In re Commitment of Collins

2022 IL App (1st) 201010-U

• Court: Appellate Court of Illinois
• Decided: September 26, 2022
• Docket: 1-20-1010
• Status: Unpublished

Opinion

2022 IL App (1st) 201010-U No. 1-20-1010

FIRST DIVISION September 26, 2022

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ____________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ____________________________________________________________________________

IN RE COMMITMENT OF SIDNEY COLLINS ) Appeal from the Circuit Court ) of Cook County. (The People of the State of Illinois, ) ) Petitioner-Appellee, ) No. 10 CR 80002 ) v. ) ) The Honorable SIDNEY COLLINS, ) Paul P. Biebel, Jr., Peggy ) Chiampas and Michael Clancy, Respondent-Appellant). Judges Presiding.

____________________________________________________________________________

JUSTICE PUCINSKI delivered the judgment of the court. Justices Hyman and Lavin concur in the judgment.

ORDER

¶1 Held: The jury’s decision finding respondent to be a sexually violent person under the Sexually Violent Persons Commitment Act (725 ILCS 207/1 et seq. (West 2012)), is affirmed. Initially, we find that we may address respondent’s appeal pursuant to the collateral consequences exception to the mootness doctrine even though he was subsequently discharged from civil commitment as an SVP while his appeal is pending. Respondent’s due process rights were not violated when the State followed the applicable law at the time that he filed his habeas petition, and his right to equal protection was not violated where he was treated as any other prisoner would have been treated. The trial court exercised appropriate discretion in the questioning of the potential jurors during voir dire, in barring respondent from introducing the testimony of an expert who screened respondent for civil commitment 18 years before the State filed the petition, in its decision relating 1-20-1010

to the scope of cross-examination of the expert testimony presented by the State, and in its decision relating to the comments made by the State during closing and rebuttal arguments.

¶2 After a jury trial, respondent Sidney Collins was found to be a sexually violent person (SVP)

pursuant to the Sexually Violent Persons Commitment Act (Act) (725 ILCS 204/1 et seq. (West

2018)). The circuit court committed respondent to the Illinois Department of Human Services. In

this appeal, respondent asks this court to consider his appeal although he was subsequently released

from commitment and further challenges the constitutionality of the petition on due process and

equal protection grounds. He further challenges the trial court’s decisions regarding the questions

asked of the potential jurors during voir dire, in barring respondent from introducing the testimony

of an expert who screened respondent for civil commitment 18 years before the State filed the

petition, as to the scope of cross-examination of the expert testimony presented by the State and

relating to the comments made by the State during closing and rebuttal arguments.

¶3 BACKGROUND

¶4 On June 29, 1984, respondent was arrested for having committed a rape the previous day. In

1985, respondent was convicted of this rape and was sentenced to 30 years’ imprisonment, with

an extended term of 30 years’ imprisonment based upon the fact that the victim was 60 years old

or older at the time of the commission of the offense, for a total of 60 years’ imprisonment. On

direct appeal, respondent challenged the sufficiency of the evidence as well as the denial of a

motion to suppress his identification in a photo array and the admissibility of alleged hearsay

evidence. He did not challenge the propriety of his sentence on direct appeal. This Court affirmed

that judgment on direct appeal. People v. Collins, 176 Ill.App.3d 169 (1st Dist. 1988).

¶5 From 2000 to 2009, defendant challenged his extended-term sentence by filing two separate

habeas corpus complaints and one motion to dismiss. In 2000, respondent filed a habeas corpus

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complaint pursuant to 735 ILCS 5/10-101 in Brown County, Illinois, the county where he was

incarcerated. He contended that the trial court improperly imposed an extended sentence where

the victim was only 59 years old at the time of the offense and the jury did not engage in the fact

finding required by Apprendi v. New Jersey, 530 U.S. 466 (2000). The People moved to dismiss

on the grounds that a sentencing error was not cognizable in a habeas corpus proceeding. The trial

court dismissed the habeas complaint. On July 29, 2002, the Fourth District affirmed the trial

court’s dismissal, over a dissent, finding that “while plaintiff may otherwise be able to raise the

argument his sentence is void at any time[,]” a habeas complaint was not the appropriate vehicle

for a defendant to raise a sentencing error. Collins v. Boyd, 331 Ill.App.3d 475 (4th Dist.

2002)(unpublished order under Supreme Court Rule 23). On August 28, 2002, the appellate court

denied respondent’s petition for rehearing. On October 7, 2003, the Illinois Supreme Court denied

leave to appeal. Collins v. Boyd, 205 Ill.2d 578 (2003).

¶6 In 2004, respondent filed a motion entitled “motion to correct void sentence.” The trial court

treated this motion as a motion to reconsider his sentence and concluded that it was untimely. In

2005, respondent filed a second “motion to correct sentence” in which he contended that his 60-

year sentence was void because the victim was not 60 years old at the time of the offense. The trial

court denied the motion, finding that “the record doesn’t show that was the reason for the extended

term sentence.”

¶7 In 2007, respondent filed a second habeas corpus complaint raising the same sentencing error.

The People moved to dismiss, arguing that the claim was barred by res judicata, and was not

cognizable in a habeas corpus proceeding. Following the trial court’s dismissal, on October 27,

2009, this court reversed the judgment. In doing so, we reasoned that respondent’s extended

sentence was “void” because he had been ineligible for an extended sentence. We recognized that

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in Beacham v. Walker, 231 Ill.2d 51 (2008), “our supreme court held that a void order or judgment

may be challenged at any time, including in a habeas [sic] proceeding.” Thus, we found that

respondent could pursue such a voidness claim through a habeas complaint and vacated his

extended term sentence. People v. Collins, No. 1-08-0886, order at 7-9 (2009) (unpublished order

under Supreme Court Rule 23). Accordingly, we remanded this case to the circuit court to

determine the factual question of his definitive release date.

¶8 Upon remand, on January 26, 2010, the circuit court determined that respondent’s proper

release date had been May 19, 1999. The circuit court ordered respondent released on mandatory

supervised release (MSR). Respondent subsequently challenged the imposition of the MSR term,

but, on appeal, we found that respondent was required to serve an MSR term despite his unlawfully

prolonged sentence. Collins v. Ashby, 2012 IL App (1st) 110401-U (unpublished order under

Supreme Court Rule 23).

¶9 On January 25, 2010, shortly before the trial court ordered respondent’s release from the

Illinois Department of Corrections (“IDOC”), the People filed a petition seeking respondent’s

commitment under the Illinois Sexually Violent Person’s Commitment Act (“SVP Act”). An

expert, Dr. Phil Reidda, conducted an evaluation on behalf of the IDOC, and determined that

respondent was dangerous because he suffered from mental disorders that rendered him

substantially probable to commit future acts of sexual violence. On February 24, 2010, the circuit

court found probable cause to believe that respondent was an SVP pursuant to the SVP Act, and

ordered that respondent be detained pending trial.

¶ 10 Respondent subsequently filed a motion to dismiss the petition. He argued that the petition

violated due process because the State failed to comply with a duty to correct his unlawfully

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extended sentence, and it violated equal protection because state officials arbitrarily refused to

permit him to serve his MSR upon the termination of his lawful sentence in 1999.

¶ 11 The trial court denied the motion.1 It rejected respondent’s contention that the State violated a

duty to correct a void sentence or was to blame for the delay in the correction of his void sentence.

The trial court found that the State properly “relied on existing precedent” to seek dismissal “on

procedural grounds.” Moreover, the “basis for respondent’s ultimate relief - - that the victim was

actually two months shy of 60 years of age at the time of the commission of the offense - - is

objectively a detail of such proportion that any error would not be readily apparent on the record,”

and thus the onus of correcting this error was “on respondent and his attorneys” following

respondent’s 1985 conviction.

¶ 12 The trial court also found that “the record does not support [respondent’s] claim that any

intentional discrimination occurred”; rather, “he was treated as any other prisoner” required by law

to serve MSR upon release from prison. Absent the commitment petition, “he would have entered

MSR upon the termination of his sentence of incarceration just as any other defendant would have

done,” and “[h]e was certainly treated the same as any respondent under the Act” civilly committed

before serving MSR. In sum, notwithstanding respondent’s “unique” circumstances, the SVP

proceeding was lawful.”

¶ 13 Prior to trial, the State filed a motion seeking the trial court to bar the expert witnesses from

testifying regarding the opinions of other, non-testifying experts. During the hearing on the motion,

respondent stated that they would seek to introduce the “2000 screening…where another doctor

did not refer [respondent] for commitment.” The trial court ruled that respondent must call that

1 The Honorable Paul J. Biebel, Jr. presided over the hearing on respondent’s motion to dismiss. -5- 1-20-1010

doctor as his own witness “but you’re not going to get it in through any other witness.” 2 However,

the trial court reserved ruling on the motion “to see how that gets flushed out at trial.”

