People v. Kallal ( 2019 )

2019 IL App (4th) 180099
FILED
NO. 4-18-0099 April 26, 2019
Carla Bender
IN THE APPELLATE COURT 4th District Appellate
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 TURNER delivered the judgment of the court, with opinion.
Justices Steigmann and Harris concurred in the judgment and opinion.
OPINION
¶1 In November 2017, a jury found defendant, Jacob D. Kallal, remained a sexually
dangerous individual pursuant to the Sexually Dangerous Persons Act (Act) (725 ILCS 205/0.01
to 12 (West 2016)). Defendant appeals, arguing the trial court erred in the following ways: (1) it
failed to bar the State from calling one of defendant’s treatment providers, (2) it restricted
defendant’s cross-examination of the State’s expert witness, (3) it failed to enter a judgment
notwithstanding the verdict because the jury verdict form did not include an explicit finding it
was “substantially probable” respondent would engage in a future sex offense if not confined,
and (4) it failed to declare a mistrial based on the State’s closing argument. Defendant also
argued the State’s evidence was insufficient to establish defendant was still sexually dangerous.
We affirm.
¶2 I. BACKGROUND
¶3 On July 16, 2001, defendant was declared a sexually dangerous person and
committed to the custody of the director of the Illinois Department of Corrections (DOC). On
July 20, 2015, he filed an application for discharge or conditional release from DOC. On January
14, 2016, the State filed a socio-psychiatric report prepared by Dr. Melissa Weldon-Padera.
¶4 In August 2016, a jury trial was held on defendant’s discharge application. The
jury could not reach a verdict, and the trial court declared a mistrial.
¶5 In November 2017, defendant had a second jury trial on his application to be
discharged from DOC confinement. Defendant filed a motion in limine, asking the trial court to
bar the State from introducing the testimony of Heather Young, a special-offender program
therapist who treated defendant at Big Muddy Correctional Center (Big Muddy), because her
testimony violated section 9(a) of the Act (725 ILCS 205/9(a) (West 2016)). The trial court
denied defendant’s motion.
¶6 Dr. Melissa Weldon-Padera, a psychologist, testified she completed a
comprehensive evaluation of defendant to determine whether he was still sexually dangerous in
January 2016, which she documented in a report dated January 12, 2016. She updated the
evaluation on January 4, 2017. For the updated evaluation, she reviewed defendant’s records
since the last evaluation and spoke to his primary therapist about any progress he had made since
the last evaluation.
¶7 Before Dr. Weldon-Padera wrote her first report dated January 12, 2016, she
spoke with defendant on January 5, 2016, for three hours. He was cooperative, polite, and soft-
spoken. His thought content was slightly concrete, but his insight and judgment were fair. His
intellectual functioning was below average. She did not interview him again for the updated
evaluation. Defendant admitted committing the offenses for which he was charged but did not
-2-
accept full responsibility for his actions.
¶8 The doctor testified it is important for an individual like defendant to accept
responsibility because he is then able to learn and understand his offense cycle, victim empathy,
what triggers his sexual interests, and what his high-risk factors are. Defendant did not seem to
understand his assault cycle, which was an important factor to keep him from reoffending.
Defendant also had five disciplinary tickets with seven infractions, including a ticket in 2008 for
masturbating in the library at Big Muddy while watching a female employee and numerous
program tickets specific to his treatment program.
¶9 Dr. Weldon-Padera also reviewed defendant’s sexual-offense history, which she
said was an important factor in determining sexual recidivism and an individual’s pattern over a
period of time. Defendant had a criminal history. In 1997, when he was 18, the State charged
defendant with public indecency for exposing himself and masturbating in front of a woman (age
18) he did not know, a similar act involving another female stranger (age 35), and masturbating
in front of a teenage female stranger (age 15). In 2001, he was charged with theft from a person
and public indecency involving another female stranger (age 72). Two months after that incident,
he was charged with indecent solicitation or abuse of a child under age 13, sexual exploitation of
a child, public indecency, battery, and obscenity.
¶ 10 The victims in this last case were two young girls, each only eight years old.
Defendant approached the girls on his bicycle, showed them a pornographic picture and asked
them if they could do what was depicted. He then unzipped his pants, exposed his penis, and
began masturbating. Defendant then grabbed one of the girls by the back of her head and pulled
her head toward his penis. The girl hit defendant, and the two girls escaped. As a result of this
last offense, defendant was declared a sexually dangerous person based on two counts of
-3-
indecent solicitation of a child and one count of attempt (predatory criminal sexual assault of a
child). He was 22 at the time.
