In re Detention of Hardin

Docket No. 108615.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

In re DETENTION OF TOMMY O. HARDIN (The People of the

State of Illinois, Appellee, v. Tommy O. Hardin, Appellant).

Opinion filed June 24, 2010.

JUSTICE KILBRIDE delivered the judgment of the court, with

opinion.

Chief Justice Fitzgerald and Justices Freeman, Thomas, Garman,

Karmeier, and Burke concurred in the judgment and opinion.

OPINION

The circuit court of Du Page County found no probable cause

supporting the civil commitment of respondent, Tommy O. Hardin,

under the Sexually Violent Persons Commitment Act (725 ILCS

207/1 et seq. (West 2006)). The State appealed, and the appellate

court reversed the trial court’s finding. See 391 Ill. App. 3d 211.

In his appeal before this court, respondent raises two issues of first

impression: (1) the jurisdiction of the appellate court after entry of a

no-probable-cause finding in a sexually violent person (SVP)

commitment proceeding; and (2) the quantum of evidence necessary

to support the State’s SVP commitment petition at a probable cause

hearing. He also challenges the sufficiency of the evidence presented

at the probable cause hearing.

We affirm the appellate court judgment. We hold that the appellate

court has jurisdiction to hear appeals from findings of no probable

cause in SVP commitment proceedings and announce the adoption of

the proper evidentiary standard in those hearings. We also conclude

that the evidence offered by the State in this case was sufficient to

satisfy our newly adopted standard.

I. BACKGROUND

In 2000, respondent was convicted of five counts of aggravated

criminal sexual abuse of a 15-year-old runaway girl committed in 1997

(720 ILCS 5/12–16(d) (West 1996)) and was sentenced to concurrent

22-year prison terms. That offense was committed while respondent

was on mandatory supervised release (MSR) following his 1992

conviction for aggravated criminal sexual abuse of a victim between

the ages of 13 and 16. His 1992 conviction, in turn, was based on acts

committed while he was on probation for a 1991 conviction for

aggravated criminal sexual abuse of a victim between the ages of 13

and 16.

On November 19, 2007, one day before respondent’s latest

scheduled MSR period, the State timely filed a petition in the circuit

court of Du Page County seeking his civil commitment under the

Sexually Violent Persons Commitment Act (725 ILCS 207/1 et seq.

(West 2006)).

The petition was supported by a report written by Dr. Ray

Quackenbush, a licensed clinical psychologist and SVP evaluator for

the Department of Corrections (DOC) and the Department of Human

Services with extensive experience and credentials in SVP evaluations.

The trial court qualified him as an expert witness without objection by

respondent. The report was based on a two-hour interview with

respondent, the results of three psychological tests administered by

Dr. Quackenbush, as well as respondent’s DOC sex offender

prerelease evaluation, his presentence report, his DOC “master file”

and medical file, and other Illinois records. In Dr. Quackenbush’s

expert opinion, respondent suffered from both “paraphilia, not

otherwise specified, nonconsenting persons” and “personality

disorder, not otherwise specified, with antisocial features” and

presented a substantial risk of committing future sexually violent

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offenses. Dr. Quackenbush’s report determined that respondent met

the criteria for civil commitment as a SVP. A probable cause hearing

was scheduled for January 2, 2008.

Dr. Quackenbush was the only witness at the probable cause

hearing. He testified about the methodology and information

underlying his opinion that respondent met the statutory criteria for

civil commitment. Dr. Quackenbush stated that his opinions were

based on materials customarily relied on by SVP evaluators, including

his interview with respondent, respondent’s available records, and the

results of the psychological tests. He concluded that respondent

suffered from the mental disorders of: (1) paraphilia, not otherwise

specified, nonconsenting persons, and (2) personality disorder, not

otherwise specified, with antisocial features. Untreated, these

disorders made respondent likely to re-offend, a conclusion also

supported by respondent’s test results and his repeated rejection of

offers for sex offender treatment while in prison.