Subsequently, respondent disclosed his intent to call Dr. Schaab as a witness. The State filed a

motion specifically seeking to bar the testimony of Dr. Schaab on the grounds that this doctor’s

opinion “is almost 18 years old, so [it] has no bearing on whether or not Respondent is a Sexual

Violent Person at the present time.” The State further argued, because Dr. Schaab was no longer a

licensed clinical psychologist in Illinois and has never been a licensed sex offender evaluator in

Illinois, he would be unable to render a current and relevant opinion. The State also pointed out

that the record did not contain any basis to find that Dr. Schaab’s opinion was based on respondent

not suffering from a mental disorder. In response, respondent argued that “Dr. Schaab in this case

is proposed as a fact witness, not as an opinion witness.” Respondent further argued that this

testimony “gives the jury the complete picture of how [respondent’s] case came to be before

them…” In barring this testimony, the trial court agreed with the State’s argument that Dr.

Schaab’s opinion regarding whether respondent met the SVP criteria was almost 18 years old and,

therefore, was not relevant to a determination as to whether he met the requirements at the time of

the hearing.

¶ 14 Respondent moved the trial court to ask prospective jurors multiple questions about their

attitudes towards sex offenders, including whether the jurors could be fair and impartial after

hearing evidence that respondent had been convicted of sexual offenses involving a 69-year-old

woman and a 59-year-old woman; whether the jurors harbored any bias or prejudice against sex

offenders; and whether the jurors had any preconceived notions as to a sex offender’s likelihood

2 The Honorable Peggy Chiampas presided over the hearing on this motion. -6- 1-20-1010

of re-offending.3 The trial court denied these requests, finding that these questions “too specifically

addressed the evidence expected to be adduced at trial.” Instead, the trial court asked the jury,

“Knowing that [respondent] has already been convicted of a sexually violent offense[,] can you be

fair in determining whether or not he is a sexually violent person in this case?”

¶ 15 Respondent’s trial commenced on January 28, 2020. At trial, two experts, Dr. John Arroyo

and Dr. David Suire, testified for the State. Dr. Arroyo worked as a clinical and forensic

psychologist and provided evaluation services for the Sex Offender Evaluation Unit with IDOC.

He evaluated respondent in 2011 and, in doing so, he reviewed respondent’s IDOC master file,

which included police reports and documents from his criminal cases, well as disciplinary records

from respondent’s time in custody. Before Dr. Arroyo testified to respondent’s records, the trial

court provided the following limiting instruction:

I’m allowing the witness to testify in part to materials included but limited to

police reports, Department of Corrections records, Department of Human Services

records, psychological evaluation, psychological testing, psychological articles and

statements other than those made by the defendant to the doctor. None of this

material has been admitted into evidence. This testimony is allowed for a limited

purpose. It is allowed so that the witness may tell you what he relied on to form his

opinion.

The material being referred to is not evidence in this case. It may not be

considered by you as evidence. You may consider the materials for the purpose of

deciding what weight, if any, you will give the opinions testified to by this witness.

3 The Honorable Michael Clancy presided over the hearing on this motion as well as the trial in this case. -7- 1-20-1010

¶ 16 Dr. Arroyo testified that he approached respondent with a request to interview him for

evaluation purposes, but respondent declined. At that time, he determined that respondent met the

criteria to be civilly committed as a sexually violent person. He updated his evaluation in 2015,

and again in 2019, and still found that respondent met the criteria to be civilly committed as a

sexually violent person.

¶ 17 In part, he considered respondent’s criminal history in forming his opinion because he was

trying to determine whether respondent had a sexually-related mental disorder or any other type

of mental disorder. He learned that, in a 1967 case, respondent was convicted of burglary and

attempt rape of a 69-year-old woman when he was 20 years old. Respondent entered the victim’s

home and was in the process of ripping off her clothes when police arrived. He was sentenced to

5 to 14 years’ imprisonment. Also in 1967, respondent committed a separate attempt burglary in

which he “forcibly attempted to gain entry into a convent…” He was sentenced to 1 to 3 years’

imprisonment for that offense.

¶ 18 In 1974, while on parole, respondent was arrested for rape, attempt rape, robbery, and burglary.

In two separate cases, respondent, wearing a ski mask, burglarized the home of the 78 and 80-year-

old victims and when he attacked them. A few days later, while armed with a straight razor,

respondent entered the home of these two victims for a second time. Respondent was sentenced to

6 to 18 years’ imprisonment for burglary and two to six years’ imprisonment for robbery. See

People v. Collins, 53 Ill.App.3d 114 (1977).

¶ 19 In 1979, while on parole for these offenses, respondent was arrested for burglary after someone

observed him peering into the window of a woman’s home, flee to another home of another woman

where he entered that home through a window. When the police arrived at the scene, he was seen

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exiting the home through a window and, during the ensuing chase, dropped a butcher knife, mask

and socks. See People v. Collins, 97 Ill.App.3d 465 (1981).

¶ 20 In 1984, while on parole, he was arrested for rape, home invasion, attempt murder, among

other charges. He entered the home of a 59-year-old female who had just exited the shower, threw

a blanket over her head, choked her, forced her into a bedroom where he raped her. He was wearing

a stocking mask on his head and stocking on his hands. He was sentenced to concurrent sentences

of 30 years’ imprisonment for rape, 30 years’ imprisonment for home invasion, and 5 years’

imprisonment for aggravated battery. See People v. Collins, 176 Ill.App.3d 169 (1st Dist. 1988).

¶ 21 In a separate 1984 case, he was charged with attempt rape, unlawful restraint, aggravated

kidnapping, robbery, and residential burglary. He entered the home of a 74-year-old woman, threw

a blanket over her head, forced her to undress, fondled her, and stole cash from her. This incident

occurred two to three days after the other 1984 offense. The State dismissed charges in this case

after respondent was convicted in the other 1984 case. Dr. Arroyo explained that he still considered

cases in which respondent was charged, but not convicted of various offenses, because he looked

to determine whether there were any similarities between behaviors to indicate that there may be

a mental disorder leading toward this behavior.

¶ 22 In his evaluation, Dr. Arroyo also considered respondent’s conduct while in a controlled

environment because it showed that respondent was still willing to risk getting into trouble to attain

sexual satisfaction. While incarcerated in IDOC, respondent received two disciplinary tickets for

sexual misconduct. Both incidents involved consensual encounters with older women. While

housed in the detention facility awaiting trial, respondent was caught in possession of “hard-core

pornographic material.”

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¶ 23 Using the DSM-5, Dr. Arroyo diagnosed respondent with “other specified paraphilic disorder

sexually aroused by non-consenting partners” along with “other specified personality disorder with

anti-social features.” He also conducted a risk assessment and determined that respondent was

substantially probable to reoffend, meaning more likely than not. He used actuarial instruments

that placed respondent in the above-average risk category for being convicted of committing

another sexual offense.

¶ 24 On cross-examination, respondent’s counsel asked Dr. Arroyo, “If you were to flip a coin,

would you say that it’s much more likely than not to land on heads?” The trial court sustained the

State’s objection. Respondent’s counsel also attempted to cross-examine Dr. Arroyo regarding

appellate court decisions related to respondent’s 1974 burglary conviction and his 1979 burglary

conviction. Dr. Arroyo explained that he did not rely on these decisions in rendering his opinion

and first reviewed them only three days before he testified. The trial court barred counsel from

asking questions to introduce the content of these appellate decisions. Relying upon inadmissible

hearsay grounds, the trial court stated, “If he relies on it, he can testify to it, even if it’s hearsay,”

but “[i]f he doesn’t rely on it, he can’t testify to hearsay” and “it’s not coming in.”

¶ 25 Dr. Suire evaluated respondent on behalf of the Illinois Department of Human Services

(“IDHS”) in 2012, after respondent had been referred for possible commitment. Before Dr. Suire

outlined the documents that he relied upon in his evaluation, the trial court provided the same

limiting instruction as it did with Dr. Arroyo’s testimony. Dr. Suire also relied on respondent’s

criminal history. He explained that he considered both convictions and arrests where “if someone

commits a crime that looks to be motivated by sexual issues or sexual arousal, it’s important to

consider that, even if the ultimate charge or conviction is not sexual in nature.”

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¶ 26 Dr. Suire also diagnosed respondent as suffering from both other specified paraphilic disorder

towards non-consenting victims and other specified personality disorder with antisocial features.

He noted that on at least five occasions, respondent “broke into the home of women that were

considerably older than him” and “used force to either attain sexual contact or to attempt to gain

sexual contact.” Furthermore, he committed “a large number of sexual offenses” over “a number

of years” even though “he wasn’t in the community that often” due to his repeated incarcerations.

¶ 27 He concluded that respondent was substantially probable to reoffend, meaning much more

likely than not. He used two actuarial instruments, the Static-99R and the Static-200R, which

placed respondent in the above average range for risk to reoffend even after giving him “an

extremely substantial reduction” based on his age. Dr. Suire identified several risk factors that

were empirically linked to recidivism but not captured by the actuarial instruments, including

respondent’s deviant sexual interest, demonstrated hostility toward women, inability to learn from

punishment, impulsivity, and personality disorder. Respondent had not been eligible to participate

in a treatment program to reduce his risk because “he denied committing any offenses,” and “its

[sic] hard to come up with a relapse prevention plan if you are not acknowledging that you

committed any acts.” Dr. Suire did not view respondent’s age or health condition as further

protective factors because he was “in pretty good shape,” and was “very active at the facility,”

where he “participates in circuit training[,]…plays basketball[,]…[and] was bench pressing a

couple of hundred pounds.”

