No. 2-12-0977 Opinion filed September 25, 2013 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

In re COMMITMENT OF ) Appeal from the Circuit Court TOMMY O. HARDIN ) of Du Page County. ) ) No. 07-MR-1685 ) (The People of the State of Illinois, Petitioner- ) Honorable Appellee, v. Tommy O. Hardin, Respondent- ) Bonnie M. Wheaton, Appellant). ) Judge, Presiding. ______________________________________________________________________________

JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices McLaren and Hudson concurred in the judgment and opinion.

OPINION

¶1 Following a bench trial, respondent, Tommy O. Hardin, was found to be a sexually violent

person pursuant to the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 et seq.

(West 2010)), and he was committed to the custody of the Department of Human Services.

Respondent appeals, arguing that (1) it was improper to admit testimony from his parole officer; (2)

the State failed to prove beyond a reasonable doubt that he is a sexually violent person; and (3) the

trial court’s denial of his request to make a statement in allocution before the court committed him

was an abuse of discretion. For the reasons that follow, we affirm.

¶2 On November 19, 2007, the State petitioned the court to have respondent declared a sexually

violent person. Following a probable cause hearing, the trial court dismissed the petition, the State

appealed, and this court reversed and remanded the cause for further proceedings. See In re

Detention of Hardin,

(2009). Our supreme court granted respondent

leave to appeal and affirmed this court’s judgment. See In re Detention of Hardin,

(2010).

¶3 On remand, the cause proceeded with a trial on the issue of whether respondent is a sexually

violent person. At that hearing, Agent A.J. West testified that he is a parole officer with the Texas

Department of Criminal Justice and that he is assigned to supervise sex offenders. In this capacity,

West began supervising respondent on March 25, 2008, as respondent was allowed to serve his term

of mandatory supervised release (MSR) in Texas. According to the terms of respondent’s MSR,

which were detailed in documents that respondent signed, respondent could “[n]ot possess *** any

photographs *** that depict sexually explicit images,” he could “[n]ot own, maintain, or operate

computer equipment,” and he was to have “[n]o contact with any person 17 years of age or younger

in person or by other means.”

¶4 Three months later, West received information that respondent was using a social networking

website to communicate with young women or teenagers. West immediately went to respondent’s

residence and asked to see respondent’s computer, which respondent was allowed to use solely for

the purposes of taking computer classes. On the computer, West found that respondent was

apparently chatting with his daughter.1 West also found approximately 25 pictures of young women

1 Although no evidence was presented at trial concerning the age of respondent’s daughter, a report prepared by Dr. Leslie Kane, who was the expert respondent retained for the dispositional

hearing, indicates that respondent has two daughters, one who would have been 19 in 2008 and one

who would have been 17.

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and teenagers who were posed in sexually suggestive positions. Although none of the women or

girls were completely naked, they were dressed in bikinis or skimpy undergarments, one was topless

and covering her chest with her arms, and, in many of the pictures, the women or girls were reclining

with their legs spread open for the camera or they were exposing their bare buttocks. Because of

these violations of the terms of respondent’s MSR, respondent was sent back to Illinois. Respondent

never objected to West’s testimony.

¶5 In addition to West’s testimony, the State also presented the testimony of Dr. David Suire

and Dr. John Arroyo, who are both certified experts in psychology. After examining various records

and actuarial tools, both doctors determined that respondent suffered from two mental disorders, i.e.,

paraphilia not otherwise specified with a preference for nonconsenting teenage girls and a personality

disorder not otherwise specified, and that these disorders created a high risk that respondent would

commit sexually violent acts in the future.

¶6 Dr. Suire, who is a psychologist with the Department of Human Services, reviewed over 17

different documents in reaching the conclusion that respondent is a sexually violent person.

Although Dr. Suire wished to interview respondent before preparing the report, respondent refused.

Included in the materials that Dr. Suire did review were records from the Department of Corrections,

respondent’s criminal history, police reports, treatment records for respondent from the Department

of Human Services, and information about respondent’s MSR violation in Texas.

