People v. Kallal

2024 IL App (4th) 231201-U

• Court: Appellate Court of Illinois
• Decided: December 30, 2024
• Docket: 4-23-1201
• Status: Unpublished

Opinion

2024 IL App (4th) 231201-U NOTICE FILED This Order was filed under December 30, 2024 Supreme Court Rule 23 and is NO. 4-23-1201 Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed IN THE APPELLATE COURT under Rule 23(e)(1). Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Sangamon County JACOB D. KALLAL, ) No. 01CF403 Defendant-Appellant. ) ) Honorable ) John M. Madonia, ) Judge Presiding. ______________________________________________________________________________

JUSTICE HARRIS delivered the judgment of the court. Justices Zenoff and Doherty concurred in the judgment.

ORDER

¶1 Held: The trial court’s finding that defendant remained a sexually dangerous person under the Sexually Dangerous Persons Act (725 ILCS 205/0.01 through 12 (West 2020)) was not against the manifest weight of the evidence. Defendant also failed to establish either that he received ineffective assistance of counsel or a violation of his right to confront witnesses against him during the underlying proceedings.

¶2 In 2001, defendant, Jacob D. Kallal, was declared a sexually dangerous person

under the Sexually Dangerous Persons Act (Act) (725 ILCS 205/0.01 through 12 (West 2000))

and committed to the custody of the Illinois Department of Corrections (DOC). In April 2020, he

filed an application for recovery under section 9 of the Act (725 ILCS 205/9 (West 2020)), alleging

he was no longer sexually dangerous and seeking release from his civil commitment. Following a

bench trial, the trial court denied defendant’s application. Defendant appeals, arguing (1) his

counsel provided ineffective assistance by stipulating to the admission of certain evidence, (2) he was denied his right to confront witnesses against him, and (3) the State failed to meet its burden

of proof and the court’s finding that he remained sexually dangerous was against the manifest

weight of the evidence. We affirm.

¶3 I. BACKGROUND

¶4 In April 2001, the State charged defendant with one count of attempted predatory

criminal sexual assault (720 ILCS 5/8-4(a), 12-14.1(a)(1) (West 2000)) and two counts of indecent

solicitation of a child (id. § 11-6(a)). The charges were based on allegations that defendant solicited

two minors who were under the age of 13 “to do an act of oral penetration,” exposed his penis, and

then forced one minor’s head toward his penis with the intent of placing his penis in the minor’s

mouth.

¶5 The following month, in lieu of criminally prosecuting defendant, the State initiated

proceedings under the Act. In July 2001, the trial court entered a written order, finding defendant

was a sexually dangerous person and ordering him committed to the custody of DOC. On appeal,

we affirmed the court’s judgment. People v. Kallal, No. 4-02-0118 (2002) (unpublished order

under Illinois Supreme Court Rule 23).

¶6 Thereafter, defendant twice—in March 2003 and July 2015—initiated proceedings

under the Act, alleging that he was recovered and seeking his release from commitment. Both

times, defendant was found to still be sexually dangerous and denied release. This court also

affirmed those decisions on review. People v. Kallal, No. 4-07-0157 (2007) (unpublished order

under Illinois Supreme Court Rule 23); People v. Kallal, 2019 IL App (4th) 180099, 129 N.E.3d

621.

¶7 In April 2020, defendant filed the application for recovery that is at issue on appeal.

Citing section 9 of the Act (725 ILCS 205/9 (West 2020)), he alleged he was no longer sexually

-2- dangerous within the meaning of the Act and not currently suffering from a mental disorder “that

dispose[d] him to commit sexual offenses.” Defendant also asserted that he had completed all

aspects of treatment that had been offered to him. He asked the trial court to discharge him or,

alternatively, conditionally release him from his commitment.

¶8 In September 2020, the trial court appointed counsel for defendant and, pursuant to

section 9, directed the circuit clerk to send a copy of defendant’s application to DOC so that a

socio-psychiatric report concerning defendant could be prepared. In December 2020, a report

prepared by Dr. Melissa Weldon-Padera was filed with the court.

¶9 In September 2022, defendant filed a motion for an independent psychological

examination. The trial court granted the motion, appointing Dr. Richard Travis to evaluate

defendant. In April 2023, the court also ordered DOC to complete an updated socio-psychiatric

evaluation of defendant. In August 2023, an updated socio-psychiatric evaluation report prepared

by Dr. Weldon-Padera was filed. The same month, the court conducted a bench trial on defendant’s

application for recovery.

¶ 10 At the outset of the trial, the State represented that there was “a stipulation to the

foundation being laid for” Dr. Weldon-Padera’s two reports. Defendant’s counsel agreed and the

trial court admitted the reports, stating they would “be considered as appropriate after further

review and testimony.”

¶ 11 At trial, Dr. Weldon-Padera testified for the State as an expert in clinical and

forensic psychology. She stated she evaluated defendant to determine whether he was no longer

sexually dangerous. Such evaluations involved interviewing the subject of the evaluation,

reviewing his records, consulting with his treatment therapist, and completing “various risk

assessment tools.” On November 30, 2020, Dr. Weldon-Padera interviewed defendant for 3 hours

-3- and 15 minutes. Ultimately, she prepared an initial evaluation report in December 2020, and an

updated evaluation report in August 2023.

¶ 12 When conducting an updated evaluation, Dr. Weldon-Padera “typically review[ed]

the person’s recent records, primarily their treatment file, and then *** consult[ed] with their

primary therapist.” After reviewing recent treatment notes, she would determine whether she

needed to reinterview the person, which depended “on whether it appear[ed] through the record or

the notes that [her] opinion might change.” In the present case, Dr. Weldon-Padera testified “there

was nothing significant that would have altered [her] opinion, so [she] did not [re]interview

[defendant].” She maintained that it was “a generally accepted practice to do an updated report

without an interview.”

¶ 13 Dr. Weldon-Padera testified that an individual’s sexual offending history was an

important factor when considering sexual recidivism and that it also was relevant to show an

individual’s pattern of sexual behavior over time. She reviewed defendant’s sexual offending

history and noted he was first charged with sex offenses in 1997. Specifically, in three separate

cases (case Nos. 97-CM-2811, 97-CM-2561, and 97-CM-3034), defendant faced charges of public

indecency and disorderly conduct after driving his vehicle up to four different female victims and

either exposing himself or exposing himself and masturbating in front of them. The victims, who

ranged in age from 15 to 35 years old (one victim’s age was unknown), were all strangers to

defendant.