¶ 28 On cross-examination, respondent asked Dr. Suire “Now, you told us that it’s significant to

your opinion that [respondent] scores above average on the Static-99R, right, the Static-2002R”

After Dr. Suire responded affirmatively, the State objected when respondent asked him, “Isn’t it

true that you recommended someone for commitment even though they had a score of 1?” The

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trial court sustained the objection, holding that it was improper “to take an evaluation of one

person, look at one aspect of that evaluation and see what the opinion is,” and that it “would go[]

too far afield” to ask him about “all hundred of his evaluations…to see how he’s come up with

them as sexually violent persons.”

¶ 29 Respondent presented the testimony of Dr. Leslie Kane, a clinical psychologist and licensed

sex offender evaluator in Illinois. As the trial court did before the other experts outlined the

documents that they relied upon in his evaluation, the trial court provided a limiting instruction to

the jury that they may not consider it as substantive evidence. Dr. Kane determined that respondent

was not an SVP. The doctor determined that respondent was suffering from other-specified

personality disorder with antisocial features but did not diagnose him with a paraphilic disorder.

Dr. Kane explained that respondent’s sexual offenses, “even though they were nonconsensual

acts,” were attributable to “antisocial behavior, the criminal mindset, taking what you want, when

you want.” She testified that the assaults were “more of an opportunist situation where he would

go with an intention of robbing or burglarizing and then took advantage of the situation when there

is a single, vulnerable woman in the house.” Dr. Kane further testified that respondent was not

substantially probable to reoffend given respondent’s age. The doctor noted, however, that people

with “true paraphilia…tend to not let go of that behavior.”

¶ 30 On cross-examination, Dr. Kane conceded that all of respondent’s offenses involved breaking

into a home where an older woman was home, and that he had not broken into businesses or

unoccupied homes. During those break-ins, he stole no valuable property, such as jewelry or

electronics. The doctor also conceded that respondent, though older, was “a relatively healthy guy”

and was “playing basketball and doing circuit training, [and] that he jogs at the facility.”

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¶ 31 The jury found that respondent was an SVP. On August 20, 2020, after the trial court denied

respondent’s motion for a new trial, it found that respondent should be committed for treatment at

a secure facility. Soon thereafter, respondent’s health deteriorated, and respondent petitioned for

discharge. Two experts who examined respondent opined that respondent was no longer

substantially probable to reoffend and a hearing proceeding based on their stipulated testimony.

On April 19, 2021, the trial court found that the State had not met its burden of demonstrating that

respondent remained an SVP and ordered that he be discharged from commitment.

¶ 32 ANALYSIS

¶ 33 The Sexually Violent Persons Commitment Act authorizes the involuntary civil commitment

of “sexually violent persons” for “control, care and treatment until such time as the person is no

longer a sexually violent person.” 725 ILCS 207/40(a) (West 2016). 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 2016). A “mental

disorder” is defined under the Act 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 2016). If the State proves beyond a reasonable doubt that an individual is a sexually

violent person, that individual may be indefinitely committed “until such times as the person is no

longer a sexually violent person.” (Emphasis added.) 725 ILCS 207/35(f), 40(a) (West 2016).

¶ 34 After an individual has been committed to institutional care under the Act, the Department is

responsible for evaluating the individual’s mental condition within six months of the initial

commitment and again thereafter at least annually. 725 ILCS 207/55 (West 2016). The stated

purpose of these periodic examinations is to determine “whether the person has made sufficient

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progress to be conditionally released or discharged.” (Emphasis added) 725 ILCS 207/55 (West

2016); People v. Botruff, 212 Ill.2d 166, 171 (2004) (purpose of reexamination is to determine

whether person has “progressed enough to be conditionally released or discharged”).

¶ 35 I. Mootness

¶ 36 As a threshold issue, we address the question of whether respondent’s appeal is moot where

he was subsequently discharged from civil commitment as an SVP while his appeal is pending.

Respondent contends that this appeal is not moot because he has an interest in purging himself of

the stigma attached to the finding that he is an SVP. He further contends that, even if the appeal is

moot, we may reach the merits of his claim under the collateral consequences exception to the

mootness doctrine. He contends that this exception is applicable because he is still required to

register as a sex offender, pursuant to the Illinois Sex Offender Registration Act (“the Act”) (730

ILCS 150/1 et seq. (West 2012), every 90 days for the rest of his life as a result of him being found

to be a SVP. The State agrees that, under the collateral consequences doctrine, we may review

respondent’s appeal because vacating the judgment will relieve him of the obligation to register

every 90 days for the rest of his life.

¶ 37 Appellate jurisdiction requires an actual controversy, and courts of review generally will not

hear abstract, hypothetical, or moot issues. In re Andrea F., 208 Ill.2d 148, 156 (2003). An appeal

is moot “if no actual controversy exists” (Dixon v. Chicago and North Western Transportation

Co., 151 Ill.2d 108, 116 (1992)), or “when intervening events have rendered it impossible for the

reviewing court to grant effectual relief to the complaining party.” In re Commitment of

Hernandez, 239 Ill.2d 195, 201 (2010) (citing Felzak v. Hruby, 226 Ill.2d 382, 392 (2007)).

Whether a claim is moot is an issue we review de novo on appeal. Benz v. Department of Children

and Family Services, 2015 IL App (1st) 130414, ¶ 31.

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¶ 38 Here, respondent asks for this court to reverse the trial court’s judgment adjudicating him an

SVP and therefore committing him to treatment under the Act. However, the parties agree that

respondent was subsequently released from his commitment as an SVP after there were changes

to respondent’s health. Therefore, it is impossible for this court to grant the relief respondent

requests, and we find the appeal is moot. See In re Benny M., 2017 IL 120133, ¶ 19 (appeal was

moot because the respondent’s 90 days of court-ordered medical treatment ended before appellate

review); In re Lance H., 2014 IL 114899, ¶ 12 (appeal was moot because the court order to commit

respondent to a medical center had expired nearly three years prior); In re Alfred H.H., 233 Ill.2d

345, 350-51 (2009) (appeal was moot because 90-day commitment order had terminated).

Respondent relies upon criminal cases in which courts found that an appeal is not mooted by the

end of State-supervised detention due to a defendant’s interest in avoiding the stigma and

disabilities attending a criminal conviction. See People v. Coe, 2018 IL App (4th) 170359, 50;

People v. Davis, 39 Ill.2d 325, 329 (1968). As the State points out, however, an SVP proceeding

is civil, not criminal. 725 ILCS 207/20 (West 1998).

¶ 39 Nevertheless, both parties agree that we may address respondent’s appeal under the “collateral

consequences exception” to the mootness doctrine. The collateral consequences exception to

mootness “allows for appellate review, even though***incarceration has ceased, because a

plaintiff has suffered, or is threatened with, an actual inquiry traceable to the defendant and likely

to be redressed by a favorable judicial decision.” (Internal quotation marks omitted.) In re Alfred

H.H., 233 Ill.2d 345, 361 (2009) (quoting Spencer v. Kemna, 523 U.S. 1, 7 (1998)). The

determination of whether this exception is applicable is “decided on a case-by-case basis.” Alfred

H.H., 233 Ill.2d at 362.

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¶ 40 Both parties agree that the judgment designating him as an SVP, even after he was discharged

from commitment, will require him to register as a sex offender every 90 days and to register for

the rest of his life. Pursuant to Section 150/6 of the Illinois Sex Offender Registration Act, anyone

“adjudicated to be a…sexually violent person and is later released, or found to be no longer….a

sexually violent person and discharged,…shall report in person to the law enforcement agency

with whom he or she last registered no later than 90 days after the date of his or her last registration

and every 90 days thereafter…” 730 ILCS 150/6 (West 2012). Moreover, an SVP “shall register

for the period of his or her natural life.” 730 ILCS 150/7 (West 2012). Respondent would not

otherwise have to register as a sex offender for the rest of his natural life.

¶ 41 Therefore, because vacating respondent’s judgment would relieve him of the obligations to

register as a sex offender every 90 days and for the rest of his natural life, we find that respondent

has successfully established that review of this case falls under the collateral consequences

exception to the mootness doctrine. Consequently, we find that review of respondent’s appeal is

proper.

¶ 42 II. Motion to Dismiss Petition

¶ 43 Respondent challenges the trial court’s decision to deny his motion to dismiss the SVP

petition on the basis that it violated his constitutional rights to due process and to equal protection.

Regarding due process, he contends that the filing of the SVP petition violated his due process

rights where the State failed to correct the erroneous extended-term sentence imposed by the trial

court in respondent’s underlying criminal case. According to respondent, had the State corrected

his sentence at an earlier point in time, respondent would have not been subject to a commitment

proceeding under the Act.