After hearing the testimony and the parties’ oral arguments, the

trial court found no probable cause to believe respondent was a SVP

who was likely to re-offend. Initially, the court agreed with

respondent that his current convictions alone could not be used to

meet the statutory criteria. It also concluded that “there has not been

any testimony of any behavior on the part of [respondent] which

would give probable cause to believe that he suffers from any kind of

a disorder, a personality disorder. The lack of any evidence and

testimony of any disciplinary matters or anything else that would

indicate an antisocial personality really belies my ability to make a

finding that he suffers from this classified disorder.” Lastly, the court

stated that the State had not presented any evidence that respondent

continued to have an unusual interest in teenage girls, “so that there

really is no other basis for this petition, other than the conviction for

which he has served his term in the [DOC].”

Consequently, the court ordered respondent to be released and

placed on MSR. The cause did not proceed to a full trial on the merits

of the State’s civil commitment petition. The State appealed the trial

court’s finding of no probable cause and unsuccessfully attempted to

stay execution of the order pending appeal.

Respondent filed a motion to dismiss the appeal, claiming the

appellate court lacked jurisdiction because: (1) the Act does not

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authorize an appeal by the State from a finding of no probable cause

in a SVP proceeding; and (2) even if the State generally has a right to

appeal a finding of no probable cause, it cannot appeal the order in

this case because the order was not a final judgment. The appellate

court denied the motion to dismiss and later reversed the finding of no

probable cause and remanded to the trial court for further

proceedings. 391 Ill. App. 3d 211. Respondent filed a motion to

reconsider, arguing the court failed to address his jurisdictional

arguments. The appellate court denied the motion, explaining it had

previously rejected those arguments for the reasons stated in the

State’s response to the motion to dismiss the appeal. This court

allowed respondent’s petition for leave to appeal. 210 Ill. 2d R. 315.

II. ANALYSIS

Before this court, respondent raises two issues: (1) whether the

appellate court erred in holding it had jurisdiction over the State’s

appeal, and (2) whether the appellate court gave sufficient deference

to the trial court’s credibility and probable cause determinations in

reversing the finding that no probable cause existed to believe

respondent is a SVP who is likely to re-offend. We begin with the

threshold question of whether a reviewing court has jurisdiction to

hear an appeal by the State from a finding of no probable cause that

the subject of a civil commitment petition is a SVP under the Act.

A. Jurisdiction

We review de novo the purely legal issue of jurisdiction. People

v. Drum, 194 Ill. 2d 485, 488 (2000). Respondent relies on two

arguments to support his position that the State cannot appeal a

finding of no probable cause under the Act: (1) the language of the

Act establishes the legislature’s intent that the State may not appeal a

finding of no probable cause; and (2) even if the State had a general

right to appeal, the order was not a final, appealable judgment.

Respondent’s first argument is largely based on section 35(g) of

the Act, involving SVP trials. That section states:

“A judgment entered under subsection (f) of this Section

on the finding that the person who is the subject of the petition

under Section 15 is a sexually violent person is interlocutory

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to a commitment order under Section 40 and is reviewable on

appeal.” 725 ILCS 207/35(g) (West 2006).

Respondent argues that although section 35 does not specifically

address probable cause hearings, it limits appellate review to cases

when a finding of probable cause has been entered, thus barring the

appeal of a finding of no probable cause. He adds that the same

legislative intent is shown in sections 30(c) and 35(f), requiring the

court to dismiss the State’s civil commitment petition: (1) if, at the

probable cause hearing, “the court determines that probable cause

does not exist to believe that the person is a sexually violent person”

or (2) if, at the conclusion of a SVP trial, “the court or jury is not

satisfied beyond a reasonable doubt that the person is a sexually

violent person.” 725 ILCS 207/30(c), 35(f) (West 2006).

These claims involve statutory construction, presenting a pure

legal question subject to de novo review. Weather-Tite, Inc. v.

