In re Detention of Hunter

ILLINOIS OFFICIAL REPORTS
Appellate Court
In re Detention of Hunter, 2013 IL App (4th) 120299
Appellate Court In re: the Detention of ANTHONY L. HUNTER, a Sexually Dangerous
Caption Person, THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-
Appellee, v. ANTHONY L. HUNTER, Respondent-Appellant.
District & No. Fourth District
Docket No. 4-12-0299
Filed January 9, 2013
Rehearing denied February 4, 2013
Held The order for respondent’s commitment as a sexually dangerous person
(Note: This syllabus was upheld over his contentions that the Sexually Dangerous Persons Act
constitutes no part of violated the confrontation clause and that the evidence did not satisfy the
the opinion of the court demonstrated-propensities requirement of the Act, since the expert
but has been prepared testimony admitted under the Act concerning respondent’s propensities
by the Reporter of did not implicate the confrontation clause, even though it was based on
Decisions for the hearsay police reports and interviews, and the expert testimony
convenience of the sufficiently proved that it was substantially probable that respondent
reader.)
would reoffend if not confined.
Decision Under Appeal from the Circuit Court of Sangamon County, No. 10-CF-245; the
Review Hon. Peter C. Cavanagh, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Costello (argued), of Costello Law Office, of Springfield, for
Appeal appellant.
John Milhiser, State’s Attorney, of Springfield (Patrick Delfino, Robert
J. Biderman, and David E. Mannchen (argued), all of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE APPLETON delivered the judgment of the court, with opinion.
Presiding Justice Steigmann and Justice Knecht concurred in the
judgment and opinion.
OPINION
¶1 Respondent, Anthony L. Hunter, was charged with aggravated criminal sexual assault
(720 ILCS 5/12-14(a)(1) (West 2008)) and criminal sexual assault (720 ILCS 5/12-13(a)(1)
(West 2008)). While those criminal charges were pending, the State instituted a civil
commitment proceeding, pursuant to Illinois’s Sexually Dangerous Persons Act (Act) (725
ILCS 205/0.01 to 12 (West 2008)). After a jury trial, the circuit court declared respondent
a sexually dangerous person and ordered his commitment. Respondent’s posttrial motion was
denied, and he appealed.
¶2 Respondent argues his commitment as a sexually dangerous person should be reversed
because (1) the Act is unconstitutional, on its face and as applied, as violative of the
confrontation clause, or in the alternative, (2) the State’s evidence was insufficient to satisfy
the demonstrated-propensities requirement of the Act. We find no constitutional violation
and affirm on both grounds.
¶3 I. BACKGROUND
¶4 On May 13, 2010, respondent was charged by information with one count of aggravated
criminal sexual assault (720 ILCS 5/12-14(a)(1) (West 2008)) and one count of criminal
sexual assault (720 ILCS 5/12-13(a)(1) (West 2008)) for physically attacking Emma in
respondent’s home and penetrating her vagina with his fingers on April 20, 2010. The
criminal charges were pending when, on May 19, 2010, the State filed a petition to declare
respondent a sexually dangerous person. The State requested the appointment of two
psychiatrists to examine respondent. Pursuant to the circuit court’s order, respondent was
subsequently examined by Drs. Terry Killian and Lawrence Jeckel. After examining
respondent, both concluded respondent qualified as a sexually dangerous person as defined
in the Act.
-2-
¶5 A hearing was conducted on March 7 and 8, 2012. At the hearing, the State presented the
testimony of Drs. Killian and Jeckel, both of whom testified that respondent was a sexually
dangerous person. Dr. Killian testified he was employed as a forensic psychiatrist and, in that
capacity, he had evaluated around 150 people to determine whether they were sexually
dangerous. When conducting the initial evaluations, he has found the person to be sexually
dangerous in approximately 60% of the cases. The circuit court accepted Dr. Killian as an
expert in the field of psychiatry.