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¶ 44 The State asks us to uphold the trial court’s decision that respondent’s due process rights were

not violated where the State relied upon existing precedent in opposing his challenges to his

sentence. Specifically, the trial court found that respondent’s claim, raised in the context of habeas

corpus proceedings, “were not properly before the Court until the Illinois Supreme Court decision

in Beacham v. Walker, 231 Ill.2d 198 (2008), which permitted a respondent to challenge a void

sentence in a habeas petition.” Moreover, the trial court found that the State followed the proper

procedures when it filed its petition, and “[i]t is simply impossible to find that respondent may or

may not have been subject to commitment proceedings if any of his prior challenges to his sentence

had been successful or if the Attorney General had corrected the void sentence at an earlier time.”

¶ 45 Respondent presented this claim in a pre-trial motion to dismiss. A motion to dismiss

challenges the legal sufficiency of a complaint. Beacham v. Walker, 231 Ill.2d 51, 57 (2008). This

court reviews de novo a circuit court decision on a motion to dismiss. Beacham, 231 Ill.2d at 57.

All well-pleaded facts and reasonable inferences from those facts are accepted as true and are

viewed in the light most favorable to the plaintiff. Id. at 58.

¶ 46 An individual can access the court system and seek collateral relief following a direct appeal

of a trial court’s judgment through four vehicles: a postconviction petition, a mandamus complaint,

a habeas corpus complaint, and a section 2-1401 petition. In re Commitment of Phillips, 367

Ill.App.3d 1036, 1041 (5th Dist. 2006). Here, respondent sought collateral relief, following his

direct appeal challenge, utilizing a habeas corpus complaint in 2001 and again in 2007. At both

the trial level and on appeal, the courts held that respondent improperly raised his claim of a

sentencing error in a habeas corpus complaint. At that time, it was well-established that a habeas

corpus complaint was not the proper vehicle for challenging an unlawful extended sentence. See

Barney v. Prisoner Review Board, 184 Ill.2d 428, 430-31 (1998) (“habeas corpus is available only

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to obtain the release of a prisoner who has been incarcerated under a judgment of a court which

lacked jurisdiction…or where there has been some occurrence subsequent to the prisoner’s

conviction which entitled him to release” and cannot be guaranteed ‘unless the time during which

such party may be legally detained has expired.”)

¶ 47 In 2008, however, the supreme court issued its decision in Beacham in which it held that the

claim that a sentence is void may be raised at any time, including in a habeas petition. Beacham,

231 Ill.2d at 59. When we ruled, in 2009, in light of Beacham, that respondent could properly raise

his claim that his sentence was void in a habeas corpus complaint, we recognized that when the

Fourth District ruled on respondent’s initial complaint, it was done so prior to the Illinois Supreme

Court’s decision in Beacham v. Walker, 231 Ill.2d 51 (2008). People v. Collins, No. 1-08-0886,

order at 7-9 (2009) (unpublished order under Supreme Court Rule 23).

¶ 48 Respondent recognizes that, prior to Beacham, he had not raised this claim in the proper

manner. With this concession, we agree with the trial court’s determination that respondent’s due

process rights were not violated when the State followed the applicable law at the time that

respondent filed his habeas petitions.

¶ 49 Respondent, however, further suggests that his due process rights were violated because the

State “had a duty to ensure that prisoner’s sentences are lawful.” For support, he cites to U.S. ex

rel. Walker v. O’Leary, 973 F.2d 521 (7th Cir. 1992). In that case, the Seventh Circuit affirmed a

grant of federal habeas relief to a state prisoner who was entitled to a possible reduction of his

sentence under a statutory amendment. The Seventh Circuit rejected the State’s argument that

state officials could “only…await a court order to adjust a prisoner’s sentence to conform to new

law,” and held that “due process requires the attorney general to take a less passive approach to

the resentencing mandate.” Walker, 973 F.2d at 525.

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¶ 50 In response, the State argues that Walker does not control where there was no new statute that

required the State to recalculate respondent’s sentence and that “[t]he People were not required to

anticipate [Beacham], waive a valid procedural defense, or seek a change in procedural law on

respondent’s behalf.” We agree. As respondent concedes, unlike in Walker, there was no new

statute that required the State to recalculate his sentence. Here, there was an error in calculating

the proper sentence for respondent at the time of trial. Walker does not stand for the proposition

that there is a violation of due process every time a defendant’s sentence is miscalculated and the

State has “notice” of the miscalculation. We do not read Walker so broadly.

¶ 51 Moreover, we agree with the trial court’s finding that the record does not allow for a

determination as to whether or not respondent would have been subject to civil commitment at the

time that he would have been released in 2000. Respondent relies upon a report, completed by Dr.

Anthony Schaab on November 30, 2000, in which he checked a box indicating that civil

commitment was not recommended. Considering the scant evidence available, not only does

respondent not provide this court with any authority allowing for it to make a retroactive

determination as to whether respondent would have been subject to civil commitment at the time

that he would have been released in 2000, but it would be impossible for this court to make such

a determination where Dr. Schaab’s report does not provide an explanation for why he found that

civil commitment was not recommended. Therefore, we find that respondent has not established a

due process violation.

¶ 52 Respondent further asks for this court to review his contention that his constitutional right to

equal protection was violated where “the petition was obtained as the result of intentional

discrimination against [respondent] that lacked any rational basis.” He contends that the State

intentionally discriminated against him by preventing him from entering MSR, as other inmates

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who complete their terms of incarceration are permitted to do, and that he is now subject to

indefinite civil commitment. He contends that the State prevented him from entering MSR because

it did not rectify his incorrect sentence when first given notice of it.

¶ 53 The United States Constitution and Illinois Constitution guarantee that no person shall be

denied equal protection of the laws. U.S. Const. amend. XIV; Ill. Const. 1970, art. I, sec. 2. The

right to equal protection of the laws requires the government to treat similarly situated persons in

a similar manner. In re Detention of Samuelson, 189 Ill.2d 548, 561 (2000). Although the equal

protection clause does not preclude the State from enacting legislation that draws distinctions

between different categories of people, it does prohibit the government from according different

treatment to persons who have been placed by a statute into different categories on the basis of

criteria wholly unrelated to the purpose of the legislation. People v. Fisher, 184 Ill.2d 441, 450

(1998). If a statutory classification neither impinges on a fundamental right nor is based on a

“suspect” class, a court will use the “rational basis” test to review the statute’s validity. People v.

Runge, 346 Ill.Ap.3d 500, 508 (3d Dist. 2004). In considering prior equal protection challenges to

the Act, the supreme court has applied the rational basis test. Samuelson, 189 Ill.2d at 562. Under

that test, the court simply inquires whether the stated goal or purpose of the legislation is rationally

related to that goal. Id. at 562. Consequently, if any set of facts can reasonably be conceived to

justify the classification, it must be upheld. In re A.A., 181 Ill.2d 32, 38 (1998).

¶ 54 There is no support for respondent’s claim that the State intentionally discriminated against

him. Instead, we find that he was treated as any other prisoner would have been treated. In Collins

v. Ashby, 2012 IL App (1st) 110401-U (unpublished order pursuant to Illinois Supreme Court Rule

23), we reviewed and upheld the trial court’s determination that his release date was May 19, 1999,

and that upon his release, a three-year term of mandatory supervised release (MSR) remained to

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be served. In doing so, we rejected respondent’s contention that he had already served his MSR

term while incarcerated, and there was no longer a period of MSR to serve when he was released

from prison in January of 2010. In part, we found that “[respondent] in this case cannot substitute

his excess prison time for his MSR term.” Collins, 2012 IL App (1st) 110401-U, ¶ 7. The Court

ordered that respondent begin serving his MSR upon his release from prison, as the law required.

Id. ¶ 8. He was treated the same as any other prisoner based upon the applicable law. Consequently,

we find that the trial court properly denied respondent’s motion to dismiss his SVP petition on

equal protection grounds.

¶ 55 III. Voir Dire Questions

¶ 56 Respondent next contends that the trial court erred in failing to ask the prospective jurors

during voir dire about whether they had any bias or prejudice against him knowing that he had

been convicted of sexual offenses involving a 69-year-old woman and a 59-year-old woman;

whether they harbored any bias against sex offenders, and whether they had any preconceived

notions about a sex offenders’ risk to reoffend.

¶ 57 Illinois Supreme Court Rule 234 provides that a trial court “shall conduct the voir dire

examination of prospective jurors by putting to them questions it thinks appropriate touching upon

their qualifications to serve as jurors in the case on trial.” Ill. S. Ct. R. 234 (eff. May 1, 1997).

“Moreover, “[t]he court may permit the parties to submit additional questions to it for further

inquiry if it thinks they are appropriate, and shall permit the parties to supplement the examination

by such direct inquiry as the court deems proper for a reasonable period of time depending upon

the length of examination by the court, [and] the complexity of the case.” Ill. S. Ct. R. 234 (eff.

May 1, 1997).

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¶ 58 “One of the purposes of voir dire is to filter out those potential jurors who are either unable or

unwilling to be fair and impartial.” In re Commitment of Trulock, 2012 IL App (3d) 110550, ¶ 44.