University of St. Francis, 233 Ill. 2d 385, 389 (2009). When

construing a statute, our goal is to determine and effectuate the

legislature’s intent, best indicated by giving the statutory language its

plain and ordinary meaning. Weather-Tite, 233 Ill. 2d at 389. This

court will not depart from the statute’s plain language by reading in

exceptions, limitations, or conditions in conflict with the legislature’s

intent. Weather-Tite, 233 Ill. 2d at 390.

After examining the plain language of both sections 35(f) and

35(g), we conclude those sections pertain only to judgments entered

after a full trial on the merits of the State’s petition. Here, the issue is

the State’s right to appeal a finding entered at the earlier probable

cause stage of the proceedings. Indeed, only if a finding of probable

cause is entered at this early stage would respondent ever be subject

to a trial on the merits of the State’s petition. Thus, the plain language

of the Act shows that sections 35(f) and 35(g) do not apply here. We

are not persuaded by respondent’s argument that the absence of

language in the Act affirmatively authorizing a State appeal from a

finding of no probable cause mandates the conclusion that the State

may not appeal.

Nonetheless, based on the language in section 30(c) mandating

dismissal of the State’s civil commitment petition after a finding of no

probable cause, respondent maintains that the legislature intended to

bar the State’s appeal. He contends the legislature would have

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specifically provided for an appeal, or at least a bond pending appeal,

if it had intended the State to be able to appeal. We do not believe,

however, that the absence of specific statutory language affirmatively

providing for appeals or bonds supports that interpretation. Indeed,

the primary error in respondent’s argument is his reliance on the

statute’s purported silence. His argument overlooks express statutory

language affirmatively stating that “[t]he proceedings under this Act

shall be civil in nature. The provisions of the Civil Practice Law, and

all existing and future amendments of that Law shall apply to all

proceedings hereunder except as otherwise provided in this Act.” 725

ILCS 207/20 (West 2006). Thus, the Act is not silent about the

applicable appellate rules, as respondent claims, but rather directs us

to consider the applicable civil provisions.

Section 1–107 of the Code of Civil Procedure states that

“[a]ppeals may be taken as provided for in civil cases.” 735 ILCS

5/1–107 (West 2006). In turn, Supreme Court Rule 301 notes that

“[e]very final judgment of a circuit court in a civil case is appealable

as of right.” 155 Ill. 2d R. 301. Therefore, if the trial court’s finding

of no probable cause in this case constitutes a final judgment, the State

may appeal that finding.

Accordingly, we next consider respondent’s second jurisdictional

argument, namely, that the State may not appeal here because a

finding of no probable cause in a civil SVP proceeding is not a final

judgment. Respondent compares the State’s right to appeal in this

context to its appellate rights after entry of a finding of no probable

cause in a criminal prosecution, citing a Wisconsin case, State v.

Watson, 227 Wis. 2d 167, 201, 595 N.W.2d 403, 418 (1999). He

notes that only final judgments are appealable in both contexts and

asserts that the State may not appeal from a finding of no probable

cause in a criminal case because the ruling is not final. In a criminal

case, the State’s only options are to refile its charges or seek a grand

jury indictment. He contends the outcome should be the same here,

limiting the State to filing another civil commitment petition “no more

than 90 days before [respondent’s] discharge or entry into mandatory

supervised release” (725 ILCS 207/15(b–5) (West 2006)) or “within

30 days of [his] placement onto parole or mandatory supervised

release” (725 ILCS 207/15(a)(1) (West 2006)).

We reject respondent’s argument for two reasons. First, his

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analogy to adverse rulings in criminal probable cause hearings fails

because it ignores the statute’s plain directive to apply civil law

“except as otherwise provided in this Act.” 725 ILCS 207/20 (West

2006). Because the Act does not otherwise provide for State appeals

from a finding of no probable cause, we must look to the applicable

civil law, rather than analogize to our criminal law. Second,

respondent’s argument is circular because it presumes that the reason

the State may not appeal from a finding of no probable cause in a

criminal case is because the ruling is not final without providing any

support for his presumption. In our view, respondent’s reliance on

section 30(c) of the Act supports the opposite conclusion.

