In re Commitment of Diaz , 2024 IL App (1st) 231114-U ( 2024 )

2024 IL App (1st) 231114-UNo. 1-23-1114
Order filed July 8, 2024.
First Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
In re COMMITMENT OF MARIO DIAZ, ) Appeal from the
) Circuit Court of
(The People of the State of Illinois, ) Cook County.
)
Petitioner-Appellee, )
)
v. ) No. 20 CR 80000
)
Mario Diaz, ) The Honorable
) James B. Novy,
Respondent-Appellant.) ) Judge, presiding.
JUSTICE LAVIN delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Pucinski concurred in the judgment.
ORDER
¶1 Held: Trial court did not abuse its discretion in limiting defense counsel’s cross-
examination of the State’s expert witnesses, and respondent was not prejudiced by
that limitation.
¶2 Following a bench trial under the Sexually Violent Persons Commitment Act (Act) (725
ILCS 207/1 et seq. (West 2020)), respondent Mario Diaz was found to be a sexually violent person
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(SVP) and committed to the custody of the Department of Human Services (Department). On
appeal, respondent contends that the trial court erred in limiting cross-examination on
psychological testing of the percentages to reoffend when the State’s witnesses considered
uncharged offenses over respondent’s age, disability, sobriety, and diseases. We affirm.
¶3 In April 2020, the State filed a petition under the Act to declare respondent an SVP and
commit him to the Department’s custody for “control, care, and treatment until” he was no longer
an SVP. The State alleged respondent (1) was convicted of predatory criminal sexual assault and
sentenced to 15 years’ imprisonment; (2) was diagnosed by psychologist Dr. Mark Kuzia with
“Pedophilic Disorder, Sexually Attracted to Females, Non-Exclusive Type” and “Alcohol Use
Disorder, In a Controlled Environment”; (3) suffered one or more mental disorders affecting his
emotional or volitional capacity and predisposing him to commit acts of sexual violence; and (4)
was dangerous to others because his mental disorders created a substantial probability he would
engage in acts of sexual violence.
¶4 Also in April 2020, the circuit court ordered that respondent be transferred from prison to
a Department facility. In May 2020, the circuit court found probable cause to believe that
respondent was an SVP and ordered that he be detained in a Department facility and that the
Department evaluate whether he was an SVP.
¶5 At the February 2023 bench trial, the parties stipulated that respondent was convicted of
predatory criminal sexual assault in Cook County case 07 CR 14848.
¶6 Dr. Kuzia testified that, as a licensed clinical psychologist, he evaluated 76 persons under
the Act and opined that 30 were SVPs and 46 were not. For evaluations, he would receive a file
consisting of the subject’s police and court records regarding prior sex offenses, medical records,
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and prison records. The records were “of the type that are reasonably relied upon by experts” such
as Dr. Kuzia. He would then interview the subject with his or her consent. Taking all the
information from the file and interview, Dr. Kuzia would first determine whether the subject had
a mental health diagnosis and, if so, perform a risk assessment, then form an opinion as to whether
the subject was an SVP.
¶7 Dr. Kuzia conducted a clinical evaluation of respondent to determine whether he should be
committed under the Act. He followed the aforesaid steps, including reviewing respondent’s file
and interviewing him with his consent. After the interview, Dr. Kuzia formed an opinion to a
reasonable degree of psychological certainty that respondent was an SVP under the Act, issuing a
report to that effect in March 2020. Dr. Kuzia later re-evaluated respondent, reviewing his
Department records since April 2020, and issued an addendum to his report in February 2023. Dr.
Kuzia’s opinion that respondent was an SVP was unchanged in his addendum and was still
unchanged at trial.