¶6 Dr. Killian testified he conducted respondent’s evaluation on August 26, 2010. The
prosecutor had forwarded over 100 pages of documents to be reviewed. A social worker in
Dr. Killian’s office reviewed the records and prepared a summary for the doctor’s use during
the interview with respondent. Included in the documents was information about particular
incidents of respondent’s past sexual misconduct. Dr. Killian testified it was “normal and
routine” and “essential” for psychiatrists to rely on police reports of prior criminal conduct
in performing sexually-dangerous-person evaluations. He said he takes “all the information
that is available to [him], which includes the police reports and sometimes other documents,
could be [Illinois Department of Children and Family Services] reports, and the information
from evaluating, from interviewing the defendant, as well as any other documents [he has],
mental health records, other evaluations that have been done, take all of that, put it together
to try to make the best sense of how everything fits together.”
¶7 The first of respondent’s prior sexual incidents occurred in 1987 and involved a victim
named Sheri. Dr. Killian noted that respondent pleaded guilty to a reduced charge of criminal
sexual abuse related to this incident. A police report revealed that Sheri had described the
incident as a violent rape. She had been helping respondent move to a different home when
he grabbed her, dragged her into the bedroom, and dug his fingernails into her mouth to keep
her quiet while he raped her. The police had observed injuries consistent with her version of
the event. Respondent had given police a very different version, where he had portrayed
himself as the victim. He said Sheri had asked him to have sex with her, and then “ ‘for no
reason,’ ” she assaulted him. In his interview, respondent told Dr. Killian he had no memory
of the incident or of a person named Sheri.
¶8 Approximately 16 months after that incident, in 1989, respondent, then age 23, was
involved in another incident–this one involving a victim named Laticia, age 15. Laticia said
she had known respondent and that he had been at her home on the day of the incident. She
was asleep, but she awakened to find respondent on top of her. He overpowered her and
raped her. Dr. Killian said this case had been dismissed for unknown reasons.
¶9 In 1998, respondent was involved in another incident wherein he had been repeatedly
asking an acquaintance named Rebecca, age 21, to remove her clothes. He offered her money
to have sex with him and placed his hand on her upper thigh. Rebecca was respondent’s
friend’s roommate.
¶ 10 In 2002, respondent had sexually assaulted his niece by marriage, Ashley, who was 13
years old. Respondent was copying movies to sell and Ashley indicated she wanted some for
herself. Respondent told her the only way she could have copies was to sleep with him. She
refused. He then grabbed her, pulled off her clothes, raped her, and told her not to tell
-3-
anyone. Respondent pleaded guilty because the deoxyribonucleic acid (DNA) evidence
against him was “definitive.” His semen was found in her vagina, and the medical
examination indicated this was her first vaginal sexual experience. Respondent told the
police the girl had begged him to have sex with her and he finally gave in.
¶ 11 During Dr. Killian’s interview with respondent, respondent said he remembered the
incident with Ashley, while he had not remembered anything about the three previous
incidents. He said Ashley had wanted a copy of a movie and he told her “ ‘Ass, grass, or
cash. Nobody rides for free.’ ” He said she agreed to have sex with him in exchange for a
copy of the movie. Respondent pleaded guilty to aggravated criminal sexual assault.
¶ 12 Finally, in 2010, respondent was involved in the incident leading to the current charges.
The victim, Emma, was respondent’s “personal assistant.” Respondent owed her money and
she had gone to his home to collect. When she arrived, he grabbed her, pulled her into the
bedroom, removed her clothes, and raped her. He told the police he was angry because
Emma had cashed a check that he had written for $7,000 that was not to be cashed. The
check was written only to teach Emma how to write a check for over $1,000. Respondent
threatened to call the police on her for cashing this fraudulent check. According to
respondent, Emma accused him of rape in response to his threat of turning her in on cashing
a fraudulent check.