Under section 30(c), the State’s petition must be dismissed if

probable cause is not found. 725 ILCS 207/30(c) (West 2006). This

court has repeatedly applied three criteria to determine whether a civil

ruling is final. A ruling is final if: (1) it terminates the litigation

between the parties, and (2) it fixes the parties’ rights, (3) “so that, if

affirmed, the trial court has only to proceed with execution of the

judgment” (Kellerman v. Crowe, 119 Ill. 2d 111, 115 (1987)). See In

re A.H., 207 Ill. 2d 590, 594 (2003); In re Curtis B., 203 Ill. 2d 53, 59

(2002); Flores v. Dugan, 91 Ill. 2d 108, 112 (1982). After a finding

of no probable cause in respondent’s case, the State’s petition had to

be dismissed under section 30(c), effectively terminating the litigation

and defining both parties’ rights, leaving only enforcement of the

judgment. Respondent was entitled to begin his MSR period, and the

State was precluded from advancing the contentions in its civil

commitment petition in the trial court. Under our case law, the trial

court’s finding that no probable cause existed to believe respondent

was a SVP constitutes a final judgment and the State was entitled to

file an appeal under the statutes and supreme court rules generally

applicable in civil cases. Thus, we affirm the appellate court’s denial

of respondent’s motions to dismiss the State’s appeal and to

reconsider the appellate judgment because we hold that the appellate

court has jurisdiction to decide the merits of State appeals from

findings of no probable cause in SVP proceedings.

B. Determination of Probable Cause

The second issue raised on appeal is whether the appellate court

gave sufficient deference to the trial court’s credibility and probable

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cause determinations in reversing the finding of no probable cause to

believe respondent is a SVP. To support a finding of probable cause

in a SVP proceeding, the evidence must establish that the subject of

the petition:

(1) has been found guilty, delinquent, or not guilty by

reason of insanity, mental disorder, or mental defect of a

sexually violent offense;

(2) has a mental disorder; and

(3) is a danger to others because the mental disorder

causes a substantial probability that the subject will commit

acts of sexual violence. See 725 ILCS 207/5(f), 15(b) (West

2006).

This appeal presents a controverted question of first impression

for this court. The parties note that the Act does not specify the

quantum of evidence necessary to establish the three elements

required for a finding of probable cause in a SVP proceeding. The

determination of the proper quantum of evidence does not involve any

questions of fact, making it a legal issue to be reviewed de novo. See

People v. Moore, 207 Ill. 2d 68, 75 (2003) (explaining that “[a]

reviewing court determines a legal question independently of the trial

court’s judgment”).

Relying on sections 35(d)(1) and 35(e), respondent argues that the

State must prove each element beyond a reasonable doubt. 725 ILCS

207/35(d)(1), (e) (West 2006). Although respondent recognizes that

section 35 specifically applies only to SVP trials, he contends it should

be provided at probable cause hearings as well as one of the many

criminal procedure protections available in probable cause hearings

under the SVP Act. These other protections include the rights to be

present at the proceeding, to remain silent, to present and cross-

examine witnesses, to have the hearing recorded, and to be

represented by counsel. 725 ILCS 207/25(c) (West 2006).

Respondent claims that if a lower burden of proof is applied, the State

could rely on his prior convictions for sexually violent offenses alone

to satisfy both the first and second elements, requiring showings that

he had committed a sexually violent offense and had a mental disorder.

He argues that result would conflict with section 35(e), stating that

evidence of the prior commission of a sexually violent offense “is not

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sufficient to establish beyond a reasonable doubt that the person has

a mental disorder.” 725 ILCS 207/35(e) (West 2006).