¶7 With regard to the facts underlying respondent’s previous convictions of various sex

offenses, Dr. Suire learned that respondent’s victims were between 12 and 15 years old.2 In order

2 Specific details concerning the various sex offenses of which respondent was convicted are well known to the parties and are put forth in both this court’s and our supreme court’s prior

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to assault his victims, respondent would use manipulation, threats, and alcohol. For example,

respondent told one of his victims, who was a runaway, that he was a millionaire and that he could

provide for her. This victim went with respondent, and, once she refused respondent’s advances,

respondent told the victim that his father was in the Mafia and that respondent could have the victim

killed if she did not consent to having sex with him. On another occasion when respondent’s

victims, who were truant from school, refused to engage in sexual acts with him, respondent got the

victims drunk and took them to a cornfield before forcing himself on them. When one of the victims

refused to engage in various sexual acts with respondent, respondent told the victim that he had a

black belt in karate and that he would kill her if she did not comply. Respondent committed these

offenses, which happened on two different occasions, when he was on MSR for convictions of sex

offenses. Dr. Suire found this, along with the fact that respondent violated the terms of his MSR in

Texas, important, because it showed that respondent has been unable to successfully complete

supervision in the community and is unwilling to avoid high-risk situations and abide by rules

imposed upon him.

opinions. As a result, we recite here only those facts pertinent to the issues raised, noting that

respondent has indicated that he does not take issue with whether he was convicted of a qualifying

offense. See 725 ILCS 207/15(b)(1)(A), (b)(4), (b)(5) (West 2010) (providing that, in order for

respondent to be found sexually violent, the State has to establish that respondent (1) has been

convicted of a sexually violent offense, (2) has a mental disorder, and (3) is dangerous to others in

that his mental disorder creates a substantial probability that he will engage in future acts of sexual

violence).

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¶8 The testimony of Dr. Arroyo, who is a forensic as well as a clinical psychologist, was

consistent with Dr. Suire’s. Dr. Arroyo found, based on over 30 documents, including respondent’s

treatment records and criminal history, that respondent presented a substantial and continuing risk

for sex offense recidivism. This conclusion was based on, among many other things, respondent’s

unwillingness to comply with the terms of MSR and complete sex offender treatment.

¶9 The trial court found respondent to be a sexually violent person. In doing so, the court stated:

“When this case was first in front of me, it was on the probable cause hearing. The State

presented a very poor witness. The respondent in turn had a superb attorney who made

mincemeat of the [S]tate’s witness’s testimony, and I made a finding based on that testimony

[that] there was no probable cause.

Today, we are here in a different setting. In contrast, the State has presented two

witnesses, whom I find to be credible and whose testimony was not shaken, despite the

superb cross-examination by [respondent’s attorney]. I find both Dr. Suire and Dr. Arroyo’s

testimony to be credible. The State has presented certified copies of the convictions. There

is no doubt that [respondent] has been convicted of not one but several instances of a

sexually violent crime, so that element of this case has been more than satisfied.

*** I *** find the doctors’ testimony with regard to diagnosis of [respondent] has

been proved by the standard beyond a reasonable doubt. I will find that [respondent] suffers

from two mental disorders, namely, paraphilia not otherwise specified with a preference for

young teenage girls, and a personality disorder not otherwise specified. So that element of

the proceeding has also been proved beyond a reasonable doubt.

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I believe that the most telling testimony in this matter has been that of Agent West

who testified as to [respondent’s] failure to comply with the requirements of his parole in the

state of Texas. ***

I think that, as well as the testimony of the State’s two witnesses, establishes beyond

a reasonable doubt that [respondent] because of his mental disorder and his lack of treatment

is substantially likely to reoffend unless he is committed to the Department of Human

Services for appropriate treatment in the treatment and detention facility.”

¶ 10 Soon thereafter, respondent moved the trial court to reconsider, arguing that the court should

not have placed so much weight on West’s testimony, because the violations of respondent’s MSR

were not also violations of the law. The trial court denied the motion. In doing so, the court

observed:

“[T]he Court had the benefit of not only [West’s] testimony but the doctors[’] as well. I am

well aware that there are many requirements of [MSR]. The violation of which does not

constitute the violation of law.

However, it was a violation of [MSR], and I think that that violation of the [MSR]

is one indicator of [respondent’s] inability to control his impulses. But that, as I said was just

a minor or one part of the evidence that was presented. I think the totality of the evidence

established the likelihood of re-offending.”