¶ 14 In 2001, at age 22, defendant was charged with public indecency and theft (case

No. 01-CF-233) after he approached a 72-year-old female victim while riding his bicycle, asked

the victim for the time, masturbated in front of her, and then stole her purse. He was next charged

with the underlying offenses, which resulted in the State pursuing his commitment under the Act

-4- (case No. 01-CF-403). Dr. Weldon-Padera testified the victims in the underlying offenses were

two eight-year-old female strangers, whom defendant also approached on his bicycle. Defendant

engaged in conversation with the victims, showed them a pornographic picture, and asked them

‘can you do this?’ ” He then exposed his penis and masturbated before grabbing the back of one

victim’s head and pulling her head toward his penis. That victim punched defendant, allowing both

victims to run away.

¶ 15 Dr. Weldon-Padera testified defendant initially denied or minimized his offenses

but, over time, had come to acknowledge or admit more details regarding what had occurred. She

stated that in the “more recent past,” he reported letting the two eight-year-old victims go, rather

than them running away after one punched him. She also testified that defendant sometimes

“struggle[d] to accept full details of what happened,” noting that in a group session, he reported

that all his victims had been adults.

¶ 16 Dr. Weldon-Padera testified there were other incidents in defendant’s history that

did not result in criminal charges against him. In 2001, he was a suspect in two other public

indecency and disorderly conduct incidents, where a suspect “who matched [defendant’s] exact

description exposed himself to two adult female employees at a laundromat type of a business.”

Additionally, in 2006, defendant was investigated for an aggravated criminal sexual assault that

allegedly occurred in 2000. In that instance, the alleged victim accused defendant of forcing her to

perform oral sex on him when she was seven years old. Dr. Weldon-Padera also looked at

defendant’s nonsexual criminal history, which would “speak to not only dynamic risk factors ***

but also a diagnosis of Anti-Social Personality Disorder.” Dr. Weldon-Padera noted defendant had

various other arrests, including for retail theft, residential burglary, attempted residential burglary,

criminal trespass to land, and criminal damage to property. Additionally, he had been convicted of

-5- two counts of domestic battery.

¶ 17 Dr. Weldon-Padera also considered defendant’s disciplinary history at DOC, which

was relevant to show how he had adjusted and behaved in a controlled environment and his ability

to follow rules. Defendant had six DOC disciplinary reports that involved eight infractions, two of

which “were sexual in nature.” Specifically, in 2008, defendant received a misconduct ticket for

masturbating in the library while watching a female employee and, in 2013, he received a ticket

for contraband after being found in possession of pornography in his cell. Although defendant

denied the circumstances surrounding the 2008 incident, DOC records showed the female

employee reported that she observed defendant masturbating while watching her and, when she

confronted defendant about his behavior, defendant “sort of hung his head almost as if ashamed or

guilty and then also apologized.”

¶ 18 Dr. Weldon-Padera further reviewed defendant’s treatment history, stating

completion of sex offender treatment was “the biggest protective factor” to reducing the risk of

reoffending. Defendant was enrolled in sex offender treatment at DOC. Over time and until

recently, defendant’s attendance and involvement in treatment was “inconsistent.” Dr. Weldon-

Padera stated that although defendant never dropped out of the program, he had been absent from

22% of therapy group sessions since the time of her initial evaluation in 2020. She also noted that

groups were suspended for almost an entire year during the pandemic. Dr. Weldon-Padera stated

that in 2020, defendant completed less than half of his “treatment assignments” and that he “did

so in kind of [a] sub-par manner *** because he would leave complete sections altogether undone”

and would provide “minimal details.” She acknowledged that more recently, in 2022 and 2023,

defendant had been turning in assignments that were “more detailed” and which he put “more

effort and insight into.”

-6- ¶ 19 Regarding defendant’s group sessions, Dr. Weldon-Padera noted that in 2020,

defendant’s therapist described his participation as “minimal.” By the time of the 2023 updated

report, defendant’s therapist reported that his “active verbal participation” had increased “to an

average level.” The therapist also noted that defendant primarily just gave feedback to other group

members, rather than focusing on or discussing his own personal issues. Dr. Weldon-Padera

testified that an individual in defendant’s position would need to discuss his own sex offenses and

his own issues and treatment targets “to make progress” in treatment. She further described

defendant’s treatment progress between 2020 and 2023 as follows:

“[I]n 2020, the primary therapist had said that [defendant] does have a working

knowledge of the treatment concepts, but that his level of internalization of those

was unknown at that time because of his low motivation and low participation.

In 2023, his primary therapist said that [defendant] now does show some

internalization and understanding of those treatment concepts; but *** she

described his treatment motivation and treatment progress as still being sort of

minimal *** of what’s expected ***.”

Dr. Weldon-Padera asserted that it was only within “the last few months” that defendant had been

able to show that he was “going to get serious now and start addressing [his] own sex offenses and

[his] own issues.”

¶ 20 With respect to defendant’s most recent treatment plan, his specific treatment goals

were (1) capacity for relationship stability, (2) deviant sexual preference, and (3) poor problem

solving. According to Weldon-Padera, defendant’s therapist also wanted him to work on

(1) discussing and reviewing his other sex offenses, in addition to his most recently charged

offenses and (2) gaining additional insight into his past sexual preoccupation so that he could

-7- identify interventions to use.

¶ 21 Dr. Weldon-Padera testified that during her interview with defendant, he admitted

and accepted responsibility for his charged sexual offenses. However, he also continued “to at

times minimize the details of” his offenses, as well as the harm that he caused. In particular, she

noted that in a group session approximately three years prior, defendant reported having only adult

female victims. Defendant further denied the uncharged accusations against him, including the

incident involving the DOC employee. Additionally, Dr. Weldon-Padera found that although there

was clearly some evidence of planning or grooming in the details of defendant’s offenses, he

consistently denied that such occurred and described his offenses as impulsive.

¶ 22 Dr. Weldon-Padera stated it was also important to address defendant’s “offense

cycle” in treatment, asserting that reviewing what led to the commission of sex offenses helped

offenders “to recognize when they might be in a cycle again” and allow them to “implement

interventions to avoid re-offending.” When Dr. Weldon-Padera interviewed defendant, “he had

incomplete and insufficient knowledge of his sexual offense cycle, but *** some awareness of or

insight into the precipitating factors that led up to his sex offending.” She noted that defendant

acknowledged both during their interview and in connection with his most recent treatment plan,

which occurred within the past year, “that he still ha[d] to work on his sexual offense cycle.” In

April or May of 2023, defendant completed “a case report,” which she described as “an assignment

that [offenders] have that assists them to learn about and explore the various steps in their offense

cycle.” In his case report, defendant adequately identified the steps that led to his most recently

charged sex offenses, along with “all the thoughts, feelings, behaviors, etc.” However, she stated

defendant needed to complete similar case reports with respect to his other sex offenses, which he

would “then incorporate into an overall offense cycle.”