¶8 In forming his opinion, Dr. Kuzia reviewed the police report and court records in case 07
CR 14848, which showed that the victim of the predatory criminal sexual assault was respondent’s
three-year-old granddaughter. Respondent penetrated her vagina with his penis and ejaculated on
her. He threatened an 11-year-old eyewitness and tried to stop the victim’s mother from reporting
the incident. When Dr. Kuzia asked him about that case, respondent “denied any wrongdoing in
the matter” and “deflected by placing the blame on the family.”
¶9 In another Cook County criminal case, 03 CR 12178, respondent was charged with child
abduction and aggravated battery and the police report indicated that he victimized two eight-year-
old girls in a park, grabbing one by the wrist and propositioning the other to watch him urinate.
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He was convicted in that case, receiving six months in jail and two years of probation. When Dr.
Kuzia asked him about this matter, respondent again denied any wrongdoing.
¶ 10 In June 1991, respondent was arrested for criminal sexual abuse on allegations he inserted
his finger into the vagina of a five-year-old girl and a physician noted the resultant redness and
swelling, but respondent was not prosecuted. When Dr. Kuzia asked respondent about the 1991
incident during his interview, respondent “didn’t recall it.”
¶ 11 In October 1977, respondent was arrested for indecent liberties with a child but was not
prosecuted. The police report stated he was seen on a school rooftop “with a half-dressed [five-
year-old] girl on top of him.” When Dr. Kuzia asked respondent about this matter, he said the girl’s
mother asked him to watch her as she enrolled her in school.
¶ 12 Dr. Kuzia considered incidents that did not result in a conviction in forming his opinion
because most people are not arrested for sex crimes. He explained, “we’re not just looking at
crimes to determine whether they meet a pattern that would substantiate a diagnosis” but “any
information available that might help me to understand the person.” Dr. Kuzia also considered
respondent’s prison and Department records, which showed only minor disciplinary issues except
for a 2004 violation of probation related to a battery conviction.
¶ 13 Dr. Kuzia diagnosed respondent with “Pedophilic Disorder, Sexually Attracted to Females,
Non-Exclusive Type” and “Alcohol Use Disorder, in a Controlled Environment.” Dr. Kuzia
explained these are mental disorders under the Act because they affect volitional or emotional
capacity and predispose one to acts of sexual violence. The pedophilic disorder diagnosis was
based on respondent being involved in multiple incidents of a sexual nature with prepubescent
girls. Regarding the alcohol use disorder diagnosis, Dr. Kuzia explained that respondent
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“technically *** hadn’t drank” but “was in a controlled environment” with few if any opportunities
to drink alcohol, so Dr. Kuzia could not find respondent’s disorder to be in remission without
several months when he had access to alcohol. While the alcohol use disorder would not “by itself”
predispose respondent to sexual violence, alcohol as “a disinhibitor” would “greatly contribute[]
to his acting” on his pedophilic disorder.
¶ 14 Having diagnosed respondent with mental disorders under the Act, Dr. Kuzia conducted a
risk assessment to determine whether it was substantially probable, or “[m]uch more likely than
not,” respondent would commit further acts of sexual violence. Dr. Kuzia used “actuarial
measures, which are empirical tools used to assist in the prediction of an outcome,” specifically
here the Static-99R and Static-2002R, to provide “a baseline, or a starting point.” He also
considered dynamic factors that can change over time and risk-lowering protective factors.
¶ 15 Respondent scored two on the Static-99R and four on the Static-2002R, both indicating an
“average range of risk.” However, Dr. Kuzia believed these scores underrepresented respondent’s
risk. The actuarial instruments did not provide “the complete accurate risk assessment” for
respondent, and Dr. Kuzia also considered dynamic factors “based on research and studies that
indicate that they have predictability.” He identified four dynamic factors for respondent: (1)
deviant sexual interest, here in children, with abuse of a three-year-old suggesting escalation, (2)
offensive supporting attitudes, or beliefs justifying or excusing sexual offenses, including
respondent stating children could begin having sex with adults at 13 years old and that children
sexually teased him by rubbing against him, (3) resistance to rules and supervision, including
respondent stating he would not go to Alcoholics Anonymous, even if ordered, and saw no benefit
in sex offender treatment, and (4) lifestyle impulsivity, as indicated by respondent’s alcoholism.
