In re Committment of Steward

2020 IL App (1st) 181232-UNo. 1-18-1232
SIXTH DIVISION
JUNE 30, 2020
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
In re COMMITMENT OF ANTWONE STEWARD, a ) Appeal from the
Sexually Violent Person, ) Circuit Court of
) Cook County.
(THE PEOPLE OF THE STATE OF ILLINOIS, )
)
Petitioner-Appellee, )
) No. 98 CR 80005
v. )
)
ANTWONE STEWARD, ) Honorable
) Peggy Chiampas,
Respondent-Appellant). ) Judge Presiding.
JUSTICE Cunningham delivered the judgment of the court.
Justices Connors and Harris concurred in the judgment.
ORDER
¶1 Held: We affirm the trial court’s judgment revoking the respondent’s conditional release
where the State presented clear and convincing evidence that the safety of others
required revocation.
¶2 The respondent-appellant, Antwone Steward, was civilly committed as a “sexually violent
person” in 1998 under the Sexually Violent Persons Commitment Act (the Act) (725 ILCS 207/1
No. 1-18-1232
et seq. (West 1998)). The trial court conditionally released the respondent in 2016. Following an
April 2018 hearing on the State’s petition to revoke the conditional release, the trial court revoked
the respondent’s release, concluding that the “safety of others,” a standard identified in the Act
(725 ILCS 270/40(b)(4) (West 2016)), required revocation. On appeal, the respondent contends
that the trial court’s finding that the safety of others required revocation of his conditional release
was against the manifest weight of the evidence. For the following reasons, we affirm the judgment
of the circuit court of Cook County.
¶3 BACKGROUND
¶4 In 1992, the respondent was convicted of aggravated criminal sexual assault of two
children for which he received an eight-year sentence. On May 13, 1998, prior to respondent
becoming eligible for mandatory supervised release, the State sought to have the respondent civilly
committed as a sexually violent person (SVP) under the Act. 1 He had been diagnosed with
pedophilia, alcohol dependence, substance abuse, antisocial personality disorder, and borderline
personality disorder. In 2000, the respondent was found to be a SVP. He was civilly committed to
the control, care, and treatment of the Department of Human Services (DHS) and institutionalized
in a secure facility where he received treatment.
¶5 On April 13, 2016, the respondent was placed on conditional release after the parties filed
an agreed order. The agreed order was based on the opinions of two DHS doctors, who concluded
that the respondent had made sufficient progress in treatment. The trial court approved a 59-
condition treatment plan. Condition 6 of the respondent’s treatment plan required him to “[a]ttend
If a court determines that a person is a SVP pursuant to the Act, the court shall order the person to
1
be committed to the custody of the Department of Human Services for control, care, and treatment until
such time as the person is no longer a SVP. 725 ILCS 207/40(a) (West 2016).
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and fully participate in assessment, treatment and behavioral monitoring.” Condition 55 required
the respondent to “[r]efrain from watching out any/all windows of residence for sexual
gratification.” Following the language of the Act, the respondent’s plan provided that his
conditional release would be revoked if his conditional release agent believed he “failed to abide
by any condition of his release plan” or if “the safety of others” required revocation. See 725 ILCS
207/40(b)(4) (West 2016). The respondent signed and initialed a certification of compliance
indicating that he understood the plan and that his conditional release would be revoked if he failed
to abide by the plan.
¶6 At a July 15, 2016, hearing, the State informed the trial court that the respondent was
“doing fine. He did pass his polygraph exam. He has been doing treatment.”
¶7 On April 18, 2017, during a hearing on the [State’s] motion for periodic review, the parties
stipulated “to the finding of no probable cause” to believe that the respondent was no longer a
SVP. Defense counsel informed the trial court that a November 26, 2016, report from Dr. Amy
Louck Davis, a SVP evaluator for DHS, indicated that she “opine[d] *** [the respondent]
remain[ed] a sexually violent person but should remain on conditional release.” The State added
that the respondent “had a few issues on conditional release, but he’s doing okay for now.”
¶8 On July 12, 2017, the parties reiterated the above stipulation. The State added that the
respondent was “doing reasonably well on [conditional release].” The trial court entered an order
stating that there was no probable cause to believe the respondent was no longer sexually violent.
¶9 On August 16, 2017, the State filed an emergency ex parte petition for a body attachment,
asserting DHS informed the State that the respondent could no longer be safely managed in the
community. The State’s petition averred that, according to DHS, a series of events led to that
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conclusion. The most recent incident involved the respondent reporting, prior to August 1, 2017,
that he had observed an eight-year-old male child playing outside his apartment and “stroked his
penis” while watching the child on more than one occasion. At a polygraph test on August 1, 2017,
the respondent was asked if he touched or spoke with the child. The respondent answered “no” to
each question, and those answers were found to be deceptive. At the hearing on the petition, the
trial court found that the State failed to establish that the petition was an emergency and denied it.