-8- ¶ 23 Dr. Weldon-Padera discussed “relapse prevention,” noting it involved an offender

“having a specific plan of action so that when they’re triggered or in a high[-]risk situation, they

can intervene *** so they don’t relapse or re-offend.” When she spoke with defendant, he

acknowledged that he did not yet have a relapse prevention plan. Defendant was able to list a few

emotional triggers, vague or general high-risk situations, and a few external interventions.

However, Dr. Weldon-Padera opined that defendant needed to come up with “additional triggers,

not just the emotional ones” as well as “more specific high[-]risk situations, not just *** broad or

vague ones.” Additionally, he needed “to then identify some internal interventions since his were

mainly external.” She noted defendant’s primary therapist also agreed that he still needed to

develop such a plan.

¶ 24 In assessing defendant’s social skills and support system, Dr. Weldon-Padera found

he had satisfactory social skills but an inadequate support network in the community. She stated

one individual in defendant’s support network had “more negative traits,” and defendant needed

to review and reassess his list of support people to figure out who could have more of a positive

influence on him and assist him to not reoffend. Dr. Weldon-Padera described a “negative support”

as someone who might engage in criminal activities or “just even enable the person.” One of the

individuals defendant was relying on for assistance or support was a younger cousin, “who also

himself ha[d] sex offense charges and convictions.”

¶ 25 Regarding her overall assessment of defendant, Dr. Weldon-Padera testified that

defendant had “some comprehension of the treatment concepts and skills” but that he had “not yet

demonstrated complete internalization and consistent application of those things.” She elaborated

as follows: “So, essentially I’m saying that, yes, he’s made some treatment progress for sure; but

he hasn’t made sufficient or significant enough treatment progress in order to show that he’s

-9- sufficiently recovered from being in [DOC] that would substantially reduce his risk to be released.”

¶ 26 Dr. Weldon-Padera opined that defendant had three mental disorders:

(1) “Exhibitionistic Disorder, sexually aroused by pre-pubertal children and physically mature

individuals in a controlled environment,” (2) “Cannabis Use Disorder, moderate in a controlled

environment,” and (3) “Anti-Social Personality Disorder.” She characterized defendant’s

Exhibitionistic Disorder as a paraphilic disorder, stating that, in general, paraphilic disorders “can’t

be cured, but they can be treated.” She further stated as follows:

“So, the Paraphilic Disorder means he is prone to exposing himself to

unsuspecting children and adults. And the Anti-Social Personality Disorder makes

that easier for him to do because he doesn’t care about *** the rules of society. ***

And also, just in general, research shows that anti-social tendencies are linked to

higher sexual recidivism.”

¶ 27 Dr. Weldon-Padera used risk assessment tools to assess someone’s likelihood of

reoffending. In particular, she used “three specific actuarial risk assessments of both static and

dynamic factors.” The Static-99R was used to assess static risk factors, the Stable 2007 was used

to assess dynamic risk factors, and the Violent Risk Scale Sex Offense (VRSSO) was used to

assess both static and dynamic risks. Dr. Weldon-Padera explained that static factors were “things

that won’t change except for somebody’s age” and that dynamic factors were “things someone can

change through treatment.”

¶ 28 For the Static-99R, the possible score range was negative 3 to 12. Dr. Weldon-

Padera testified defendant scored a seven on that assessment tool, which “place[d] him in the

highest risk category to sexually re-offend called well-above average.” She stated defendant’s

score also put him in the 97.2 percentile, meaning that out of 100 sex offenders, 96 would have a

- 10 - lower score than defendant. His score also “relate[d] to him having a sexual recidivism rate that is

5.25 times higher than the average sex offender.” Defendant’s score was associated with a 30.7%

risk of reoffending within 5 years after his release, a 42.8% risk of reoffending within 10 years

after his release, and a 51.1% risk of reoffending within 20 years after his release. Defendant’s

score on the Static-99R would not change until he reached the age of 60, when he would receive a

two-point score deduction.

¶ 29 Dr. Weldon-Padera identified the possible score range for the Stable 2007 as 0 to

26. In 2020, defendant’s total score was 12. When Dr. Weldon-Padera prepared her updated report

in 2023, she did not “officially” rescore defendant, stating that to do so, she needed a “recent

interview, which *** was not required for the updated evaluation.” Instead, Dr. Weldon-Padera

reviewed the risk factors and defendant’s recent treatment notes and “determined that two of his

dynamic risk factors may have increased by one point each, which would decrease his score from

a 12 to a 10.” She stated a score of 12 would have put defendant in “the high risk category” for

reoffending, while a score of 10 would put him “in the moderate risk category.” She believed a

score of 10 was what defendant’s score “appear[ed] to be” at the time of trial. Dr. Weldon-Padera

also noted that in late 2022, defendant’s primary therapist scored him at an 11 on the Stable 2007,

which was “close to how [she] scored him as well.” She testified that when considered together,

defendant’s score of 7 on the Static-99R and score of 10 on the Stable 2007 placed him “in the

highest risk category for supervision and intervention needs when compared to other sex

offenders.”

¶ 30 Dr. Weldon-Padera testified that the VRSSO had 7 static factors and 17 dynamic

risk factors, and it did not require an interview. On that assessment tool, defendant scored a 42 on

a scale that ranged from 0 to 72. His score “placed him in the second highest risk category to

- 11 - sexually re-offend called above average.”

¶ 31 Dr. Weldon-Padera concluded defendant’s mental health disorders, in particular his

exhibitionistic disorder, were “coupled with a propensity to sexually re-offend.” She also opined

that defendant was “substantially probable to commit future sex offenses if he [was] not committed

or confined.” She explained as follows:

“[Defendant] remains still above to well-above average risk to sexually re-offend.

And he hasn’t made sufficient treatment progress that we can count towards

substantially reducing his risk to re-offend at this time. And he still has some issues

that were present at the time of his commitment that he has not fully addressed in

treatment.”

Dr. Weldon-Padera stated defendant was “on the road to successfully completing” his treatment

program, he was capable of learning treatment concepts, and there were no barriers to him

completing his treatment program. However, there were five or six specific treatment goals that

defendant “need[ed] to more successfully meet.” She opined that there were no conditions or

restrictions the trial court could impose to keep the community safe if defendant was released at

that time.

¶ 32 Ultimately, Dr. Weldon-Padera opined defendant continued to be a sexually

dangerous person in need of confinement. Regarding the basis of that opinion, she testified as

follows:

“[T]he risk assessment tools determine him to be still a high risk to sexually re-

offend. He’s making some treatment progress, but not significant enough that

would reduce his risk to re-offend to be conditionally released. And the category

specifically of above average and well-above average do indicate that a person with

- 12 - that level of risk does still require intensive interventions.”