We are not persuaded that the proper quantum of evidence in a

probable cause hearing under the Act is provided in section 35. As we

have already noted, section 35 specifically addresses trials under the

Act, not probable cause hearings, expressing only the clear legislative

intent to apply that evidentiary standard in full SVP trials. To

determine the proper quantum of evidence in probable cause hearings

under the Act, section 20 of the Act directs us to look to the Civil

Practice Law. See 725 ILCS 207/20 (West 2006). Unfortunately,

neither the Civil Practice Law nor the Code of Civil Procedure

provides any guidance on the appropriate quantum of evidence in a

probable cause hearing under the Act. Thus, unlike the jurisdictional

issue raised in this appeal, in this instance the Act is truly silent about

the applicable standard.

Even if we look to our criminal case law, we must reject

respondent’s contention that a reasonable doubt standard is proper in

making a probable cause determination. In People v. Jackson, we

explained that

“whether probable cause exists is governed by commonsense

considerations, and the calculation concerns the probability

of criminal activity, rather than proof beyond a reasonable

doubt. [Citation.] ‘Indeed, probable cause does not even

demand a showing that the belief that the suspect has

committed a crime be more likely true than false.’ [Citation.]”

(Emphasis added.) People v. Jackson, 232 Ill. 2d 246, 275

(2009).

Although Jackson addressed probable cause in the context of a motion

to quash arrest and suppress evidence (Jackson, 232 Ill. 2d at 274),

the same concept is applicable in other criminal contexts, such as

preliminary hearings (725 ILCS 5/111–2(a) (West 2006) (making

“probable cause to believe the defendant committed an offense” the

touchstone in a preliminary hearing)). Indeed, the Illinois SVP statute

is sui generis, containing elements of various criminal and civil

proceedings. Neither defendant nor our own research, however, has

uncovered any context where probable cause must be proven beyond

a reasonable doubt. Similarly, the United States Supreme Court has

recognized the necessary “difference in standards and latitude allowed

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in passing upon the distinct issues of probable cause and guilt.”

Brinegar v. United States, 338 U.S. 160, 174, 93 L. Ed. 1879, 1889,

69 S. Ct. 1302, 1310 (1949). Because the language chosen by our

legislature has not clearly established its intent to impose the same

high burden of proof present in a criminal trial at the probable cause

stage of a SVP proceeding, this court will not impose that standard

here.

Alternatively, the State suggests we adopt the evidentiary standard

recognized in the Wisconsin case of State v. Watson, 227 Wis. 2d 167,

595 N.W.2d 403 (1999). In Watson, the Wisconsin Supreme Court

specifically addressed the quantum of evidence needed to support a

finding that a respondent is a SVP. Respondent acknowledges that the

Wisconsin SVP statute is substantially similar to our own state statute,

and our case law also supports this conclusion. See People v. Botruff,

212 Ill. 2d 166, 181 (2004) (expressly recognizing that the Wisconsin

SVP statute is similar to the Illinois SVP statute); People v.

Masterson, 207 Ill. 2d 305, 324-25 (2003) (citing with approval a

Wisconsin Supreme Court case that “considered state sexually violent

offender acts which, like our own SVPA, require proof of the

commission of a prior offense, and include specific definitions of

‘mental abnormality’ or ‘mental disorder’ ”); In re Detention of

Hayes, 321 Ill. App. 3d 178, 188 (2001) (finding the Wisconsin

Supreme Court’s interpretation of a portion of that state’s “similar

statute” persuasive); In re Detention of Bailey, 317 Ill. App. 3d 1072,

1084-86 (2000) (stating the statutory language in Wisconsin’s SVP

statute is identical to the language in the Illinois statute and finding the

analysis in the Wisconsin case law persuasive).

As the Watson court explained, the purpose of a probable cause

hearing in a SVP proceeding is “to show that there is a substantial

basis for going forward with the commitment, when it is virtually

certain that if probable cause is found, the person will remain in

custody until” the end of the proceeding, thus providing “a barrier to

improvident or insubstantial commitment petitions which are not likely

to succeed on the merits.” Watson, 227 Wis. 2d at 201, 595 N.W.2d

at 418. This purpose is similar to that of a preliminary hearing in a

Wisconsin felony case, and the court required a similar quantum of

evidence to support a finding of probable cause in both contexts.