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¶ 16 Dr. Kuzia also considered whether respondent had any protective factors. While respondent
being 65 years old deducted points from his actuarial scores, Dr. Kuzia did not consider his age an
additional protective factor, noting that he committed his most recent offense when he was 50. As
to medical condition as a potential protective factor, respondent had Parkinson’s Disease, a hip
replacement, a seizure disorder, diabetes and asthma, but Dr. Kuzia did not consider his health a
protective factor because his victims were young girls, including a three-year-old, and thus
vulnerable even to a man in ill health. Sex offender treatment was not a protective factor for
respondent because he chose not to engage in treatment while in the Department’s custody since
April 2020. Respondent acknowledged his alcoholism but, despite having been warned of the
effect of alcohol on his pedophilic disorder, took no responsibility and made “no attempt to
remediate himself.” Dr. Kuzia concluded from his risk assessment that respondent was
“substantially probable to recidivate” and, with his conviction and diagnoses, was an SVP.
¶ 17 On cross-examination, Dr. Kuzia testified that respondent’s scores on the Static-99R and
Static-2002R had “associated recidivism rates,” but Dr. Kuzia was taught that “the absolute risk
numbers *** were the least reliable numbers to be used when reporting data associated with the
Static-99R.” He acknowledged that respondent’s Static-99R score was associated with a five-year
recidivism rate of 4-5.2 % “for the low-risk group” and a ten-year recidivism rate of 5.8-8.9 %
“for a high-risk group.” However, Dr. Kuzia explained that “there are limitations to those
numbers,” including that they are based on persons convicted for reoffending, which
underestimates reoffending “especially against a population with young children.” He explained
that the difference between reoffending and being convicted of reoffending is what makes the
percentages “the least reliable numbers” according to the authors of the Static-99R. Dr. Kuzia gave
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as an example respondent’s abuse of a three-year-old, which likely would not have resulted in
conviction without the 11-year-old eyewitness.
¶ 18 When Dr. Kuzia was asked if the aforesaid percentages were “less than one-fifth of ***
what more likely than not would be,” the State objected that substantial probability cannot be
quantified as a percentage under Illinois case law. Respondent argued that he was arguing whether
recidivism was “probable at all” here. The court found that a possibly appropriate closing argument
but not a line of questioning for Dr. Kuzia and sustained the objection.
¶ 19 Dr. Kuzia acknowledged that respondent was not diagnosed with pedophilic disorder when
he was diagnosed in 2015 with depression with psychotic features and in 2019 with unspecified
anxiety disorder. When asked if he used the first dynamic factor in the risk assessment, deviant
sexual interest, in diagnosing respondent with mental disorders, Dr. Kuzia explained that it was a
dynamic factor that could change because a person could have pedophilia but with treatment could
effectively manage it. Similarly, while respondent was diagnosed with pedophilic disorder for
actually abusing victims, his justifying attitudes underlying the second dynamic factor were
“different,” so that Dr. Kuzia disagreed with the characterization that respondent’s attitude was
“used twice,” to diagnose him and “elevate his likelihood.”
¶ 20 On redirect examination, Dr. Kuzia explained that the “absolute risk rates” or recidivism
percentages associated with Static-99R and Static-2002R scores are multiple numbers dependent
on “which population the specific study was based” and whether a subject was “in the routine
group or the high risk *** group.” That was part of the reason the creators of the actuarial measures
called the percentages “the least reliable” statistics from the measures.
