In re Commitment of Moore

2023 IL App (5th) 170453, 221 N.E.3d 1113, 468 Ill. Dec. 891

• Court: Appellate Court of Illinois
• Decided: April 10, 2023
• Docket: 5-17-0453
• Status: Published

Opinion

2023 IL App (5th) 170453 NOTICE Decision filed 04/10/23. The text of this decision may be NO. 5-17-0453 changed or corrected prior to the filing of a Peti ion for IN THE Rehearing or the disposition of the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

In re COMMITMENT OF ALLEN MOORE ) Appeal from the ) Circuit Court of (The People of the State of Illinois, ) St. Clair County. ) Petitioner-Appellee, ) ) v. ) No. 05-MR-199 ) Allen Moore, ) Honorable ) Laninya Cason, Respondent-Appellant). ) Judge, presiding. ______________________________________________________________________________

PRESIDING JUSTICE BOIE delivered the judgment of the court, with opinion. Justices Moore and Barberis concurred in the judgment and opinion.

OPINION

¶1 After a trial, the respondent, Allen Moore, was found by a jury to be a sexually violent

person pursuant to the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 et seq.

(West 2004)) and was ordered to be committed to institutional care in a secure facility. The

respondent appeals, presenting five issues for review. The respondent claims that (1) the trial court

committed plain error by failing to conduct a proper polling of the jury, (2) the respondent’s trial

counsel was ineffective, (3) the trial court erred in denying the respondent’s motion in limine,

(4) the trial court erred in granting the State’s motion to vacate without the respondent’s presence

and without a hearing being recorded by a court reporter, and (5) the State was judicially estopped

from arguing that the respondent’s prior nonsexual past crimes were evidence of a pattern of

1 behavior to constitute a diagnosis under the Act. For the following reasons, we affirm the judgment

of the circuit court of St. Clair County.

¶2 I. BACKGROUND

¶3 The respondent pleaded guilty in January 1994 to one count of attempted aggravated

criminal sexual assault and attempted armed robbery in St. Clair County, Illinois. On July 8, 2005,

the State filed a petition to commit the respondent under section 15 of the Act (id. § 15). On July

8, 2005, the trial court made a finding that there was probable cause to believe that the respondent

was a sexually violent person (SVP), pursuant to section 35(f) of the Act (id. § 35(f)), and ordered

the respondent to be detained pending his trial. The trial court appointed Dr. Kirk Witherspoon as

an expert for the respondent, pursuant to section 25(e) of the Act (id. § 25(e)). The Illinois

Department of Human Services (DHS) assigned Dr. Ray Quackenbush to evaluate the respondent

on behalf of the State, which he did in August 2005. Additionally, Dr. Michael H. Fogel evaluated

the respondent in July 2005, pursuant to an Illinois Department of Corrections (IDOC) screening

procedure for convicted sex offenders who are scheduled for mandatory supervised release or

discharge.

¶4 In February 2006, the parties advised the trial court that the respondent had been returned

to IDOC for a parole violation. The trial court dismissed the SVP petition without prejudice on

April 4, 2006, on the State’s motion. On April 17, 2006, the State filed a written motion to vacate

the dismissal order and reinstate the respondent’s SVP proceeding, explaining that IDOC had

miscalculated the respondent’s anticipated release date and, based on the corrected calculation, the

SVP petition should proceed. The trial court granted the motion that same day. Dr. Quackenbush

evaluated the respondent again in May 2006, and Dr. Witherspoon evaluated the respondent in

2 July 2006. Between 2006 and 2010, the case was delayed by continuances, discovery, and motion

practice; the details of which are not necessary to the disposition of this appeal.

¶5 On February 8, 2010, the trial court ordered Dr. Fogel, Dr. Quackenbush, and Dr.

Witherspoon to complete updated evaluations. On May 3, 2010, the State filed a motion to conduct

a current SVP evaluation, indicating that Dr. Quackenbush had retired, would be relocating away

from the area, and would be unavailable to testify in a trial of this matter. The State requested that

a new expert be permitted to evaluate the respondent, and the trial court appointed Dr. Kimberly

Weitl. Dr. Weitl evaluated the respondent for the State in June 2010 and again in October 2012.

On October 13, 2013, the trial court, on motion of the State, entered an order appointing an

additional expert to conduct an evaluation of the respondent. Dr. Melissa Weldon-Padera evaluated

the respondent in December 2014. On April 3, 2014, on the State’s motion, the trial court appointed

Dr. Angeline Stanislaus to evaluate the respondent. Dr. Stanislaus completed her evaluation in July

2014. The trial court entered an additional order appointing Dr. Diane Lytton to evaluate the

respondent as the respondent’s expert witness. On October 24, 2014, the trial court entered an

order requiring Dr. Lytton’s report to be disclosed no later than October 29, 2014. Further, the trial

court ordered that Dr. Lytton be made available to be deposed by the State no later than October

31, 2014. It is unclear from the record whether Dr. Lytton ever evaluated the respondent or was

deposed, but she did not testify in the jury trial in this matter.

¶6 A jury trial was held on November 3, 2014. On the same date, the trial court addressed the

respondent’s motion in limine to exclude from trial any testimony regarding conduct that had not

resulted in his conviction for a sex offense. The trial court denied the respondent’s motion but

granted the respondent’s request for a limiting instruction admonishing the jury that such testimony

was being admitted for the limited purpose of explaining the bases for the experts’ opinions and

3 for determining what weight should be afforded to their opinions. The trial court provided the jury

with these admonishments before each expert testified.

¶7 At trial, the parties stipulated to the respondent’s conviction for attempted aggravated

criminal sexual assault, a sexually violent offense as defined by the Act. The State then presented

two witnesses qualified as experts in sex offender evaluation, diagnosis, and risk assessment. Dr.

Angeline Stanislaus and Dr. Kimberly Weitl each testified on behalf of the State, and each opined

that the respondent met the legal standard for an SVP and was dangerous. The experts first

determined that the respondent suffered from two mental disorders called “other specified

paraphilic disorder” and “other specified personality disorder with antisocial personality traits.”

Next, the experts, after conducting a risk assessment, opined that it was substantially probable that

the respondent would commit further acts of sexual violence.

¶8 In reaching their opinions, both experts relied upon information contained in the

respondent’s IDOC master file, the respondent’s medical and disciplinary records during his time

at IDOC, and DHS. Additionally, the experts relied upon prior evaluations by other sex offender

evaluators. Dr. Stanislaus conducted a clinical interview with the respondent in June 2014 with

her evaluation being completed in July 2015. Dr. Weitl relied upon information that the respondent

provided in interviews with prior evaluators, as the respondent refused to participate in an

interview with her.

¶9 Dr. Stanislaus testified about how she formed her opinion as to the respondent’s mental

health diagnoses and risk of reoffending. Dr. Stanislaus stated that she had relied upon the

respondent’s pattern of behavior based, in part, on his prior criminal history consisting of a 1993

predicate sexually violent offense (predicate offense), an attempted armed robbery, a 1995

aggravated battery and aggravated unlawful restraint, and a 2001 residential burglary. Dr.

4 Stanislaus testified that it was her opinion, based on the facts surrounding each incident, that all of

the respondent’s history outlined above was sexually motivated. Dr. Stanislaus also considered the

respondent’s disciplinary history while in the custody of IDOC and DHS, including sexual

misconduct citations for groping one female corrections officer and openly masturbating while in

the presence of another.

¶ 10 Dr. Stanislaus discussed each incident she relied upon in diagnosing the respondent.

Regarding the predicate offense in 1993, Dr. Stanislaus considered the fact that the respondent

followed a woman around her apartment complex parking lot at 10 p.m., grabbed her from behind,

covered her mouth with one hand, held a knife to her side with the other hand, and threatened to

stab her if she screamed. The respondent “led her into an open garage” and demanded money, took

her into a side room, and, while holding a knife to her neck, forced her to remove her pants and

panties. The respondent had the victim pull down his pants, revealing his erect penis, and he

attempted to penetrate her vaginally. The victim resisted. As they struggled over the knife, she told

the respondent that she could not breathe and was having an asthmatic attack. At that point, the

respondent stopped, laid down next to the victim, and caressed her buttocks before leaving. Dr.

Stanislaus testified that the respondent provided a consistent description of the offense in his

clinical interview.

¶ 11 Regarding the respondent’s conviction for attempted armed robbery, Dr. Stanislaus

summarized that the respondent committed the offense on the evening following the predicate

offense. Dr. Stanislaus described the incident, stating that at around 10 p.m., a woman had come

out of an apartment to get into a car in the parking lot. As she was getting into that car, the

respondent attempted to enter her vehicle. The respondent was pointing a gun at her through the

window when she started honking the car horn and managed to pull the car door shut. At that point,

5 the respondent ran away. Although there was no overtly sexual act committed by the respondent

in the attempted armed robbery, Dr. Stanislaus found the pattern of behavior to be significant, in

that the victim was a woman alone in a parking lot and the respondent had tried unsuccessfully to

get into her car.