The Watson court noted that a probable cause hearing in either

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type of proceeding is merely a “summary proceeding to determine

essential or basic facts as to probability” and “is ‘concerned with the

practical and nontechnical probabilities of everyday life in

determining whether there is a substantial basis for bringing the

prosecution and further denying the accused his right to liberty.’ ”

(Emphases added.) Watson, 227 Wis. 2d at 204, 595 N.W.2d at 420,

quoting State v. Dunn, 121 Wis. 2d 389, 396-97, 359 N.W.2d 151,

154 (1984). Similarly, the United States Supreme Court has stated:

“In dealing with probable cause, however, as the very

name implies, we deal with probabilities. These are not

technical; they are the factual and practical considerations of

everyday life on which reasonable and prudent men, not legal

technicians, act. The standard of proof is accordingly

correlative to what must be proved.

‘The substance of all the definitions’ of probable cause ‘is

a reasonable ground for belief of guilt.’ [Citation.] And this

‘means less than evidence which would justify condemnation’

or conviction, as Marshall, C.J., said for the Court more than

a century ago in Locke v. United States [citation]. Since

Marshall’s time, at any rate, it has come to mean more than

bare suspicion ***. ” Brinegar, 338 U.S. at 175, 93 L. Ed. at

1890, 69 S. Ct. at 1310-11.

Our own case law has repeatedly cited portions of the probable

cause discussion in Brinegar with approval. See People v. Jackson,

232 Ill. 2d 246, 275 (2009) (quoting in part); People v. Wear, 229 Ill.

2d 545, 564 (2008) (quoting in part); People v. Love, 199 Ill. 2d 269,

279 (2002) (quoting in part); People v. Wright, 111 Ill. 2d 128, 145-

46 (1985), rev’d in part on other grounds in People v. Boclair, 202

Ill. 2d 89 (2002) (citing and quoting in part). Thus, the approach

taken in Watson is consistent with the approach of both this court and

the United States Supreme Court when addressing questions of

probable cause in criminal cases.

In a SVP probable cause hearing, the Watson court merely

required the State to “establish a plausible account on each of the

required elements to assure the court that there is a substantial basis

for the petition.” (Emphasis added.) Watson, 227 Wis. 2d at 205, 595

N.W.2d at 420. In making that determination, the trial judge must

consider “all reasonable inferences that can be drawn from the facts in

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evidence.” Watson, 227 Wis. 2d at 205. The requirement that the

evidence supporting each element be “plausible” indicates that trial

judges need not ignore blatant credibility problems, but the Watson

court stressed that this type of hearing was “not a proper forum to

choose between conflicting facts or inferences.” Watson, 227 Wis. 2d

at 205, 595 N.W.2d at 420. Consequently if after hearing the

evidence, the trial judge decides the probable cause determination is

supported by a reasonable inference, the cause should be held over for

a full trial.

Today, we adopt the Watson evidentiary standards to guide our

own SVP probable cause proceedings. They are consistent with our

traditional approach in criminal cases and provide significant guidance

to our trial courts for probable cause hearings in SVP proceedings.

Applying these principles here, we conclude the trial court did not

apply the correct evidentiary standards. In finding that the State failed

to establish probable cause that respondent is a SVP, the trial court

weighed the conflicting evidence presented during both the direct and

cross-examination of the State’s sole witness, Dr. Quackenbush, as

well as delving extensively into the credibility of his expert testimony.