However, the purpose of voir dire “is not to be used to indoctrinate jurors or to impanel a jury with

a particular predisposition” or “ascertain prospective jurors’ opinions with respect to evidence to

be presented at trial.” (internal quotation marks omitted.) The manner, extent, and scope of voir

dire examination rests within the discretion of the trial court. People v. Encalado, 2018 IL 122059,

¶ 25. “‘So long as the procedures employed by the circuit court provided a reasonable insurance

that prejudice, if any, would be discovered, the court’s exercise of discretion would be upheld.’”

In re Commitment of Brown, 2021 IL App (1st) 191606, ¶ 70 (quoting In re Commitment of Gavin,

2014 IL App (1st) 122918, ¶ 41. On review, an abuse of discretion will be found only when the

record reveals that the court’s conduct “‘thwarted the selection of an impartial jury.”” In re

Commitment of Butler, 2013 IL App (1st) 113606, ¶ 15 (quoting People v. Terrell, 185 Il.2d 467,

484 (1998). “‘To be constitutionally compelled, it is not enough that a voir dire question be

helpful[;] rather, the trial court’s failure to ask the question must render the defendant’s

proceedings fundamentally unfair.’” Encalado, 2018 IL 122059, ¶ 25 (quoting People v. Terrell,

185 Ill.2d 467, 485 (1998)).

¶ 59 The Illinois courts have previously considered arguments in which the respondent had sought

to question the prospective jurors regarding specific aspects related to their criminal history

involving sexual offenses. In each of these cases, we have found that the trial court did not abuse

its discretion in denying this request. Butler, 2013 IL App (1st) 113606; In re Commitment of

Gavin, 2014 IL App (1st) 122918; Brown, 2021 IL App (1st) 191606. For instance, in Butler, we

upheld the trial court’s decision to not permit the respondent from questioning the prospective

jurors if they could be fair and impartial given that the respondent had been convicted of three

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sexually violent offenses, and instead, removed the number three from this question. Butler, 2013

IL App (1st) 113606, ¶ 23. Notably, we found, when distinguishing the respondent’s case, “[t]hese

cases do not hold that when the subject matter is controversial, jurors must be questioned with

regard to all of the details of the subject that are expected to be admitted into evidence.” Id.

¶ 60 In Gavin, the respondent sought to question the prospective jurors regarding their ability to be

fair and impartial upon learning that the respondent had been convicted of criminal sexual assault,

attempted rape, rape and indecent liberties with a child. Instead, the trial court allowed the jury to

be questioned whether they could be fair and impartial knowing that the respondent was convicted

of sexually violent offenses four times. Relying upon Butler, we found that the trial court did not

abuse its discretion when limiting counsel’s inquiry to bias arising from convictions for sexually

violent offenses. Gavin, 2014 IL 122918, ¶ 43 (citing Butler, 2013 IL App (1st) 113606, ¶ 24). We

recognized that “it is not the purpose of voir dire to preview the evidence for the jury, or to measure

the jurors’ reactions to certain facts.” Id. at ¶ 44.

¶ 61 More recently, in Brown, we upheld the trial court’s decision to not permit inquiry as to

whether prospective jurors could be fair and impartial knowing that the respondent committed a

sex offense against a child. Relying upon Butler and Gavin, we found that “the general inquiry”

about the respondent prior criminal convictions provided the appropriate “balance between

informing the prospective jurors of the respondent’s history while avoiding disclosing too much

information.” Brown, 2021 IL App (1st) 191606, ¶ 76; See also In re Commitment of Edwards,

2021 IL App (1st) 200192, ¶ 53 (the trial court properly exercised its discretion in restricting

questions to the prospective jurors regarding their ability to remain fair and impartial knowing that

the respondent had been convicted of a sexually violent offense against a child).

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¶ 62 Moreover, when looking at whether the trial court exercised appropriate discretion, we also

look to the questions that the trial court asked the prospective jurors. Instead of specifically asking

the jurors about any bias or prejudice relating to certain aspects of respondent’s criminal history,

the trial court, instead, decided to provide more generalized questioning to the prospective jurors.

During voir dire, the trial court informed the prospective jurors that respondent was charged with

being a sexually violent person and asked the venire whether there was anything about the nature

of the charges that would prevent them from giving both sides a fair and impartial trial. See

Encalado, 2018 IL 122059, ¶ 34 (the Supreme Court considered that the prospective jurors were

informed of the charges involving sexual penetration and were asked if there was anything about

the nature of the charges to prevent them from being fair and impartial). None of the prospective

jurors raised their hands. The trial court also individually inquired from each of the prospective

jurors whether they or any of their immediate family members or a very close friend had been a

victim of a crime, whether they or anyone close to them had been the victim of sexual abuse or

sexual assault, and whether they or any family member were part of an organization that represents

or advocates on behalf of crime victims, sexual assault victims, or victims of domestic violence.

At least twelve different prospective jurors disclosed that they, a close family member, or a close

friend had been sexually assaulted or abused. One of the prospective jurors disclosed that she

worked as a “rape crisis counselor[.]” As a result, respondent used his peremptory challenges to

strike jurors and the trial court granted respondent’s request to strike another juror for cause after

this person also indicated that they could not be fair and impartial. Consequently, the trial court’s

method of questioning provided respondent the opportunity to learn about whether the prospective

jurors could remain fair and impartial regarding the prospective jurors’ experiences and opinions

regarding sexual assault and sexual abuse. See Edwards, 2021 IL App (1st) 200192, ¶ 55 (“Under

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these circumstances, the trial court’s questioning of the venire created a reasonable assurance that

any prejudice would have been discovered.”)

¶ 63 Also, in Brown, we considered that the respondent’s sex offenses “were not admitted as

substantive evidence but were detailed to explain the opinions of the expert witnesses.” Brown,

2021 IL App (1st) 191606, ¶ 78. Likewise, here, the trial court provided a limiting instruction to

the jury regarding of the doctors’ testimonies regarding respondent’s criminal history.

¶ 64 In support, respondent asks this court to look to People v. Strain, 194 Ill.2d 467 (2000), case

in which the Supreme Court ruled that the trial court abused its discretion when it failed to question

the jurors regarding any prejudice or bias involving gang members, and to expand its holding to

include questioning jurors regarding the age of the sexual assault victims. As this court has recently

recognized in Brown, 2021 IL App (1st) 191606, ¶ 77, “…Illinois courts have not extended Strain

to any other specific areas of controversial inquiry.” People v. Encalado, 2018 IL 122059, ¶¶ 28-

33 (prostitution); People v. James, 2017 IL App (1st) 143036, ¶ 40 (firearms); People v. Anderson,

407 Ill.App.3d 662, 682 (1st Dist. 2011); People v. Dixon, 382 Ill.App.3d 233, 245 (1st Dist. 2008)

(drug abuse). We decline to do so under the circumstances in this case, especially where the trial

court explored whether the prospective jurors had any bias or prejudice relating to respondent’s

criminal history but did so in a more generalized manner of questioning. This type of voir dire

questioning stands in sharp contrast to Strain where the prospective jurors were not questioned at

all regarding any potential bias or prejudice related to gang membership. Strain, 194 Ill.2d at 475-

478.

¶ 65 As to respondent’s request to ask the prospective jurors regarding any preconceived notions

about a sex offender’s risk to reoffend, we find that the trial court’s other questions properly

addressed any concerns regarding the prospective jurors’ bias or prejudice. The trial court

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informed the prospective jurors that they must follow the law as provided, that they must be able

to set aside their own personal disagreement with the law and apply the law as instructed, that

respondent is presumed not to be a sexually violent person, and that the State has the burden to

prove that he is a sexually violent person beyond a reasonable doubt. These questions served the

purpose of voir dire which is to ascertain sufficient information about jurors’ beliefs and opinions

as to allow removal of those members whose minds are so closed by bias and prejudice that they

cannot apply the law as instructed. People v. Cloutier, 152 Ill.2d 483, 495-96 (1993).

¶ 66 Thus, we conclude that trial court’s questioning of the prospective jurors created a reasonable

assurance that any prejudice would have been discovered. Accordingly, we cannot find that the

trial court’s failure to allow respondent additional questions specifically concerning sex offenders,

sexually violent offenses against an older person or whether they had any preconceived notions

about a sex offender’s risk to reoffend, thwarted the selection of an impartial jury.

¶ 67 IV. Evidentiary Rulings

¶ 68 A. Barred testimony regarding previous evaluation

¶ 69 Respondent contends that the trial court abused its discretion in barring him from introducing

the testimony of Dr. Anthony Schaab regarding an SVP screening he conducted in 2000, finding

that he would not recommend respondent for civil commitment. According to respondent, this

testimony would have rebutted the testimony of the State’s witnesses, that sexually offending

behaviors do not typically change or go away, and because the testimony “was not being offered

to show [respondent’s] current status… [but] to highlight how little had changed with [his]

condition since 2000.” Upon review, we find that the trial court did not abuse its discretion by

barring Dr. Schaab’s testimony.

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¶ 70 Under the Act, respondent has a right to cross-examine witnesses at the jury trial. 725 ILCS

207/25(c)(3) (West 2012). However, “the right to present a defense does not include the right to

introduce irrelevant evidence.” In re Detention of Melcher, 2013 IL App (1st) 123085, ¶ 44 (citing

People v. Lowitzki, 285 Ill.App.3d 770, 779 (1st Dist. 1996).