¶ 33 The State also presented testimony from Heather Delashmutt, the clinical director

of DOC’s sexually dangerous persons program and defendant’s primary therapist. Delashmutt

testified she had worked with defendant in some capacity beginning in 2018 and had been his

primary therapist since 2019. Defendant’s current treatment involved weekly hour and a half

sessions of primary group therapy and enrollment in one of DOC’s “additional psychoeducational

groups.”

¶ 34 In December 2022, Delashmutt reviewed defendant’s treatment progress and

scored defendant “a total of 11 points” on the Stable 2007. At the time, she noted “that there was

still some treatment progress to be made for [defendant].” In particular, defendant had “treatment

targets for capacity for relationship stability and deviant sexual preference.”

¶ 35 Delashmutt testified she had no concerns about defendant’s ability to learn or

internalize the concepts provided to him in treatment. She stated that being able to verbalize and

participate in group was “one of the biggest things that [she] look[ed] for in a person’s ability to

move forward in treatment.” With respect to defendant’s participation in treatment, Delashmutt

stated defendant “tend[ed] to go back and forth between active participation and bringing things

to group and time periods where he might lay back and not bring as many of his personal issues to

group.”

¶ 36 In August 2023, treatment plan goals were established for defendant. At that point,

Delashmutt noticed that defendant had made progress with his treatment plan but that there were

still areas where progress could be continued. Identified targets for defendant included

“relationship stability and social influences.” In August 2023, defendant also acknowledged

matters that he needed to continue working on and identified his current treatment goals as follows:

- 13 - “present my relapse prevention cycle, abbreviated life history, work on my release plan[,] and

present other homework on guilt and shame.”

¶ 37 Delashmutt testified that to be ready for release, she would like to see defendant

“present a current cycle” and “identify some internal interventions.” She noted many of the

interventions that defendant had already identified were external, situational, or involved other

people. Delashmutt wanted to see defendant “do some internal work, some internal thought work

on disputing distortions.” She also wanted him to “have a concrete release plan in place.” Such a

plan could include being able to identify high-risk situations and interventions. For continued

progress, defendant would need to continue his verbal participation in group and discuss issues

related to himself.

¶ 38 On questioning by the trial court, Delashmutt testified that sex offender treatment

at the facility where defendant was committed did not include individual therapy sessions at that

time. Rather, therapists liked to have “individual treatment planning meetings” with persons on

their caseload, although staffing issues made it “very difficult to do that.” The following colloquy

occurred between the court and Delashmutt:

“THE COURT: And that is best practice to have an individualized

component to the treatment in addition to the groups?

THE WITNESS: Best practice is to identify treatment goals on an individual

basis with—uhm, group treatment is the gold standard for sex offender treatment.

THE COURT: So, not necessarily individualized treatment sessions, just an

individualized treatment plan that then incorporates groups?

THE WITNESS: Yes.”

¶ 39 As part of his case, defendant presented Dr. Travis’s testimony and report, and the

- 14 - State stipulated to Dr. Travis being an expert in the areas of evaluating and treating sex offenders.

Dr. Travis testified he met with defendant in November 2022 for a little over two hours. He gave

defendant a score of six on the Static-99R assessment tool but asserted such a score did not fairly

represent defendant’s risk at that time. Dr. Travis noted he gave defendant a score of five on the

Stable 2007 assessment tool, which “lower[ed] the risk associated with the Static[-]99R tool.”

¶ 40 Dr. Travis agreed that he scored defendant much lower on the Stable 2007

assessment tool than Dr. Weldon-Padera, who believed defendant would have received a score of

10 at the time of her updated report. Contrary to Dr. Weldon-Padera, Dr. Travis believed defendant

should have received a lower score in the area of “general social rejection.” He explained that

score was based on a person’s self-report of whether they felt rejected or lonely, “[a]nd if they

don’t really feel rejected where they are and if their loneliness is not bothersome to them or they

don’t feel significantly lonely, then you score it a [zero].” Dr. Travis stated he also gave defendant

a lower score in the area of “poor problem solving skills,” reasoning that defendant had not

displayed ineffective problem solving in the last year.

¶ 41 Dr. Travis further scored defendant lower than Dr. Weldon-Padera in the areas of

“[n]egative emotionality” and “sex drive and sex preoccupation.” He explained that negative

emotionality was “about grievance thinking and who the person blames for their current situation.”

Dr. Travis found that defendant accepted “responsibility for being where he is” and was not

currently “play[ing] a victim’s stance,” as he had in the past. Regarding sex drive and sex

preoccupation, he noted as follows: “Since 2014 *** he dramatically decreased his frequency of

masturbation, and he’s also now on some heart pills, which also lowers his blood pressure, he’s

not showing any kind of sexual preoccupation, excessive masturbation. It’s at a very reasonable

rate.”

- 15 - ¶ 42 Finally, Dr. Travis also gave defendant a lower score than Dr. Weldon-Padera did

in the area of “sex as coping.” He stated that when defendant was in the community, he used sex

as his main coping strategy. However, Dr. Travis noted “no recent problems” with defendant using

sex as coping. Although defendant reported that he would occasionally masturbate to help himself

go to sleep, Dr. Travis found that was “not really problematic if it’s an occasional thing.” He

further testified as follows:

“Well, he’s aging, so testosterone level has gone down some probably. A

44-year old doesn’t usually engage in sex as often as a 22-year old. And, again,

because of the heart medications, which lowers his blood pressure, that also

typically reduces just sexual arousal. Doesn’t affect the mind much, but it does

affect the penis.”

¶ 43 Dr. Travis additionally noted that defendant had a “really terrible childhood.” He

believed that if defendant was released into the community, his treatment should focus on his

adverse childhood experiences, stating it was sometimes hard for offenders to accept full

responsibility or do well in treatment unless they had “some of their own issues treated.” Dr. Travis

stated group therapy could aid in addressing issues related to adverse childhood experiences but

that it was “also recommended for most people to have at least some component of individual

treatment.” He did not believe that the treatment defendant could receive while committed focused

“specifically on those kind of adverse childhood experiences.”

¶ 44 Regarding whether defendant had a current mental health disorder, Dr. Travis

testified defendant still had a diagnosis of exhibitionism. He noted that defendant had to be “in the

community for five years” before that disorder could be determined to be in remission.

Nevertheless, he believed defendant had “impulse control *** in his advancing age, problem

- 16 - solving abilities, [and] emotional control, such that he’s not substantially probable to engage in

*** sexual offending.” He opined defendant was “less than substantially probable to re-offend” if

he was released from his commitment.