¶ 11 Dr. Weldon-Padera also noted defendant was accused of or investigated for other
uncharged incidents. In 2001, he was accused of two other incidents involving public indecency
and disorderly conduct for exposing himself to two female employees at a dry cleaning business.
In 2006, defendant was investigated for aggravated criminal sexual assault against a seven-year-
old female acquaintance. The alleged victim in that case accused him of forcing her to perform
oral sex on him. From the doctor’s testimony, it was unclear when this actually occurred but
presumably it was before defendant was placed in DOC custody.
¶ 12 Defendant’s criminal history also included arrests for retail theft, residential
burglary, attempt (residential burglary), criminal trespass to land, criminal damage to property,
and domestic battery. Dr. Weldon-Padera stated these incidents were related to defendant’s
antisocial personality disorder and led to a higher risk of recidivism. Defendant also violated
probation on two occasions, one in 1998 and one in 2001.
¶ 13 The doctor also reviewed defendant’s history of sexual offense treatment, which
she said was one of the most important things an offender can do to reduce his risk of
reoffending. Defendant was participating in treatment at Big Muddy. However, the staff at Big
Muddy indicated he did not consistently attend groups and sometimes missed group meetings to
attend and referee sporting events. He had recently been removed from one group due to his lack
of attendance.
¶ 14 According to Dr. Weldon-Padera, defendant appeared to have made some
progress while at Big Muddy but not between her initial evaluation in 2016 and the updated
evaluation in 2017. When she first evaluated defendant, he was in the second of four phases of
-4-
treatment at Big Muddy. At the time she updated the evaluation, defendant had been moved back
to the first, or lowest, phase of treatment. She reviewed defendant’s semiannual program
evaluations, which included 29 categories where his progress was assessed. He showed no need
for improvement in one category, some need for improvement in one category, considerable
need for improvement in 16 categories, and very considerable need for improvement in 11
categories.
¶ 15 Dr. Weldon-Padera used an adjusted actuarial approach to assess the likelihood
defendant would commit another sexual offense if released. This method starts with a baseline
determined by an actuarial risk assessment. She also considers clinically significant risk factors
to form her overall opinion. The Static-99R is an actuarial risk-assessment tool she used to
evaluate defendant based on historical and unchangeable factors. Defendant scored an “8” on this
test, which placed him in the “well above average category” to reoffend. Compared to other sex
offenders, defendant was 7.3 times more likely to reoffend than an average sex offender
according to this assessment tool. According to the Static-99R, 98.5% of sex offenders would be
less likely than defendant to reoffend. To evaluate defendant’s dynamic risk factors, which are
psychological variables that can be changed with intervention in treatment, Dr. Weldon-Padera
used the Stable 2007 assessment tool. Defendant scored a “13” on this test, which placed him in
a high-risk category.
¶ 16 When she examined the Static-99R and the Stable 2007 together, defendant was
placed in the “well above average priority category,” which was for individuals most in need of
supervision and intervention. Dr. Weldon-Padera opined defendant’s exhibitionistic disorder is
coupled with a propensity to commit sex offenses. It was substantially probable defendant would
commit additional sex offenses if he did not remain confined. He continued to be a sexually
-5-
dangerous individual in need of confinement. She stated the court could appoint no conditions or
restrictions on defendant to keep the community safe if defendant was released from Big Muddy.
¶ 17 Heather Young, a special-offender program therapist at Big Muddy, also testified
on behalf of the State. Defendant objected to Young’s testimony. The trial court overruled
defendant’s objection. Young provided treatment to individuals who have been deemed sexually
dangerous persons by the State. She worked with defendant at Big Muddy and was currently his
primary therapist.
¶ 18 Defendant chose to not testify.
¶ 19 The jury found defendant remained sexually dangerous. This appeal followed.
¶ 20 II. ANALYSIS
¶ 21 Defendant presents a variety of arguments challenging the results of the trial
where the jury found he was still sexually dangerous. We do not address these arguments in the
order presented by defendant.
¶ 22 A. Cross-Examination of Dr. Weldon-Padera
¶ 23 We first address defendant’s argument the trial court erred by restricting his cross-
examination of the State’s expert witness, Dr. Weldon-Padera. Defendant points out the doctor
testified sex-offender treatment was an important protective factor on direct examination. To
impeach her testimony, respondent wanted to question her regarding a 2015 article from the
Journal of Experimental Criminology titled, The Effects of Sexual Offender Treatment on
Recidivism: An International Meta-Analysis of Sound Quality Evaluations. The article was
authored by two individuals only identified during the trial as Schmucker and Lösel. Their meta-
analysis found treatment prisoners received while in custody did not have a statistically
significant effect on their recidivism rates. Dr. Weldon-Padera acknowledged Schmucker and
-6-
Lösel were experts in the field and the Journal of Experimental Criminology was a peer-
reviewed publication. However, she was not familiar with this particular article.