¶ 10 On August 18, 2017, the State filed a “Petition to Revoke Conditional Release,” arguing
that the respondent violated condition 6 of his conditional release plan by “demonstrating a pattern
of withholding pertinent information.” Specifically, the State listed numerous instances where the
respondent failed to promptly reveal that he had been having more frequent sexual fantasies and
desires than he had previously reported. The fantasies and desires were about individuals,
including minors, whom he had seen in public or watched from his apartment. The State also listed
several polygraph examinations where the respondent had given answers indicative of deception.
¶ 11 The State additionally argued that the respondent violated condition 55 of his conditional
release plan by watching a neighbor come and go through the window and the peep hole of his
apartment door. He admitted to having fantasies about the woman and imagined a relationship
between them, resulting in his window being “snowed” by DHS, which prevented him from
looking out his window, and receiving a letter of admonishment from DHS in March 2017.
Additionally, the respondent reported in June 2017 that he fantasized about minors and
masturbated more frequently than previously reported. He disclosed that he had looked out his
window to observe an eight-year-old boy and “ ‘stroke[d]’ his penis.” His polygraph answers to
questions regarding his involvement with the minor boy indicated deception.
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¶ 12 Finally, the State argued that the respondent’s “lack of transparency, his withholding of
pertinent information and his inability to accept the things his [case management team] suggests
makes him dangerous. The safety of the [r]espondent and of others in the community requires that
[the] [r]espondent’s conditional release be revoked.”
¶ 13 On September 26, 2017, the respondent filed a motion to dismiss the State’s petition to
revoke his conditional release. In his motion, the respondent argued that the State failed to state
claims upon which relief could be granted because it failed to allege that: (1) he did not attend or
participate in treatment in violation of condition 6 of his conditional release plan; (2) he watched
individuals through his window for the purpose of sexual gratification in violation of condition 55
of his plan; and (3) any expert opined that the safety of others required revocation of his conditional
release.
¶ 14 On November 22, 2017, a different trial judge granted the State leave to refile its previously
denied emergency petition for body attachment. The State attached to the emergency petition, its
petition to revoke respondent’s conditional release and an updated examination report from Dr.
Davis, dated November 16, 2017. Following a hearing, the trial court granted the State’s petition
for a body attachment and issued an emergency order that the respondent be taken into DHS
custody until the trial court ruled on the State’s petition to revoke his conditional release.
¶ 15 On November 28, 2017, the State filed an amended petition to revoke the respondent’s
conditional release, and the respondent withdrew his motion to dismiss. The State’s amended
petition referenced the previously filed petition and stated, “[a] copy [of the original petition] is
attached hereto as Exhibit A and is incorporated herein.” Also attached to the amended petition
was a report from Dr. Davis, dated November 16, 2017. In the amended petition, the State cited
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the November 16, 2017, report and argued that the respondent demonstrated a “continuing pattern
of increasing risk while in the community. This has been explained in detail in the Petition to
Revoke Conditional Release. See Exhibit A.” The State added that Dr. Davis, as the evaluator
assigned to the respondent for his annual review, opined that he could not be safely managed in
the community and that he is “a great risk today.” The State asserted that DHS, the respondent’s
conditional release treatment team, and Dr. Davis all “alleged that the safety of the [r]espondent
and others requires that conditional release be revoked.”
¶ 16 On April 5, 2018, the trial court held a hearing on the State’s amended petition. The parties
stipulated that Dr. Davis was an expert in the area of sex offender evaluation with a specialty in
risk assessment and evaluation. Dr. Davis testified that she worked as a SVP evaluator for DHS
and was a licensed psychologist and sex offender evaluator. Dr. Davis had evaluated the
respondent in December 2016 and November 2017. She met with him personally during the
November 2017 evaluation for his annual reevaluation. The purpose of the evaluation was to make
a recommendation about whether the respondent could be maintained on conditional release or if
there were issues that needed to be addressed. Part of the evaluation consisted of a clinical
interview, a “thorough record review including historical record and recent records regarding
individual treatment, arrests, any background information,” and an interview with the respondent’s
current treatment provider. Dr. Davis additionally reviewed the testing that had been completed
with the respondent, including polygraph examinations and dynamic risk assessments. She also
completed risk assessment measures. Following the evaluation, Dr. Davis wrote a report.