¶ 12 Dr. Stanislaus also considered the respondent’s conviction of aggravated battery and

aggravated unlawful restraint committed against a female corrections officer. In that incident, Dr.

Stanislaus testified that the respondent, while armed with a broken metal hanger, cornered the

woman in an unoccupied cellblock, restrained her arms, pushed her against the wall, pinned her

by the neck using his forearm, and tried to force her into an open cell. The victim started screaming,

and a nearby worker came to her aid as the respondent fled. While, again, there was nothing overtly

sexual about the actions, Dr. Stanislaus opined that the details of the offense were significant

because they fit into the previous pattern of the respondent’s 1993 offenses—namely, arming

himself with a weapon, overpowering a lone female victim, and attempting to force the victim into

an even more isolated location. Dr. Stanislaus testified that “[t]he fact that he wanted to move her

into a cell, away completely, that to me indicates there was a sexual intent.”

¶ 13 Dr. Stanislaus also testified that she considered an incident leading to the respondent’s

2001 parole violation. According to Dr. Stanislaus’s testimony, the charges included an attempted

criminal sexual assault; however, the respondent was ultimately convicted of residential burglary.

Dr. Stanislaus testified that she considered the fact that the respondent broke into the home of his

then live-in girlfriend’s neighbor and waited for the neighbor to return home. He wore a nylon

stocking mask, carried a 13-foot rope, and had three condoms in his pocket. According to Dr.

Stanislaus’s testimony, the neighbor’s grandson recognized the respondent and called the police

when the respondent attempted to flee the scene. A few days later, the respondent’s girlfriend

6 discovered a brown bag, hidden in her drop ceiling, that contained the other leg of her nylon

stocking and a “whole bunch” of condoms inside. Dr. Stanislaus testified that she had considered

information relayed by the respondent’s fellow inmate that the respondent had admitted that he

had stalked this woman, that he could not help it, and that he needed professional help.

Additionally, Dr. Stanislaus stated that she had considered the fact that the respondent reoffended

while on parole, which demonstrated an inability to follow rules. Dr. Stanislaus indicated that she

had considered her clinical interview with the respondent, wherein he denied that the offense was

sexually motivated and claimed that he broke into the woman’s home to collect money from her

grandson for a marijuana transaction.

¶ 14 Dr. Stanislaus testified that, in forming her opinion, she had also considered two sexual

misconduct citations that the respondent received while in IDOC custody. The first was for placing

his hand on the buttocks of a female corrections officer. The second was for standing naked in his

cell door and openly masturbating in the presence of a female corrections officer. Dr. Stanislaus

opined that these incidents demonstrated heightened inappropriate sexual behavior, even within a

controlled environment. Dr. Stanislaus acknowledged that the respondent contended that the first

incident was an accident and the second incident was a misunderstanding and he was merely

cleaning himself.

¶ 15 Dr. Stanislaus further testified that she had relied upon the respondent’s difficulty

following rules and regulations, both while in IDOC and DHS custody, citing several nonsexual

incidents from the respondent’s disciplinary history. These incidents included an altercation with

DHS staff at the treatment and detention facility (TDF) in 2007; multiple violations for insolence,

threats, and intimidation at the TDF in 2007; a battery committed against another TDF resident in

2009; and multiple threats against a TDF roommate.

7 ¶ 16 Dr. Stanislaus testified that she diagnosed the respondent with other specified paraphilic

disorder and other specified personality disorder, with antisocial personality traits. Dr. Stanislaus

stated that she based the paraphilic disorder diagnosis on the Diagnostic and Statistical Manual

(American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 5th

Edition, DSM-5 Paraphilic Disorders (2013) (DSM-5)). Dr. Stanislaus testified that, according to

the DSM-5, “any intense and persistent sexual interests other than the phenotypically normal,

physically mature consenting human partners is considered atypical, is considered a paraphilia.”

Dr. Stanislaus opined that the respondent’s behavior met the criteria in that he was targeting

nonconsenting partners such as in the predicate offense where the victim was physically normal

and a mature adult, but she was fighting him. Dr. Stanislaus testified that the nonconsenting aspect

of the encounter fits into the paraphilic element. Dr. Stanislaus next testified that, in order to

identify a paraphilia, she looks to an intense and persistent pattern. Dr. Stanislaus testified that the

circumstances and repeated offenses perpetrated by the respondent displayed a persistent pattern

of behavior, spanning over a period of time across multiple victims.

¶ 17 Regarding the respondent’s personality disorder diagnosis, Dr. Stanislaus testified that the

respondent’s behavioral history, both in his criminal conduct and his disciplinary record at IDOC

and the TDF, demonstrated numerous antisocial personality traits, including recklessness,

impulsivity, entitlement, and disregard for the rights of others. Dr. Stanislaus opined that the

respondent’s personality disorder drives his paraphilic disorder and increases his risk to act on his

deviant sexual interest by disinhibiting him from respecting others’ rights in order to get what he

wants. Thus, Dr. Stanislaus concluded that the respondent’s disorders constituted an acquired or

congenital condition affecting his emotional or volitional capacity and predisposing him to commit

acts of sexual violence.

8 ¶ 18 Next, Dr. Stanislaus testified about how she formed her opinion, to a reasonable degree of

psychiatric certainty, that the respondent was substantially probable to commit future acts of sexual

violence. Dr. Stanislaus testified that, as part of her sex offender evaluation process, she completed

what is known as a risk assessment to determine whether someone is likely to commit future acts

of sexual violence. Dr. Stanislaus testified that she typically looks at the pattern of sexual behavior

so far measured by “static risk factors,” such as past behaviors, age, and whether violence was

involved in the past behaviors, among others. Dr. Stanislaus testified that another set of risk factors

that she considered are called “dynamic risk factors.” She explained that dynamic risk factors are

those that are capable of change. Dr. Stanislaus testified that there are actuarial instruments to aid

in assessing the risk factors.

¶ 19 Dr. Stanislaus testified that she used the Static-99R as the actuarial instrument to measure

the respondent’s static risk factors. The respondent’s score of six on the Static-99R placed him in

the high risk category for reoffending. Dr. Stanislaus then looked at dynamic risk factors and

identified the following factors present for the respondent: sexualized violence, offense-supportive

attitudes, lack of emotionally intimate relationships with adults, impulsivity, recklessness,

resistance to rules and supervision, hostility, negative emotionality, hostility towards women, and

callousness or lack of concern for others.

¶ 20 Dr. Stanislaus testified that the respondent’s other specified paraphilic disorder affected

the respondent’s emotional and volitional capacity and predisposed him to future acts of sexual

violence. She further testified that the presence of antisocial personality traits increased the risk of

reoffending. Dr. Stanislaus testified that, based on her training and experience in the field of sex

offender evaluation, it was her opinion, to a reasonable degree of psychiatric certainty, that the

9 respondent met the criteria of a sexually violent person. She opined that it was much more likely

than not that the respondent would reoffend.

¶ 21 The next witness to testify was Dr. Weitl. Dr. Weitl testified that she diagnosed the

respondent with “other specified paraphilic disorder, sexually attracted to non-consenting

women,” and “antisocial personality disorder.” Dr. Weitl testified that she relied upon the

behavioral patterns exhibited throughout the respondent’s criminal and disciplinary history to

conclude that he had a sexual attraction to nonconsenting persons. Regarding the predicate offense,

Dr. Weitl emphasized that the respondent’s ability to maintain an erection while the victim

protested demonstrated an arousal to the situation. Dr. Weitl testified that she considered that the

respondent’s sexual misconduct citation at IDOC, for rubbing up against and fondling the buttocks

of a female officer, displayed an ongoing engagement in sexual conduct with someone who is

nonconsenting. Dr. Weitl further testified that the 2001 burglary was a continuation of the

respondent’s sexually deviant pattern of behavior. In Dr. Weitl’s opinion, the nylon mask,

condoms, and rope that the respondent carried during the offense was a “rape kit.” Dr. Weitl also

stated that she considered the respondent’s admissions to a fellow inmate that the respondent’s

intent during the 2001 offense was to commit rape. Dr. Weitl testified that the respondent had

chosen to pursue nonconsensual sex from a neighbor rather than consensual sex from his then

girlfriend. Dr. Weitl testified that the respondent was inconsistent in his self-reporting to prior

evaluators but noted that the respondent had told one evaluator that he was responsible for

everything in the record. Dr. Weitl testified that all of the respondent’s criminal charges and

convictions, be they sexual or nonsexual, were important because the facts of the case, rather than

the charge or conviction, provide a greater understanding of the respondent’s patterns of behavior

and give insight into his risk of reoffending. Dr. Weitl testified that paraphilic urges could be

10 reflected in attempts at sexually violent behavior, even where the respondent did not succeed in

those attempts. Dr. Weitl testified that the fact that the respondent continued to behave in a sexually

violent manner, even after being caught and sanctioned, including in the highly structured

environments of prison and parole, caused Dr. Weitl to believe that the respondent’s urges were

very strong and indicated to her that he was unable to control them.