¶ 71 While respondent contends that Dr. Schaab’s testimony would have been significant to show

that the State’s expert witness had no basis of opinion to explain what had changed since 2000 to

conclude that he was a sexually violent person, that was not an issue at respondent’s trial. Here,

“the issue in an SVP proceeding is whether respondent suffers from a mental illness that makes it

substantially probable he will engage in future acts of sexual violence.” Melcher, 2013 IL App

(1st) 123085, ¶ 45 (citing 725 ILCS 207/5(f) (West 2012)). Thus, the issue at trial was respondent’s

current mental state, not respondent’s mental state 18 years ago. We recognize that, to support his

defense that he did not currently suffer from a mental illness, respondent presented the testimony

of Dr. Kane, who testified that, in her opinion, respondent did not qualify as an SVP based upon

his current mental state. Moreover, respondent was permitted to introduce testimony, during cross-

examination, that after respondent was sentenced to the Illinois Department of Corrections, “there

were no records of anyone at that time diagnosing [him] with a paraphilia or a paraphilic

disorder…” Later during cross-examination, Dr. Schaab again testified that respondent had not

previously been diagnosed with paraphilia or paraphilic disorder. Consequently, respondent

introduced evidence of the absence of any prior mental diagnoses of paraphilia or paraphilic

disorder during cross-examination of the State’s expert witness testimony despite the restriction in

presenting this testimony through Dr. Schaab. Consequently, we find that the trial court did not

abuse its discretion in barring the testimony of Dr. Schaab as to his evaluation of respondent 18

years ago.

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¶ 72 B. Scope of Cross-Examination

¶ 73 Respondent also contends that the trial court erred in three rulings that it made relating to the

scope of cross-examination of the expert testimony presented by the State. Respondent sought to

question the expert witnesses regarding: (1) two appellate court opinions that the experts reviewed

but did not rely upon in rendering their expert opinions; (2) whether their finding “substantial

probability” equated to a coin flip; and (3) whether Dr. Suire had previously recommended an

individual for commitment when that person received a particular score on one of the actuarial

instruments. We find that the trial court did not abuse its discretion in restricting cross-examination

in these three areas.

¶ 74 It is well-established that the scope of cross-examination is within the sound discretion of the

trial court and will not be overturned absent an abuse of discretion. People v. Becker, 239 Ill. 2d

215, 234 (2010). The trial court has broad discretion to limit cross-examination to preclude

prejudice, witness harassment, repetitive and irrelevant questioning (People v. Tabb, 374

Ill.App.3d 680, 689 (1st Dist. 2007)), or to exclude evidence of bias that is too remote or uncertain

(People v. Prevo, 302 Ill.App.3d 1038, 1048 (4th Dist. 1999)). Unless the defendant can show his

or her proposed line of questioning was not based on a remote theory and that the limitation

resulted in manifest prejudice to him, “a court’s ruling limiting the scope of examination will be

affirmed.” Tabb, 374 Ill.App.3d at 689. An abuse of discretion will only be found if the trial court’s

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

with it. People v. McDonald, 2016 IL 118882, ¶ 82.

¶ 75 Initially, we consider the trial court’s decision relating to questioning the State experts as to

their reliance upon prior appellate court opinions. As far as respondent’s criminal history, there

are three appellate court opinions related to respondent’s prior conviction for committing a

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burglary in 1974 (See People v. Collins, 53 Ill.App.3d 114 (1977)); for committing a burglary in

1979 (See People v. Collins, 97 Ill.App.3d 465 (1981); and for committing a rape in 1984 (See

People v. Collins, 176 Ill.App.3d 169 (1st Dist.1988)). On cross-examination, Dr. Arroyo testified

that, in forming his opinion, he reviewed and relied upon the appellate court decision in

respondent’s 1984 case, and that this type of document is reasonably relied upon by experts in his

field. He further testified that he received the appellate court decision from respondent’s July 9,

1974, burglary case “three or four days ago.” At that point, the State objected based on foundation

because there was no testimony that Dr. Arroyo relied upon this opinion. During a sidebar

conference, the trial court stated that respondent must first establish whether Dr. Arroyo relied

upon these documents, and the doctor could testify to documents that he reasonably relied upon,

but he could not testify to documents that he did not reasonably rely upon “because it’s hearsay.”

During further questioning, Dr. Arroyo testified that he reviewed the 1974 appellate court decision

from the July 9, 1974, burglary conviction and the 1981 opinion from the 1979 burglary conviction,

but he did not rely upon either of these opinions because he received it after he had already

submitted his report containing his opinion “[a]nd there was no additional information to where it

was relevant to my opinion.”

¶ 76 Subsequently, respondent moved for the trial court to reconsider its decision. The trial court

upheld its earlier decision and stated, “It’s inadmissible hearsay if - - If he relies on it, he can testify

to it, even if its hearsay. If he doesn’t rely on it, he can’t testify to hearsay, it’s not coming in.”

¶ 77 Then, during cross-examination, Dr. Suire testified that “[t]here may have been some appellate

court rulings…” that he reviewed and “there were a couple of new ones that I received last week

that I reviewed.” He testified that he did not rely upon “the two most recent ones.” He explained

that he did not rely upon them because he had already written his report and he “didn’t see anything

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in them that would have changed his opinion.” He testified that the opinions contained “some

information” about the facts “but it did not appear to be fully summary.”

¶ 78 “It is well-settled that an expert may give opinion testimony that relies on facts and data not in

evidence, as long as the underlying information is the type reasonably relied on by experts in the

particular field.” In re Commitment of Tenorio, 2020 IL App (1st) 182608, ¶ 43 (citing In re

Commitment of Hooker, 2012 IL App (2d) 101007, ¶ 51. In addition, “the expert is permitted to

reveal the contents of materials upon which he has reasonably relied in order to explain the basis

of his opinion.” Tenorio, 2020 IL App (1st) 182608, ¶ 43 (citing In re Commitment of Butler, 2013

IL App (1st) 113606, ¶ 31. Moreover, as respondent points out, “experts may be cross-examined

for the purpose of discrediting their testimony, as well as to ascertain which factors were taken

into account and which were disregarded in arriving in these conclusions.” People v. Wagener,

196 Ill.2d 269, 274 (2001).

¶ 79 Here, the trial court permitted respondent to cross-examine both experts as to whether or not

they reviewed and relied upon the three appellate court opinions. As to the two appellate court

opinions that both experts reviewed after they had already rendered their separate opinions, the

trial court also permitted respondent to ask whether both experts relied upon this evidence. Both

witnesses stated that they did not rely upon them, explained why they did not rely upon them, and

definitively stated that this additional information did not change their opinions. Certainly, these

questions provided respondent the opportunity to explore this area of cross-examination and does

not provide grounds for this court to find that the trial court abused its discretion.

¶ 80 Next, respondent also argues that the trial court erred because it sustained the State’s objection

to respondent asking Dr. Arroyo, “If you were to flip a coin, would you say that’s much more

likely than not to land on heads?” We note that the trial court previously granted the State’s motion

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in limine to bar respondent from attempting to reduce the standard of “substantial probability” to

a percentage. We find that the trial court did not abuse its discretion in precluding this question.

¶ 81 We have previously rejected the use of percentages, mathematical formulas, or statistical

analysis in defining the phrase “substantial probability” in the Act. See In re Commitment of Gavin,

2019 IL App (1st) 180881, ¶¶ 47-48 (rejecting the respondent’s argument to modify the definition

of “substantially probable” to “much more than 50%”); In re Detention of Hayes, 321 Ill.App.3d

178, 187-88 (2d Dist. 2001) (the definition of “substantially probable” cannot be reduced to a mere

mathematical formula or statistical analysis); In re Detention of Walker, 314 Ill.App.3d 282, 294

(4th Dist. 2000) (“We reject the notion that the question of substantial probability under the Act

can be reduced to mere percentages.”) In particular, in Hayes, the court rejected the respondent’s

argument that the jury was required to find a probability of re-offense greater than 50%. Hayes,

321 Ill.App.3d at 189. Instead, the court determined that the phrase “substantially probable” in the

Act meant “much more likely than not[,]” and emphasized that the definition could not be reduced

to a mere mathematical formula or statistical analysis. Hayes, 321 Ill.App.3d at 188. The court

explained that, instead of utilizing a mathematical formula, “the jury must consider all factors that

either increase or decrease the risk of reoffending and make a commonsense judgment as to

whether a respondent falls within the class of individuals who present a danger to society sufficient

to outweigh their interest in individual freedom.” Id. at 188.

¶ 82 When respondent sought to refer to a coin flip, he was asking Dr Arroyo to define his opinion

as to “substantial probability” to a statistical analysis, which is exactly the type of questioning and

argument that we have found to be inappropriate. Merely because he did not utilize a numerical

percentage and, instead, asked the jury to consider 50-50 odds, does not persuade us. Moreover,

in encouraging the jury to look at the evidence as a coin-flip, he was asking them to evaluate the

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evidence, not based upon the evidence, but upon chance. We reject respondent’s attempt to

circumvent the use of mathematical formula or statistical analysis where, in the end, a coin flip is

exactly the type of language that Hayes found to be improper.