¶ 11 The cause proceeded with a dispositional hearing. At the close of all the evidence,

respondent, who chose not to testify, asked to make a statement in allocution. The court refused to

allow respondent to make a statement, noting that nothing in the Act permitted respondent to do so.

After he was committed, respondent moved the court to reconsider, claiming, among other things,

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that the court erred when it denied him the opportunity to make a statement in allocution. The court

denied the motion, and this timely appeal followed.

¶ 12 Respondent raises three issues on appeal. Specifically, he argues that (1) West’s testimony

should not have been admitted at the trial; (2) he was not proved to be a sexually violent person

beyond a reasonable doubt; and (3) he was improperly denied the right to make a statement in

allocution at the dispositional hearing. We consider each argument in turn.

¶ 13 The first issue we consider is whether the admission of West’s testimony was improper. In

addressing this issue, we observe that respondent failed to object to the admission of West’s

testimony at trial. Thus, as respondent acknowledges, he has forfeited review of his claim. See In

re Detention of Lieberman,

(2007) (failure to properly preserve issue at

trial results in forfeiture of that issue on appeal). Nevertheless, respondent argues on appeal that his

forfeiture should be excused, because the admission of West’s testimony constituted plain error. See

In re Detention of Sveda,

(2004) (issues that are not preserved in the

trial court may be considered on appeal if the respondent establishes plain error). In response to

respondent’s plain-error argument, the State claims that neither the civil nor the criminal plain-error

doctrine can be invoked, because admitting West’s testimony was not error at all. See In re

Commitment of Fields,

(before addressing whether the plain-error

rule applies, court must consider whether error occurred at all). We agree with the State.

¶ 14 Analyzing whether the admission of West’s testimony was error at all begins with examining

section 35(b) of the Act (725 ILCS 207/35(b) (West 2010)). That section provides:

“At the trial on the petition 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

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imposed. The petitioner may present expert testimony from both the Illinois Department of

Corrections evaluator and the Department of Human Services psychologist.”

¶ 15 In construing this section of the Act, we are guided by the well-settled rules of statutory

construction. Specifically, the primary objective in construing a statute is to ascertain and give effect

to the legislature’s intent. Fields,

. The legislature’s intent is best

determined by examining the language used in the statute and giving the words their plain and

ordinary meaning.

In construing the statute in this way, we may not read into the statute

exceptions, limitations, or conditions for which the legislature did not provide. See

The

construction of a statute presents a question of law that we review de novo.

¶ 16 The plain and ordinary language of section 35(b) of the Act provides that, at a trial on the

State’s petition to have a respondent declared a sexually violent person, the State may present expert

testimony from both an evaluator with the Department of Corrections and a psychologist with the

Department of Human Services. Nothing in this section limits the State to that evidence. If the State

were so limited, section 35(b) would use language indicating that such evidence is the only evidence

that can be used to support the State’s allegation that the respondent is a sexually violent person.

Reading section 35(b) in this way would mandate that we read into the statute limitations for which

the legislature did not provide. As indicated, this is something that we may not do.

¶ 17 Supporting our position that West’s testimony was properly admitted is In re Detention of

Isbell,

(2002). There, the victim of one of the respondent’s prior offenses was

called as a witness.

. The respondent objected to her testimony and offered instead to

stipulate that he had pleaded guilty to sexually assaulting her.

. The trial court overruled

the objection, and the victim testified about the details of the assault.

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¶ 18 On appeal, the respondent argued that admitting the witness’s testimony was improper. Id.

at 915. The reviewing court disagreed, noting that “the testimony of the details of the sexually

violent offense that led to the prerequisite conviction under the Act is admissible ‘if relevant to the

remaining issues of whether the person has a mental disorder and is dangerous to others because the

person’s mental disorder creates a substantial probability that he or she will engage in acts of sexual

violence.’ ” Id. (quoting People v. Winterhalter,

(2000)). The court

emphasized that “[u]nder the Act, the only relevant consideration is whether a respondent presently

suffers from a mental disorder creating a substantial probability that he will engage in acts of sexual

violence in the future.” Id. at 916. Thus, as long as the victim’s testimony was relevant to establish

these elements, the court concluded, it was not error to admit her testimony concerning the details

of the sexual assault. See id.