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¶ 21 On recross examination, Dr. Kuzia acknowledged that the Static-2002R now recommended
that the recidivism percentages should be included in psychological opinions, but denied that the
Static-2002R was therefore more reliable than the Static-99R, because “they are also saying that
these numbers are the least relied-upon numbers when it comes to assessing for risk.” Dr. Kuzia’s
opinion that respondent was substantially probable to reoffend “doesn’t come out to a percentage
or anything like that,” but “a determination, based on clinical judgment, as to whether I think this
person is substantially probable,” and the actuarial measures were “a baseline” and “something to
kind of get me started in the assessment.”
¶ 22 Dr. Amy Louck Davis, a psychologist with the Department, testified that she conducted
about 430 evaluations under the Act and had found some subjects to not be SVPs and testified on
behalf of some respondents. She conducted an evaluation of whether respondent was an SVP under
the Act. Her evaluation consisted of reviewing his records, including Department and prison
records, and interviewing him in November 2022 with his consent. The records were of “the type
reasonably relied upon by professionals in [her] field.” After the record review and interview, Dr.
Louck Davis made a diagnosis and performed a risk analysis. She then reached an opinion that
respondent was an SVP under the Act, issuing a report to that effect in November 2022. Since that
report, she reviewed additional Department records and still held the opinion to a reasonable
degree of psychological certainty that respondent was an SVP.
¶ 23 In reaching her opinion, Dr. Louck Davis considered respondent’s criminal history
including cases where he was not convicted, which she explained to be appropriate to her
evaluation because “I’m not making a consideration of guilt or innocence or the [veracity] of the
information. It is about a description of behavior.” She considered the same arrests and convictions
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described by Dr. Kuzia, including respondent’s: 1977 arrest for indecent liberties with a child;
1991 arrest for aggravated criminal sexual assault of a five-year-old; conviction in case 03 CR
12178 for the aggravated battery and child abduction of two eight-year-olds; and conviction in
case 07 CR 14848 for predatory criminal sexual assault and other offenses against his three-year-
old granddaughter. Respondent at points admitted and denied his offenses, including telling Dr.
Louck Davis that he pled guilty in the 2007 case to end the case.
¶ 24 Dr. Louck Davis also considered it relevant to respondent’s risk and potential improvement
that he had not engaged in treatment while in Department custody. When she discussed treatment
with respondent, he said he did not want treatment and did not like how treatment was conducted
in the Department facility, calling it “brainwashing.”
¶ 25 Dr. Louck Davis diagnosed respondent with pedophilic disorder and substance use disorder
in a controlled environment, with the former based on “almost three decades of accusations, arrests
and some convictions for sexual behavior with young children, ranging in age from three to about
age eight.” Respondent’s substance use disorder was based on his self-described alcoholism and
the fact that he had no regular access to alcohol while in custody. She opined that respondent still
suffered both disorders, as neither is “known to spontaneously remit or just go away on its own.”
She also opined that both disorders were mental disorders under the Act as both affect his
emotional or volitional capacity and predispose him to engage in further acts of sexual violence.
¶ 26 Having diagnosed respondent with mental disorders, Dr. Louck Davis conducted a risk
assessment of his likelihood to reoffend, considering actuarial measures, dynamic risk factors,
protective factors, and individual factors. She used the Static-99R and Static-2002R actuarial
measures, which she explained to be underestimates of risk because they rely upon criminal
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histories, which inherently do not include all instances of sexual violence. Respondent scored two
on the Static-99R and four on the Static-2002R, both being average risk or about 50th percentile
of known convicted sex offenders. However, she considered this an underestimate of risk not just
because the actuarial measures were generally underestimates but because respondent being
convicted of offenses at ages 46 and 50 suggested he did not reflect the general tendency for
recidivism risk to reduce with age.