¶ 22 Dr. Weitl testified that, in diagnosing the respondent with antisocial personality disorder,

she found that the respondent did not follow social norms, had a history of physical violence in

addition to sexual violence, disregarded the safety of others and himself, and showed a lack of

remorse where he denied, justified, or made excuses for his behavior. Dr. Weitl testified that the

respondent’s personality disorder served to exacerbate the paraphilic disorder, enabling the

respondent to meet his sexually deviant needs because he lacked any concern for the victim. Dr.

Weitl testified that the respondent’s antisocial personality disorder diagnosis, in addition to his

paraphilic disorder, could qualify as a mental disorder under the Act because the personality

disorder had specifically manifested for the respondent in sexually violent behavior against

nonconsenting women. Dr. Weitl concluded that both of the respondent’s diagnoses were

qualifying mental disorders under the Act.

¶ 23 Dr. Weitl next testified about the respondent’s likelihood to reoffend, opining that the

respondent was substantially probable to commit future acts of sexual violence. Dr. Weitl testified

that she had used the Minnesota Sex Offender Screening Tool-Revised (MnSOST-R), a checklist

that scores an offender’s risk level, and that the responded scored as high risk. Dr. Weitl testified

that she had also used the Static-99R, which is the most commonly used instrument in sex offender

risk assessment. The respondent scored as high risk on the Static-99R. Dr. Weitl testified that the

respondent’s commission of another crime while on parole illustrated the strength of the

11 respondent’s urges and his inability to control them and also showed the State’s numerous attempts

to deter the respondent’s behaviors.

¶ 24 Dr. Weitl testified regarding possible protective factors that may reduce an individual’s

likelihood to reoffend. She noted that the respondent did not complete any intensive sex offender

treatment. The respondent participated in some treatment prior to incarceration, but committed

another offense while he was engaged in that treatment. Dr. Weitl opined that it did not appear that

the respondent was gaining any benefit from the treatment. She pointed out that the respondent

had refused treatment since he had been in DHS custody.

¶ 25 Dr. Weitl testified that age is another potential protective factor. She testified that some

research shows that, as an individual gets older, their risk for reoffending goes down. She noted,

however, that the respondent’s age was 38, which was not yet to a point where age would

significantly reduce his risk level. Dr. Weitl testified that the respondent’s risk level was

heightened by his antisocial behavior, deviant sexual interests, anger, irritability, and propensity

for physical violence. Further, Dr. Weitl testified that those who have not engaged in a long-term

intimate relationship reoffend at a higher rate. Dr. Weitl testified that, based on her review of all

of the records and her education and experience, her professional opinion, to a reasonable degree

of psychological certainty, was that the respondent was substantially probable to commit another

act of sexual violence.

¶ 26 Dr. Melissa Weldon-Padera testified next as an expert witness on behalf of the respondent.

Dr. Weldon-Padera opined that the respondent did not meet the criteria for commitment. She

diagnosed the respondent with other specified personality disorder, with traits of antisocial

personality. Dr. Weldon-Padera testified that there was a lack of evidence in the respondent’s

history to support a diagnosis of a paraphilic disorder and that the respondent had not shown a

12 recurrent or repetitive pattern of sexual behavior or a clear or intense deviant arousal. Dr. Weldon-

Padera cited the fact that the respondent had been convicted of only one sexually violent offense

and added that some of the evidence of sexual motivation regarding the 2001 burglary had come

from a “jailhouse snitch.” Although Dr. Weldon-Padera acknowledged that the respondent can be

an unreliable historian, she nevertheless credited the respondent’s claim that his erection that

presented during his predicate offense was due to his attraction toward the victim and not to the

nonconsenting aspect of the attack. Dr. Weldon-Padera also relied upon the fact that the respondent

stopped attacking the victim during the predicate offense when she began to fake an asthma attack,

suggesting that somebody who was aroused by the act would not have stopped. Dr. Weldon-Padera

further said that she considered a statement that the respondent made at the time of the offense to

the police—that “something just told him to rape her”—showed that his behavior was merely

impulsive and opportunistic. Therefore, she believed it to be an expression of his antisocial

entitlement and not an indicator of paraphilic interest. Dr. Weldon-Padera testified that she had

accepted the respondent’s explanation that his sexual misconduct violations in IDOC were “just

impulsive acts,” not preplanned actions based on urges or fantasies.

¶ 27 As for the respondent’s risk of reoffending, Dr. Weldon-Padera did not offer an opinion on

whether the respondent was substantially probable to commit future acts of sexual violence, as her

opinion that the respondent lacked a qualifying mental disorder disqualified him for commitment

as an SVP. However, Dr. Weldon-Padera testified that she had administered the Static-99R and

scored the respondent in the “moderate high” risk category. Dr. Weldon-Padera acknowledged that

the score was a baseline of risk that could be elevated by other risk assessment factors.

¶ 28 At the close of evidence, the trial court gave jury instructions, including the instruction that

“your verdict must be unanimous.” On November 6, 2014, the jury found the respondent to be an

13 SVP. The trial court asked trial counsel if he wanted the jurors to be polled, and trial counsel

answered in the affirmative. The court had the following exchange:

“TRIAL COURT: Okay. Is that—what is you [sic] verdict—is your verdict and is

this now your verdict? All say yes?

JURORS: Yes.

TRIAL COURT: Anything else?

DEFENSE COUNSEL: No. Thank you, Judge.”

¶ 29 The trial court entered judgment adjudicating the respondent an SVP. The respondent filed

a posttrial motion on December 4, 2014. In his posttrial motion, the respondent argued that (1) the

State failed to prove beyond a reasonable doubt that the respondent was an SVP, (2) the State failed

to prove the allegations beyond a reasonable doubt, (3) the verdict was a result of passion, bias,

and prejudice on the part of the jury against the respondent, (4) the trial court erred in denying the

respondent’s motion in limine regarding the introduction of his nonsexual criminal history, (5) the

State made prejudicial and inflammatory statements in its closing argument designed to prejudice

the defendant’s rights to a fair trial, (6) the State attacked Dr. Weldon-Padera’s credentials, despite

stipulating that she was an expert in the field of sex offender evaluations, and (7) the evidence

upon which the finding was based denied the respondent of his right to a fair trial and of his rights

to due process of law and equal protection. The respondent filed an amended posttrial motion

incorporating the points from his initial filing but adding an allegation of ineffective assistance of

trial counsel and two addendums to the motion for ineffective assistance of trial counsel outlining

his allegations of ineffective assistance. The trial court filed an order on October 4, 2016, denying

the respondent’s posttrial motion. Following a dispositional hearing, the trial court entered an order

on December 20, 2016, committing the respondent for secure care and treatment at the TDF. The

14 respondent filed a notice of appeal on January 12, 2017, challenging the November 6, 2014, jury

verdict and the trial court’s order of October 4, 2016, denying his posttrial motion.

¶ 30 II. ANALYSIS

¶ 31 The respondent raises five issues on appeal. The respondent argues that (1) the trial court

committed plain error by failing to conduct a proper polling of the jury, (2) the respondent’s trial

counsel was ineffective, (3) the trial court erred in denying the respondent’s motion in limine,

(4) the trial court erred in granting the State’s motion to vacate voluntary dismissal without the

respondent’s presence and without a hearing being recorded by a court reporter, and (5) the State

was judicially estopped from arguing that the respondent’s prior nonsexual past crimes were

evidence of a pattern of behavior to constitute a diagnosis under the Act. We will address each in

turn.

¶ 32 The Act permits the State to extend the incarceration of criminal defendants beyond the

time that they would otherwise be released if they are found to be “sexually violent persons.” In re

Detention of Hayes, 321 Ill. App. 3d 178, 186 (2001). At trial, the State must prove beyond a

reasonable doubt that the respondent is a “sexually violent person” because (1) the respondent has

been convicted of a sexually violent offense, (2) the respondent suffers from a mental disorder,

and (3) the respondent is dangerous because his mental disorder makes it substantially probable

that he will commit future acts of sexual violence. 725 ILCS 207/5(f) (West 2004). 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.” Id. § 5(b).

¶ 33 Proceedings governing a petition alleging that a defendant is a sexually violent person are

civil in nature. In re Detention of Samuelson, 189 Ill. 2d 548, 553 (2000); 725 ILCS 207/20 (West

2004). After the State files a petition, the court must hold a hearing to determine whether probable

15 cause exists to believe that the person is a sexually violent person. 725 ILCS 207/30(b) (West

2004); In re Detention of Welsh, 393 Ill. App. 3d 431, 445 (2009). If the court determines that

probable cause exists, it must order the individual to be taken into custody and transferred to an

appropriate facility for an evaluation as to whether the individual is a sexually violent person. 725

ILCS 207/30(c) (West 2004). At trial on the petition, the State must prove the petition’s allegations

beyond a reasonable doubt. Id. § 35(d). If a court or jury determines that a person is sexually

violent under the Act, the person may be indefinitely committed “until such time as the person is

no longer a sexually violent person.” Id. § 40(a).