¶ 45 Ultimately, the trial court denied defendant’s application for recovery. It noted

defendant was someone who was “making progress” and had no barriers to his success in

treatment. However, the court also concluded as follows:

“I disagree that there’s not a little bit more that can be done as far as a

protective factor in this case to make it not substantially probable for him to re-

offend. And that’s identifying those triggers, identifying your offense cycles, all of

them including the ones that offend adult women, and figure out your relapse

prevention plan, present it logically, clearly so that this Court can at least feel like

it appears that you’re no longer dangerous. ***

But the fact that you’ve made progress in treatment, that it’s proven that you

can make this progress in treatment, that you can internalize what needs to be done,

but you haven’t done it yet, does not for this Court make it appear that you’re no

longer dangerous.”

The court determined the State had proved by clear and convincing evidence that defendant

remained a sexually dangerous person. It also found that he had mental disorders that created “a

propensity for him to commit acts of sexual violence” and that he was “substantially probable to

commit acts of sexual offense if released at [that] time. And that is more likely, much more likely

than not.”

¶ 46 In September 2023, defendant filed a posttrial motion, arguing the State presented

insufficient evidence that he remained a sexually dangerous person. Following a hearing in

- 17 - November 2023, the trial court denied the motion.

¶ 47 This appeal followed.

¶ 48 II. ANALYSIS

¶ 49 On appeal, defendant challenges the trial court’s denial of his application for

recovery. As noted, he argues he received ineffective assistance of counsel, he was denied his right

to confront witnesses against him, and the State failed to meet its burden of showing that he

remained a sexually dangerous person under the Act. For the reasons that follow, we find no error.

¶ 50 A. Ineffective Assistance of Counsel

¶ 51 Defendant contends his trial counsel provided ineffective assistance by stipulating

to the foundation for, and the admission of, Dr. Weldon-Padera’s August 2023 updated socio-

psychiatric report. He argues his counsel’s action was objectively unreasonable because Dr.

Weldon-Padera’s updated report was based on outdated information and findings. Specifically, he

complains that Dr. Weldon-Padera did not reinterview him in connection with her updated report

and that her evaluation was based on a Static-99R scoring form that was completed more than two

and a half years prior to trial in April 2020 and a Stable 2007 assessment completed nine months

prior to trial in December 2022. Further, defendant maintains that without counsel’s erroneous

stipulation, there is a reasonable probability that the result of his bench trial would have been

different because the State would have been unable to establish that he remained a sexually

dangerous person at the time of trial.

¶ 52 “[A] defendant subject to proceedings under the *** Act has a right to effective

assistance of counsel.” People v. Lawton, 212 Ill. 2d 285, 302, 818 N.E.2d 326, 336 (2004).

Ineffective-assistance-of-counsel claims are considered under the two-pronged performance-

prejudice test established in Strickland v. Washington, 466 U.S. 668 (1984). Lawton, 212 Ill. 2d

- 18 - 302. Under that test, a defendant must show both that his counsel’s performance (1) fell below an

objective standard of reasonableness and (2) “caused prejudice by creating a reasonable

probability that, but for counsel’s errors, the trial result would have been different.” Id.

¶ 53 As argued by the State, the Act provides for the preparation and consideration of

socio-psychiatric evaluation reports when the trial court is presented with an application for

recovery. Specifically, section 9(a) of the Act states as follows:

“Upon receipt [of an application alleging recovery], the clerk of the court shall

cause a copy of the application to be sent to the Director of [DOC]. The Director

shall then cause to be prepared and sent to the court a socio-psychiatric report

concerning the applicant. The report shall be prepared by an evaluator licensed

under the Sex Offender Evaluation and Treatment Provider Act. The court shall set

a date for the hearing upon the application and shall consider the report so prepared

under the direction of the Director of [DOC] and any other relevant information

submitted by or on behalf of the applicant.” (Emphasis added.) 725 ILCS 205/9(a)

(West 2020).

Additionally, section 9(c) of the Act states that “all evaluations conducted under this Act and all

[DOC] treatment records shall be admissible at all proceedings held under this Act.” Id. § 9(c).

¶ 54 Here, consistent with section 9(a), Dr. Weldon-Padera evaluated defendant and

prepared initial and updated socio-psychiatric reports that were provided to the trial court. On

appeal, defendant does not challenge Dr. Weldon-Padera’s qualifications or present any other basis

for finding the specific requirements of section 9(a) were not met with respect to the updated report

Dr. Weldon-Padera prepared and submitted. We agree with the State that under the express terms

of the Act, the updated report based on Dr. Weldon-Padera’s evaluation of defendant was

- 19 - admissible at trial, and the court was required to consider it along with other relevant information

when ruling on defendant’s application. People v. Walker, 2021 IL App (4th) 190073, ¶ 44, 188

N.E.3d 1235 (stating counsel cannot be ineffective for failing to object to admissible evidence).

¶ 55 We also agree with the State’s assertion that the issue of whether Dr. Weldon-

Padera relied on outdated information in connection with her updated socio-psychiatric report went

to the weight of that evidence and not its admissibility. The updated report contains Dr. Weldon-

Padera’s expert opinion that defendant remained a sexually dangerous person under the Act.

However, any vulnerability that relates to the basis for an expert’s opinion “may be explored on

cross-examination and will affect the weight of that testimony rather than its admissibility.” People

v. Pingelton, 2022 IL 127680, ¶ 58, 215 N.E.3d 764; see In re Commitment of Sandry, 367 Ill.

App. 3d 949, 977, 857 N.E.2d 295, 317 (2006) (finding the expert’s failure to interview the

individual committed as a sexually violent person was relevant to the issue of the expert’s

credibility and the weight of his opinion rather than its admissibility); People v. Pitts, 299 Ill. App.

3d 469, 476, 701 N.E.2d 198, 204 (1998) (finding “[t]he issue of remoteness goes to the weight of

the evidence rather than its admissibility”). In this case, Dr. Weldon-Padera testified at trial and

defendant’s counsel cross-examined her regarding the bases of her opinions as set forth in both of

her socio-psychiatric reports.

¶ 56 Further, the case defendant cites in support of his ineffective-assistance claim—

People v Bailey, 265 Ill. App. 3d 758, 639 N.E.2d 1313 (1994)—is factually distinguishable.

There, the State filed a petition under the Act, asking the trial court to find that the defendant was

a sexually dangerous person. Id. at 759. Following the filing of the State’s petition, the court

appointed two psychiatrists to examine the defendant. Id. Due to a delay in the commitment

proceedings, the State filed a motion asking that the psychiatrists reexamine the defendant. Id. at

- 20 - 760. The defendant’s counsel opposed the motion, and it was denied by the trial court. Id.