¶ 27 Considering dynamic risk factors, Dr. Louck Davis found eight in respondent, including
deviant sexual interests, sexualized violence, sexual attitudes tolerant of sexual offenses, substance
abuse, adverse childhood environment from his history of physical and sexual abuse, emotional
congruence with children, and non-compliance with supervision. As an example of respondent’s
attitudes, he said that a child was capable of teasing him sexually and that he could not understand
why a child could not have sex with adults. As examples of emotional congruence with children,
respondent’s offenses included “hanging around” in a park where he victimized two girls, and his
explanation of being with the girl at school was that her mother left her with him. Respondent was
noncompliant with supervision because he violated probation on one of his convictions.
¶ 28 Turning to possible protective factors, Dr. Louck Davis concluded that respondent’s age
was not a protective factor because he committed offenses in middle age. Nor was his “debilitating
health” a protective factor, because, after considering his various illnesses and discussing his
functionality in interviewing him, she concluded that “he does not have a medical illness that’s
causing such debilitation that he wouldn’t be able to sex offend.” Lastly, participation in sex
offender treatment was not a protective factor because, while he had participated in treatment in
the past, he had reoffended since and had not participated in treatment since that reoffense.
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¶ 29 After her risk assessment, Dr. Louck Davis formed an opinion with a reasonable degree of
psychological certainty that respondent was substantially probable to reoffend due to his mental
disorders. She explained that substantial probability means “much more likely than not” but
“[t]here’s not a number that’s associated with it or a percentage.” In light of respondent’s
conviction in 07 CR 14848 and her diagnoses of his mental disorders, she opined he was an SVP.
¶ 30 On cross-examination, Dr. Louck Davis testified that she interviewed respondent by video
for about an hour and saw him walking with a cane. She acknowledged his 2006 diagnosis with
Parkinson’s Disease, a “progressive debilitating disease,” along with his hip replacement, shoulder
surgery, seizure disorder, diabetes, and asthma, while noting that he told her that his last seizure
was three years ago. However, she opined that these illnesses were not a protective factor because
respondent had all of them when he committed his most recent sex offense.
¶ 31 Dr. Louck Davis acknowledged there are estimated recidivism rates associated with the
actuarial measures. Her report stated that respondent’s scores corresponded to a five-year
recidivism rate of 4% to 5.2%, or a ten-year rate of 5.8% to 8.9%. When asked if the 5.2%
recidivism rate was “a little less than 45 percent short of even being likely,” the State’s objection
was overruled and she replied “I don’t believe those are interchangeable numbers.” When asked
what “even odds” are in betting, the State’s objection was overruled and she replied “50/50.” She
acknowledged that 4% is “46 below 50/50,” but explained “that’s not the entire picture, though,
for understanding what these numbers mean relevant to an overall risk summary.”
¶ 32 When asked if “that range of 4 to 5.2 percent is nowhere near 50 percent,” the State’s
objection was overruled and Dr. Louck Davis replied “Mathematically, no, that’s not.” When
asked if a 40-year-old is more likely to reoffend than a person 70 years old, Dr. Louck Davis
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explained that respondent’s scores on the actuarial measures already accounted for his age. When
she was then asked if “probable is something over 50 percent,” the State objected, arguing that
case law prohibited equating substantial probability with a percentage. The court sustained the
objection, noting that respondent could “argue that when the time comes.” Dr. Loucks Davis was
subsequently asked if the recidivism percentages from the actuarial measures are at most “about
halfway to any kind of being likely,” and she replied that the percentages are not used for
determining substantial probability but as “one piece of a multi-component risk assessment.”
¶ 33 Dr. Louck Davis acknowledged that respondent was not diagnosed with pedophilic
disorder in other evaluations, and that a person could commit a sexually-violent offense without a
diagnosis of pedophilic disorder. When asked if one of the dynamic risk factors, deviant sexual
interest, was part of her diagnosis of pedophilic disorder, she explained “there’s a relationship
between the two, but I didn’t use a risk factor to justify the diagnosis.”
¶ 34 During closing argument, respondent argued, inter alia, “Everything they said about the
risk of re-offending is, well, here's the rates and one of them goes all the way up to 26 percent.