¶ 34 A. Jury Polling

¶ 35 The respondent first argues on appeal that the jury finding that he was an SVP was invalid

because the trial court failed to properly poll the jury to confirm that its verdict was unanimous. In

order to preserve a claim for appeal, a litigant must raise it both in a timely objection and in a

written posttrial motion; otherwise, the litigant forfeits the claim. In re Commitment of Haugen,

2017 IL App (1st) 160649, ¶ 31. Here, the respondent neither lodged a contemporaneous objection

nor raised this issue in his posttrial motion or any of its addendums. The respondent concedes

forfeiture but asks this court to consider this issue under the plain error doctrine.

¶ 36 The plain error doctrine permits a reviewing court to consider unpreserved or forfeited

claims of error if either (1) the evidence is closely balanced, and the jury’s guilty verdict may have

resulted from the error or (2) the error was so fundamental, and of such magnitude, that the

defendant was denied a fair trial and the error must be remedied to preserve the integrity of the

judicial process. People v. Hudson, 228 Ill. 2d 181, 191 (2008). Under both prongs of the plain

error doctrine, the burden of persuasion remains with the defendant. People v. Walker, 232 Ill. 2d

113, 124 (2009). With respect to either prong, the initial step in conducting a plain error analysis

16 is to determine whether an error occurred. Id. Without reversible error, there can be no plain error.

People v. Naylor, 229 Ill. 2d 584, 602 (2008).

¶ 37 The parties to an action have an absolute right to poll the jury as to whether each individual

juror agrees with the verdict. Bianchi v. Mikhail, 266 Ill. App. 3d 767, 779 (1994). The purpose of

polling the jury is to ensure that the verdict is in fact unanimous. People v. McGhee, 2012 IL App

(1st) 093404, ¶ 15. The question of whether a juror has freely assented to the verdict is a factual

one, which is best left to the trial court, and the manner in which the poll and subsequent

questioning are conducted is largely within the trial court’s discretion. People v. Chandler, 88 Ill.

App. 3d 644, 650 (1980). Further, the requirement that the trial court poll the jury upon request is

not the sole means of ensuring a unanimous verdict. McGhee, 2012 IL App (1st) 093404, ¶ 25.

Other procedural requirements exist, such as the requirement that the jurors individually sign the

verdict form. Id.

¶ 38 In the present case, after the foreperson read the jury verdict aloud, the trial court asked the

respondent’s trial counsel if he wanted the jury polled, and counsel responded in the affirmative.

The following exchange then took place between the trial court and the jury:

“TRIAL COURT: Okay. Is that—what is you [sic] verdict—is your verdict and is

COURT: Anything else?

¶ 39 The respondent points out that, in discussing the manner of conducting a jury poll, our

supreme court has stated that: “When a jury is polled, each juror should be questioned individually

as to whether the announced verdict is his own.” People v. Kellogg, 77 Ill. 2d 524, 527-28 (1979).

17 In the same case, the supreme court acknowledged that the trial court may use its discretion in

selecting the specific form of question to be asked in the polling process as long as a juror is given

the opportunity to dissent. Id. at 528. If a juror indicates some hesitancy or ambivalence in his

answer, then it is the trial judge’s duty to ascertain the juror’s present intent by affording the juror

the opportunity to make an unambiguous reply as to his present state of mind. Id. Because the trial

judge hears and may observe the juror’s demeanor and tone of voice, it is a matter for the trial

judge to determine whether a juror has freely assented to the verdict. Id. at 529. However, the trial

judge’s determination is subject to review, and a verdict cannot stand if the interrogation precludes

the opportunity to dissent or the record reflects that the juror in the poll has not in fact assented to

the verdict. Id.

¶ 40 The respondent cites a number of cases in support of his assertion that the manner of jury

polling in the present case was erroneous. In People v. DeStefano, 64 Ill. App. 2d 389 (1965), the

trial court was asked to poll the jury, but released the jury without attempting to do so. The

appellate court found that under the facts of that case, the failure to poll the jury, after an

affirmative request to do so, was plain error and reversable error. Id. at 408-09. In People v.

Bennett, 154 Ill. App 3d 469 (1987), the judgment of the trial court was reversed, where a juror

twice stated that she was not sure about her verdict and the trial court did not afford the juror the

opportunity to express her feelings about the verdict in an unambiguous manner. Both cases are

distinguishable, and the respondent cites no cases where, as here, a matter has been reversed solely

based on the trial court’s method of polling the jury en masse.

¶ 41 The respondent argues that the trial court’s procedure, polling the jurors en masse, was

akin to no polling having been conducted at all, since the jurors were not given an opportunity to

have an unequivocal expression. We disagree.

18 ¶ 42 The trial court asked trial counsel if he wanted to have the jury polled, and when trial

counsel answered in the affirmative, the jury was polled to determine if the verdict was in fact

unanimous. Although the trial court did not poll the jurors individually, the trial court was in the

best position to observe the jurors’ responses, and trial counsel was given an opportunity for further

inquiry. The respondent’s counsel, who was present throughout the entire polling procedure, did

not object when the court polled the jury en masse, and declined any further inquiry when asked

by the trial court if there was “[a]nything else?” We do note that, while not exact, a similar fact

pattern existed in People v. Evans, 41 Ill. App. 3d 15, 23-24 (1976). There, the court found that

failure to individually poll two jurors after orally polling the jury en masse did not constitute such

an impediment to the defendant’s substantial right to poll the jury that the question can now be

preserved for review under the plain error doctrine.

¶ 43 The respondent has not offered us any evidence that the verdict was not unanimous, other

than the trial court’s failure to individually poll the jurors. The record is similarly bare of any

indication that the jurors’ verdict was not unanimous. To the contrary, the trial court instructed the

jury at the close of evidence that its verdict must be unanimous. The jury returned a written verdict

form, finding the respondent was an SVP, and each juror signed the verdict form.

¶ 44 Because the respondent has failed to provide any evidence of juror dissent or any evidence

of actual or perceived coercion, there is no evidence that the purpose of jury polling was thwarted.

Therefore, the record does not reflect a clear or obvious error that might excuse the respondent’s

forfeiture.

¶ 45 B. Ineffective Assistance of Counsel

¶ 46 The respondent next argues that trial counsel provided ineffective assistance at the trial in

this matter, which led to the jury’s finding that the respondent was an SVP. The respondent argues

19 that trial counsel was ineffective for (1) his failure to object during the State’s opening and closing

arguments, (2) his failure to call Dr. Witherspoon as a defense expert, (3) his failure to show that

the information regarding the jailhouse informant, James Charles, was noncredible, (4) his failure

to include past, nonconvicted crimes in his motion in limine, (5) his trial preparation and cross-

examination of Dr. Weitl, and (6) his failure to object to Dr. Stanislaus’s speculative comments

that went beyond her expertise.

¶ 47 Despite their civil nature, the Act provides a respondent with the right to effective

assistance of counsel in SVP proceedings, as set forth in Strickland v. Washington, 466 U.S. 668,

687 (1984). People v. Rainey, 325 Ill. App. 3d 573, 585-86 (2001). A successful ineffective

assistance of counsel claim requires the claimant to prove that (1) counsel’s performance fell

below an objective standard of reasonableness and (2) but for counsel’s errors or omissions, there

is a reasonable probability that the outcome of the proceedings would have been different. In re

Detention of Tittlebach, 324 Ill. App. 3d 6, 10 (2001). The respondent must overcome “the strong

presumption that counsel’s performance fell within a wide range of reasonable professional

assistance.” People v. Palmer, 162 Ill. 2d 465, 476 (1994). Mistakes in trial strategy, tactics, or

judgment do not of themselves render the representation incompetent. Id. Regarding prejudice, a

reasonable probability that the result of the proceeding would have been different means a

probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. On

appeal, this court reviews a trial court’s denial of an ineffective assistance claim for manifest error.

People v. Jackson, 2020 IL 124112, ¶ 98.

¶ 48 1. Failure to Object to Opening Statements and Closing Arguments

¶ 49 The respondent argues that his trial counsel’s failure to object to the State’s opening and

closing arguments, when the State improperly framed his past conduct as substantive evidence,

20 constituted ineffective assistance of counsel. The respondent points to the State’s commentary

during opening and closing arguments regarding his criminal history. The respondent believes the

information was presented for its truth, rather than to explain the basis of the experts’ opinions.

One issue is at the core of both of the respondent’s claims regarding opening and closing

statements—whether the prosecutor’s remarks were, in fact, improper. Since an attorney’s

performance is ineffective only if it falls below an objective standard of reasonableness (People v.

Evans, 209 Ill. 2d 194, 220 (2004)), counsel cannot be deficient if he fails to object to remarks

which are not improper. Thus, before we can determine whether there was ineffective assistance

of counsel, we must first decide if there was error.

¶ 50 We will begin our analysis by examining the State’s closing argument. The respondent

does not quote the complained of argument presented by the State but directs us to pages of the

trial transcript of the State’s opening statement and concludes that “[t]he State’s closing argument

followed the same pattern in referencing the past conduct as substantive evidence rather than

explaining to the jury that the past conduct was merely used to aid the experts in forming their

opinion.” We disagree.