While these factors are generally relevant in a full trial on the merits

of the State’s SVP petition, they are well beyond the scope of the

limited inquiry in a probable cause hearing. As long as the State

presented enough evidence at the hearing to “establish a plausible

account on each of the required elements,” providing “a substantial

basis for the petition” when all reasonable factual inferences are

considered, probable cause is established. Watson, 227 Wis. 2d at 205,

595 N.W.2d at 420.

Here, it is indisputable that respondent has been found guilty of a

sexually violent offense, satisfying the first element. Respondent’s

argument, therefore, is limited to the sufficiency of the evidence on the

second and third elements. The second element requires evidence that

respondent has at least one mental disorder. The third element

requires evidence that respondent presents a danger to others because

his mental disorder causes a substantial probability that he will commit

other acts of sexual violence. 725 ILCS 207/5(f) (West 2006).

The State presented testimony on each of these elements from Dr.

Quackenbush, who was qualified as an expert witness without

objection. Dr. Quackenbush unquestionably had extensive experience

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as a clinician, a SVP evaluator, and an expert witness in SVP cases.

On the second probable cause element, he testified that respondent

had at least one mental disorder. Based on his two-hour interview

with respondent, his review of respondent’s criminal records and

master file, the somewhat conflicting information about respondent’s

sex offender treatment history, and the diagnostic criteria of the

Diagnostic and Statistical Manual of Mental Disorders IV (DSM-IV),

Dr. Quackenbush concluded that respondent suffered from two mental

disorders: (1) paraphilia, not otherwise specified, nonconsenting

persons, and (2) personality disorder, not otherwise specified, with

antisocial features.

According to Dr. Quackenbush, a paraphilia diagnosis requires

evidence that respondent has experienced strong sexual urges,

fantasies or behaviors with nonconsenting individuals over at least six

months at some point in his life and that they caused a major social

disruption in his life. Dr. Quackenbush testified those criteria were met

when respondent was convicted of three sex offenses involving

nonconsenting persons within five years.

Dr. Quackenbush also explained that a diagnosis of personality

disorder, not otherwise specified, with antisocial features required

evidence that respondent had a personality disorder that did not fit

within another personality disorder category. Dr. Quackenbush could

not definitively diagnose respondent with antisocial personality

disorder because insufficient information was available about whether

respondent suffered from conduct disorder before he was 15, a

necessary component of that diagnosis.

During cross-examination, respondent emphasized that Dr.

Quackenbush did not interview the victims, relying instead on

summaries of police reports and other institutional records to make

the paraphilia diagnosis, and that he had not reviewed respondent’s

DOC disciplinary history prior to making the personality disorder

diagnosis. In addition, Dr. Quackenbush had not asked respondent for

specific details about his alleged sex offender treatment while

incarcerated or his intent to further his education and marry once he

was out of prison. Lastly, Dr. Quackenbush acknowledged that

respondent had not exhibited any behavior consistent with paraphilia

during his most recent DOC term.

The trial court found that the testimony did not establish that

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respondent currently suffered from either paraphilia or personality

disorder and that his current conviction alone was insufficient to

support either diagnosis. Accordingly, the court believed it was unable

to make a finding of probable cause at that time. Building on the trial

court’s finding, respondent argues that if the mental disorder element

may be satisfied by a prior conviction for a sexually violent offense,

the State would only need to offer certified copies of the prior

conviction to establish all but one of the requisite elements. We

disagree.

While the presence of prior convictions cannot be determinative

of whether the subject of a SVP petition suffers from a mental

disorder, those convictions may, however, provide substantial

evidence of the presence of underlying behaviors and psychological

traits that combine to meet the diagnostic criteria for a particular

mental disorder. For example, here defendant was diagnosed with

paraphilia, not otherwise specified, nonconsenting persons, based on

his conduct over the time period specified in the DSM-IV, as

established by his three convictions for sex offenses in five years. The

critical component of the proper analysis is not the presence or

absence of prior related convictions, but rather whether evidence that

respondent committed acts meeting the appropriate diagnostic criteria

for a mental disorder has been presented, regardless of the source of

that evidence.

Respondent also contends the trial court correctly found that Dr.