¶ 13 Dr. Killian also considered (1) respondent’s nonsexual criminal history, which included
“many arrests,” and (2) three actuarial instruments in evaluating and predicting respondent’s
risk of reoffending. (Respondent admitted he had been arrested for domestic battery more
than 10 times.) The first of the actuarial instruments used was the Static 99. Respondent
scored a six, which indicated a high risk of reoffending. The second instrument was the
Rapid Risk Assessment for Sex Offender Recidivism (RRASOR). Respondent scored a
three, which placed him in the category of having a 36.9% likelihood over a 10-year period
of reoffending. The third instrument was the Minnesota Sex Offender Screening Tool
(MnSOST-R). Respondent scored a 10 (Dr. Killian corrected his testimony on cross-
examination to reveal that respondent had actually scored a 12), which placed him in the
high-risk category.
¶ 14 In addition to the actuarial testing, Dr. Killian also considered respondent’s level of
antisocial behavior in determining recidivism. During his interview with respondent, Dr.
Killian noted that respondent mumbled “very badly,” as if he had suffered a stroke. Then,
after approximately 10 minutes, respondent began speaking more clearly. The doctor
believed respondent was faking a speech problem to present himself as a weakened or
disabled individual.
¶ 15 Based upon Dr. Killian’s observations, the review of the materials, and the results of the
actuarial instruments, in his opinion, to a reasonable degree of medical certainty, respondent
suffers from antisocial personality disorder, a mental disorder where he repeatedly violates
other people’s rights without remorse. This diagnosis, coupled with respondent’s “strong
tendencies to commit sex offenses,” predisposes him to the commission of sex offenses. In
Dr. Killian’s opinion, respondent’s mental disorder has existed for at least a year prior to the
filing of the petition. Within a reasonable degree of psychiatric certainty, Dr. Killian opined
-4-
that respondent’s mental disorder is coupled with a propensity to commit sex offenses. He
also opined that, to a reasonable degree of psychiatric certainty, it is substantially probable
that respondent will engage in the commission of sex offenses in the future if he is not
confined. Finally, Dr. Killian opined that, to a reasonable degree of psychiatric certainty,
respondent is a sexually dangerous person.
¶ 16 Next, Dr. Jeckel testified as the State’s second expert. He said he operates a general
practice in Champaign, Illinois, where two-thirds of his practice consists of general
psychiatry and one-third consists of forensic psychiatry. This case was his thirty-fifth
sexually-dangerous-person case. Like Dr. Killian, Dr. Jeckel reviewed the records related to
respondent’s criminal, psychiatric, substance-abuse, and incarceration history. He
acknowledged it was this “type of information that psychiatrists would normally rely upon
to do this kind of evaluation.” After his review of the documentation, Jeckel personally
interviewed respondent and prepared a report reflecting his observations and opinions.
¶ 17 On July 14, 2010, Dr. Jeckel interviewed respondent. With regard to the incident
involving the victim Sheri, Dr. Jeckel noted respondent’s aggressiveness in that situation as
the most significant. With regard to the incident involving Laticia, Jeckel noted that
respondent had “surprised,” then “blitzed her with his sexual aggression.” With regard to the
incident involving Rebecca, Jeckel commented on respondent’s insistence and demanding
demeanor. With regard to the incident involving Ashley, Jeckel noted her familial
relationship with respondent–the fact that he knew when she would be alone, and he again
“blitzed her, pushed her down, had sex with her.”
¶ 18 According to Dr. Jeckel, respondent had portrayed Ashley as aggressive, flirtatious, and
“coming on to him.” He noted respondent tended to portray his victims as the aggressors.
With regard to the underlying incident involving Emma, the doctor again noted the victim
was “allegedly blitzed” by respondent, but respondent had portrayed her as flirtatious and the
aggressor. Dr. Jeckel further noted that during the police interview, respondent initially acted
and appeared “very decrepit,” was difficult to understand, and appeared “very disabled,” yet
at other times, he would “talk very clearly.” This conduct led Dr. Jeckel to believe that
respondent “is capable of malingering, that is, capable of faking or exaggerating his
neurological deficits for the purpose of escaping culpability.”