¶ 83 Respondent also asks for us to find that the trial court abused its discretion when it precluded

counsel from asking Dr. Suire, “Isn’t it true that you recommended someone for commitment even

though they had a score of 1?” According to respondent, this question should have been permitted

because it would have shown that Dr. Suire was “biased” towards recommending people to be

civilly committed where he testified that he considered his classification of respondent as “above

average” risk category on the Static-99R test was significant to his recommendation for

commitment.

¶ 84 Initially, we find that respondent forfeited review of his claim where he failed to make an offer

of proof. By utilizing the phrase, “Isn’t it true…” respondent suggested that there was evidence to

support it. However, there was no offer of proof that Dr. Suire had recommended someone for

commitment with a score of 1 on the Static-99 test. When a line of questioning is objected to or

denied by the trial court, the defendant must ordinarily set forth an offer of proof to convince the

trial court to allow the testimony. People v. Burgess, 2015 IL App (1st) 130657, ¶ 47. The purpose

of an offer of proof is to inform the trial court, opposing counsel and a reviewing court of the

nature and substance of the evidence sought to introduced (People v. Leak, 389 Ill.App.3d 798,

822 (1st Dist. 2010)) and for the reviewing court to determine if the exclusion of evidence was

proper (Tabb, 374 Ill.App.3d at 689). When it is clear what a witness would say, or what the basis

would be for saying it, the offer of proof must be considerably detailed and specific. Leak, 398

Ill.App.3d at 822. A formal offer of proof is not typically required, however an informal offer of

proof involving counsel’s summary of what the proposed evidence might prove may be sufficient

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if specific and not based on speculation or conjecture. Tabb, 374 Ill.App.3d at 689. It is well-settled

that the key to preserving for review an error in the exclusion of evidence is an adequate offer of

proof in the trial court and a defendant’s failure to make such an offer of proof results in forfeiture

of the issue. People v. Staake, 2017 IL 121755, ¶ 51. Here, during the sidebar, counsel had the

opportunity to provide an offer of proof but failed to do so. Consequently, respondent’s failure to

provide an offer of proof as to Dr. Suire’s testimony amounted to forfeiture of his claim.

¶ 85 Even if we were to relax the forfeiture doctrine in order to review respondent’s claim, we find

that respondent has not established that the trial court abused its discretion. To determine the

constitutional sufficiency of cross-examination, the court looks not to what the defendant was not

allowed to ask, but rather what he was allowed to do, an inquiry made by looking at the entire

record. People v. Miller, 225 Ill.App.3d 92, 102 (1st Dist. 1992). On direct examination, the jury

heard that Dr. Suire had conducted approximately 800 evaluations in the state of Illinois, and that

he found three or four of these 800 people did not meet the criteria as an SVP. During cross-

examination, the trial court permitted respondent’s counsel to extensively question Dr. Suire

regarding all the different factors that he considered in making his determination as to the

likelihood of respondent committing a sexual offense in the future. Dr. Suire testified, on cross-

examination, that both tests he utilized had moderate predictive accuracy, that the tests stopped

giving credit reduction after the respondent reached the age of 60, and that he gave respondent

points for both prior convictions for sexual offenses as well as sex offenses that were dismissed.

In short, respondent was able to cross-examine Dr. Suire about the different factors that he utilized

in his evaluation procedures. Consequently, the trial court did not abuse its discretion in excluding

cross-examination in this one particular area.

¶ 86 C. State’s Closing and Rebuttal Arguments

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¶ 87 Respondent contends that the State compromised his right to a fair trial, pointing to several

remarks during both the State’s closing and rebuttal arguments. On the other hand, the State

contends that none of these comments amounted to substantial prejudice and points out that

respondent forfeited review of several comments by failing to properly preserve them. We find

that the trial court did not abuse its discretion, and there was no error in the presentation of closing

arguments.

¶ 88 Generally, the prosecution has wide latitude in making its closing argument. People v. Willis,

2013 IL App (1st) 110233, ¶ 101. Thus, the prosecutor may comment on the evidence and any

“fair, reasonable inferences” from it. Willis, 2013 IL App (1st) 110233, ¶ 101. The prosecutor may

also respond to comments made by defense counsel that clearly invite response, and comment on

the credibility of witnesses. People v. Cosmano, 2011 IL App (1st) 101196, ¶ 57. Closing

arguments must be viewed in their entirety, and allegedly erroneous arguments must be viewed in

context. People v. Nicholas, 218 Ill.2d 104, 122 (2005). Thus, reviewing court will not focus on

selected phrases or remarks in isolation but rather consider the closing argument as a whole.

Nicholas, 218 Ill.2d at 122.

¶ 89 “‘We will not interfere with the trial court’s determination of the propriety of the prosecution’s

closing argument absent a clear abuse of discretion resulting in manifest prejudice to the

defendant.’” In re Commitment of Gavin, 2014 IL App (1st) 122918, ¶ 49 (quoting Willis, 2013 IL

App (1st) 110233, ¶ 102. Reversible error will be found only when a prosecutor’s comments

engender “substantial prejudice” against the defendant to the extent that “it is impossible to

determine whether the verdict of the jury was caused by the comments or by the evidence.” Willis,

2013 IL App (1st) 110233, ¶ 102.

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¶ 90 Initially, respondent contends that the State committed error during rebuttal argument when it

misstated the law regarding what constituted a mental disorder. In particular, the State argued:

[PROSECUTOR:] We have proven to you that the respondent suffers from other specified

paraphilic disorder. And [the prosecutor] was right, he does have to suffer from a mental

disorder. It doesn’t have to be a specific one but he does suffer from that one.

Other specified personality disorder is also one. It can be one in conjunction. It can be

one on its own if you find that. A mental disorder doesn’t have to meet the definitions - -

[RESPONDENT’S COUNSEL]: Objection.

THE COURT: Overruled.

[PROSECUTOR]: -- under the act which you will receive in your jury instructions that has

been discussed here. But you can also see is Dr. Arroyo talked to you how just the

personality disorder alone was not a sufficient diagnosis for him. It didn’t actually describe

his behavior.

***

…Both the other specified paraphilic disorder and the other specified personality disorder

are mental disorders under the act and we have prove[n] that beyond a reasonable doubt…

¶ 91 Here, considering the totality of the comments, the State’s comments did not amount to a

deliberate attempt to misstate the law to the jury. The clarity of this comment is questionable when

we consider that this comment was fragmented at the point when respondent’s counsel objected.

Also, we consider this comment in the context of the other arguments made by the State. This

comment was followed by the State asking the jury to look at the jury instructions and then they

argued that they had proven that defendant suffered from a mental disorder where he was

diagnosed with other specified paraphilic disorder and the other specified personality disorder.

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Moreover, in closing argument, the State also properly defined the law regarding mental disorders.

Therefore, viewing this isolated comment in the context of the entire closing arguments,

respondent has not shown prejudice.

¶ 92 Next, we find that the State’s argument regarding the opinion evidence did not amount to error.

Relying upon Gavin, respondent contends that he was prejudiced by the prosecutor’s rebuttal

argument where the prosecutor substantively argued the underlying facts of respondent’s criminal

convictions. Pointing to In re Commitment of Tenorio, 2020 IL App (1st) 182608, and In re

Commitment of Butler, 2013 IL App (1st) 113606, the State argues that the prosecutor’s comments

were proper where focused on the underlying facts and circumstances of a respondent’s criminal

history as having been relied upon by the expert witnesses in supporting their opinion. We find

that the facts here more closely align those found in Tenorio and Butler than Gavin, and therefore,

conclude that the trial court did not abuse its discretion.

¶ 93 “It is well-settled that an expert may give opinion testimony that relies on facts and data not in

evidence, as long as the underlying information is of the type reasonably relied on by experts in

the particular field.” Tenorio, 2020 IL App (1st) 182608, ¶ 43 (citing In re Commitment of Hooker,

2012 IL App (2d) 101007, ¶ 51. Moreover, although the expert is permitted to testify to the

underlying facts or data, they are admitted for the limited purpose of explaining the basis for the

expert’s opinion, and “the basis of an expert’s opinion must be presented to the jury as substantive

evidence of the underlying assumptions.” Id., ¶ 44 (citing Butler, 2013 IL App (1st) 113606, ¶ 31.

¶ 94 In Gavin, the prosecutor recounted the respondent’s criminal history in detail during opening

statements, closing argument, and rebuttal argument. We found that “the State repeatedly referred

to the underlying facts as something other than the basis for the experts’ opinions.” Id. ¶ 73. For

instance, the prosecutors argued that the experts were going to “tell” or “show” the jury about the

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respondent’s past sex crimes, referred to the hearsay evidence as “facts” and “evidence[,]” and

“argued the explicit facts underlying [the respondent’s] convictions as a narrative” and did not

explain to the jury how the experts relied on these facts to diagnose or assess the respondent. Id.

