2017 IL App (1st) 160649
FIRST DIVISION
September 25, 2017
No. 1-16-0649
IN RE THE COMMITMENT OF KIRK HAUGEN: ) Appeal from the
) Circuit Court of
(People of the State of Illinois, ) Cook County.
)
Petitioner-Appellee, )
) No. 10 CR 80014
v. )
)
Kirk Haugen, ) The Honorable
) Alfredo Maldonado,
Respondent-Appellant). ) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justices Simon and Mikva concurred in the judgment and opinion.
OPINION
¶1 Respondent-appellant, Kirk Haugen (hereinafter "respondent"), who had previously been
convicted of sexually violent offenses, was found to be a sexually violent person (SVP) and
committed to the control and custody of the Illinois Department of Human Services. On appeal
from his designation as a SVP, respondent argues (1) the State failed to prove he is a sexually
violent person because the State did not show a substantial probability to re-offend; (2) the trial
court erred in refusing to tender both his special interrogatories thereby depriving him of an
opportunity to test the jury's general verdict, and (3) the trial court erred in refusing to give his
jury instruction that he could not be committed based on his prior criminal convictions alone.
No. 1-16-0649
¶2 For the following reasons, we find no errors with the trial below and affirm respondent's
adjudication as a sexually violent person.
¶3 JURISDICTION
¶4 On August 20, 2010, the Circuit Court of Cook County found probable cause to detain
respondent pursuant to the Sexually Violent Person Commitment Act. 725 ILCS 207/1 et seq.
(West 2014). On November 2, 2015, a jury found respondent to be a sexually violent person. On
February 5, 2016 the trial court denied respondent's motion for a new trial and ordered
respondent committed to the custody and control of the Illinois Department of Human Services.
Respondent filed his notice of appeal on February 19, 2016. Accordingly, this court has
jurisdiction over this appeal pursuant to Article VI, Section 6 of the Illinois Constitution, and
Illinois Supreme Court Rules 301 and 303. Ill. Const. 1970, art. VI, §6; Ill. S. Ct. R. 301 (eff.
Feb. 1, 1994); Ill. S. Ct. R. 303 (eff. May 30, 2008).
¶5 BACKGROUND
¶6 On August 9, 2010, the State petitioned the Cook County Circuit Court to have
respondent committed as a sexually violent person pursuant to the Sexually Violent Person
Commitment Act (725 ILCS 207/1 et seq. (West 2014)) (the Act). The petition included
certificates of respondent's 1991, 1994, and 2005 Cook County convictions for aggravated
criminal sexual abuse. The petition also included an evaluation prepared by Dr. John Arroyo,
Psy.D (hereinafter "Dr. Arroyo"). Dr. Arroyo diagnosed respondent with (1) "paraphilia, not
otherwise specified non-consent," and (2) "personality disorder not otherwise specified with
antisocial features." Dr. Arroyo observed that respondent had a "long history" of sexually
assaulting boys, "reoffended while under community supervision," and "failed to accept
responsibility" for his crimes. Based on the results of various actuarial instruments, Dr. Arroyo
-2-
No. 1-16-0649
concluded, respondent "is a substantial and continuing risk for sexual offense recidivism."
Accordingly, he recommended that respondent be considered a SVP and civilly committed.
¶7 At trial, the State called Dr. Arroyo to testify on its behalf and he was admitted as an
expert in "sex-offender evaluations and/or risk assessment." Dr. Arroyo opined that respondent
met all the criteria to be considered a SVP. In reaching this conclusion, Dr. Arroyo considered a
variety of data, including respondent's extensive criminal history. Between the ages of twenty-
four and thirty-nine, respondent had been convicted of twenty-eight sexually violent offenses
against children between seven and fourteen years old. Dr. Arroyo testified that in several of
those cases respondent had threatened to kill the victim if he reported the crime. While on bond
pending eight separate aggravated-criminal sexual abuse cases, respondent committed yet
another sexual offense, of which he was later convicted. After being released from prison for his
initial crimes, respondent forced his way into a fourteen-year-old boy's home, sexually assaulted
him despite the boy's protestations and attempts to escape. Dr. Arroyo stated that these crimes
demonstrated respondent's lack of self-control, even under supervision. Dr. Arroyo testified that,
during his interview with respondent, respondent denied having committed any of his crimes
despite having pled guilty to them. Dr. Arroyo concluded that respondent's failure to
acknowledge his crimes indicated he was more likely to reoffend.
