case is distinguishable from Walker
       and that, based upon the unique facts of this case, the trial court’s ruling was not an abuse
       of discretion. The court in Walker stated that its holding was a “narrow one” that was limited
       to situations where the prosecution’s sole purpose for introducing evidence of defendant’s
       prior felony convictions was to prove his status as a convicted felon and where the defendant
       offered to stipulate to that element. See Walker, 211 Ill. 2d at 341. In this case, unlike in
       Walker, the State did not discuss or elicit testimony of the name and nature of respondent’s
       prior convictions for the sole purpose of proving that he had been convicted of a sexually
       violent offense. Rather, the State had multiple purposes for eliciting this testimony. First, in
       order to satisfy its burden under the Act, the State was required to prove that respondent had
       been previously convicted of one or more sexually violent offenses that are specifically
       enumerated in the Act. See 725 ILCS 207/5(e)(1) to (e)(3) (West 2008). The State also
       sought to elicit this testimony in order to allow its expert witnesses to explain the basis of

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       their opinions. Dr. Quackenbush and Dr. Gaskell testified that they relied upon the nature of
       respondent’s prior convictions in arriving at their opinions in this case. It is well settled that
       “[a]n expert witness may properly testify to facts upon which [his or] her opinion is based.”
       In re Detention of Lieberman, 379 Ill. App. 3d at 604-05. Thus, the stipulation defendant
       sought in his motion in limine would not have served the same purpose as testimony
       regarding his prior convictions, and we find nothing improper in the testimony of the State’s
       expert witnesses in this regard. See Big Chief, 519 U.S. at 186-87 (stating that, under normal
       circumstances, the State has the right to present evidence with multiple utility and that if
       there is any other purpose for admitting evidence of the name and nature of a prior
       conviction, the prosecution must be allowed to present it).
¶ 39        Moreover, the record shows that after the testimony of Dr. Quackenbush and Dr. Gaskell,
       the trial court instructed the jury that the testimony of each witness regarding respondent’s
       past instances of misconduct was allowed for the limited purpose of explaining the basis of
       each expert’s opinion and was not to be considered as substantive evidence. The trial court
       also instructed the jury on this principle orally and in writing at the conclusion of trial. There
       is a presumption that jurors follow the instructions given by the court, and we find nothing
       in the record to rebut that presumption. For these reasons, we cannot say that the trial court’s
       denial of respondent’s motion in limine was “arbitrary, fanciful, or unreasonable” and thus
       that ruling was not an abuse of discretion. See In re Detention of Lieberman, 379 Ill. App.
       3d at 605 (in the respondent’s sexually violent person trial, trial court did not abuse its
       discretion by allowing the State’s expert witness to testify to the details of the respondent’s
       past crimes where the expert relied upon those facts in arriving at her opinion, where the trial
       court gave the jury limiting instructions regarding that testimony, and where jurors are
       presumed to follow the court’s instructions).
¶ 40        We have also reviewed the evidence presented to the jury and find that it overwhelmingly
       established that respondent was a sexually violent person. In light of the overwhelming
       evidence and the limiting instructions given to the jury, any possible error in denying
       respondent’s motion does not warrant reversal. See People v. Parker, 335 Ill. App. 3d 474,
       488 (2002) (holding that where “the State’s proof as to the element of knowing possession
       of a firearm is overwhelming, and where the trial court provides an instruction limiting the
       jury’s use of evidence of the nature of defendant’s prior felony conviction to proof of felon
       status only, the attendant risk that the introduction of that evidence would ‘lure the [jury] into
       declaring guilt on a ground different from proof specific to [unlawful use of a weapon by a
       felon]’ (Old Chief, 519 U.S. at 180 ***) is so low as to be negligible, the nature of
       defendant’s prior felony notwithstanding”).
¶ 41        Respondent next contends that he was denied a fair trial because the State improperly
       referred to details of his prior sexual misconduct in closing arguments. Respondent claims
       that the State improperly argued those details as substantive evidence in its rebuttal
       argument.
¶ 42        The prosecution is afforded wide latitude in making closing arguments so long as the
       comments made are based on the evidence or reasonable inferences drawn therefrom. People
       v. Williams, 192 Ill. 2d 548, 573 (2000). The prosecution may comment upon the credibility
       of the witnesses and the defense characterizations of the evidence or case and it may respond