¶ 17 Dr. Davis identified her report, which was written on November 16, 2017. Prior to trial, to
ensure her diagnoses and opinions reflected in the report were unchanged, she reviewed the clinical
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progress notes available from the respondent’s treatment detention facility. Dr. Davis diagnosed
the respondent, within a reasonable degree of psychological certainty, with pedophilic disorder,
other specified personality disorder, substance abuse disorder, and mild intellectual disability.
Pedophilic disorder involves sexual attraction that includes urges, feelings, fantasies, and
behaviors towards individuals that are prepubescent, “[t]ypically, age 13 and order [sic] by a
person that’s age 16 or over and at least 5 years older than the person they’re attracted to.” The
respondent had past convictions of sexually offending against children as young as age three. He
experienced “ongoing deviant sexual arousal [to] prepubescent children” and had reported
continued sexual arousal toward children in the past year.
¶ 18 The respondent’s personality disorder led to his general attitude toward “criminal things,”
a sense of paranoia, and difficulty with managing relationships and emotions, which all “come
together” and “make it difficult sometimes for him.” An example of his personality disorder was
the respondent’s reaction to his case management team’s decision to not allow him to visit his
family because certain family members did not meet the requirements of the conditional release
rules. The respondent blamed his team and did not trust them as much. His “activities of daily
living knowledge and understanding of how to live a mature adult experience” were impaired due
to his intellectual deficits.
¶ 19 Dr. Davis conducted a risk assessment, using the actuarial risk assessment tools, the static
99R and the static 2002R. 2 She also utilized the STABLE 2007, which she described as a “measure
of criminal,” and used it to supplement the static measures to help place the respondent in a
2
Specifically, the static 99R and the static 2002R are psychological evaluations which mainly focus
on a person’s historical conduct to predict the person’s likelihood of sexually reoffending.
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reference group for comparison purposes. Based on the respondent’s score on the STABLE 2007,
Dr. Davis used the “high risk high need” reference group for him.
¶ 20 Dr. Davis explained that the actuarial instruments “speak to [the respondent’s] likelihood
for re-offense or sexually reoffending.” The respondent had an above to well-above average risk
of reoffending compared to other sex offenders. On the static 99R, the respondent scored in the
“above average” risk range, which is compared to the average sex offender in prison. In other
words, in comparison to high risk, high needs offenders in the average range, the respondent scored
higher than average. On the static 2002R, the respondent scored two steps above average, in the
“well above average” range. The respondent’s risk is considered “static in nature, so it is expected
to have very, very little change,” although age can be a factor that dilutes risk.
¶ 21 Dr. Davis identified dynamic risk factors that applied to the respondent. Dynamic risk
factors are “things that can be [a]ffected with treatment, with time, with environmental changes”
and things that “have the opportunity to change and improve.” She stated, “For [the respondent]
there are a couple of factors that are particularly high [which] correlates with risk of re-offense
that are now present that weren’t present in the past.” The respondent’s highest risk factor, “that
is a major indicator for future re-offense,” was noncompliance with supervision. Under this risk
factor, the respondent failed to: (1) follow rules and treatment recommendations; (2) disclose
information to his treatment providers; (3) complete homework assignments; and (4) meaningfully
participate in his treatment.
¶ 22 Other risk factors that were “particularly increased for [the respondent]” were his sexual
preoccupation and ongoing deviant sexual interest. He had several incidents during his conditional
release of “increased masturbation, increased sexual arousal and sexual fantasizing about
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inappropriate or sexually deviant material.” In particular, the respondent watched and fantasized
about an eight-year-old boy. He had “deviant sexual fantasies” about the minor and “masturbate[d]
to those.”
¶ 23 The respondent additionally exhibited more moderate risk factors, including poor problem
solving, not knowing how to handle difficult situations, having some impulsivity in decision-
making, and having an ongoing pro-criminal attitude. Moderate risk factors are “associated with
precursors to sexual offending” and were seen in the respondent’s distorted thinking, “hoping he
can just get away with something and then everything will be okay or if he covers up something
or doesn’t tell, then maybe he won’t get in trouble for it.”
¶ 24 Dr. Davis testified that there were several protective factors that could lower the
respondent’s risk, including age, debilitating illness, and treatment completion. She took the
respondent’s age (43 years old) into consideration when determining his overall risk assessment.
His actuarial risk scores were lowered due to his age. She did not consider the second protective
factor because it did not apply to the respondent. Regarding the third protective factor, Dr. Davis
considered the respondent’s 18 years of treatment and completion of a five-phase treatment
program. The respondent’s treatment was particularly relevant when he was recommended for
conditional release. She added,
“It’s sort of a protective factor to make a decision to try him out on conditional
release. However, because of the sharp increase and the dynamic factors that we talked
about, the strength of that protective factor doesn’t hold enough to continue to support
ongoing conditional release.”