¶ 24 The State objected to defendant’s use of this article to cross-examine the doctor
because she lacked personal knowledge of the article. The trial court agreed, stating, “she hasn’t
seen the study, she hasn’t used it to form any basis of any opinion whatsoever. This is simply
getting a bunch of hearsay from some other study that isn’t a part of this case before this jury,
and I’m sustaining this objection.” Defendant later argued he should be able to impeach Dr.
Weldon-Padera with the article because she conceded the competence of the authors. The trial
court stated, “Author’s competence in one study doesn’t mean the treatise that you’re showing
her she believes is a reliable authority. No, I’m—no, I’m not allowing you to bootstrap this
evidence into this case right now.”
¶ 25 Defendant cites our supreme court’s decision in Darling v. Charleston
Community Memorial Hospital, 33 Ill. 2d 326, 335-36, 211 N.E.2d 253, 259 (1965), to support
his argument the trial court erred in denying defendant the ability to impeach Dr. Weldon-Padera
with this article. In Darling, our supreme court stated “[t]o prevent cross-examination upon the
relevant body of knowledge serves only to protect the ignorant or unscrupulous expert witness.”
Darling, 33 Ill. 2d at 336. The court also stated, “[i]n our opinion expert testimony will be a
more effective tool in the attainment of justice if cross-examination is permitted as to the views
of recognized authorities, expressed in treatises or periodicals written for professional
colleagues.” Darling, 33 Ill. 2d at 336.
¶ 26 Citing Stapleton v. Moore, 403 Ill. App. 3d 147, 156, 932 N.E.2d 487, 496 (2010),
the State argues a defendant is not entitled to reversal based on an evidentiary error limiting
cross-examination unless the error was substantially prejudicial and affected the outcome of the
-7-
trial. Because defendant did not claim he was prejudiced or explain how he was prejudiced by
the trial court not allowing him to question defendant with the article, the State argues defendant
forfeited this issue pursuant to Illinois Supreme Court Rule 341(h)(7) (eff. Nov. 1, 2017). We
agree.
¶ 27 Regardless of forfeiture, we do not see how defendant was prejudiced by the trial
court’s ruling not allowing him to impeach the expert with an article that concludes in-custody
treatment has no statistical effect on recidivism rates. This article does not counter the State’s
position defendant is still a sexually dangerous individual. Further, defense counsel was allowed
to get this information into the case by questioning the doctor about a 2005 study that showed
community treatment had a statistically significant effect on recidivism but institutional
treatment did not.
¶ 28 B. Testimony of Heather Young
¶ 29 We next address defendant’s argument the trial court erred in allowing Heather
Young, who was defendant’s primary therapist at Big Muddy at the time of the hearing, to testify
at defendant’s trial. According to defendant, the court’s decision allowing Young to testify
violated section 9 of the Act (725 ILCS 205/9(a) (West 2016)) because the Act limits the type of
evidence the State may introduce with regard to an application for discharge. Defendant makes
no argument how he suffered any actual prejudice from Young’s testimony.
¶ 30 Section 9 of the Act states:
“An application in writing setting forth facts showing that the sexually dangerous
person or criminal sexual psychopathic person has recovered may be filed before
the committing court. Upon receipt thereof, the clerk of the court shall cause a
copy of the application to be sent to the Director of the Department of
-8-
Corrections. 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 [(225 ILCS 109/1 et seq. (West 2016))]. 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 the Department of Corrections and any other relevant
information submitted by or on behalf of the applicant.” 725 ILCS 205/9(a) (West
2016).
¶ 31 According to defendant, the State was limited to only introducing the report
prepared under the direction of the DOC. Defendant points out Young neither authored the report
nor testified about the report’s content or conclusions. Defendant cites our supreme court’s
decision in People v. Grant, 2016 IL 119162, ¶ 20, 52 N.E.3d 308, for the proposition that
“although proceedings under the [Act] are civil in nature, the possibility of indefinite
confinement for a sexually dangerous person means that the [Act] must be given the same strict
construction as penal statutes.” The court also stated, “In sum, while the [Act] quite clearly
allows a respondent in a sexually dangerous persons proceeding to retain a private expert witness
[citation], there is nothing in the plain language of the [Act] allowing the State to do so, and the
[Act] must be strictly construed [citation].” Grant, 2016 IL 119162, ¶ 32.