¶ 19 Dr. Jeckel testified he also considered respondent’s nonsexual criminal history to
determine whether respondent demonstrated a pattern of violence or violating social norms.
Jeckel noted respondent’s history of substance abuse and sociopathy. His family had a history
of substance abuse and criminal activity. Respondent told Jeckel he had been sexually
molested, but Jeckel was not convinced that was true.
¶ 20 Unlike Dr. Killian, Dr. Jeckel did not use actuarial instruments in respondent’s
evaluation. He said he was “not a big believer in it.” Instead, he relied heavily on the clinical
evaluation. At the conclusion of his evaluation, Dr. Jeckel opined that, to a reasonable degree
of psychiatric certainty, (1) respondent suffers from two mental disorders, depressive
disorder and a personality disorder (respondent’s history of depression precluded a diagnosis
of antisocial personality disorder); (2) respondent’s mental disorder is coupled with a
propensity to commit sex offenses; (3) respondent will engage in the commission of sex
-5-
offenses in the future if he is not confined; and (4) respondent is a sexually dangerous person.
¶ 21 Based upon this evidence, the jury found respondent to be a sexually dangerous person.
Thereafter, the circuit court ordered respondent confined in a treatment facility operated by
the Illinois Department of Corrections. After a hearing, respondent filed a posttrial motion,
which the court denied. This appeal followed.
¶ 22 II. ANALYSIS
¶ 23 Respondent appeals, claiming his commitment order as a sexually dangerous person must
be vacated because the Act violates his right to confrontation and is contrary to the principles
set forth in Crawford v. Washington, 541 U.S. 36 (2004). Respondent contends he was
unable to confront his accusers, and therefore, he claims, the psychiatrists should not be
allowed to rely upon hearsay in the form of police reports and police interviews with the
victims to determine whether respondent has the propensity to commit sex offenses in the
future. In the alternative, respondent contends the State failed to prove beyond a reasonable
doubt that he is a sexually dangerous person.
¶ 24 A. Constitutional Challenge
¶ 25 We begin by noting:
“All statutes carry a strong presumption of constitutionality. [Citation.] To overcome
this presumption, a party challenging a statute must clearly establish that it violates the
constitution. [Citation.] This court will affirm a statute’s constitutionality if the statute
is reasonably capable of such an interpretation. [Citation.] The question of whether a
statute is unconstitutional is a question of law, and our review is de novo. [Citation.]”
People v. Johnson, 225 Ill. 2d 573, 584 (2007).
¶ 26 Under Crawford, “testimonial” out-of-court statements are admissible only where (1) the
declarant is unavailable, and (2) the defendant has had a prior opportunity to cross-examine
the declarant. Crawford, 541 U.S. at 53-54. Our supreme court has observed that “[t]he sixth
amendment guarantees that ‘[i]n all criminal prosecutions, the accused shall enjoy the right
*** to be confronted with the witnesses against him.’ ” People v. Williams, 238 Ill. 2d 125,
142 (2010) (quoting U.S. Const., amend. VI), aff’d, Williams v. Illinois, 567 U.S. ___, 132
S. Ct. 2221 (2012).
¶ 27 However, we are not faced with a criminal prosecution in this case. It is understood that
proceedings conducted under the Act are civil in nature. People v. Burns, 209 Ill. 2d 551, 553
(2004). Under the Act, the State may seek an involuntary, indeterminate commitment in lieu
of a criminal prosecution if a respondent is charged with a criminal offense and is believed
to be sexually dangerous. Burns, 209 Ill. 2d at 553. A sexually dangerous person is defined
as a person who has suffered from a mental disorder for a period of not less than one year,
who has criminal propensities to the commission of sex offenses, and who has demonstrated
propensities toward acts of sexual assault or sexual molestation of children. 725 ILCS
205/1.01 (West 2008).