                                                 -11-
       in rebuttal to statements made by the defense counsel that clearly invite a response. People
       v. Gonzalez, 388 Ill. App. 3d 566, 590 (2008). When we review a challenge to remarks made
       by the prosecution during closing arguments, the comments must be considered in context
       of the entire closing arguments made by both parties. People v. Wiley, 165 Ill. 2d 259, 295
       (1995). A reviewing court will not reverse a jury’s verdict based upon improper remarks
       made during closing arguments unless the comments were of such magnitude that they
       resulted in substantial prejudice to defendant and constituted a material factor in his
       conviction. People v. Griffin, 368 Ill. App. 3d 369, 376 (2006).
¶ 43       Respondent specifically complains of the following remarks made by the prosecutor.
       During rebuttal, the State commented that defense counsel was correct “that the Respondent
       has not raped anybody in thirty-three years” because he lacked the opportunity, stating, “ask
       yourselves has he had the opportunity to get himself a gun or a knife, hold it to somebody’s
       throat and rape them?” The State then said that respondent “has been in controlled
       environment virtually his whole life. Since he was 13 years old he went to the [Audy] home
       for a period of time.” The State proceeded to argue that after respondent was released from
       prison in 2006, “he goes to Hindsdale hospital and he propositions a 14 year-old girl in a
       hospital, a volunteer.” After the trial court overruled defense counsel’s objections to these
       comments, the State continued that respondent “tells a nurse to massage his erect penis. That
       is sexually deviant and that happened in 2006. That’s not–that is not thirty-three years ago.
       That’s what happened when he was let out on parole in 2006.” The trial court again overruled
       defense counsel’s objection to these comments.
¶ 44       In this case, when viewed in context, it is apparent that the prosecutor’s rebuttal remarks
       were made in response to comments made by defense counsel in closing arguments. During
       closing, the State argued that respondent’s history of sexual misconduct supported the
       experts’ opinions and helped prove beyond a reasonable doubt that respondent suffered from
       a mental disorder. In response, defense counsel argued in closing that the jury should not give
       weight to the opinion of the State’s experts because the facts upon which they based their
       opinions were incorrect. Defense counsel pointed to Dr. Quackenbush’s testimony that he
       relied upon respondent’s 39-year history of sexually reoffending and then stated, “What
       thirty-nine year history? He had sexually violent offenses from 1973 to 1977, thirty-nine
       years ago.” Counsel further argued that respondent was convicted “over a four-year period
       thirty years ago” and that it was not “a thirty-nine year period where he was continuously
       offending.” Counsel also argued that respondent “had a history of reoffending that lasted
       [from] 1973 until 1977 and not the thirty-nine years that Dr. Quackenbush would have you
       believe. He could have offended again while he was incarcerated or while he was on parole,
       but he was never charged or convicted of anything.”
¶ 45       In response to this line of argument by defense counsel, the prosecutor made the
       complained-of remarks. In response to defense counsel’s argument that respondent
       committed sexually violent offenses only over a four-year period and that his last sexually
       violent offense occurred in 1977, the State acknowledged that respondent had not committed
       a rape since 1977 but claimed that he had been incarcerated for most of his adult life and that
       he lacked the opportunity to commit additional sexually violent offenses while incarcerated.
       To further this point, the State pointed out that respondent had reoffended or committed an

                                                -12-
       act of sexual violence each time he had been released on parole. To illustrate this point, the
       State reviewed respondent’s sexual misconduct since he he had been released on parole in
       1977 until 2006. Thus, the State did not argue respondent’s past crimes as substantive
       evidence but, instead, argued reasons why the jury should credit the testimony of its expert
       witnesses in response to defense counsel’s attacks on the basis of their opinions.
       Accordingly, we cannot say that the trial court abused its discretion when it overruled
       respondent’s objections to the State’s remarks and we also cannot say that those remarks
       denied respondent a fair trial.
¶ 46       Moreover, as set forth above, the trial court gave the jury limiting instructions after the
       testimony of Dr. Quackenbush and Dr. Gaskell. The court also gave the jury the limiting
       instruction orally and in writing at the conclusion of trial. Finally, the trial court instructed
       the jury that closing arguments were not to be considered as evidence. There is nothing in
       the record to rebut the presumption that the jurors followed these instructions and we
       therefore find that the court’s instructions were sufficient to alleviate any risk that the jury
       considered the State’s closing arguments as substantive evidence in returning its verdict. See
       In re Detention of Lieberman, 379 Ill. App. 3d at 605.
¶ 47       Although we have concluded that the comments were not improper, even if we were to
       conclude that the comments were an improper suggestion by the State to consider
       defendant’s sexual misconduct as substantive evidence, based upon the evidence presented
       and the entire record, we cannot say that these comments were of such magnitude that they
       resulted in substantial prejudice to defendant and constituted a material factor in his
       conviction. See Griffin, 368 Ill. App. 3d at 376.
¶ 48       In a related argument, respondent contends that the trial court erred by denying his
       motion for a mistrial. The record shows that at the conclusion of closing arguments,
       respondent moved for a mistrial based upon improper remarks made during the State’s
       rebuttal arguments. Specifically, the defense claimed that the State argued the details of
       respondent’s past crimes as substantive evidence that respondent should be found to be a
       sexually violent person. The trial court denied the motion because the State’s argument was
       “amenable to the interpretation that they were stressing to the jury that those are the facts
       which the experts relied upon in reaching their conclusion.”
¶ 49       The decision to declare a mistrial lies within the discretion of the court, and a mistrial
       should be declared only if there is some occurrence at trial of such a character and magnitude
       that the party seeking a mistrial is deprived of a fair trial. People v. Leak, 398 Ill. App. 3d
       798, 819 (2010).
¶ 50       Respondent’s contention is essentially a reiteration of his previous claim regarding the
       State’s allegedly improper comments during rebuttal arguments. As we have already found,
       the State did not argue the details of respondent’s past crimes as substantive evidence during
       closing arguments. Rather, the State referred to those past crimes in order to argue that the
       experts had a valid basis for their opinions and in order to respond to defense counsel’s
       attack on the credibility and bases of those experts’ opinions. We also again point out the
       limiting instructions given to the jury and the instruction that closing arguments were not to
       be considered as evidence. For these same reasons, we cannot say that the trial court abused


                                                 -13-
       its discretion in denying respondent’s motion for a mistrial.
¶ 51        For the reasons set forth above, the judgement of the circuit court of Cook County is
       affirmed.

¶ 52      Affirmed.




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