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¶ 25 In forming her opinion, Dr. Davis relied on the respondent’s violation reports which were
made over the course of his conditional release. Several events contributed to the respondent’s
ultimate violation report. He was “having difficulty complying with expectations related to being
transparent and disclosing necessary information for the [case management team] to adequately
monitor his risk and safety of the community.” The necessary information related to “his sexual
arousal to people he was seeing in the community” and “his sexual behaviors related to the people
he was seeing.” The respondent also had difficulty managing his relationships with his conditional
release agent and therapist.
¶ 26 While on conditional release, the respondent received verbal redirection from his therapist
and conditional release agent. Initially, the respondent received a letter of understanding in
December 2016, related to several incidents where he failed to report information that was “highly
relevant” to their ability to manage his risk and safety of the community. He had interacted with a
female neighbor in his apartment complex and failed to immediately report that contact, as he was
required to do. That interaction was of “particular concern” because the female neighbor
supposedly asked the respondent if “he could get some drugs or something related to that.” The
respondent discussed his reaction to the incident, which had been problematic because he stated
that “if he had been in another circumstance maybe he would have considered using drugs or
participating in finding drugs with his female neighbor.”
¶ 27 In March 2017, the respondent had observed several “young teens” in a store on different
occasions. He “objectified them and proceeded to develop sexual fantasies and masturbated on
several occasions all while not reporting” the incidents, as required. A June 2017 violation report
showed the respondent also observed, through his window, a young boy in his apartment complex
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on multiple occasions. He developed sexually deviant fantasies about the boy and masturbated.
The respondent failed to report the incidents or to use interventions from his treatment.
¶ 28 Dr. Davis testified that she reviewed the reports of the respondent’s polygraph
examinations as part of her evaluation and considered them as part of her opinion. Polygraph
examinations are used as a treatment tool to ensure that an individual discloses information. The
respondent completed three polygraph examinations in January 2017, May 2017, and August 2017,
respectively. The first two polygraphs were “split in the results” and indicated there was deception
on some questions and no deception on others. On each exam, the respondent showed no deception
when he was asked about having anyone come into his apartment or going into another’s
apartment. However, the tests showed deception on questions relating to having masturbated to
sexual thoughts of a child. Those topics were relevant to the respondent’s treatment and related to
Dr. Davis’ “ultimate concerns about the dynamic risk factors related to deviant sexual interest that
*** flow from how the polygraph lead [sic] into treatment lead [sic] to [her] consideration.”
¶ 29 On the final polygraph, the respondent was asked specifically about the events involving
the eight-year-old boy he had seen around his apartment complex. The questions were “roughly”
about whether he touched or spoke with the child. The respondent answered “no” to the questions,
and the test showed deception in his answers. These results showed that the issue required further
investigation. Dr. Davis explained that “the treatment is going to be why do you think you’re
showing deception on this[?] What is going on in your mind[?] What’s processing behind the
scenes about this[?] And what are your concerns about your arousal[?]”
¶ 30 The respondent’s treatment team was tasked with caring for the respondent’s needs and
protecting the community. Because the respondent was a high-risk offender, the risk to the
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community was managed through the rules of conditional release. The rules were “very
specifically laid out to assist the case management team” and to ensure that the respondent was
being treated and that the community was being protected. The rules imposed expectations on the
respondent to assist in the management of his care and safety of the community. One such
expectation was the requirement that the respondent provide information about his sexual
behavior, his urges, his thoughts, his masturbation behavior, and his contact with others in the
community. His team required this information to treat him, as well as to design an intervention to
teach him.
¶ 31 Dr. Davis’ opinion, within a reasonable degree of psychological certainty, was that the
respondent could no longer be safely managed in the community. The respondent presented a
danger to the community, due to the “sharp increase in risk related to the dynamic case risk factors,
combined with his already existing high risk status as a high risk for re-offense.” She was also of
the opinion that the respondent remained sexually violent and was not ready for discharge.
¶ 32 On cross-examination, Dr. Davis testified that she conducted an annual evaluation for the
respondent in November 2016, and its purpose was the same as the one conducted in November
2017. The respondent’s diagnoses were the same after both evaluations. The respondent’s scores
from both the static 99R and the static 2002R were identical in both the 2016 and 2017 evaluations.
The dynamic risk factors that Dr. Davis identified in the 2017 evaluation, including noncompliance
with supervision, sexual preoccupation, deviant sexual interest, poor problem-solving skills,
impulsivity, and a pro-criminal attitude, among others, were also identified in the 2016 evaluation.