¶ 28 Though these proceedings are civil in nature (725 ILCS 205/3.01 (West 2008)), a
-6-
respondent is entitled to counsel, may demand a jury trial on the State’s petition (725 ILCS
205/5 (West 2008)), and must be proved sexually dangerous beyond a reasonable doubt (725
ILCS 205/3.01 (West 2008)). That is, the respondent is “provided with some of the same
procedural rights guaranteed in a criminal proceeding.” People v. Trainor, 196 Ill. 2d 318,
324 (2001). This is so because the proceedings may result in a respondent’s deprivation of
liberty and incarceration for psychiatric treatment. Trainor, 196 Ill. 2d at 328.
¶ 29 The supreme court has stated that the purpose of the Act is “(1) to protect the public by
sequestering a sexually dangerous person until such a time as the individual is recovered and
released, and (2) to subject sexually dangerous persons to treatment such that the individual
may recover from the propensity to commit sexual offenses and be rehabilitated.” Trainor,
196 Ill. 2d at 323-24. Therefore, the Act is aimed at care and treatment, rather than
punishment and deterrence. Trainor, 196 Ill. 2d at 325.
“While the question of whether an individual is a sexually dangerous person is one
of fact, it is one which, by its nature, cannot be answered by a court or jury without
hearing the opinions of people who have a special knowledge in the field of mental
disorders and sexual aberration. [Citation.] Thus, after filing a petition alleging sexual
dangerousness, the trial court must appoint two psychiatrists to make a personal
examination of the person so charged and determine whether such person is sexually
dangerous. 725 ILCS 205/4 (West 1998).” Trainor, 196 Ill. 2d at 327.
The two psychiatrists must rely on their personal examinations of respondent in light of their
professional expertise to determine the issue. Drs. Killian and Jeckel testified that to do so,
they each review an overall history of a respondent, including prior arrest records, police
reports, witness statements, mental-health records, and any other documents they find
relevant to the issue to be determined. In fact, section 5 of the Act provides that “it shall be
competent to introduce evidence of the commission by the respondent of any number of
crimes together with whatever punishments, if any, were inflicted.” 725 ILCS 205/5 (West
2008). This information, respondent argues, is hearsay and should not be allowed to be used
in the jury’s determination of whether he is a sexually dangerous person.
¶ 30 Our supreme court has noted that in proceedings under the Act, even though they are
considered civil in nature, the right to due process applies and “entitles the defendant to the
right to confront and cross-examine witnesses testifying against him.” Trainor, 196 Ill. 2d
at 329. “[O]ur legislature intended rigid adherence to rules of evidence and that every
necessary element of the State’s petition be proved by competent evidence.” Trainor, 196
Ill. 2d at 329. Thus, Crawford applies to proceedings under the Act.
¶ 31 The issue in this case though is whether the testimony of the psychiatrists, by relying, at
least partially, on hearsay evidence not subject to cross-examination, violated Crawford and
in turn, violated respondent’s right to confront witnesses against him. Based on the
following, we find no constitutional violation.
¶ 32 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.” People v. Lovejoy, 235 Ill. 2d 97, 142
(2009). This was first decided in Wilson v. Clark, 84 Ill. 2d 186 (1981), a decision in which
-7-
our supreme court adopted Federal Rules of Evidence 703 and 705 (Fed. Rs. Evid. 703, 705),
governing the content of an expert’s testimony. “[A]n expert may give opinion testimony
which relies upon facts and data not in evidence, as long as the underlying information is of
the type reasonably relied upon by experts in the particular field.” Lovejoy, 235 Ill. 2d at 142.