Well, that's 24 percent less than likely at all.” He similarly argued that the actuarial measure “says
that the typical standard is about 4 to 5.8 percent. So where do we get to the idea that we can say
beyond a reasonable doubt they're going to jump from less than 10 percent to substantially more
than 50, whatever that means?”
¶ 35 Following argument, the court found respondent to be an SVP. The court stated, in part, “I
did take into consideration the percentages argument that counsel for the respondent made. I’m
not swayed by that. I do think that Dr. Louck Davis was very clear in her responding to questions
that that is one piece.”
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¶ 36 In his posttrial motion, respondent challenged the sufficiency of the evidence that he was
an SVP. He noted that the witnesses “used actuarial measures Static 99R and Static 2002R to
determine the issue of risk of reoffending,” on which he scored a 2 for the former and 4 for the
latter, which he claimed was “average risk.” He juxtaposed Dr. Louck Davis’s testimony regarding
the recidivism rates associated with those scores, with a maximum of about 25%, and the
witnesses’ opinions that it was substantially probable that he would reoffend. Respondent argued
that the State failed to prove that it was substantially probable he would reoffend because the
witnesses did not adequately explain the “empirical or dynamic risk factors” to which they
attributed their opinions.
¶ 37 The State responded that the witnesses adequately supported their opinions that it was
substantially probable respondent would reoffend so that the evidence was sufficient to establish
he was an SVP. The State argued that the witnesses “testified to various risk factors applicable to
the Respondent and explained how the factors applied to him and that the presence of these factors
increased his risk.” The State particularly noted Dr. Louck Davis’s testimony that respondent’s
scores on the actuarial measures were “an underestimate of his risk given the expectation with
lower offending with advanced age and the Respondent’s most recent offense actually happening
at advanced age.” The State also cited various opinions of this court rejecting arguments that the
State must show a recidivism rate of more than 50% for the trier of fact to properly find a
substantial probability of committing further acts of sexual violence.
¶ 38 In May 2023, the court denied respondent’s posttrial motion and committed him to the
Department’s custody in a Department facility until further court order. This appeal timely
followed.
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¶ 39 On appeal, respondent contends that the trial court erred in limiting cross-examination on
psychological testing of the percentages to reoffend when the State’s witnesses considered
uncharged offenses over respondent’s age, disability, sobriety, and diseases. The State responds
that the court did not abuse its discretion because Illinois courts prohibit linking the probability of
reoffending to percentages, and that any error in limiting cross-examination was harmless.
¶ 40 The Act provides that the State may file in the circuit court a petition alleging that a person
is an SVP if the person was convicted of certain sexually violent offenses including, as here,
predatory criminal sexual assault. 725 ILCS 207/5(e), 15(b) (West 2020). The petition must further
allege that the person “has a mental disorder” and “is dangerous to others because the person’s
mental disorder creates a substantial probability that he or she will engage in acts of sexual
violence.” Id. §§ 5(f), 15(b). If after a trial the trier of fact finds beyond a reasonable doubt that
the person is an SVP as alleged in the petition, the court shall commit the person “to the custody
of the Department for control, care and treatment until such time as the person is no longer” an
SVP. Id. §§ 35(a), (d), (f), 40(a).
¶ 41 The scope of cross-examination is an evidentiary ruling within the sound discretion of the
trial court, so that such a ruling will not be reversed absent an abuse of discretion that manifestly
prejudiced the respondent. In re Commitment of Moody, 2020 IL App (1st) 190565, ¶ 67. We find
no error here.
¶ 42 Firstly, respondent’s cross-examination was not unduly restricted and we find no abuse of
discretion. Respondent was barred from asking the State’s witnesses why or how their opinions
that he was more likely than not to reoffend could be reconciled with his average-risk scores on
the actuarial measures. That is, he was not allowed to ask the witnesses how recidivism percentages
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of 25% or less on the actuarial measures supported their opinions that there was at least a 50%
chance he would reoffend. However, this court has rejected the proposition that the State must
prove a recidivism rate above 50% to constitute a substantial probability that a respondent will
engage in acts of sexual violence. In re Commitment of Haugen, 2017 IL App (1st) 160649, ¶¶ 23-
25.