¶ 51 The State has wide latitude in closing arguments and may comment on and draw inferences

from the evidence. People v. Miller, 302 Ill. App. 3d 487, 495 (1998). 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. In re Commitment of Kelley, 2012

IL App (1st) 110240, ¶ 42. A jury’s verdict under the Act will not be reversed based upon improper

remarks made during closing arguments unless they were of such magnitude that they resulted in

substantial prejudice to the respondent and constituted a material factor in the verdict. Id.

21 ¶ 52 The State, in its quest to sustain its burden, may rely on expert witness opinion and, in

doing so, may also explain the basis for those opinions. In re Commitment of Butler, 2013 IL App

(1st) 113606, ¶ 36. It is well settled that an expert may give opinion testimony that relies on facts

and data not in evidence if the underlying information is of the type reasonably relied upon by

experts in that particular field. In re Commitment of Tenorio, 2020 IL App (1st) 182608, ¶ 43. The

expert is permitted to reveal the contents of materials upon which he or she has reasonably relied

upon in order to explain the basis of her opinion. Butler, 2013 IL App (1st) 113606, ¶ 31. Although

the State’s expert is permitted to testify to them, the underlying facts or data are admitted for the

limited purpose of explaining the basis for the expert’s opinion, and the basis of an expert’s opinion

must not be presented to the jury as substantive evidence of the underlying assertions. Id. In cases

brought pursuant to the Act, experts may diagnose paraphilia based on a person’s behavior.

In re Commitment of Gavin, 2014 IL App (1st) 122918, ¶ 72. Thus, the details of the respondent’s

crimes informed the experts’ diagnosis. See id.

¶ 53 In the present case, the State’s expert witnesses concluded that the respondent met the

criteria for a diagnosis of other specified paraphilic disorder, nonconsent, and was substantially

probable to engage in future acts of sexual violence. In so concluding, both experts relied upon the

underlying facts of the respondent’s prior convictions and deviant sexual behavior. Details of a

respondent’s prior sexual offenses are probative of (1) the diagnosis of a mental disorder and

(2) the determination that it is substantially probable that the respondent will commit further acts

of sexual violence. In re Commitment of Lingle, 2018 IL App (4th) 170404, ¶ 54.

¶ 54 During the State’s closing argument, the State repeatedly qualified its discussion of the

respondent’s behavioral history, indicating that its purpose was to explain the experts’ diagnosis

and demonstrate their credibility. In addressing the credibility of the experts, the State said:

22 “[T]here’s a number of things that you’re told you can do to decide which expert’s testimony was

the most credible to you, whether you’re going to believe the State’s experts or the respondent’s

experts.” The State discussed the pattern of behavior being the basis for the doctors’ diagnosis of

paraphilia. Before addressing the respondent’s prior conduct in that context, the State said: “What

is the evidence that there’s a pattern going on here?” After discussing the evidence of a pattern,

the State said: “All of these things are what our doctors, *** told you were important to their

decision.”

¶ 55 The State did not refer to the respondent’s past crimes as substantive evidence; rather, the

State described the reasons why the jury should credit the testimony of its experts’ opinions. The

State framed the facts underlying the respondent’s behavioral history as a deviant pattern of

behavior the experts relied upon in reaching their diagnosis. See Butler, 2013 IL App (1st) 113606

(the State argued the facts and circumstances of the respondent’s history of violent sexual offenses

as having been relied upon and completely supporting the opinions of its expert witnesses). The

State’s comments regarding the respondent’s prior history were an accurate representation of the

expert witnesses’ testimony and of the limited basis for which it had been admitted. Accordingly,

as there was no basis for an objection, trial counsel’s failure to object was not objectively

unreasonable and did not constitute ineffective assistance of counsel.

¶ 56 The respondent also complains of comments made by the State during opening statements.

First, the State described the elements that it was required to prove under the Act. The State then

detailed the facts underlying the predicate offense after asking, “So what do we mean when we

say sexually violent conviction?” After describing the facts underlying the predicate offense, the

State indicated that one of the convictions born from the set of facts was for attempted criminal

23 sexual assault, which the State explained was listed in the statute as one of the qualifying

convictions for the Act.

¶ 57 We note that during opening statements, the State may outline the expected testimony of

its expert witnesses. People v. Kliner, 185 Ill. 2d 81, 127 (1998). This may include a preview of

the underlying facts of a respondent’s sexually violent offenses so that the jurors are provided

proper context. Lingle, 2018 IL App (4th) 170404, ¶ 55. As related to the predicate offense, we do

not find any error in the State’s remarks, and therefore, trial counsel was not ineffective for failing

to object to the same.

¶ 58 Next, the State discussed the underlying facts of the respondent’s criminal and behavioral

history without tying it to the experts’ opinions. The State indicated that the respondent received

two sexual misconduct charges while housed in IDOC. The State then described the detailed facts

underlying a residential burglary charge as follows:

“In 2001, he was released on parole; in fact, four months while he was out on parole in the

community he was charged with residential burglary. Now during this incident he was

found in a female neighbor’s home and during that time he was found to have a pantyhose

mask over his face, he had 13 feet of rope on him, three condoms, and he was wearing

surgical gloves.”

¶ 59 The State concluded: “I won’t go into detail about that or of the sexual incident in the

Department of Corrections; instead, our experts will explain that to you all later in detail.” The

State went on to explain that its two expert witnesses both concluded that the respondent suffered

from a mental disorder called paraphilia not otherwise specified, attracted to nonconsenting

females, and informed the jury that the experts would explain later what that meant relative to the

respondent and his behavior.

24 ¶ 60 The purpose of an opening statement is to apprise the jury of what each party expects the

evidence to prove. People v. Leger, 149 Ill. 2d 355, 392 (1992). The State has wide latitude in

making opening statements and is entitled to comment on the evidence; however, comments

intending only to arouse the prejudice and passion of the jury are improper. People v. Harris, 2017

IL App (1st) 140777, ¶ 59.

¶ 61 The respondent relies on Gavin, arguing that the State repeatedly referred to the facts

underlying the respondent’s behavioral history as something other than the basis for the experts’

opinions. In Gavin, the prosecutor recounted the respondent’s criminal history in detail in opening

statements, closing argument, and rebuttal argument. Gavin, 2014 IL App (1st) 122918, ¶ 73. For

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

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

the explicit facts underlying [the respondent’s] convictions as a narrative,” and did not explain to

the jury how the experts relied upon these facts to diagnose or assess the respondent. Id. ¶¶ 73-74.

¶ 62 We agree with the respondent that the State did not properly tie the facts underlying the

respondent’s sexual offenses at IDOC and his residential burglary to the basis for the experts’

opinions that he suffered from mental disorders. Therefore, we find that those remarks were

improper and that, as a result, error occurred. That having been said, our finding that the State’s

remarks were improper does not end our inquiry. An error does not necessitate reversal in every

instance. The question, then, is whether, in the case at bar, the improper remarks made in the

opening statement were sufficiently prejudicial so as to require reversal.

¶ 63 To the extent that there was error, we find that, unlike in Gavin, multiple factors mitigated

any prejudice to the respondent. First, the trial court advised the jury prior to the start of the trial

that “statements and remarks by the lawyers ordinarily are not evidence and should not be

25 considered by you as evidence.” The trial court again advised the jury of the same prior to the

State’s opening statement and the parties’ closing arguments. Further, each expert explicitly

testified that the respondent’s behavior was considered only to formulate their expert opinion as

to whether the respondent suffered from a mental disorder and was substantially probable to

sexually reoffend. The State gave a clear explanation of the purpose for discussing the respondent’s

sexually deviant history during closing arguments. Finally, the trial court gave the jury limiting

instructions prior to the testimony of the experts, which explained that it was

“allowing the witnesses or each witness to testify to records and statements pertaining to

the respondent’s history, even though they have not been admitted into evidence. The

testimony is allowed for a limited purpose. It is allowed so that the witness may tell you

what she relied on to form her opinions. The material being referred to is not evidence in

this case and may not be considered by you as evidence. You may consider the material

for the purpose of deciding what weight, if any, you will give the opinions testified to by

this witness, okay, each witness that testifies.”

¶ 64 The trial court also instructed the jury of the same in its formal instructions to the jury prior

to deliberation. We find that the State and the witnesses’ frequent and appropriate discussion and

argument regarding the basis testimony, along with the trial court’s repeated instructions, were

sufficient to alleviate any risk that the jury considered the State’s improper discussion during

opening statements as substantive evidence in returning its verdict. In re Detention of Lieberman,

379 Ill. App. 3d 585, 605 (2007) (where the trial court instructed the jury that the details of the

respondent’s past crimes were being admitted to aid the jury in understanding the basis of the

expert’s opinion and not to prove the truth of the matter asserted, there is a strong presumption that

jurors follow the instructions given by the court).

26 ¶ 65 Under Strickland, a respondent must prove not only that defense counsel’s performance

fell below an objective standard of reasonableness, but also that this substandard performance

caused prejudice by creating a reasonable probability that, but for counsel’s errors, the trial result

would have been different. Evans, 209 Ill. 2d at 219-20. We have already determined that a brief

portion of the State’s opening statement was improper. It follows that trial counsel erred by failing

to lodge an objection to the remarks.