In both evaluations, she placed the respondent in the high risk, high need reference group.
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¶ 33 The respondent continued with treatment while he was on conditional release. He was
physically present at his treatments, but Dr. Davis noted that “at times” he spoke with his therapist
and “sometimes he withheld.” She acknowledged that most of the information she testified to came
from treatment notes from the respondent’s therapist, which were compiled after the respondent
participated in treatment.
¶ 34 Regarding the respondent’s intellectual ability, Dr. Davis testified that she had diagnosed
him with “mild intellectual ability,” and his intellectual functioning had been known to DHS since
he began treatment in 2001. During the course of his treatment, he had been placed in specialized
programming in an adaptive environment to help with his intellectual issues.
¶ 35 Dr. Davis acknowledged that, with respect to the respondent’s substance abuse disorder,
he was in remission and had no reports of drug or alcohol abuse while out on conditional release.
She further acknowledged that while she used the polygraph test results in the course of reaching
her opinions, she agreed that there was “some controversy” surrounding them. She did not have
information regarding whether there were studies to validate the use of polygraph tests. She “could
not speak” to whether there was research that identifies unique physical reactions indicative of
deception and was not sure of specific concerns relating to using polygraphs on individuals with
intellectual disabilities.
¶ 36 In response to questioning by the trial court, Dr. Davis testified that part of what she
considered in her evaluation was the respondent’s failure to report the incidents from December
2016, March 2017, and June 2017, in which he interacted with his female neighbor, watched young
teenagers in a store and exhibited sexual fantasies, and watched the boy in his apartment complex.
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She clarified that those incidents were examples and not a comprehensive list of the respondent’s
offenses. The trial court then inquired:
“And I guess my question to you is: did this in your opinion was this an escalation?
Is that -- would that be the correct word or what is your opinion regarding these incidents?
DR. DAVIS: I think escalation is a fair term. The term that comes to mind is he
indulged further and further into his sexual deviance.
And so it started with a happenstance occurrence, you know, running into this
female in the hallway. She’s the one that initiated the conversation about, you know, drugs.
And it was evidence kind of a criminal thinking, distorted thinking.
***
Then it evolved into seeing some teenage girls which it’s not surprising he might
have arousal to that, but he’s expected to manage that. He did it. He let it go.
Didn’t report in the timely manner to his team. And then we’re into -- and so it’s
kind of like, you know, letting that take hold.
THE COURT: And not reporting?
DR. DAVIS: Not reporting -- he reported eventually on all sorts of different points
in time to different people. It’s very confusing to piece it all together. That’s how we know
as [defense counsel] pointed out, but it was not in the required manner of reporting.”
¶ 37 On continued cross-examination, Dr. Davis acknowledged that, in her reports, she did not
describe the respondent’s behavior as an “escalation” or “further indulgence.” Rather, she clarified
she used “the term [‘]sharp increase[’] which was [her] reference to this escalation, indulgence
increase that the sharp increase specific to the dynamic risk factors that are related to those
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behaviors.” Deviant sexual arousal was a dynamic risk factor that had a “sharp increase” and had
been “present for [the respondent] prior to his SVP.” Dr. Davis, however, saw “much more of the
deviant sexual arousal” which was why she described it as increasing from 2016 to 2017. She
further clarified that when she described an increase in dynamic risk factors, she was not referring
to the number of risk factors overall. Rather, she meant “the quality of the factors is more present.
So there’s more deviant sexual arousal than there was the year before. *** There is a higher amount
of sexual preoccupation.”
¶ 38 In closing argument, defense counsel argued that the hearing was on the State’s amended
petition, which only alleged one basis for revocation: safety of the community. Citing In re
Commitment of Rendon, 2014 IL App (1st) 123090, defense counsel argued there was no evidence
presented that showed the respondent was a present risk to the community. Defense counsel noted
that Dr. Davis testified to a series of incidents in 2017, but no evidence showed he was a present
risk at the time of the hearing, in April 2018. Thus, according to defense counsel, the State failed
to meet its burden of clear and convincing evidence. Defense counsel further argued that, although
the respondent was not “disclosing in a timely enough fashion,” he did ultimately disclose the
incidents to his team and his delay could be attributed to his intellectual disabilities. Again, relying
on Rendon, defense counsel argued the respondent’s deviant thoughts were insufficient, on their
own, to show he was a risk to the community.