¶8 Dr. Arroyo also considered the results of two actuarial risk-assessment tests, which
indicate the probability of a sex offender's recidivism based on known risk factors. Respondent's
score on the Static-99R test indicated that he posed a high risk to reoffend. Respondent's score on
the HARE psychopathy checklist was low, which Dr. Arroyo testified was common among child
molesters.
-3-
No. 1-16-0649
¶9 Dr. Arroyo issued two reports in this case: one is 2010 and one in 2015. In his 2010
report, using the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-
4), Dr. Arroyo diagnosed respondent with "(1) paraphilia not otherwise specified non-consent,"
and "(2) other personality disorder not otherwise specified with antisocial features." In his 2015
report using the Diagnostic and Statistical Manual of Mental Disorders – Fifth Edition (DSM-5),
Arroyo diagnosed respondent with (1) "pedophilic disorder nonexclusive type…sexual interest
males," (2) "other specified paraphilic disorder, sexual interest in non-consenting partners," and
(3) "other specified personality disorder with antisocial features." A penile plethysmograph test
that respondent took between 2010 and 2015 showing his sexual interest in young boys
convinced Dr. Arroyo to diagnose respondent with pedophilic disorder in addition to sexual
interest in non-consenting partners.
¶ 10 Dr. Arroyo concluded, to a reasonable degree of psychological certainty, that respondent
met all SVP criteria. He found that respondent was "substantially probable" to reoffend.
¶ 11 On cross-examination, Dr. Arroyo acknowledged some inconsistency in his diagnosis
from 2010 to 2015. He acknowledged that in his original report he did not diagnose respondent
with pedophilia and admitted there was no diagnostic reason for not making this diagnosis. Dr.
Arroyo could not define how he determined respondent was aroused by non-consenting sex and
why that was different from his pedophilic desires. Dr. Arroyo admitted that respondent had no
arousal on the penile plethysmograph to non-consenting sex. He also admitted that respondent's
personality disorder did not predispose him to sexual violence. Finally, he acknowledged that it
was unclear how the dynamic risk factors contributed respondent's overall risk for sexual
violence.
-4-
No. 1-16-0649
¶ 12 The State also called Dr. Kimberly Weitl (hereinafter "Dr. Weitl") to testify against
respondent and she was admitted as an expert in SVP evaluation, diagnosis, and risk assessment.
She also concluded that respondent met all the SVP criteria. Dr. Weitl prepared evaluations of
respondent in 2010, 2011, and 2015. After each evaluation, she concluded respondent met all
SVP criteria. Like Dr. Arroyo, Dr. Weitl relied on a variety of information, including
respondent's criminal history. Dr. Weitl concluded that respondent was unable to manage his
criminally sexual behavior, even under supervision. According to Dr. Weitl, respondent's
inability to "manage his sexual deviance" was also evident because "[h]e molests children in
public places where there is high chance of getting caught" and "molests strangers" who might
report him. Dr. Weitl also found respondent's refusal to admit his crimes indicative of his
persistent dangerousness.
¶ 13 In 2010 and 2011, using the DSM-4, Dr. Weitl diagnosed respondent with pedophilia. In
2015, using the DSM-5, she diagnosed respondent with "pedophilic disorder non-exclusive type
in a controlled environment." The three actuarial tests she utilized – Static-99, Static-99R, and
Static 2002R – indicated that respondent was at "high risk" to reoffend. Based upon all the
information available to her, Dr. Weitl concluded respondent was "substantially probable to
reoffend" and met all the SVP criteria.
¶ 14 On cross-examination, Dr. Weitl conceded that respondent had been in the community
between 1995 and 2005 without being arrested for any sex offenses. She did qualify this
admission by saying that he may have avoided being caught. She acknowledged that unlike Dr.
Arroyo, she did not diagnose respondent with a personality disorder or other specified paraphilic
disorder.
-5-
No. 1-16-0649
¶ 15 After the testimony of Dr. Arroyo and Dr. Weitl, the State rested. Respondent then
moved for a directed verdict, which the trial court denied. Respondent did not put on any
witnesses in his defense.
¶ 16 During the jury instruction conference, the State objected to an instruction proposed by
respondent that stated, "[E]vidence that Respondent was convicted for or committed sexually
violent offenses before committing the offense or act on which the petition is based is not
sufficient alone to establish beyond a reasonable doubt that the person has a mental disorder."
The State argued that the proposed instruction would confuse the jury because it was repetitive
of another instruction and phrased in a different manner. The trial court agreed with the State's
reasoning and rejected its use.