¶ 66 Nevertheless, even if counsel’s failure to object amounts to deficient performance, we do

not find that the defendant was sufficiently prejudiced by this deficient performance. 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, we find that, here, the brief portion of the State’s

opening statement that we found to be improper was not so pervasive and inflammatory to rebut

this presumption.

¶ 67 Accordingly, we cannot say that trial counsel’s failure to object to these comments were of

such magnitude that they resulted in substantial prejudice to the defendant and constituted a

material factor to his conviction. See People v. Griffin, 368 Ill. App. 3d 369, 376 (2006). The

State’s improper opening statements did not deny the respondent a fair trial. As such, there is no

reasonable probability that, but for counsel’s failure to object, the result of the trial would have

been different. Therefore, we conclude that the respondent has not sustained his claim under the

second prong of Strickland and, as such, failed to demonstrate that trial counsel rendered

ineffective assistance of counsel with regard to the State’s opening and closing arguments.

¶ 68 2. Failure to Call Dr. Witherspoon

¶ 69 The respondent next argues that his counsel was ineffective for failing to call an additional

expert witness, Dr. Kirk Witherspoon. Dr. Witherspoon conducted an evaluation of the respondent

27 in 2006. Instead of calling Dr. Witherspoon, respondent’s counsel relied upon the testimony of Dr.

Weldon-Padera, whom counsel called pursuant to section 30(c) of the Act. 725 ILCS 207/30(c)

(West 2004) (allowing all evaluations conducted pursuant to the Act to be admitted at all

proceedings pursuant to the Act).

¶ 70 Dr. Weldon-Padera had evaluated the respondent at the request of IDOC; however, because

she did not find that the respondent met the criteria for a diagnosis of paraphilia, she did not

consider the third prong of the Act regarding a risk assessment. The respondent argues that trial

counsel’s failure to call a defense expert denied the respondent the ability to rebut the risk

assessment assigned to him by the State’s expert witnesses.

¶ 71 Before we can consider the merits of this issue on appeal, we find that we are constrained

by the inadequacy of the respondent’s appellate brief. Illinois Supreme Court Rule 341(h) (eff.

May 25, 2018) governs the contents of an appellant’s brief. “The rules of procedure concerning

appellate briefs are rules and not mere suggestions.” Niewold v. Fry, 306 Ill. App 3d 735, 737

(1999). The purpose of the rules is to require parties before a reviewing court to present clear and

orderly arguments so that the court can properly ascertain and dispose of the issues involved.

Zadrozny v. City Colleges of Chicago, 220 Ill. App. 3d 290, 292 (1991).

¶ 72 The respondent’s arguments on this issue fail to comply with Rule 341(h)(7), which

requires that the appellant’s arguments contain his or her contentions and the reasons therefor, with

citations to authorities and to the pages of the record relied upon in support of the appellant’s

contentions. Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018).

¶ 73 The respondent attempts to support his contention that trial counsel was ineffective for

failing to call Dr. Witherspoon, whose testimony he claims would have been more beneficial to

him than Dr. Walden-Padera, for a discussion of the contents of Dr. Witherspoon’s report and

28 deposition testimony. Neither is contained in the record on appeal, and as such, his brief lacks

citations to the pages of the record relied upon. The failure to provide proper citations to the record

is a violation of Rule 341(h)(7), the consequence of which is forfeiture of the argument. People v.

Sprind, 403 Ill. App. 3d 772, 778-79 (2010). The respondent next quotes sections of two cases that

do not share any factual resemblance to the case at bar and fails to address how or why those cases

apply to the case at bar. Moreover, the respondent’s argument that trial counsel’s performance was

ineffective for failing to call Dr. Witherspoon is presented in a conclusory paragraph that fails to

include citation to any relevant authority. Mere contentions, without argument or citation to

authority, do not merit consideration on appeal. Palm v. 2800 Lake Shore Drive Condominium

Ass’n, 401 Ill. App. 3d 868, 881 (2010). Accordingly, this argument is forfeited.

¶ 74 3. Inadequate Challenge to the Credibility of James Charles

¶ 75 The respondent next claims that trial counsel was ineffective for failing to adequately

challenge the credibility of James Charles. Charles told police that the respondent admitted to him

that the respondent had intended to sexually assault the victim of his 2001 residential burglary

charge. This information was reviewed by the experts in the case and relied upon, inter alia, by

the State’s experts in arriving at their opinions.

¶ 76 Our review of the record, however, demonstrates that the respondent’s trial counsel did

challenge Charles’s credibility, both on cross-examination of the State’s experts and in closing

arguments. Trial counsel addressed Charles’s credibility in his opening statement, where trial

counsel pointed out that the only evidence that there was any kind of sexual component to the 2001

residential burglary was from a cellmate. He argued that the cellmate, referring to Charles, could

have been charged with murder, lying to police, or sexual assault. Trial counsel pointed out that

29 the witnesses had no idea whether Charles had incentive to lie or what benefit he may have

received for providing his statement. Trial counsel also elicited testimony from Dr. Weldon-Padera

regarding Charles. Dr. Weldon-Padera testified that she did not consider the 2001 charge because

she read an e-mail where the assistant state’s attorney on the case “admitted or acknowledged that

90 percent of that case was built on, quote, a jailhouse snitch.” Based on that, along with other

facts in the case, Dr. Weldon-Padera testified that she did not consider that offense in determining

if there was a pattern of behavior sufficient to diagnose paraphilia.

¶ 77 Trial counsel also cross-examined Dr. Stanislaus about Charles, pointing out that the doctor

never spoke with “the snitch from the jail” and was not aware of what Charles got in exchange for

providing that information to the police. Trial counsel next cross-examined Dr. Weitl about the

“snitch that was in the jail with [the respondent],” pointing out that Charles was incarcerated for

criminal activity, and that there was no information in the doctor’s review about what benefit

Charles may have received for cooperating with authorities. Finally, during closing argument, trial

counsel reasoned that if Charles’s statements were too unreliable for prosecutors to pursue a

sexually violent criminal charge based on the 2001 incident, they were too unreliable to support

the experts’ opinions that the respondent was an SVP.

¶ 78 Despite trial counsel’s attacks on Charles’s credibility during the trial, the respondent

argues that counsel could have done more to “fully impeach the credibility of the informant.” He

bases his argument on various police reports that trial counsel failed to utilize in impeaching the

credibility of Charles when cross-examining the State’s experts. The respondent claims that the

reports, filed with the respondent’s amended posttrial motion on July 15, 2015, show that Charles

was seeking to obtain a single cell in exchange for the information that he provided against the

respondent and that his “celly” or cellmate was “Rice,” which the respondent argues contradicts

30 the testimony of the State’s expert who indicated that Charles was the cellmate of the respondent.

Another report indicated that the respondent was interviewed and stated that his cellmate was

Jeremy Devashier, not Charles.

¶ 79 Generally, the decision whether or not to cross-examine or impeach a witness is a matter

of trial strategy which will not support a claim of ineffective assistance of counsel. People v.

Franklin, 167 Ill. 2d 1, 22 (1995). The manner in which to cross-examine a particular witness

involves the exercise of professional judgment, which is entitled to substantial deference from a

reviewing court. People v. Pecoraro, 175 Ill. 2d 294, 326-27 (1997). When and how a witness’s

credibility is impeached on cross-examination is a clear matter of trial strategy. In re Commitment

of Dodge, 2013 IL App (1st) 113603, ¶ 30. The mere fact that the respondent, or respondent’s trial

counsel, might have chosen a different approach to the cross-examination does not render

counsel’s cross-examination “objectively unreasonable.” Pecoraro, 175 Ill. 2d at 326-27. Thus,

we find that trial counsel’s performance regarding Charles was a matter of trial strategy and was

not deficient. See People v. Johnson, 372 Ill. App. 3d 772, 778 (2007) (where counsel adequately

cross-examined witness, court could not conclude that counsel’s representation was deficient). As

such, the respondent has failed to meet the first prong of Strickland.

¶ 80 Further, the respondent has not demonstrated prejudice. While the respondent claims that

evidence was obtainable showing that Charles was not the cellmate of the respondent, we fail to

see how the presentation of such information would have created a reasonable probability of a

different outcome at the respondent’s SVP trial. Even excluding Charles’s statement that the

respondent had admitted his intent to sexually assault the victim of his 2001 burglary offense, the

jury heard testimony that the respondent brought a “rape kit” to the break-in and hid a larger stash

of condoms and a nylon stocking in the drop ceiling of his girlfriend’s home.

31 ¶ 81 As trial counsel’s performance was not objectively unreasonable and the respondent was

not prejudiced by trial counsel’s performance as it related to attacking the credibility of Charles,

trial counsel was not ineffective.

¶ 82 4. Motion in Limine

¶ 83 The respondent next argues that trial counsel was ineffective in failing to seek the exclusion

of the respondent’s sexual behavior and disciplinary history that did not result in a criminal

conviction within the respondent’s motion in limine prior to trial. Specifically, the respondent

argues that trial counsel should have included in the motion in limine the incident alleging that he

was masturbating in front of a guard at IDOC, for which he was not charged, and a dismissed

attempted criminal sexual assault.

