ILLINOIS OFFICIAL REPORTS
Appellate Court
In re Commitment of Hardin, 2013 IL App (2d) 120977
Appellate Court In re COMMITMENT OF TOMMY O. HARDIN (The People of the
Caption State of Illinois, Petitioner-Appellee, v. Tommy O. Hardin, Respondent-
Appellant).
District & No. Second District
Docket No. 2-12-0977
Filed September 25, 2013
Held On appeal from respondent’s commitment pursuant to the Sexually
(Note: This syllabus Violent Persons Commitment Act, the appellate court held that the
constitutes no part of admission of the testimony of his parole agent that there was a strong
the opinion of the court probability that respondent would engage in sexual violence in the future
but has been prepared did not result in error, the evidence showing that respondent was unable
by the Reporter of to control his impulses and follow rules and that it was substantially
Decisions for the probable that he would reoffend was sufficient to establish beyond a
convenience of the reasonable doubt that he was sexually dangerous, and the trial court’s
reader.)
refusal to allow respondent to make a statement at the dispositional
hearing was not an abuse of discretion, especially in view of the
differences between a dispositional hearing and a sentencing hearing.
Decision Under Appeal from the Circuit Court of Du Page County, No. 07-MR-1685; the
Review Hon. Bonnie M. Wheaton, Judge, presiding.
Judgment Affirmed.
Counsel on William G. Worobec, of Law Office of William G. Worobec, P.C., of
Appeal Wheaton, for appellant.
Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
Solicitor General, Michael M. Glick and Erin M. O’Connell, Assistant
Attorneys General, of counsel), for the People.
Panel 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, 391 Ill. App. 3d 211, 216, 221 (2009). Our
supreme court granted respondent leave to appeal and affirmed this court’s judgment. See
In re Detention of Hardin, 238 Ill. 2d 33, 54 (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
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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 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 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
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.
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
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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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.
¶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.
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
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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, 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, 379 Ill. App. 3d 585, 604 (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, 354 Ill. App. 3d 373,
377-78 (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,
2012 IL App (1st) 112191, ¶ 57 (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 imposed. The petitioner may present expert testimony from both the Illinois
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Department of Corrections evaluator and the Department of Human Services
psychologist.” Id.
¶ 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, 2012 IL App (1st) 112191, ¶ 68. The
legislature’s intent is best determined by examining the language used in the statute and
giving the words their plain and ordinary meaning. Id. 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 id. The construction of a statute presents a question of law
that we review de novo. Id.
¶ 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, 333 Ill. App. 3d 906 (2002). There, the victim of one of the respondent’s prior
offenses was called as a witness. Id. at 908-09. The respondent objected to her testimony and
offered instead to stipulate that he had pleaded guilty to sexually assaulting her. Id. at 909.
The trial court overruled the objection, and the victim testified about the details of the
assault. Id.
¶ 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, 313
Ill. App. 3d 972, 979 (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
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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, 2012 IL App (1st) 112191, ¶ 57 (noting that decision concerning
whether civil or criminal plain-error rule applies is unnecessary when no error arose at all).
¶ 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, 354 Ill. App. 3d
at 380. 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, 393
Ill. App. 3d 431, 455 (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, 321 Ill. App. 3d 178, 189 (2001)
(quoting In re Detention of Bailey, 317 Ill. App. 3d 1072, 1085-86 (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 “[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
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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 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, 238 Ill. 2d at 41), 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,
184 Ill. 2d 260, 272 (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, 2013 IL App (4th)
120299, ¶ 29. 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.
¶ 28 Citing People v. Fisher, No. C065889, 2011 WL 3038687 (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
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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 Fisher 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 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, 2012 IL App
(1st) 112191, ¶ 73.
¶ 30 For these reasons, the judgment of the circuit court of Du Page County is affirmed.
¶ 31 Affirmed.
3
Fisher is questionably persuasive given, among other things, the fact that it is unpublished.
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