Ultimately, the court found the defendant was sexually dangerous and committed him to DOC. Id.

¶ 57 On review, the Third District found the defendant’s counsel provided ineffective

assistance by opposing the State’s motion to have the defendant reexamined. Id. at 764. In reaching

its decision, the reviewing court noted the trial court had to determine whether the defendant was

sexually dangerous as of the date of its decision and found, given the circumstances of the case,

that “it should have been apparent to defense counsel that a more recent examination of the

[defendant] by the court’s psychiatrists could cause them to reconsider their original diagnoses of

sexual dangerousness.” Id.

¶ 58 In this case, the trial court entered an order for an updated socio-psychiatric

evaluation, noting such had been requested by both the State and defendant. Pursuant to that order,

Dr. Weldon-Padera did, in fact, update her socio-psychiatric report in August 2023, the same

month defendant’s bench trial was conducted. For the reasons already expressed, the bases for her

opinion in the updated report that defendant remained sexually dangerous were matters for cross-

examination and did not affect the admissibility of the report. Under the circumstances presented,

defendant cannot establish that his counsel acted deficiently.

¶ 59 Moreover, even assuming defendant could show his counsel’s performance was

deficient for not objecting to the updated report and that the report should not have been admitted,

he cannot establish prejudice. As the State points out, Dr. Weldon-Padera also testified at trial

regarding her opinion of defendant’s sexual dangerousness. Her opinions while testifying were the

same as those expressed in her updated report and, on review, defendant does not challenge the

admissibility of her trial testimony. Accordingly, we find defendant’s ineffective-assistance claim

lacks merit.

- 21 - ¶ 60 B. The Right to Confront and Cross-Examine Witnesses

¶ 61 On appeal, defendant also argues he was denied the right to confront witnesses

against him. Specifically, he argues he was denied the right to confront Jessica Stover, who

“scored” a Static-99R form that Dr. Weldon-Padera relied upon in her updated August 2023, socio-

psychiatric report. Defendant acknowledges that this issue was not raised with the trial court and,

thus, not preserved for review. However, he contends we may still consider the issue under the

plain-error doctrine or because his counsel was ineffective for failing to raise the issue below.

¶ 62 “When a defendant has failed to preserve an error for appeal, we may review the

issue for plain error.” People v. Bush, 2023 IL 128747, ¶ 71, 234 N.E.3d 754; see People v. Coan,

2016 IL App (2d) 151036, ¶ 23 n.1, 57 N.E.3d 1282 (noting “courts have addressed forfeited

arguments under the plain-error doctrine in sexually-dangerous-person proceedings,” although

such proceedings are civil in nature). Relief under the plain-error doctrine is appropriate when “a

clear or obvious error occurred” and either (1) “the evidence is so closely balanced that the error

alone threatened to tip the scales of justice against the defendant” or (2) the “error is so serious

that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial

process.” Bush, 2023 IL 128747, ¶ 71 “The first step under either prong of plain error analysis is

to determine whether a ‘clear or obvious’ error occurred.” Id.

¶ 63 Additionally, as explained above, a claim of ineffective assistance of counsel is

considered under the two-pronged Strickland test. Lawton, 212 Ill. 2d at 302. To establish an

ineffective-assistance claim, the defendant must show both that his counsel’s performance (1) fell

below an objective standard of reasonableness and (2) “caused prejudice by creating a reasonable

probability that, but for counsel’s errors, the trial result would have been different.” Id.

¶ 64 Although proceedings under the Act “are considered civil in nature, the right to due

- 22 - process applies and ‘entitles the defendant to the right to confront and cross-examine witnesses

testifying against him.’ ” In re Detention of Hunter, 2013 IL App (4th) 120299, ¶ 30, 982 N.E.2d

953 (quoting People v. Trainor, 196 Ill. 2d 318, 329, 752 N.E.2d 1055, 1061 (2001)). Whether a

defendant was denied due process is subject to de novo review. People v. Sauls, 2022 IL 127732,

¶ 32, 215 N.E.3d 810.

¶ 65 In Hunter, 2013 IL App (4th) 120299, ¶ 31, which involved proceedings under the

Act, this court considered whether the testimony of psychiatrists, who relied at least in part on

hearsay evidence not subject to cross-examination, violated the defendant’s right to confront

witnesses against him. Finding no constitutional violation, we noted that “Illinois courts have long

held that prohibitions against the admission of hearsay do not apply when an expert testifies to

underlying facts and data, not admitted into evidence, for the purpose of explaining the basis of

his opinion.” (Internal quotation marks omitted.) Id. ¶ 32. “Provided the foundational requisites

are met, an expert is permitted not only to consider the reports commonly relied upon by experts

in their particular field, but also to testify to the contents of the underlying records.” (Internal

quotation marks omitted.) Id. ¶ 33. That standard was codified in Illinois Rule of Evidence 703

(eff. Jan. 1, 2011), which states as follows:

“The facts or data in the particular case upon which an expert bases an

opinion or inference may be those perceived by or made known to the expert at or

before the hearing. If of a type reasonably relied upon by experts in the particular

field in forming opinions or inferences upon the subject, the facts or data need not

be admissible in evidence.”

¶ 66 In Hunter, the experts at issue considered information from sources that included

police reports, witness statements, health records, and mental health records. Hunter, 2013 IL App

- 23 - (4th) 120299, ¶ 34. This court noted that the information, “though testified to at trial by the experts,

was not admitted as substantive evidence.” Id. ¶ 35. We stated that although the information—

such as the contents of police reports—“would be inadmissible hearsay if offered for the truth of

the matter asserted, it was not offered for that purpose, and therefore, it [did] not trigger a

confrontation violation.” Id. ¶ 36. We further stated as follows:

“The record is clear that the experts’ testimony was offered for the limited purpose

of explaining how they arrived at their respective opinions. The reports upon which

they relied were of the nature and type routinely reviewed and relied upon by

experts in the field and the experts here were subject to cross-examination.

Consequently, we hold [the defendant’s] right to confront witnesses was not

violated by the presentation of the testimony of [the examining expert

psychiatrists].” Id.

¶ 67 Here, as explained in Hunter, to the extent Dr. Weldon-Padera considered a Static-

99R assessment tool that was “scored” by Stover when forming her opinions, she could testify to

that basis at trial without violating defendant’s right to confront witnesses. In other words, where

information is “presented for the purpose of explaining the bases for [an expert’s] opinions,” it is

not being offered to establish the truth of the matter asserted and there is no confrontation clause

violation. Id. ¶ 38. Defendant’s attempt to distinguish Hunter is unavailing, and we find no support

for his assertion that the Static-99R assessment tool scored by Stover was offered for the truth of

the matter asserted therein rather than for explaining a basis for Dr. Weldon-Padera’s opinion.