¶ 19 Here, in line with Isbell, West’s testimony was relevant to the issue of whether respondent

is dangerous to others in that there is a strong probability that he will engage in acts of sexual

violence in the future. The court found that respondent presented such a danger after noting, among

other things, that respondent, in violation of his MSR in Texas, possessed several sexually suggestive

pictures of young women and teenagers, and was actively chatting with a teenager online, on a

computer he had solely for the permitted use of taking computer classes.

¶ 20 Given the substance of West’s testimony and the language of section 35(b), we conclude that

West’s testimony was admissible and that no error occurred. Thus, we need not consider whether

the civil or the criminal plain-error rule applies to sexually-violent-person proceedings. See Fields,

(noting that decision concerning whether civil or criminal plain-error

rule applies is unnecessary when no error arose at all).

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¶ 21 The next issue we consider is whether respondent was proved guilty beyond a reasonable

doubt of being a sexually violent person. In making this argument, respondent does not dispute that

he has been convicted of a qualifying offense and that he suffers from a mental disorder. See 725

ILCS 207/15(b)(1)(A), (b)(4) (West 2010). Rather, respondent argues only that the State failed to

establish the third element. That is, that he is dangerous to others because his mental disorder creates

a substantial probability that he will engage in future acts of sexual violence. See 725 ILCS

207/15(b)(5) (West 2010).

¶ 22 When a respondent is found to be sexually violent and appeals that finding, we consider

“whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact

could find the elements proved beyond a reasonable doubt.” Sveda,

. In

determining whether the State has proved its case beyond a reasonable doubt, we must defer to the

fact finder’s assessment of the witnesses’ credibility, resolution of conflicts in the evidence, and

reasonable inferences from the evidence. In re Detention of Welsh,

(2009).

As noted, here respondent takes issue only with the trial court’s finding that respondent is a danger

to others because there is a substantial probability that he will engage in future acts of sexual

violence. In this context, “substantial probability” means “ ‘much more likely than not.’ ” In re

Detention of Hayes,

(2001) (quoting In re Detention of Bailey,

(2000)).

¶ 23 Here, both Dr. Suire and Dr. Arroyo testified that it was substantially probable that

respondent would engage in future acts of sexual violence. The doctors based this opinion on many

things, some of which had nothing to do with West’s testimony about the violations of respondent’s

MSR. The court found both doctors credible, and, on appeal, respondent does not take issue with

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“[t]he court’s assessment of the credibility of Doctors Suire and Arroyo.” Accordingly, a rational

trier of fact could find, based on the doctors’ testimony, that respondent presented a danger to the

community in that it was substantially probable that he would commit sexually violent acts in the

future.

¶ 24 Respondent, citing the fact that the court found West’s testimony “most telling,” argues that

the court placed undue reliance on that evidence. We disagree. First, as noted, West’s testimony

was relevant to the issue of whether respondent was likely to reoffend. The doctors, who considered

the violations of respondent’s MSR in Texas, indicated that those violations, as well as the fact that

he committed new crimes in Illinois when he was on MSR here, supported their conclusion that

respondent was unable to control his impulses and would likely commit sexually violent acts in the

future. Second, although it is true that the court initially considered West’s testimony “most telling,”

the court clarified at the hearing on respondent’s motion to reconsider that, though insightful, West’s

testimony was but “one indicator of [respondent’s] inability to control his impulses” and “just a

minor or one part of the evidence that was presented.” This greatly deflates respondent’s claim that

the finding that he is a sexually violent person rested unduly on West’s testimony.

¶ 25 Additionally, respondent argues at length that the State failed to prove beyond a reasonable

doubt that the pictures West seized were sexually suggestive and were of underage girls and that he

was conversing with a minor via his computer. Resolving such issues is not directly relevant to

whether respondent is a sexually violent person. See 725 ILCS 207/5(f) (West 2010) (defining the

term “ ‘[s]exually violent person’ ”). The terms of respondent’s MSR prohibited him from

possessing any type of sexually explicit pictures and using a computer for social networking of any

kind. These violations are relevant because they show that respondent is unable to control his

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impulses and follow rules, and, as the trial court found, they suggest that respondent is a danger to

the community because it is substantially probable that he will reoffend.