¶ 17 The State also objected to respondent's two proposed special interrogatories. The first
proposed interrogatory stated, "[w]e the jury find that the Respondent, Kirk Haugen, suffers from
the mental disorder Pedophilic Disorder," and "[w]e the jury find that the Respondent, Kirk
Haugen, suffers from the mental disorder Other Specified Paraphilic Disorder." The State argued
that both interrogatories were improper and confusing. It reasoned that because there is no
obligation under the statute to prove any specific mental disorder, interrogatories asking the jury
to find that respondent has specific disorders would impose an undue burden on the State. The
State also argued the Act's mental disorder definition was contained in the jury instructions. The
trial court agreed that the two proposed interrogatories would be confusing and rejected their use.
¶ 18 The jury found respondent to be a SVP, and the court entered judgment accordingly.
Respondent moved for a new trial based on the trial court's failure to give his two proposed
interrogatories and the State's failure to prove him a SVP beyond a reasonable doubt. After
-6-
No. 1-16-0649
argument, the trial court denied respondent's motion for new trial. The trial court then ordered
respondent committed to the custody and control of the Illinois Department of Human Services.
¶ 19 Respondent timely filed his notice of appeal.
¶ 20 ANALYSIS
¶ 21 Respondent raises three issues on appeal: (1) the State failed to prove he is a sexually
violent person because it did not show a substantial probability to re-offend; (2) the trial court
erred in refusing to tender both his special interrogatories thereby depriving him of an
opportunity to test the jury's general verdict; and (3) the trial court erred in refusing to give his
jury instruction that he could not be committed based on his prior criminal convictions alone.
¶ 22 In his first issue, respondent challenges the sufficiency of the evidence used to
demonstrate his probability to reoffend. In order to commit an individual under the Act, the State
must prove that respondent has been convicted of a sexually violent offense and suffers from a
mental disorder that creates a substantial probability that he will engage in acts of sexual
violence. 725 ILCS 207/15(b) (West 2014); In re Detention of Hardin, 238 Ill. 2d 33, 43-44
(2010). When a respondent challenges the sufficiency of the evidence supporting a SVP verdict,
a reviewing court asks "only 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." In
re Detention of Lieberman, 379 Ill. App. 3d 585, 598 (2007).
¶ 23 Before this court, respondent argues that in order to establish a substantial probability that
he will engage in acts of sexual violence, the State must demonstrate that he has a recidivism rate
in excess of 50 percent. Respondent cites no authority in support of his position.
¶ 24 The Act requires that the State must prove beyond a reasonable doubt that respondent
"suffers from a mental disorder that makes it substantially probable that the [he] will engage in
-7-
No. 1-16-0649
acts of sexual violence." 725 ILCS 207/5(f) (West 2014). Respondents admits that Illinois courts
have defined "substantially probable" to mean "much more likely than not." In re Detention of
Bailey, 317 Ill. App. 3d 1072, 1086 (2000); In re Commitment of Curtner, 2012 IL App (4th)
110820, ¶ 37.
¶ 25 Respondent's argument is without merit, as it seeks to invade an area reserved for the trier
of fact. The argument merely attacks the weight to be given to certain evidence - the actuarial
tests performed by expert witnesses. It is the province of the jury to evaluate the results of any
testing along with the other evidence presented to determine whether he was "substantially
probable" to reoffend. In re Tittlebach, 324 Ill. App. 3d 6, 11 (2001) (rejecting respondent's
argument that the State must show a more then 10 percent recidivism rate as an improper attack
on the weight to be given such evidence); In re Detention of Welsh, 393 Ill. App. 3d 431, 455-56
(2009) (rejecting respondent's challenge to conclusions drawn from actuarial testing as an
improper attempt to invade an area reserved for the trier of fact). On appeal, this court will not
reweigh the evidence, or insert our opinion for that of the trier of fact. People v. Smith, 177 Ill.
2d 53, 73 (1997). Therefore, we reject his argument that the State must show a recidivism rate of
fifty percent.
¶ 26 Importantly, Dr. Arroyo and Dr. Weitl did not rely exclusively on the actuarial tests to
conclude that respondent was substantially probable to reoffend. Dr. Arroyo testified that in his
expert opinion respondent suffered from "pedophilic disorder nonexclusive type…sexual interest
males," while Dr. Weitl diagnosed respondent with "pedophilic disorder non-exclusive type in a
controlled environment." Both experts also testified to respondent's significant criminal history
and the underlying behaviors which manifested themselves during those offenses. See White,
2016 IL App (1st) 151187, ¶ 59 (stating that experts are not prohibited from relying respondent's
-8-
No. 1-16-0649
actions during prior sexual offenses). Dr. Weitl concluded respondent had a substantial
probability to reoffend based on his crimes taking place in public and against strangers who were
more likely to report the crime. Finally, both doctors testified to respondent's failure to accept
responsibility for the crimes, even though he pled guilty. It was the jury's responsibility to
determine whether the actuarial tests along with the other testimony demonstrated respondent
had a substantial probability to reoffend, and in viewing the evidence in a light most favorable to
the State, the evidence presented was sufficient.