¶ 68 Moreover, we agree with the State that the record does not clearly establish that Dr.

Weldon-Padera conveyed hearsay regarding Stover’s scoring of a Static-99R assessment tool when

testifying at trial. Notably, a “Static-99R scoring form completed by *** Stover” and dated April

- 24 - 6, 2020, was listed as one of the “sources of information” for Dr. Weldon-Padera’s updated socio-

psychiatric report in August 2023. However, the same was not listed as a source of information for

her initial December 2020 report. During her testimony, Dr. Weldon-Padera did not expressly

reference Stover’s Static-99R scoring form. Further, during cross-examination by defendant’s

counsel, she responded affirmatively when asked whether her testimony was that she scored

defendant as a seven using that tool. When asked if she remembered how she reached that score,

Dr. Weldon-Padera testified as follows: “I scored [the Static-99R] with the records out in front of

me, the coding manual on my laptop and a comprehensive scoring.”

¶ 69 Dr. Weldon-Padera’s inclusion of Stover’s Static-99R scoring form in the list of

her “sources of information” in her updated report does not mean that she did not perform her own

Static-99R scoring. Additionally, her testimony indicates that she did, in fact, score defendant

herself using that assessment tool. Dr. Weldon-Padera testified at trial and was available for cross-

examination. We find the circumstances presented do not reflect a violation of defendant’s right

to confront witnesses against him and, consequently, defendant can establish neither the

occurrence of plain error nor ineffective assistance of counsel.

¶ 70 C. Sufficiency of the Evidence

¶ 71 Finally, on appeal, defendant challenges the sufficiency of the State’s evidence. He

contends the State failed to meet its burden of showing that he remained sexually dangerous under

the Act in that it was substantially probable that he would reoffend. Defendant argues that, as a

result, the trial court’s denial of his application for recovery was against the manifest weight of the

evidence.

¶ 72 The Act establishes “a statutory scheme for the civil commitment of persons who

suffer from a mental disorder related to the commission of sex offenses.” People v. Kastman, 2022

- 25 - IL 127681, ¶ 32, 211 N.E.3d 459. “As a whole, the Act serves the dual purposes of treatment for

those found to be sexually dangerous and protection of the public.” Id. ¶ 35.

¶ 73 Section 9(a) of the Act (725 ILCS 205/9(a) (West 2020)) provides that a defendant

committed to DOC as a sexually dangerous person may file an application with the committing

court, “setting forth facts showing that” he has recovered and seeking his discharge or conditional

release. At a hearing on the defendant’s application, “[t]he State has the burden of proving by clear

and convincing evidence that the applicant is still a sexually dangerous person.” Id. § 9(b). Further,

“[t]he Act addresses present, not past, mental conditions and considers whether a person is sexually

dangerous on the date of the decision.” People v. Guthrie, 2016 IL App (4th) 150617, ¶ 43, 57

N.E.3d 621.

¶ 74 Under the Act, a person is sexually dangerous if he has (1) a mental disorder

existing for at least one year prior to the filing of the State’s petition under the Act, (2) criminal

propensities to the commission of sex offenses, and (3) demonstrated propensities toward acts of

sexual assault or acts of sexual molestation of children. 725 ILCS 205/1.01 (West 2020). The

phrase “ ‘criminal propensities to the commission of sex offenses’ means that it is substantially

probable that the person subject to the commitment proceeding will engage in the commission of

sex offenses in the future if not confined.” Id. § 4.05. Additionally, the phrase “substantially

probable” had been held to mean “much more likely than not.” (Internal quotation marks omitted.)

In re Detention of Hayes, 321 Ill. App. 3d 178, 188, 747 N.E.2d 444, 453 (2001) (considering the

meaning of substantially probable within the context of the Sexually Violent Persons Commitment

Act (Sexually Violent Persons Act) (725 ILCS 207/1 through 99 (West 1998))).

¶ 75 The trial court’s finding that a defendant remains sexually dangerous under the Act

“may not be disturbed on review, unless that decision is against the manifest weight of the

- 26 - evidence.” People v. Donath, 2013 IL App (3d) 120251, ¶ 38, 986 N.E.2d 1222. “A decision is

against the manifest weight of the evidence only if an opposite conclusion is clearly apparent.” Id.

¶ 76 Here, following a bench trial, the trial court denied defendant’s application for

recovery, finding he remained sexually dangerous. The record contains support for the court’s

decision, and we find it was not against the manifest weight of the evidence. Specifically, Dr.

Weldon-Padera opined, based upon her evaluations of defendant, that he was substantially

probable to commit future sex offenses if not confined. Testimony from both Dr. Weldon-Padera

and Delashmutt showed that although defendant had made progress in treatment, such progress

was recent and there were still issues he had not fully addressed in treatment. Dr. Weldon-Padera

testified that defendant’s assessment tool scores, when considered together, placed him “in the

highest risk category for supervision and intervention needs when compared to other sex

offenders.” Evidence showed there were steps defendant still needed to take to reduce his risk of

reoffending, including, as the court found, fully identifying his triggers, his offense cycles, and a

relapse prevention or release plan.

¶ 77 Nevertheless, on review, defendant initially argues the State’s evidence was

insufficient because it did not include a current assessment of his treatment or his risk of

reoffending. He contends that for her updated socio-psychiatric report, Dr. Weldon-Padera relied

on outdated information. We disagree. Dr. Weldon-Padera’s testimony explicitly showed that for

her updated report, she considered circumstances and events that occurred following her initial

evaluation of defendant in 2020. She explained that when conducting an updated evaluation, she

“typically review[ed] the person’s recent records, primarily their treatment file, and then ***

consult[ed] with their primary therapist.” Her testimony showed she considered defendant’s

participation in group therapy sessions after 2020, how his completion of “treatment assignments”

- 27 - improved in 2022 and 2023, information provided by his primary therapist in 2023, and his most

recent treatment plan. Although Dr. Weldon-Padera did not reinterview defendant, she explained

she found it was unnecessary following her review of defendant’s recent records.

¶ 78 Defendant further complains that Dr. Weldon-Padera’s opinions were based on his

outdated assessment tool scores. However, Dr. Weldon-Padera also explained that defendant’s

Static-99R score had remained the same and was based on factors that would only change when

he reached the age of 60. Further, she described how she had altered her analysis of defendant’s

Stable 2007 score in her updated report, estimating, based on her review of defendant’s more recent

records, that his score would have decreased by two points as of the time of trial. Accordingly, we

find the record makes it clear that the State’s evidence included current information about

defendant’s treatment and his risk of reoffending.