¶ 84 In arguing this point, the respondent relies on People v. Beshears, 65 Ill. App. 2d 446

(1965). Beshears concerned whether an arrest that did not result in a conviction could be admitted

substantively to prove the commission of a past crime under the Sexually Dangerous Persons Act

(725 ILCS 205/0.01 et seq. (West 2004)), not whether, as here, the behaviors underlying a

nonconviction could be referenced for the narrow purpose of explaining the basis for an expert’s

mental disorder diagnosis. See In re Commitment of Hooker, 2012 IL App (2d) 101007, ¶¶ 62, 67-

68 (distinguishing Beshears).

¶ 85 In an SVP proceeding, an expert may rely on “the underlying behaviors manifested during

prior offenses in the diagnosis of a particular mental disorder.” In re Detention of White, 2016 IL

App (1st) 151187, ¶ 59. Accordingly, experts may discuss a respondent’s sexual or nonsexual

behavioral history, even if it did not result in a conviction, which is regularly relied upon by SVP

experts. Hooker, 2012 IL App (2d) 101007, ¶¶ 51, 59-65, 76; see also White, 2016 IL App (1st)

151187, ¶¶ 7, 13, 15, 59, 62 (expert opined behaviors underlying armed robbery conviction

32 supported paraphilic disorder diagnosis because it was consistent with a pattern of abducting an

essentially lone woman in public and taking her to an isolated second location where he struggled

with the victim).

¶ 86 Here, both Drs. Stanislaus and Weitl identified the aspects of the respondent’s conduct—

including a dismissed attempted criminal sexual assault and an alleged instance of the respondent

masturbating in front of a female corrections officer at IDOC—that, in their professional judgment,

demonstrated the respondent’s pattern of sexual violence against nonconsenting women and

supported his paraphilic disorder diagnosis. The respondent’s trial counsel was not required to

perform a futile act of attempting to exclude the incidents in the motion in limine in order to avoid

charges of ineffective assistance of counsel. In re Detention of Erbe, 344 Ill. App. 3d 350, 363

(2003). As such, we find that the respondent has failed to demonstrate the first prong of Strickland

that trial counsel’s performance fell below an objective standard of reasonableness and failed to

demonstrate that trial counsel was ineffective for failing to seek exclusion of the incidents within

the respondent’s motion in limine.

¶ 87 5. Failure to Impeach Dr. Weitl

¶ 88 The respondent next argues that trial counsel was ineffective in his cross-examination of

Dr. Weitl, based on trial counsel’s failure to utilize a transcript of Dr. Weitl’s testimony from a

separate case. In support of his argument, the respondent attached a copy to his opening brief of a

transcript labeled Exhibit A, citing Dr. Weitl’s trial testimony in People v. Peoples, No. 13-MR-

105 (Cir. Ct. Jefferson County).

¶ 89 The respondent filed in the trial court a posttrial motion and several addendums in which

he argued that trial counsel failed to use Dr. Weitl’s prior testimony in other, unrelated SVP matters

33 to impeach her credibility at trial. However, in none of the posttrial filings did the respondent cite

testimony from Peoples, nor did he attach a transcript from that case.

¶ 90 Under the circumstances, we disregard the transcript from Peoples attached to the

respondent’s opening brief, as it pertains to matters outside of the record. We first note that trial

counsel’s decision about how to cross-examine a witness is a matter of trial strategy that is not

generally grounds for a claim of ineffective assistance of counsel. Dodge, 2013 IL App (1st)

113603, ¶ 30. Further, the usefulness of Dr. Weitl’s testimony in Peoples was never argued or

presented to the trial court. Accordingly, it does not otherwise appear in the appellate record.

Generally, a party may not rely on matters outside of the record to support its position on appeal.

Keener v. City of Herrin, 235 Ill. 2d 338, 346 (2009); Wauconda Fire Protection District v.

Stonewall Orchards, LLP, 343 Ill. App. 3d 374, 377 (2003) (“Attachments to briefs not included

in the record on appeal are not properly before the appellate court, and they cannot be used to

supplement the record.”). When a party’s brief fails to comply with that rule, a court of review

may strike the brief, or parts thereof, or simply disregard the inappropriate material. Keener, 235

Ill. 2d at 346.

¶ 91 We note that, even were we able to review the attached transcript from Peoples, the

respondent’s brief contains conclusory and vague allegations with little or no citations to legal

authority presumably supporting his claim. The defendant’s failure to support his contentions with

proper citation to the record, legal authority, or coherent argument forfeits review of his claims.

See Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018); People ex rel. Illinois Department of Labor v.

E.R.H. Enterprises, Inc., 2013 IL 115106, ¶ 56. Accordingly, we find that the respondent has

forfeited this issue for review.

¶ 92 6. Objection to Testimony by an Expert Witness

34 ¶ 93 Finally, the respondent argues that trial counsel was ineffective for failing to object to

certain expert testimony provided by Dr. Stanislaus. The respondent argues that Dr. Stanislaus’s

testimony was speculative and that she was allowed to testify to legal matters that went beyond

her expertise and were false. The testimony complained of was as follows:

“Let’s say that he was a free man in the community and he engaged in that behavior while

in prison, but he got a sexual misconduct or some kind of sanction in prison, that could be

counted. So, for example, if [the respondent] had been out in the community and had placed

his hand on the buttock of another female while going past her, that would be an offense.

And he—that would have resulted in a—if you had pressed charges that could result as a

chargeable offense.”

¶ 94 The respondent argues that the quoted testimony allowed the witness to speculate in front

of the jury and to testify to legal matters that went beyond her expertise and were false. The

respondent points out that sexual misconduct is not a listed offense under the definition of

“sexually violent offense” in the Act. See 725 ILCS 207/5(e)(1), (1.5) (West 2004).

¶ 95 The respondent does not argue how the failure to object in this instance satisfies either

prong of Strickland. Decisions regarding what to object to and when to do so are matters of trial

strategy and thus entitled to great deference. Pecoraro, 175 Ill. 2d at 327. Because counsel may

only be ineffective when his performance falls below the standards of reasonableness, counsel is

not deficient for failing to object when an objection would be improper. People v. Johnson, 218

Ill. 2d 125, 139 (2005).

¶ 96 We further note that the respondent’s argument misstates the nature of the challenged

statements. Dr. Stanislaus was not testifying that the hypothetical action would have resulted in a

sexually violent offense as defined in the Act. The quoted testimony was given in response to a

35 question regarding the scoring of the Static-99R and whether prison disciplinary tickets or

nonconvictions are also scored by the instrument. Dr. Stanislaus explained that the Static-99R

manual permits evaluators to score sexual misconduct violations committed in prison, such as the

respondent’s groping citation, as prior sexual offenses and that this subject was well within her

area of expertise.

¶ 97 The respondent must satisfy both prongs of Strickland, and the failure to establish either is

fatal to the claim. Jackson, 2020 IL 124112, ¶ 90. As such, we find that the respondent has failed

to support his ineffective assistance claim regarding trial counsel’s failure to object to certain

expert testimony provided by Dr. Stanislaus.

¶ 98 C. Denial of the Respondent’s Motion in Limine

¶ 99 The respondent next claims that the trial court should have granted his motion in limine,

argued just prior to the jury trial, seeking to exclude certain criminal history, including the

respondent’s armed robbery, aggravated battery, and unlawful restraint convictions; residential

burglary convictions; and a dismissed charge of attempted criminal sexual assault. The respondent

argues that the criminal history was introduced as substantive evidence and that the probative value

of the evidence was outweighed by the prejudicial effect.

¶ 100 The trial court denied the motion, citing section 35(b) of the Act, which states, “At the trial

on the petition it shall be competent to introduce evidence of the commission by the respondent of

any number of crimes together with whatever punishments, if any, were imposed.” 725 ILCS

207/35(b) (West 2004). Where a ruling on a motion in limine is based on an interpretation of the

law, appellate review proceeds de novo. People v. Way, 2017 IL 120023, ¶ 18. Further, it is the

function of the trial judge to weigh the probative value and potential prejudicial effect of evidence,

36 and the decision of the trial judge will not be reversed absent an abuse of discretion. People v.

Hobley, 159 Ill. 2d 272, 317 (1994).

¶ 101 The respondent does not provide any basis for this court to find that the evidence of prior

criminal behavior was introduced as substantive evidence, and it is clear that the respondent’s

criminal and behavioral history was not admitted as such. As previously discussed, the

respondent’s prior criminal and behavioral history was properly admitted under section 35(b) of

the Act. Drs. Stanislaus and Weitl expressly described the respondent’s behavioral history as the

basis for their diagnoses. Further, at the request of the respondent’s counsel, the trial court

admonished the jury before each expert witness testified that such testimony had not been admitted

into evidence but was being allowed for the limited purpose of showing what the expert relied

upon to form her opinion.