¶ 26 Last respondent asserts that the trial court abused its discretion in denying him an opportunity

to make a statement in allocution at the dispositional hearing. As the parties indicate, nothing in the

Act allows a respondent to make a statement in allocution at the dispositional hearing. Nevertheless,

likening the dispositional hearing to a criminal sentencing hearing, where the legislature has

provided that a defendant may make a statement in allocution (730 ILCS 5/5-4-1(a)(6) (West 2010)),

respondent claims that he should have been afforded that option before the court decided whether

to commit him to a secure facility or place him on conditional release. See 725 ILCS 207/40(b)(2)

(West 2010) (“An order for commitment under this Section shall specify either institutional care in

a secure facility, as provided under Section 50 of this Act, or conditional release.”). We disagree.

¶ 27 As the State indicates, the dispositional hearing, which is a civil proceeding (see 725 ILCS

207/20 (West 2010); see also Hardin,

), is drastically different from a criminal

sentencing hearing. At criminal sentencing hearings, courts are concerned with imposing

punishment in light of mitigating and aggravating factors. See People v. Latona,

(1998) (noting that, at a criminal sentencing hearing, “[i]t is the province of the trial court to balance

relevant factors and make a reasoned decision as to the appropriate punishment in each case”). In

contrast, “the Act is aimed at care and treatment, rather than punishment and deterrence.” In re

Detention of Hunter,

. Given these differences and the fact that the

Act does not provide that a respondent may make a statement in allocution at the dispositional

hearing, we conclude that the trial court did not abuse its discretion when it denied respondent the

opportunity to make a statement.

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¶ 28 Citing People v. Fisher, No. C065889,

(Cal. Ct. App. July 25, 2011),

respondent claims that he should have been afforded the option of making a statement in allocution.

In Fisher, the defendant argued that, like a defendant facing imposition of a sentence in a criminal

case, he should have been allowed to make a statement in allocution before the court decided

whether he was a sexually violent predator. Id. at *2. The appellate court disagreed, noting, among

other things, that criminal sentencing hearings (where the issue is punishment) are different from

sexually-violent-predator proceedings, and that, given the evidence presented, nothing the defendant

would have said in allocution would have altered the court’s finding that he was a sexually violent

predator. Id. The court then noted that, “[u]nlike a criminal sentencing hearing, where a trial court

may have a number of discretionary choices to make, in this [sexually-violent-predator] proceeding,

the only authorized act that could follow [a sexually-violent-predator] finding was an indeterminate

commitment.” Id.

¶ 29 Respondent claims that Fischer is helpful because, given that a court in Illinois at the

conclusion of a dispositional hearing can choose commitment to a secure facility or conditional

release, which choice is unavailable in California, respondent here should have been allowed to make

a statement in allocution to help the court decide which choice to make. We disagree. To the extent

that Fisher can be considered persuasive authority at all, it supports our conclusion that the trial court

did not abuse its discretion when it did not permit respondent to make a statement in allocution.3

That is, as we and the court in Fisher observed, the purposes of a criminal sentencing hearing and

a dispositional hearing are different. Thus, any comparison between a defendant facing imposition

of a criminal sentence and a respondent facing treatment after being found to be a sexually violent

3 Fisher is questionably persuasive given, among other things, the fact that it is unpublished. -13-

person is questionable. The fact that a trial court may impose one of two different types of treatment

following a dispositional hearing does not somehow transform the dispositional hearing into

something more akin to a criminal sentencing hearing where a defendant has the right to make a

statement in allocution. Further, unlike what a defendant might say at the conclusion of a sentencing

hearing, such as that he is remorseful for having committed the crime, perhaps justifying a reduced

sentence, respondent has not established that any self-serving statement he would have made in

allocution would have been relevant to the issue raised at his dispositional hearing. If respondent

wished to present evidence to the trial court, he should have exercised his right to do so at the

dispositional hearing. See Fields,

.

¶ 30 For these reasons, the judgment of the circuit court of Du Page County is affirmed.

¶ 31 Affirmed.

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