¶ 32 This case is distinguishable from Grant. In Grant, the supreme court ruled section
9 of the Act does not give the State the right to hire an independent psychiatric expert of its
choosing because it disagreed with the report prepared by DOC’s evaluator. In this case, the
State neither wanted to hire an independent psychiatric expert nor disagreed with DOC’s
evaluator’s report. Further, the supreme court declined to rule whether the trial court erred in
-9-
denying Grant’s motion in limine to preclude the testimony of certain witnesses, which is the
issue in this case. Grant, 2016 IL 119162, ¶ 34. While it is easy to see why the State should not
be able to bring in a new expert witness simply because it did not agree with the opinion of the
expert chosen by the DOC, we do not believe our supreme court’s holding should be expanded to
restrict the State from introducing any other evidence.
¶ 33 C. State’s Closing Argument
¶ 34 Defendant also argues the trial court erred by not declaring a mistrial based on
allegedly improper statements the State made during its closing argument. Defendant concedes
he did not move for a mistrial. However, he argues we should review the issue pursuant to the
plain-error doctrine. We disagree as the State’s closing argument did not warrant a mistrial in
any way. Any misstatements by the State did not substantially prejudice defendant.
¶ 35 “[P]rosecutors are afforded wide latitude in closing argument [citations] and may
argue facts and reasonable inferences drawn from the evidence [citation].” People v. Williams,
192 Ill. 2d 548, 573, 736 N.E.2d 1001, 1015 (2000). “In reviewing a challenge to remarks made
by the State during closing argument, the comments must be considered in the context of the
entire closing statements of the parties.” Williams, 192 Ill. 2d at 573. Improper remarks during
closing argument are reversible error only when they cause substantial prejudice to the
defendant. Williams, 192 Ill. 2d at 573. Substantial prejudice occurs if the improper remarks
were a material factor in the defendant’s conviction. People v. Thompson, 2013 IL App (1st)
113105, ¶ 79, 997 N.E.2d 681. “If the jury could have reached a contrary verdict had the
improper remarks not been made, or the reviewing court cannot say that the prosecutor’s
improper remarks did not contribute to the defendant’s conviction, a new trial should be
granted.” People v. Wheeler, 226 Ill. 2d 92, 123, 871 N.E.2d 728, 745 (2007). A trial court can
- 10 -
cure erroneous statements made during arguments by giving proper jury instructions on the law
to be applied, telling the jury arguments are not evidence and should be disregarded if not
supported by the evidence, or by sustaining an objection and instructing the jury to disregard the
improper statement. People v. Simms, 192 Ill. 2d 348, 396-97, 736 N.E.2d 1092, 1124-25 (2000).
¶ 36 Defendant first takes issue with the State commenting on an uncharged incident
with a child reported in 2006. Defense counsel did object to this comment by the State. The trial
court sustained the objection, struck the State’s comment, and ordered the jury not to consider
the reported incident. As to this statement, if the statement constitutes error, the trial court cured
the error when it struck the comment and instructed the jury not to consider the reported incident.
¶ 37 Defendant also argues the State misstated the facts of one of defendant’s cases
that caused the initial sexually dangerous person petition to be filed against defendant.
Referencing this case, the State said defendant went from someone who engaged in public
masturbation to grabbing children off the street. Defendant objected to this statement, arguing it
was only a single child. The State responded it was two children. Defense counsel then stated it
was only a single grab.
¶ 38 Considering what happened during the incident in question, defendant cannot
establish he was prejudiced by the State’s assertion during its closing argument defendant
grabbed children off the street during the incident in question. Defendant does not contest on
appeal the State presented evidence defendant approached two eight-year-old girls, showed them
pornography, asked them if they could do what was depicted, exposed his penis, and began
masturbating in front of the girls. Defendant also does not dispute the State presented evidence
he grabbed one of the two young girls and tried to pull her head toward his penis. Instead, he
argued he was prejudiced because the State implied he grabbed both of the girls when he only
- 11 -
grabbed one of them.
¶ 39 Defendant was not prejudiced by the State’s comment. Defendant admitted
propositioning and masturbating in front of two eight-year-old girls. The fact he only tried to pull
the head of one of the girls toward his penis instead of both girls does not help his cause.
¶ 40 Defendant also argues the State misstated its burden of proof in this case. We
disagree. The State consistently stated the correct burden of proof, and the trial court instructed
the jury on the correct burden of proof. Defendant complains about the State’s comment
defendant’s chance of reoffending was like the flip of a coin. However, this comment may have
benefitted defendant considering the jury instructions made clear the jury had to find a
substantial probability defendant would commit another sexual offense if released.