Quackenbush’s testimony was insufficient to conclude he suffered

from a mental disorder. While the foundation of Dr. Quackenbush’s

diagnoses was directly attacked on cross-examination, the State was

not required to show more than “a plausible account” on that element

based on all reasonable inferences from the facts. At a probable cause

hearing in a SVP case, the court should not attempt to determine

definitively whether each element of the State’s claim can withstand

close scrutiny as long as some “plausible” evidence, or reasonable

inference based on that evidence, supports it. Here, Dr.

Quackenbush’s testimony on the DSM-IV criteria and the evidentiary

bases for his diagnoses was adequate to survive that relatively low

threshold standard. Hence, the trial court erred in finding the State did

not establish the second probable cause element.

Finally, we consider respondent’s claim that the State failed to

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prove the third element necessary for a probable cause finding,

namely, that he presents a danger to others because his mental

disorder creates a substantial probability that he will commit additional

acts of sexual violence. Respondent argues only that if convictions for

sexually violent offenses are enough to show the presence of a mental

disorder, the State could claim in every case that “it is substantially

probable that the respondent will engage in acts of sexual violence.”

Thus, he contends that prior convictions could be used to establish all

three elements of probable cause summarily, weakening respondents’

protections against unjustified SVP petitions.

Respondent’s argument overlooks the intended purpose of a

probable cause hearing in a SVP proceeding. As Watson notes, the

hearing is intended to be preliminary in nature, a “summary

proceeding to determine essential or basic facts as to probability” and

“is ‘concerned with the practical and nontechnical probabilities of

everyday life’ ” while remaining cognizant of the respondent’s liberty

rights. Watson, 227 Wis. 2d at 204, 595 N.W.2d at 420, quoting

Dunn, 121 Wis. 2d at 396-97, 359 N.W.2d at 154. See also Jackson,

232 Ill. 2d at 275 (stating that probable cause addresses factual and

practical probabilities of everyday life).

Although probable cause deals with practical probabilities rather

than absolute certainties, more is required of the State than mere

argument. The State must provide actual evidence, even if based at

least in part on behaviors and traits reflected in prior convictions, to

support a finding that the respondent meets each of the three probable

cause elements. That evidentiary burden includes a showing that the

respondent is substantially likely to re-offend based on the presence of

a mental disorder. Here, Dr. Quackenbush testified to respondent’s

moderate to high scores on standardized psychological tests as

support for his expert opinion that respondent presented a substantial

risk of re-offending.

Dr. Quackenbush also explained that his risk assessment was

affected by the unique type of victim respondent consistently selected.

He noted that respondent “has a very focussed [sic] deviant interest.

He is interested in girls around the age of 15.” Dr. Quackenbush

stated that “[a] deviant sexual interest has been shown statistically in

research to show an increased likelihood of the risk of re-offense.”

While the standard in a probable cause hearing is relatively low, it

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still must be met by the State, and we conclude it was met in this case.

The trial court, however, decided the standard was not met. Due to its

application of an inaccurate standard, the court relied on a full and

independent evaluation of Dr. Quackenbush’s credibility and

methodology, considerations that are inappropriate at the probable

cause stage of the SVP proceedings.

We note that if a finding of probable cause is entered in a SVP

proceeding, the State must overcome a significantly higher evidentiary

standard at trial by proving each of the requisite elements beyond a

reasonable doubt. The higher trial standard refutes respondent’s broad

claim that a lower probable cause standard necessarily undermines

respondents’ basic liberty rights. See 725 ILCS 207/35(d)(1) (West

2006).

III. CONCLUSION

For the stated reasons, we conclude that the State has the right to

appeal from a finding of no probable cause in a SVP proceeding. We

also adopt the Watson evidentiary standards for probable cause

hearings (Watson, 227 Wis. 2d 167, 595 N.W.2d at 403) and hold that

those standards were sufficiently met to uphold the appellate court’s

reversal of the trial court’s finding of no probable cause in this case.

Accordingly, we affirm the appellate court judgment, reversing the

judgment of the trial court and remanding the cause to the trial court

for further proceedings.

Appellate court judgment affirmed.

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