“While the contents of reports relied upon by experts would be inadmissible as hearsay if
offered for the truth of the matter asserted, an expert may disclose the underlying facts and
conclusions for the limited purpose of explaining the basis for his opinion.” People v. Nieves,
193 Ill. 2d 513, 528 (2000).
¶ 33 “The underlying information ‘must be sufficiently trustworthy to make the reliance
reasonable.’ [Citation.] 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.’ ” In re Commitment of Hooker,
2012 IL App (2d) 101007, ¶ 51 (quoting Bass v. Cincinnati Inc., 281 Ill. App. 3d 1019, 1024
(1996), and Lovejoy, 235 Ill. 2d at 143). This standard has been codified in the Illinois Rules
of Evidence, effective January 1, 2011. See Ill. R. Evid. 703 (eff. Jan. 1, 2011) (“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.”).
¶ 34 Both experts identified several types of documents considered relevant by psychiatrists
in gathering a respondent’s history, including police reports, witness statements, health
records, and mental-health records. The documents relied upon by Drs. Killian and Jeckel
“contained a wide range of data about respondent, including his own statements and
admissions as well as opinions and observations of him and even accusations against him,
couched in possibly multiple levels of hearsay.” Hooker, 2012 IL App (2d) 101007, ¶ 63
(addressing a respondent’s inadmissible hearsay argument in the context of a sexually violent
person case).
¶ 35 However, the information gathered from the various documents contained competent
factors for the experts to consider in conducting their evaluations. In particular, the
information contained in the police reports and witness statements, though testified to at trial
by the experts, was not admitted as substantive evidence. The circuit court instructed the jury
that such evidence was admitted “for the limited purpose of explaining the basis of the expert
opinion; it should not be considered *** as substantive evidence as to the issue of whether
the defendant has demonstrated a propensity to commit sex offense[s].” Each expert testified
he relied upon the information contained in these police reports and other documents in
making his overall determination of respondent’s sexual dangerousness, as is typical of
experts in the field of psychiatry.
¶ 36 Although the information testified to by the State’s experts (the contents of the 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 does not trigger a confrontation violation. 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
-8-
here were subject to cross-examination. Consequently, we hold respondent’s right to confront
witnesses was not violated by the presentation of the testimony of Drs. Killian and Jeckel.
Wilson, 84 Ill. 2d at 194 (“allowing expert opinions based on facts not in evidence dispenses
with ‘the expenditure of substantial time in producing and examining various authenticating
witnesses. *** [The physician’s] validation, expertly performed and subject to cross-
examination, ought to suffice for judicial purposes.’ ” (quoting Fed. R. Evid. 703, Advisory
Committee Note)). That is, “the confrontation clause does not bar the admission of
testimonial statements that are admitted for purposes other than proving the truth of the
matter asserted.” Williams, 238 Ill. 2d at 142.
¶ 37 Recently, the United States Supreme Court affirmed our supreme court’s decision in
Williams, where a plurality of the Supreme Court, composed of Chief Justice Roberts and
Justices Kennedy, Breyer and Alito, held that the confrontation clause of the sixth
amendment was not implicated by expert opinion testimony from a forensic DNA analyst
who did not personally conduct the DNA analysis. The Court affirmed the judgment of the
Illinois Supreme Court. Williams, 567 U.S. at ___, 132 S. Ct. at 2244. The plurality of the
Court concluded that the confrontation clause was not violated. The Court majority held:
“We now conclude that this form of expert testimony does not violate the
Confrontation Clause because that provision has no application to out-of-court
statements that are not offered to prove the truth of the matter asserted. When an expert
testifies for the prosecution in a criminal case, the defendant has the opportunity to cross-
examine the expert about any statements that are offered for their truth. Out-of-court
statements that are related by the expert solely for the purpose of explaining the
assumptions on which that opinion rests are not offered for their truth and thus fall
outside the scope of the Confrontation Clause.” Williams, 567 U.S. at ___, 132 S. Ct. at
2228.