¶ 102 The underlying facts reasonably relied upon by an expert witness are admissible and

subject to comment for the purpose of explaining the basis for the expert witness’s opinions.

Butler, 2013 IL App (1st) 113606, ¶ 36. In SVP proceedings, an expert may rely on “the underlying

behaviors manifested during prior offenses in the diagnosis of a particular mental disorder.” White,

2016 IL App (1st) 151187, ¶ 59. Accordingly, experts may discuss a respondent’s sexual or

nonsexual behavioral history, even if it did not result in a conviction, both of which are regularly

relied upon by SVP experts. Hooker, 2012 IL App (2d) 101007, ¶¶ 51, 59-65, 76.

¶ 103 Again, the respondent’s reliance on Beshears is misplaced. Beshears concerned whether

an arrest that did not result in a conviction could be admitted substantively to prove the commission

of a past crime under the Sexually Dangerous Persons Act, not whether the behaviors underlying

a nonconviction could be referenced for the narrow purpose of explaining the basis for an expert’s

37 mental disorder diagnosis. See Beshears, 65 Ill. App. 2d 446; Hooker, 2012 IL App (2d) 101007,

¶¶ 62, 67-68 (distinguishing Beshears).

¶ 104 The respondent offers no other authority and develops no argument that the experts’

citation of his prior arrests was unduly prejudicial. The trial court’s legal determination that the

expert’s testimony was admissible pursuant to section 35(b) of the Act was correct, and there was

no abuse of discretion in denying the respondent’s motion in limine.

¶ 105 D. Hearing on the State’s Motion to Vacate Order

¶ 106 On April 4, 2006, the trial court entered an order dismissing the case without prejudice at

the request of the State. On April 17, 2006, the State filed a motion to vacate the dismissal order

with proof of service indicating that the respondent’s counsel was served with said motion on April

17, 2006. On the same day, the trial court granted the State’s motion outside of the presence of the

respondent. The order of vacatur was signed as “[a]pproved” by both the State and the attorney for

the respondent.

¶ 107 The respondent argues that the trial court erred in granting the State’s motion to vacate

because the respondent was not present in violation of section 25(c)(1) of the Act (725 ILCS

207/25(c)(1) (West 2004) (at any hearing conducted under the Act, the person who is the subject

of the petition has the right to be present)) and the hearing was not recorded by a court reporter in

violation of section 25(c)(4) of the Act (id. § 25(c)(4) (at any hearing conducted under the Act, the

person who is the subject of the petition has a right to have the hearing recorded by a court

reporter)).

¶ 108 The respondent cites In re Barbara H., 183 Ill. 2d 482 (1998), where a patient was subject

to involuntary commitment under the mental health code and was not present at her commitment

hearing. Despite the respondent’s claim that both cases involve respondents who “were not present

38 for their civil commitment hearings,” Barbara H. is inapposite, as it involved a respondent who

was not present for the entirety of her substantive commitment hearing, and not a proceeding on a

routine procedural motion. The respondent additionally draws a comparison that “both respondents

had attorneys they did not want to represent them,” but fails to cite any authority that would make

such fact relevant to the issue of the respondent’s absence from proceedings on the vacatur of the

trial court’s dismissal without prejudice.

¶ 109 The State argues that there is nothing in the record to indicate that there was a hearing held

on the motion to vacate the order; however, the order states, “This cause comes on for hearing on

Motion of the State to Vacate the Order of the Court.” (Emphasis added.) Nonetheless, a docket

entry on April 17, 2006, reflects only the filing of the motion and the entry of the order and not a

hearing. It is the respondent’s burden, as appellant, to present an “adequate record to support [his]

claim of error,” and “[a]ny doubts stemming from an inadequate record will be construed against

the appellant.” People v. Hunt, 234 Ill. 2d 49, 58 (2009); see also People v. Carter, 2015 IL 117709,

¶¶ 20-25.

¶ 110 As the respondent notes, there was no recording made of any hearing. The term “hearing”

is generally understood to mean a “judicial examination of the issues between the parties, whether

of law or of fact.” (Internal quotation marks omitted.) In re Commitment of Anderson, 2014 IL

App (3d) 121049, ¶ 18. In Lieberman v. Budz, 356 Ill. App. 3d 932, 935-36 (2005), the court found

that a detention proceeding held pursuant to section 30(a) of the Act was not a “hearing” under the

Act, even though the parties called it a “hearing.”

¶ 111 Here, the State’s motion to vacate the voluntary dismissal order was presented to the trial

court, and the trial court entered an agreed order signed by counsel for both parties. The respondent

does not allege that the attorneys were present before the trial court or that any judicial examination

39 of the legal or factual issues between the parties occurred; thus, there was no “hearing” at which

the respondent was entitled to be present or which we can determine should have been recorded.

See Anderson, 2014 IL App (3d) 121049, ¶ 20.

¶ 112 Even if we were to find that a hearing occurred, and that the respondent should have been

present in court and allowed to object to the State’s motion to vacate, his absence was harmless.

See People v. Williams, 2013 IL App (1st) 111116, ¶ 93 (“due process violations are subject to a

harmless error review”). SVP proceedings are civil in nature and the provisions of the Code of

Civil Procedure (735 ILCS 5/2-101 et seq. (West 2004)) apply to all proceedings under the Act.

See 725 ILCS 207/20 (West 2004). Pursuant to section 2-1203(a) of the Code of Civil Procedure

(735 ILCS 5/2-1203(a) (West 2004)), the State was properly permitted to file a motion to reinstate

the petition. The State timely filed the April 17, 2006, motion just 13 days after entry of the April

4, 2006, judgment it sought to vacate. See Hawes v. Luhr Brothers, Inc., 212 Ill. 2d 93, 105-06

(2004) (“The plain language of section 2-1203(a) extends to any party, without qualification, the

right to file a motion to vacate a judgment within 30 days of its entry.” (Emphasis omitted.)).

Section 2-1203(a) thus grants a party the right to file a motion to vacate a voluntary dismissal order

and reinstate the case up to 30 days after the date of the dismissal order, which the trial court had

the discretion to grant or deny. Id. The respondent’s counsel agreed to the order, as there was no

basis for an objection. Since there was no hearing at which the respondent was entitled to be

present, the trial court did not err in granting the State’s motion outside of the respondent’s

presence.

¶ 113 E. The Respondent’s Prior Nonsexual Past Crimes

¶ 114 Finally, the respondent argues that the State should have been judicially estopped from

arguing that his past convictions constituted a pattern of sexually motivated criminal behavior

40 suitable to form a diagnosis under the Act, where only a nonsexual conviction resulted. However,

as discussed at length above, SVP experts routinely rely on underlying behaviors that are consistent

with a pattern of sexual violence, even where the resulting conviction was for a nonsexual offense.

E.g., White, 2016 IL App (1st) 151187, ¶¶ 7, 13, 15, 59, 62 (expert opined behaviors underlying

armed robbery conviction supported paraphilic disorder diagnosis because it followed the

respondent’s pattern of abducting a lone woman in public and taking her to an isolated second

location where he struggled with the victim).

¶ 115 Judicial estoppel is an equitable doctrine invoked by the court at its discretion. People v.

Caballero, 206 Ill. 2d 65, 80 (2002). To be estopped, the State must have (1) taken two positions,

(2) that are factually inconsistent, (3) in separate judicial or quasi-judicial administrative

proceedings, (4) intending for the trier of fact to accept the truth of the facts alleged, and (5) have

succeeded in the first proceeding and received some benefit from it. Id.

¶ 116 Here, Drs. Stanislaus and Weitl identified with specificity the aspects of the respondent’s

conduct that, in their professional judgment, demonstrated the respondent’s pattern of sexual

violence against nonconsenting women and supported his paraphilic disorder diagnosis. Further,

judicial estoppel cannot apply where “there was no certain position taken [by the State] at one

proceeding that was contrary to another proceeding.” People v. Gayfield, 261 Ill. App. 3d 379, 386

(1994). In the present case, the State’s presentation of expert testimony interpreting behavior as

fitting within an overall pattern of sexual violence against nonconsenting women is not factually

inconsistent with the negotiation of guilty pleas for nonsexual offenses relating to those incidents.

Acceptance of a plea to a particular nonsexual offense is not commensurate with the position that

a nonsexual offense was committed to the exclusion of all other chargeable offenses or that no

41 other offenses, sexual or nonsexual, occurred. As such, we find that the doctrine of judicial

estoppel does not apply, and the respondent’s claim must fail.

¶ 117 III. CONCLUSION

¶ 118 For the foregoing reasons, the judgment of the trial court of St. Clair County is affirmed.

¶ 119 Affirmed.

42 In re Commitment of Moore, 2023 IL App (5th) 170453

Decision Under Review: Appeal from the Circuit Court of St. Clair County, No. 05-MR- 199; the Hon. Laninya Cason, Judge, presiding.

Attorneys Brian D. Flynn, of Flynn Guymon & Garavalia, of Belleville, for for appellant. Appellant:

Attorneys Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, for Solicitor General, Michael M. Glick and Evan B. Elsner, Appellee: Assistant Attorneys General, of counsel), for the People.