¶ 27 In his second issue, respondent argues that the trial court erred in denying his request to
submit his special interrogatories. Proceedings involving the adjudication of a sexually violent
person are civil in nature and are therefore governed by the Illinois rules of civil procedure. 725
ILCS 207/20 (West 2014). The Code of Civil Procedure (Code) provides that juries render
general verdicts unless the nature of the case requires otherwise. 735 ILCS 5/2-1108 (West
2014). The Code provides that any party may request a jury to make special findings upon any
material question or questions of fact. Id.
¶ 28 The purpose of the special interrogatory is to test the jury's general verdict by submitting
a question that relates to an ultimate issue of fact upon which the rights of the parties depend,
and that has an answer potentially irreconcilable with the general verdict. Simmons v. Garces,
198 Ill. 2d 541, 555 (2002). "[A]n inconsistent special finding controls a general verdict as a
matter of common law." Zois v. Piniarski, 107 Ill. App. 3d 651, 652 (1982). A response to a
special interrogatory is inconsistent with a general verdict only where it is "clearly and
absolutely irreconcilable with the general verdict." Simmons, 198 Ill. 2d at 555-56. Any
interrogatory should ask a single question and not be misleading, confusing, or ambiguous. Zois,
107 Ill. App. 3d at 652. The trial court must submit the proposed special interrogatory to the jury,
-9-
No. 1-16-0649
provided the proposing party submits a question in the proper form. In re Detention of Hayes,
2014 IL App (1st) 120364, ¶ 40. A trial court's decision on whether to give a special
interrogatory is a question of law we review de novo. 735 ILCS 5/2-1108 (West 2014).
¶ 29 Respondent's special interrogatories stated: "[w]e the jury find that the Respondent, Kirk
Haugen, suffers from the mental disorder Pedophilic Disorder," and "[w]e the jury find that the
Respondent, Kirk Haugen, suffers from the mental disorder Other Specified Paraphilic
Disorder." Before this court, he argues that they should have been given because if the jury
answered no to both, he could not have been committed as a SVP. The State argues that the
special interrogatories do not meet any of the necessary requirements and the trial court correctly
rejected their use.
¶ 30 The trial court correctly declined their use because the interrogatories are co-dependent
and therefore not in a proper form. Our case law is clear that a proper special interrogatory
consists of a single, direct question that, standing on its own, is dispositive of an issue in the case
such that it would, independently, control the verdict with respect thereto. (emphasis added) Zois,
107 Ill. App. 3d at 652-53. As respondent admits in his brief, only an answer of "no" to both
interrogatories would have been inconsistent with the general verdict. Accordingly, neither of
these special interrogatories, standing on its own, was inconsistent with the general verdict or
dispositive of the issue of whether respondent had the requisite mental disorder. See Northern
Trust Co. v. University of Chicago Hospitals and Clinics¸ 355 Ill. App. 3d 230, 251-53
(2004)(rejecting the use of interlinked special interrogatories). Since the two proposed special
interrogatories were not in the proper form, the trial court did not err in rejecting their use.
¶ 31 In his last issue, respondent argues that the trial court erred in not tendering his jury
instruction that he could not be committed based on his prior criminal convictions alone. The
- 10 -
No. 1-16-0649
State argues that respondent forfeited this issue by failing to include it in his posttrial motion for
a new trial. To preserve a claim for appeal, a litigant must raise it both in a timely objection and
in a written posttrial motion. People v. Kitch, 239 Ill. 2d 452, 460-61 (2011). Otherwise, the
litigant forfeits the claim. Id. At the jury instruction conference, respondent proposed the
following: "[e]vidence that the Respondent was convicted for or committed sexually violent
offenses before committing the offense or act on which the petition is based is not sufficient
alone to establish beyond a reasonable doubt that the person has a mental disorder." After the
trial court declined to give the instruction to the jury, respondent did not raise the issue again in
his posttrial motion for a new trial. As a consequence, he has forfeited review of the claim and
we decline to consider it.
¶ 32 CONCLUSION
¶ 33 For the foregoing reasons, we find no error with the proceedings below and affirm the
jury's determination that respondent is a sexually violent person under the Act.
¶ 34 Affirmed.
- 11 -