The Court further noted: “For more than 200 years, the law of evidence has permitted the sort
of testimony that was given by the expert in this case. Under settled evidence law, an expert
may express an opinion that is based on facts that the expert assumes, but does not know, to
be true.” Williams, 567 U.S. at ___ , 132 S. Ct. at 2228. Overall, the Illinois Supreme Court’s
decision remains unaffected and the rule stands that the confrontation clause is not violated
when an expert’s testimonial statements are admitted for purposes other than proving the
truth of the matter asserted. Williams, 238 Ill. 2d at 142.
¶ 38 It is apparent from the record that Drs. Killian and Jeckel did not testify as to the contents
of the police reports and other documents to establish the truth of the matter asserted in those
reports. Rather, the information, as testified to, was presented for the purpose of explaining
the bases for their opinions. See Lovejoy, 235 Ill. 2d at 143. “Consequently, there was no
confrontation clause violation.” Williams, 238 Ill. 2d at 144.
¶ 39 For the foregoing reasons, we find no error in the trial court’s decision to allow the
State’s experts to testify regarding respondent’s past misconduct as it pertained to their
evaluations. The testimony did not violate respondent’s constitutional right to confront
witnesses against him.
-9-
¶ 40 B. Sufficiency of the Evidence
¶ 41 Next, respondent challenges the sufficiency of the evidence. In particular, he contends
the State failed to present sufficient evidence to prove the fourth and fifth propositions set
forth in the jury instruction defining a sexually dangerous person. He claims the experts’
testimony on these matters was unsatisfactory since they cannot possibly accurately predict
the future. He contends this inability to predict leads to the reasonable conclusion that they
cannot state, beyond a reasonable doubt, that respondent “will engage in the commission of
sex offenses in the future if not confined.”
¶ 42 We begin with the language of the Act, which defines the term “sexually dangerous
persons” as follows:
“All persons suffering from a mental disorder, which mental disorder has existed for
a period of not less than one year, immediately prior to the filing of the petition
hereinafter provided for, coupled with criminal propensities to the commission of sex
offenses, and who have demonstrated propensities toward acts of sexual assault or acts
of sexual molestation of children ***.” 725 ILCS 205/1.01 (West 2008).
¶ 43 Pursuant to this definition, commitment under the Act requires the State to convince the
trier of fact beyond a reasonable doubt (725 ILCS 205/3.01 (West 2008)) that (1) the person
has a “mental disorder” of the prescribed duration, (2) the mental disorder is associated with
criminal propensities to the commission of sex offenses, and (3) the person has actually
demonstrated that propensity. This statutory definition and the supreme court’s decision in
People v. Masterson, 207 Ill. 2d 305, 330 (2003), were used to fashion the jury instruction,
which set forth five propositions the State needed to prove in order for the jury to find
respondent to be a sexually dangerous person. In this appeal, respondent challenges the
sufficiency of the evidence related only to the final two propositions, namely that (1)
respondent had “demonstrated propensities toward acts of sexual assault or sexual
molestation of children,” and (2) it was “substantially probable the respondent will engage
in the commission of sex offenses in the future if not confined.”
¶ 44 On appeal from a jury’s ruling on a sexually-dangerous-person petition, the reviewing
court will affirm the judgment, after considering all of the evidence introduced at trial in the
light most favorable to the State, if it determines that any rational trier of fact could have
found the essential elements to be proved beyond a reasonable doubt. People v. Bailey, 405
Ill. App. 3d 154, 171 (2010). “The reviewing court will not substitute its judgment for that
of the trial court or jury on the factual issues that have been raised in the petition, unless the
evidence is so improbable as to raise a reasonable doubt that the defendant is a sexually
dangerous person.” Bailey, 405 Ill. App. 3d at 171.