¶ 41 D. Sufficiency of the Evidence
¶ 42 We next address defendant’s argument the State failed to present sufficient
evidence defendant remained a sexually dangerous person. We will not disturb the jury’s verdict
unless it was against the manifest weight of the 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 if the
opposite decision is clearly apparent. Donath, 2013 IL App (3d) 120251, ¶ 38. Based on the
evidence in this case, a finding defendant was still sexually dangerous was not against the
manifest weight of the evidence.
¶ 43 Defendant focuses on Dr. Weldon-Padera’s testimony that defendant’s chance of
reoffending over the 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,
- 12 -
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.
¶ 44 According to Dr. Weldon-Padera, defendant’s score on the Static-99R assessment
placed him in the well above-average category to reoffend. Defendant was over seven times
more likely to reoffend than the average or typical sex offender. His score on the Stable 2007
placed him in the high-risk category to reoffend. Further, when the Stable 2007 and Static-99R
are considered together, his composite assessment placed him in the well above-average priority
category, which is the category for individuals who need the most supervision and intervention.
¶ 45 While defendant admitted he committed the offenses for which he was charged,
Dr. Weldon-Padera noted he failed to accept full responsibility. He minimized his actions and
did not seem to understand his assault cycle. This increased his risk of reoffending. Defendant
also had an incomplete intellectual understanding of victim empathy and a poor understanding of
his sexual attraction to the deviant acts and behaviors in which he engaged.
¶ 46 Dr. Weldon-Padera testified it was her opinion defendant had not recovered from
being a sexually dangerous person to the extent he could be released into the community. He
continued to be sexually dangerous and in need of confinement because he remained a high risk
to reoffend. Based on the evidence in this case, we will not say the fact finder’s decision was
against the manifest weight of the evidence.
¶ 47 E. Judgment Notwithstanding the Verdict
¶ 48 Defendant next argues the trial court erred by not entering a judgment
notwithstanding the verdict because the jury failed to make an explicit finding it was
“substantially probable” defendant would commit a sex offense in the future if not confined.
- 13 -
Defendant relies on our supreme court’s decision in People v. Masterson, 207 Ill. 2d 305, 798
N.E.2d 735 (2003), which involved a bench trial and an initial commitment. In Masterson, the
supreme court did state “a finding of sexual dangerousness *** must hereafter be accompanied
by an explicit finding that it is ‘substantially probable’ the person subject to the commitment
proceeding will engage in the commission of sex offenses in the future if not confined.”
Masterson, 207 Ill. 2d at 330. This element was not included in the statutory definition of sexual
dangerousness found in section 1.01 of the Act (725 ILCS 205/1.01 (West 2016)). Masterson,
207 Ill. 2d at 330.
¶ 49 While a trial court is normally presumed to know the law, the supreme court
likely was concerned some trial courts might only look to section 1.01 of the Act (725 ILCS
205/1.01 (West 2016)) to determine what constitutes “sexual dangerousness” and fail to consider
the additional substantial probability element, which is not part of section 1.01 but was
determined by the supreme court to be a necessary element. In a bench trial, without the trial
court judge making an explicit finding it is “substantially probable” the defendant will engage in
the commission of sex offenses in the future if not confined, neither a defendant nor a reviewing
court could safely assume the trial court considered this additional required element of a sexual
dangerousness finding.
¶ 50 This problem does not exist in a jury trial. A defendant and a reviewing court will
know whether the jury knew it was required to find this element of sexual dangerousness by
looking at the jury instructions. In this case, the jury was properly instructed it had to determine
it was a substantial probability defendant would reoffend in the future if released before it could
find he continued to be sexually dangerous. As a result, we find no need to expand the supreme
court’s bench trial requirement to a jury trial on a defendant’s recovery petition if the jury has
- 14 -
been properly instructed on this point of law.
¶ 51 While not entirely clear, it appears defendant also contends the jury had to make
an explicit finding that it considered whether defendant had a condition affecting his volitional
capacity. The supreme court in Masterson did not include such a requirement even in bench
trials, let alone jury trials. Defendant does not argue the jury was not properly instructed in this
case. As a result, we give no further consideration to this argument. The trial court did not err by
not granting defendant a judgment notwithstanding the verdict.
¶ 52 III. CONCLUSION
¶ 53 For the reasons stated, we affirm the jury’s decision defendant remained a
sexually dangerous person who needed to be confined.
¶ 54 Affirmed.
- 15 -