¶ 39 In rebuttal, the State first argued that it referenced and included its original petition with
the amended petition. Nevertheless, the State agreed with defense counsel that the “real issue” was
the safety of the community, but also argued that it proved the “respondent was not fully engaged
in treatment as required by section 6 of his conditional release plan.” With respect to violating the
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treatment plan, the State noted that the respondent should have disclosed his fantasies before
masturbating in relation to those fantasies, and therefore the evidence showed he had not been
fully participating in treatment. Further, the respondent violated his treatment plan by looking at a
young boy through his window, having deviant sexual fantasies about the boy, and then
masturbating in relation to them.
¶ 40 With regard to the threat to the community, the State argued that Dr. Davis’ testimony
established the respondent’s increase in dynamic risk factors and that “those are a bigger problem
for him now than they were when he was in the treatment at the detention facility.”
¶ 41 Following arguments, the trial court concluded that Dr. Davis’ testimony was clear and
convincing evidence that the respondent could not be safely managed in the community and “was
not reporting significant incidents.” The trial court granted the State’s motion to revoke conditional
release. The trial court specifically mentioned that the State’s amended petition incorporated its
original petition, and therefore the trial court was “incorporating both of them.” The trial court
found the instant case distinguishable from Rendon because “Dr. Davis testified [] specifically as
to the dynamic factors that a risk factor being present now, but not in the past.” The trial court
noted Dr. Davis’ testimony regarding the respondent’s noncompliance with supervision, the “sharp
increase” in his sexual preoccupation and sexual deviant interests while on conditional release,
and his failure to report. In recounting Dr. Davis’ testimony, the trial court stated, “the issue is that
these violations of conditional release were not reported by [the respondent] as he was obligated.”
The trial court made clear it was only considering the polygraph results for the limited purpose “of
evidence as to Dr. Davis using that information. Not the validity of the polygraph itself, but the
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information generated from that in arriving in her -- or taking part of her evaluation and ultimately
arriving to the conclusion that she did.”
¶ 42 The trial court emphasized the respondent’s failure to report significant incidents, which
Dr. Davis considered when forming her opinion. It noted “the specifics of the conditional release
rules offered to [the respondent] and expectation by him to present that information to his team.
And had he done so in a timely manner, we may not be here at this time.” The trial court found the
“sharp increase in risk factors from the teenaged girls in the store to the 8-year-old child in his
building that he was watching and exhibited sexual fantasies about and masturbated to, that this
court does find that the risk of the respondent reoffending is substantially probable.”
¶ 43 Following the revocation of his conditional release, the respondent appealed.
¶ 44 ANALYSIS
¶ 45 We note that we have jurisdiction to consider this matter, as the respondent filed a timely
notice of appeal. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. July 1, 2017).
¶ 46 On appeal, the respondent argues the trial court’s finding that the safety of others required
revocation of his conditional release was against the manifest weight of the evidence. He argues
that the State failed to prove by clear and convincing evidence that his conditional release should
be revoked because: (1) his failure to report masturbation to deviant fantasies was “not necessarily”
a basis to conclude that the safety of others required revocation; (2) the State did not show that the
safety of others was threatened by the respondent being on conditional release; and (3) even if the
respondent’s past failures to immediately disclose made him a threat to the safety of others, the
State did not show that the respondent presented a threat to others at the time of the hearing.
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¶ 47 Under the Act, a SVP is a “person who has been convicted of a sexually violent offense
and who is ‘dangerous’ because he ‘suffers from a mental disorder that makes it substantially
probable that the person will engage in acts of sexual violence.’ ” (Emphasis omitted.) Rendon,
2014 IL App (1st) 123090, ¶ 21 (citing 725 ILCS 207/5(f) (2010)). The Act defines a mental
disorder as a “congenital or acquired condition affecting the emotional or volitional capacity that
predisposes a person to engage in acts of sexual violence.” 725 ILCS 207/5(b) (West 2016).
Proceedings under the Act are civil in nature, but the State is still required to prove beyond a
reasonable doubt that a person is a SVP. Rendon, 2014 IL App (1st) 123090, ¶ 21. Once an
individual is proved to be a SVP, he is “committed to the custody of DHS for control, care, and
treatment ‘until such time as the person is no longer a sexually violent person,’ which could
hypothetically only end upon death.” Id. (quoting In re Detention of Stanbridge, 2012 IL 112337,
¶¶ 48, 50).