¶¶ 73-74.

¶ 95 In Butler, however, we found that “the State argued the facts and circumstances of respondent’s

history of violent sexual offenses as having been relied upon and completely supporting the

opinions of their expert witnesses.” Butler, 2013 IL App (1st) 113606, ¶ 34. Likewise, in Tenorio,

we found that the prosecutor’s comments were proper where “the State focused on the fact that the

experts had relied on the existence of a pattern of behavior and recited the details of respondent’s

prior offense in the context of describing that pattern.” Tenorio, 2020 IL App (1st) 182608, ¶ 47.

We also found that the prosecutor’s comments in rebuttal were in direct response to defense

counsel’s arguments concerning the experts’ credibility. Id. ¶ 48.

¶ 96 Here, unlike in Gavin, respondent does not contend that the State made any improper

comments during opening statements or closing argument. In fact, during closing argument, the

prosecutor recounted the relevant aspects of respondent’s criminal history to explain Drs. Arroyo’s

and Suire’s diagnosis. Instead, respondent focuses on comments made during rebuttal argument.

The prosecutor, however, in rebuttal referred to the different facts from respondent’s criminal

history to explain the difference between the opinions of Drs. Arroyo and Suire versus Dr. Kane,

the defense expert, as to why respondent was substantially probable to reoffend. The prosecutor

argued that Dr. Kane’s conclusion that respondent could not be diagnosed with other specified

paraphilic disorder was “because he didn’t have a pattern of behavior that suggested that he was

interested in nonconsenting persons. That is absurd in light of the facts.” At that point, the

prosecutor referred to the different facts from respondent’s criminal history to explain that there

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was a “clear pattern of behavior.” Because these comments were focused on explaining the

difference between the opinions of the experts in this case, the prosecution did not improperly refer

to the underlying facts as something other than the basis for the experts’ opinion. Consequently,

this case is more like the facts in Tenorio and Butler, where we found no error. Further, like in

Tenorio and unlike in Gavin, the prosecutor’s comments were in direct response to counsel’s

closing argument in which he spent a portion of his closing argument discussing the underlying

facts of respondent’s different criminal cases when trying to support Dr. Kane’s diagnosis that

respondent did not suffer from a paraphilic disorder and to discount the testimonies of Dr. Arroyo

and Dr. Suire as to their diagnosis that he did. As a result, these comments were proper.

¶ 97 However, at the beginning of the rebuttal argument, the prosecutor discussed the underlying

facts of respondent’s criminal history without tying it to the diagnosis of the doctors. The

prosecutor stated, “And let’s talk about his age for just a second. Here are some ages, 69 years old,

78 years old, 80 years, 59 years old, 73 years old. Those are the ages of [respondent’s] victims. All

that’s happened for the respondent now is that he is in the same age group.” Respondent did not

object to this comment, and, even if error to have made such an argument, it did not reach the level

for us to conclude that it merited reversal of respondent’s conviction. This comment was isolated

and stands in sharp contrast to the repeated and pervasive arguments present in Gavin.

¶ 98 Furthermore, to the extent that there was any error, the trial court cautioned the jury four

different times that this evidence was introduced for a limited purpose and may not be considered

by them as evidence. It is well settled that jury instructions “carry more weight than the arguments

of counsel.” People v. Boston, 2018 IL App (1st) 140369, ¶ 103. For that reason, we have

recognized that “[a] trial court’s instructions that closing arguments are not evidence protect [a]

defendant against any prejudice caused by improper comments made during closing arguments.”

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Id. “Absent some indication to the contrary, we must presume that jurors follow the law as set

forth in the instructions given them.” People v. Wilmington, 2013 IL 112938, ¶ 49. Unlike in

Gavin, where we found that the prosecutors presented their arguments in such a way to rebut the

presumption that the instructions were followed[,]” (Gavin, 2014 IL App (1st) 122918, ¶ 78), we

find that, here, the prosecutors did not present their argument during rebuttal in such a pervasive

and inflammatory manner to rebut this presumption.

¶ 99 Respondent also objects to two comments in rebuttal that we find were proper when considered

in their proper context and that they directly responded to defense counsel’s closing argument.

First, respondent contends that the State “inflamed the passions of the jury” when it argued, in

rebuttal, that “[Defense counsel] is right, this is more serious because the safety of the community

is at issue.” Specifically, the State argued:

[PROSECUTOR]: …We talked about the age of the offenses and we’ve talked about his

age and we have also talked about the fact that he is healthy and that he hasn’t done any

sex offender treatment. Those are the protective factors. They don’t qualify for him.

So the doctors have explained to you how he started at above average risk on those

group estimates; and then, they looked at him as a person. We don’t want to assess

[respondent] using only those tools that are like for car insurance. [Defense counsel] is

right, this is more serious because the safety of the community is at issue.

[DEFENSE COUNSEL]: Objection.

[PROSECUTOR]: We want them to go beyond. With the insurance company, they rate

you; and then, you get a thing. They don’t call you in and ask you to please talk about

yourself and what you think about stuff. There isn’t the second piece where they look at

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your dynamic risk factors or your protective factors to see if your rates should be changed

accordingly…

¶ 100 Notably, Dr. Suire testified that “An actuarial is a means of estimating risk. It’s analogous to

– Probably the most common thing we’ve all experienced is if you go to get car insurance…” Dr.

Suire went on to explain that these types of actuarial instruments look at a variety of factors “to

create what they call an actuarial table” to determine the cost. In closing argument, defense counsel

argued that Dr. Suire compared the actuarial instrument as the ones “used on someone who is

buying car insurance” but that “we have a bit of different situation here. We have an actuarial

instrument being used to determine if someone’s risk to reoffend in the future. And this is far more

serious than any actuarial instrument that’s used in car insurance because the question here is

whether someone is eligible for civil commitment.”

¶ 101 The comment was made in direct response to defense counsel’s argument and to explain Dr.

Suire’s testimony regarding the use of actuarial instruments utilized by car insurance companies.

Considering its proper context and that the comment was made in direct response to defense

counsel’s closing argument, the prosecutor did not inflame the passions of the jury by this line of

argument.

¶ 102 Moreover, defense counsel argued that respondent was at less risk to reoffend because of

respondent’s age and “we tend to become weaker, more decrepit…” Defense counsel also argued

that the jury should remember that “the question here is not whether [respondent] was a sexually

violent person in 1967…in 1984. The question is whether he is a sexually violent person today in

2020 as an almost 73 year old man…” In rebuttal, the State argued that “nothing has happened

over the course of the years but the passage of time. Nothing else has changed for him say for the

fact that he [has] gotten older.” The prosecutor continued, pointed out the ages of the victims and

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argued, “Now if [respondent] were to be released, he can go down to the senior center and play

bingo, he is playing in the victim profile. That’s what [is] happening for [respondent].” Thus, in

response to defense counsel’s argument that respondent’s age was a significant factor for the jury

to consider in determining whether respondent was likely to reoffend, the prosecutor was merely

pointing to the fact that the only thing that had changed for respondent since he was convicted of

and incarcerated for these previous crimes was the fact that he had grown older and closer in age

to the victims in his prior offenses. Respondent has not established that he was prejudiced by this

comment.

¶ 103 Moreover, respondent contends that when the State referred to Drs. Arroyo and Suire as “our

doctors” when discussing their testimony, it violated the State’s motion in limine to preclude

referring to the State’s witnesses “as controlled experts.” Prior to trial, the trial court granted the

State’s motion in limine to refrain from referring to the experts as the State’s “retained or controlled

expert witnesses.” When the State referenced the two experts that they presented as “our

doctors[,]” it did not in any way violate the trial court’s order. The State sought to prevent

respondent from attaching a pejorative description to the experts, and this particular reference did

not in any way approach that concern.

¶ 104 Respondent also contends that the prosecutor improperly offered its opinion regarding

respondent’s health by stating that “[h]e is probably healthier than I am…” where this comment

was “completely detached from evidence…” In substance, the State argued that all three experts

took respondent’s age into consideration when conducting the risk assessment, and “It’s a factor

that largely comes in concert with his physical condition. And this respondent is healthy. He is

probably healthier than I am. He jogs, he circuit trains, he plays basketball, his medical records are

clear…”

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¶ 105 Initially, we reject respondent’s suggestion that this comment was not based upon the evidence

presented at trial. Dr. Arroyo testified that he looked at respondent’s medical condition and, after

looking at his medical file, found that “he’s engaging in circuit training. He’s bench-pressing. He’s

playing basketball. I don’t see anything that’s limiting his mobility - - physical ability.” He

concluded that there was nothing to indicate that respondent’s physical condition “would prevent

him from engaging in future acts of sexual violence.” Respondent relies upon a mere snippet of

the State’s rebuttal argument, and considered in its proper context, we do not find that the jury

would have been prejudiced by it. We also agree with the State’s suggestion that the prosecutor’s

comparison of his own health with that of respondent was “possibly hyperbole,” but do not

encourage the State to continue to such a line of argument in the future.

¶ 106 CONCLUSION

¶ 107 For these reasons, the judgment of the circuit court is affirmed.

¶ 108 Affirmed.

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