¶ 43 Notably, the trial court allowed respondent to elicit that certain recidivism percentages
were related to his scores on the actuarial measures, and allowed him to argue that there was a
fatal or damning discrepancy between the substantial-probability opinions and the recidivism
percentages, only barring his examination of the witnesses on that particular point. The witnesses,
especially Dr. Louck Davis, made clear that the actuarial measures were only a part of their risk
evaluations and a part of their opinions that respondent presented a substantial probability of
reoffending. Respondent was free to examine and explore the factors that the witnesses testified
affected those opinions beyond the actuarial measures. Respondent could, and at some length did,
cross-examine both witnesses about the dynamic factors they found relevant to his probability to
reoffend and the protective factors they found inapplicable to that probability.
¶ 44 Secondly, had there been an abuse of discretion, we find it harmless because respondent
cannot show he was prejudiced by the narrow limitation of his cross-examination. He argues that
the “dynamic factors” cited by the witnesses “do not establish probability or likely probability,
much less ‘substantial probability.’ ” He also argues that, “[a]lthough these dynamic factors can
be considered again, [respondent’s] severe medical conditions and problems, particularly
Parkinson’s disease, which is a progressive condition, were not included in the protective factors.”
He argues that “they fail to mention all of [his] illnesses, age, disabilities, and sobriety.”
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¶ 45 However, all these issues were thoroughly examined at trial. Both Dr. Kuzia and Dr. Louck
Davis explained that he or she did not consider the recidivism percentages from the actuarial
measures definitive or reliable because they were percentages of only convicted instances of
recidivism while many instances of sexual abuse of children do not result in conviction. “Indeed,
as noted by all the experts, the factors assessed in the Static-99 and Static-2002 do not account for
high-risk situations outside of formal charges and convictions.” In re Commitment of Montilla,
2022 IL App (1st) 200913, ¶ 121.
¶ 46 This court has recognized that a persuasive psychological opinion that a respondent is more
likely than not to reoffend is “grounded not only in statistical analysis but also, as urged by the
developers of the Static instruments, dynamic and idiosyncratic factors to provide a holistic
evaluation of the individual.” Id. ¶ 120. Here, as to dynamic factors, Dr. Kuzia pointed to
respondent’s expression of offensive supporting attitudes, showing that he had not learned or
internalized that they were offensive and not persuasive explanations of his actions, and that he
chose to reject or eschew alcohol and sex offender treatment. Dr. Louck Davis found similar
dynamic factors based on respondent’s actions and statements, including victimizing girls in a park
and stating he could not understand why children could not have sex with adults.
¶ 47 Possible protective factors, including respondent’s illnesses, age and sobriety as he now
argues, were also discussed in detail at trial. Dr. Kuzia explained that he did not consider
respondent’s age and health issues protective factors because his victims had been young girls,
who would be susceptible to victimization by even an elderly man in poor health. Dr. Louck Davis
similarly testified that she did not consider respondent’s age a protective factor because he
committed offenses in middle age, nor did she believe his illnesses would bar him from
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reoffending. Dr. Kuzia explained that he did not consider respondent’s sobriety in custody a
protective factor because he was in a controlled environment and it was not tested by regular access
to alcohol.
¶ 48 In sum, the State’s witnesses provided ample explanation why they considered respondent
more likely than not to reoffend despite the average-risk scores on the actuarial measures. The
court allowing respondent to ask the witnesses to explain why 5% or 25% is not 50% would not
have changed their testimony as a whole nor the outcome of the trial.
¶ 49 Accordingly, the judgment of the circuit court is affirmed.
¶ 50 Affirmed.
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