¶ 48 After a SVP is institutionalized in a secure facility in order to receive treatment, he is
reexamined yearly to determine whether he has made sufficient progress to be conditionally
released. In re Commitment of Tunget, 2018 IL App (1st) 162555, ¶ 31. If conditionally released,
the SVP “remains within the custody and control of the DHS and is subject to the conditions set
by the trial court and the DHS.” Id. ¶ 32. The conditions require the SVP to “attend and fully
participate in assessment, treatment, and behavior monitoring, including, but not limited to,
medical, psychological, or psychiatric treatment specific to sex offending to the extent appropriate
and based on DHS recommendations.” Id. The SVP must additionally comply with any other
special conditions that the DHS imposes which restrict him from “high-risk situations” and limit
“access or potential victims.” 725 ILCS 207/40(b)(5)(BB) (West 2016). Where the DHS alleges
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“that a released person has violated any condition or rule, or that the safety of others requires that
conditional release be revoked, he or she may be taken into custody under the rules of the
[DHS].” 725 ILCS 207/40(b)(4) (West 2016).
¶ 49 During a proceeding to revoke a conditional release, the State is required to prove “by clear
and convincing evidence that any rule or condition of release has been violated, or that the safety
of others requires that the conditional release be revoked.” Id.; Tunget, 2018 IL App (1st) 162555,
¶ 33. “ ‘Clear and convincing evidence is defined as the quantum of proof that leaves no reasonable
doubt in the mind of the fact finder as to the veracity of the proposition in question.’
” Rendon, 2014 IL App (1st) 123090, ¶ 32 (quoting In re Gloria C., 401 Ill. App. 3d 271, 282
(2010) (overruled on other grounds by In re Rita P., 2014 IL 115798)). Revocation is required
where the respondent’s risk of re-offense is substantially probable. Id. ¶ 30. The risk of re-offense
and the threat to the safety of others “presents itself when the respondent’s mental illness is not
effectively treated.” Id. ¶ 31.
¶ 50 “[T]he inquiry in a revocation proceeding relating to the ‘safety of others’ may specifically
focus on the respondent’s progress, or regression, in treatment.” Id. Because the purpose of the
Act “anticipates and aims to prevent sexual dangerousness stemming from mental illness,” the
threat to the safety of others need not be based on “overt acts of sexual violence.” Id. Indeed, the
trial court is not required to wait until overt acts are committed or “ignore indications that certain
rule violations can themselves represent a risk to the community.” Id. However, whether the safety
of others requires revocation of conditional release is “based on present danger (as opposed to
past).” Id. ¶ 30.
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No. 1-18-1232
¶ 51 As an initial matter, the parties disagree regarding the applicable standard of review. The
respondent, relying on Rendon, 2014 IL App (1st) 123090, ¶ 32, argues the trial court’s ruling on
a petition to revoke conditional release should not be disturbed unless it is against the manifest
weight of the evidence. The State, relying on Tunget, 2018 IL App (1st) 162555, ¶ 35, responds
that there is a two-part standard of review: first, whether the trial court’s factual findings were
against the manifest weight of the evidence, and second, whether the trial court’s ultimate decision
to revoke the respondent’s conditional release is an abuse of discretion.
¶ 52 We agree with the respondent that the standard of review is whether the trial court’s ruling
on a petition to revoke conditional release was against the manifest weight of the evidence. Tunget
concerned only whether the trial court erred in finding that the respondent violated the conditions
of his release and whether his conditional release should be revoked as a result. This court applied
the two-part test in that context. Tunget, 2018 IL App (1st) 162555, ¶ 35. Tunget was not concerned
with the trial court’s factual finding “that the safety of others requires that the conditional release
be revoked” (725 ILCS 207/40(b)(4) (West 2016)), which was the basis for the trial court’s
decision in the instant case. Rendon, on the other hand, as in the case at bar, specifically focused
on that determination, and held the trial court’s ruling “that the State established by clear and
convincing evidence that the ‘safety of others’ required revocation of respondent’s conditional
release[ ] will not be disturbed unless it is against the manifest weight of the evidence, i.e., where
the opposite conclusion is clearly the proper result.” Rendon, 2014 IL App (1st) 123090, ¶ 32. We
therefore follow the standard of review set forth in Rendon.
¶ 53 Additionally, we note that the parties disagree about whether the allegations in the original
petition that the respondent violated conditions 6 and 55 in his conditional release plan are at issue
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No. 1-18-1232
in this appeal. The respondent argues that the State’s amended petition superseded its original
petition and, therefore, the allegations in the original petition that he violated conditions 6 and 55
of his release plan were abandoned by the State before the evidentiary hearing. In fact, the
respondent does not argue that any findings regarding the violations of his conditional release were
against the manifest weight of the evidence. We disagree with the respondent’s conclusion. The
State’s amended petition expressly referenced the original petition several times, incorporated it,
and attached it as an exhibit. The State argued, albeit briefly, during closing argument that the
respondent violated the conditions of the conditional release plan. Moreover, the trial court’s ruling
noted that the original petition was incorporated and that it was “incorporating both of them.”