¶ 45 To prove the fourth proposition, that respondent has demonstrated propensities toward
acts of sexual assault or sexual molestation of children, the State was required to prove
respondent had committed or attempted to commit at least one act of sexual assault or
molestation. People v. Allen, 107 Ill. 2d 91, 105 (1985). The State was not required to prove
multiple sex crimes. Allen, 107 Ill. 2d at 105. The primary purpose of the definition in the
statute (and the corresponding propositions set forth in the jury instructions) is for the trier
of fact to predict a respondent’s future conduct. Thus, there exists the requirement that a
-10-
respondent must have demonstrated the propensity by the commission of at least one act.
This way, the determination of whether the respondent is a sexually dangerous person will
be based on something more than “psychological speculation.” Allen, 107 Ill. 2d at 105.
¶ 46 In this case, the State introduced a certified copy of respondent’s (1) 1987 conviction for
criminal sexual abuse of Sheri, and (2) 2002 conviction for criminal sexual abuse of Ashley,
who was 13 years old. Pursuant to Allen, this evidence alone was sufficient to prove
respondent had demonstrated propensities toward acts of sexual assault. Contrary to
respondent’s claim, the State did not rely on witnesses who “relied upon both hearsay reports
which were inadmissible.” As discussed in our analysis above, Drs. Killian and Jeckel were
entitled to rely upon, and testify to, the contents of the documents which they reviewed in
preparing their reports. Nevertheless, our supreme court in Allen held that the State
sufficiently satisfies its burden of proving a respondent’s propensities by proving respondent
committed at least one act of sexual assault or molestation. Allen, 107 Ill. 2d at 105. The
certified copies of respondent’s convictions introduced into evidence satisfied the State’s
obligation.
¶ 47 Respondent also claims the State failed to put forth sufficient evidence to prove the fifth
proposition, that it was substantially probable respondent will engage in the commission of
sex offenses in the future if not confined. He contends the experts’ testimony was
“unsatisfactory and clearly a reasonable doubt existed as to the fifth proposition.” He claims
the experts are unable to predict the future and therefore, cannot determine beyond a
reasonable doubt that respondent will engage in the commission of sex offenses in the future
if not confined.
¶ 48 On this subject, this court has stated:
“While ‘the statute is primarily concerned with prediction of the defendant’s future
conduct’ (Allen, 107 Ill. 2d at 105, 481 N.E.2d at 697), the statute does not require proof
that anything ‘will’ happen in the future. As respondent pointed out at trial, it is
impossible to prove what ‘will’ happen in the future. The State need only prove the
respondent has demonstrated his propensity to commit acts. Having a propensity to
commit acts necessarily implies that the propensity will be acted upon in the future.”
People v. Hancock, 329 Ill. App. 3d 367, 377 (2002).
¶ 49 The testimony of both well-qualified experts supported the State’s claim that it was
substantially probable that respondent would reoffend if he was not confined. Each expert
stated his opinion to this effect based on his respective review of the documentary evidence
and his personal interview with respondent. Dr. Killian relied on three actuarial instruments
in determining respondent’s likelihood of reoffending. He believed these instruments
provided a reliable assessment of the risk. Coupled with his interview, his diagnosis of
respondent’s mental disorder, and his review of the documents provided, he opined with
reasonable certainty (a stated 90% certainty) that it was substantially probable that
respondent would commit a sex offense in the future if not confined.
¶ 50 Dr. Jeckel noted respondent’s pattern of surprising and “blitzing” his victims with
aggression, as well as his practice of portraying the victims as the aggressors and himself as
a victim. He concluded that these characteristics, coupled with his observations from the
-11-
clinical interview of respondent and his review of the documents, supported his opinion that
he too believed it was substantially probable that respondent would reoffend if not confined.
¶ 51 We conclude, based on the evidence presented at trial, any reasonable jury could have
found the elements sufficiently proved to determine respondent was a sexually dangerous
person. The evidence was not so improbable as to raise a reasonable doubt. See Bailey, 405
Ill. App. 3d at 171.
¶ 52 III. CONCLUSION
¶ 53 For the foregoing reasons, we affirm the trial court’s judgment.
¶ 54 Affirmed.
-12-