¶ 79 Defendant also argues on appeal that Dr. Weldon-Padera’s testimony regarding the

percentages applicable to his risk of reoffending, calculated from defendant’s Static-99R

assessment tool score, did not support a finding that it was much more likely than not that he would

commit further sex offenses. He cites testimony from Dr. Weldon-Padera that his Static-99R score

was associated with a 30.7% risk of reoffending within 5 years after his release, a 42.8% risk of

reoffending within 10 years after his release, and a 51.1% risk of reoffending within 20 years after

his release.

¶ 80 In defendant’s most recent prior appeal, this court addressed and rejected a

substantially similar argument from defendant. In that case, which also involved Dr. Weldon-

Padera as the State’s expert witness, we stated as follows:

“Defendant[, in challenging the sufficiency of the State’s evidence,] focuses

on Dr. Weldon-Padera’s testimony that defendant’s chance of reoffending over the

- 28 - next five years was only around 40% according to a combined analysis of the Static-

99R assessment test and the Stable 2007 assessment test. However, the jury was

not only concerned with the next five years. Further, the jury was not required to

accept this statistic, and the statistic did not guarantee the likelihood of defendant

reoffending. Finally, regardless of the 40% statistic, Dr. Weldon-Padera testified a

substantial probability existed defendant would reoffend. Her opinion was based

on more information than just these two assessment tools.” Kallal, 2019 IL App

(4th) 180099, ¶ 43.

¶ 81 Defendant seeks to distinguish our prior holding by arguing that, in this case, Dr.

Weldon-Padera testified to not only the next 5 years, but also the next 20. He contends testimony

that he had a 51.1% risk of reoffending within 20 years after his release made it “barely more likely

than not” that he would reoffend, which was insufficient for the State to meet its burden. He also

contends that Dr. Weldon-Padera’s opinions in the present case were based on the risk assessment

tools “and nothing else.”

¶ 82 However, whether it is substantially probable that a defendant will reoffend “cannot

be reduced to a mere mathematical formula or statistical analysis.” Hayes, 321 Ill. App. 3d at 188.

Instead, a trier of fact “must consider all factors that either increase or decrease the risk of

reoffending, and make a commonsense judgment as to whether a [defendant] falls within the class

of individuals who present a danger to society sufficient to outweigh their interest in individual

freedom.” Id.

¶ 83 Here, as set forth above, the State’s evidence included more than just statistical

percentages resulting from the analysis of defendant’s Static-99R assessment tool score. Dr.

Weldon-Padera opined that defendant was substantially probable to commit future sex offenses if

- 29 - not confined. Her testimony showed she relied not only on her analysis of multiple assessment

tools, but also defendant’s participation in, and progress with, treatment. In explaining her opinion,

she noted that in addition to being well-above-average risk to sexually reoffend, defendant had not

“made sufficient treatment progress” and that he had “issues” that were not ”fully addressed in

treatment.” Defendant’s contention that Dr. Weldon-Padera’s opinions were based solely on the

assessment tools “and nothing else” is belied by the record.

¶ 84 Finally, in arguing that the trial court’s decision was against the manifest weight of

the evidence, defendant also contends the court used the wrong legal standard when denying his

application. Specifically, he argues the court appeared to have “erroneously conflated the legal

analysis” applicable to sexually dangerous persons under the Act with the analysis of sexually

violent persons under the Sexually Violent Persons Act by stating defendant “ ‘has mental

disorders that create a propensity for him to commit acts of sexual violence.’ ” According to

defendant, no testimony or evidence was presented at his trial to support such a finding.

¶ 85 The record shows that in setting forth its decision, the trial court stated as follows:

“[T]he Court believes that the State has met its burden by clear and convincing

evidence the Defendant remains a sexually dangerous person. He has mental

disorders that create a propensity for him to commit acts of sexual violence. And

without further treatment of a protective factor of treatment in place, regardless of

the discrepancy in actuarial numbers, the threat is still very real.

And the Court believes he is substantially probable to commit acts of sexual

offense if he is to be released at this time. And that is more likely, much more likely

than not. That’s the finding the Court is making here today.” (Emphases added).

¶ 86 Initially, we note defendant did not raise this issue with the trial court and, thus, the

- 30 - court was not given the opportunity to address defendant’s contention or explain its ruling.

Ordinarily, such circumstances would warrant a finding of forfeiture. See People v. Holmes, 2016

IL App (1st) 132357, ¶ 45, 48 N.E.3d 185 (stating the failure to raise an issue with the trial court

in proceedings under the Act ordinarily results in forfeiture of that issue on appeal). However, this

court has also noted that the forfeiture argument, itself, is in the nature of an affirmative defense

that the State may raise, waive, or also forfeit. People v. Hancock, 2014 IL App (4th) 131069,

¶ 124, 18 N.E.3d 941 (citing People v. Beachem, 229 Ill. 2d 237, 241 n.2, 890 N.E.2d 515, 518 n.2

(2008)). In this instance, the State has not argued forfeiture. Thus, we consider the merits of

defendant’s claim.

¶ 87 As set forth above, required elements for finding that a person is sexually dangerous

under the Act include that the person has a mental disorder “coupled with criminal propensities to

the commission of sex offenses.” 725 ILCS 205/1.01 (West 2020). Further, the phrase “ ‘criminal

propensities to the commission of sex offenses’ means that it is substantially probable that the

person subject to the commitment proceeding will engage in the commission of sex offenses in the

future if not confined.” Id. § 4.05.

¶ 88 Here, although the trial court stated defendant had “mental disorders that create[d]

a propensity for him to commit acts of sexual violence,” it also explicitly found that he was

“substantially probable to commit acts of sexual offense.” Its latter finding was consistent with the

express language of the Act. Moreover, as the State points out, defendant did have a history of

being charged with sexually violent offenses. In particular, the offenses that precipitated the

underlying proceedings and defendant’s commitment as a sexually dangerous person were

attempted predatory criminal sexual assault (720 ILCS 5/8-4(a), 12-14.1(a)(1) (West 2000)) and

indecent solicitation of a child (id. § 11-6(a)). Both offenses qualify as sexually violent offenses

- 31 - under the Sexually Violent Persons Act. 725 ILCS 207/5(e)(1) (West 2020). As the State contends,

a person predisposed to commit sexually violent offenses is also one predisposed to commit sexual

offenses.

¶ 89 Given the circumstances presented, the record does not support defendant’s claim

that the trial court employed the wrong legal standard. We find the court’s decision to deny

defendant’s application for recovery was not against the manifest weight of the evidence.

¶ 90 III. CONCLUSION

¶ 91 For the reasons stated, we affirm the trial court’s judgment.

¶ 92 Affirmed.

- 32 -