¶ 54 That said, although the trial court did mention the violations of the respondent’s conditional
release plan, it did not specifically address whether the respondent violated conditions 6 and 55.
The basis of the trial court’s ruling was that the safety of others required revocation of the
respondent’s conditional release. Accordingly, we will review whether the court’s ruling on that
basis is supported by the record.
¶ 55 Turning to the merits of the respondent’s argument, we find that the State presented clear
and convincing evidence that the respondent constituted a threat to the safety of others. The
evidence presented established that the respondent exhibited a “sharp increase” in risk factors that
highly correlated with the risk of re-offense, including noncompliance with supervision, sexual
preoccupation, and ongoing preoccupation with sexual deviance. In particular, the respondent
failed to: follow rules and treatment recommendations; disclose information to his treatment
providers; complete homework assignments; and meaningfully participate in treatment. The
respondent had sexual fantasies about teenagers that he observed in a store. He also watched an
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No. 1-18-1232
eight-year-old boy on multiple occasions and fantasized about the child while masturbating. He
failed to report these incidents, which was required by and crucial to his team’s ability to treat him
and manage him in the community.
¶ 56 Dr. Davis specified that the respondent’s dynamic risk factors were “more present” from
2016 to 2017, so she saw “much more” deviant sexual arousal and a “higher amount of sexual
preoccupation.” Dr. Davis was of the opinion that the respondent could no longer be safely
managed in the community and was a threat to others due to the “sharp increase in risk related to
the dynamic risk factors.” Under these facts and circumstances, we cannot say that the trial court’s
conclusion that the respondent posed a threat to the safety of others was against the manifest weight
of the evidence. It was for the trial court to determine the weight to be given to Dr. Davis’
testimony, and nothing in the record or the law would require us to substitute our judgment for that
of the trial court.
¶ 57 In reaching this conclusion, we reject the respondent’s contention that Rendon, 2014 IL
App (1st) 123090, mandates reversal. As the respondent points out, Rendon specifically held that
the “safety of others ‘requires’ conditional release to be revoked based on present danger (as
opposed to past),” i.e., based on the danger that a respondent presents at the time of the hearing.
Id. ¶¶ 30, 34, 36. Thus, in Rendon, we reversed the trial court’s revocation of the respondent’s
conditional release where the respondent’s therapist testified that, at the time of the evidentiary
hearing, and after having been prescribed testosterone-lowering medication, respondent was
“moving in the right direction.” Id. ¶ 34. In that case, the respondent’s fantasies of force had
declined, he was not masturbating, he was making disclosures about sexual urges and, unlike
previously, had passed the most recent polygraph exam. Thus, we concluded that the evidence
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No. 1-18-1232
indicated that the respondent “might have posed a threat to the public” in the past but established
he had improved and the threat had “apparently diminished by the time of the hearing.” Id.
¶ 58 Unlike in Rendon, and contrary to the respondent’s claim, in this case, the evidence
established that the respondent was a threat to the public at the time of the hearing, and not merely
that he posed a threat in the past. Also, unlike Rendon, there was no evidence presented to show
that the threat the respondent posed had diminished. To the contrary, Dr. Davis testified at the
hearing that the respondent posed a threat to the community and that there was a “sharp increase”
in his sexual preoccupation and deviant sexual fantasies.
¶ 59 The respondent argues that Dr. Davis’ opinion was based on her November 16, 2017,
report, which she prepared approximately five months prior to the hearing. However, Dr. Davis
was specifically asked whether she did anything to “ensure [her] diagnoses and opinions that are
reflected in [her] report ha[d] not changed.” Dr. Davis answered that she reviewed clinical progress
notes that were available from the treatment detention facility regarding the respondent’s treatment
from the time that he was reinstitutionalized in November 2017. Her opinion remained unchanged
at the time of the hearing. To the extent that the respondent challenges Dr. Davis’ opinion, he had
the opportunity to cross-examine her at the hearing. See Tunget, 2018 IL App (1st) 162555 ¶ 46
(relying on Illinois Rule of Evidence 705 (Ill. R. Evid. 705 (eff. Jan 1, 2011) and quoting Wilson
v. Clark, 84 Ill. 2d 186, 194 (1981), to note that “ ‘the burden is placed upon the adverse party
during cross-examination to elicit the facts underlying the expert opinion.’ ”). We accordingly
reject the respondent’s arguments and affirm the trial court’s judgment revoking his conditional
release.
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No. 1-18-1232
¶ 60 CONCLUSION
¶ 61 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 62 Affirmed.
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