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People v. Houde

Court of Appeals of Illinois, Third District

September 25, 2019

THEODORE P. HOUDE, Defendant-Appellant.

          Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois, Circuit No. 07-CM-1736 Honorable Kathy Bradshaw Elliott, Judge, Presiding.

          HOLDRIDGE JUSTICE delivered the judgment of the court, with opinion Justices Lytton and Wright concurred in the judgment and opinion.



         ¶ 1 Since May 2008, the defendant, Theodore P. Houde, has been involuntarily committed to the Illinois Department of Corrections as a sexually dangerous person. In November 2016, he filed an application for discharge or conditional release. Following a hearing, the trial court found that the defendant remained a sexually dangerous person. The defendant appeals.

         ¶ 2 FACTS

         ¶ 3 In November 2007, the State filed a petition against the defendant in criminal proceedings to have him declared a sexually dangerous person pursuant to the Sexually Dangerous Persons Act (SDP Act) (725 ILCS 205/1.01 (West 2006)). At that time, the defendant was charged with attempted indecent solicitation of a child. The information alleged that the defendant performed a substantial step toward the commission of that offense, in that he, a person over 17 years old or older, with the intent that the offense of aggravated criminal sexual abuse be committed, knowingly attempted to solicit a person whom he believed to be a child under the age of 13 years old.

         ¶ 4 The trial court conducted a hearing on the State's petition before a jury. The child testified, that in September 2007, he attended an outdoor party sponsored by his church. He saw the defendant videotaping the party. The defendant asked the child his name and age and they had no further interaction that day. The next month, the defendant spoke to the child before a church service where the child served as an altar boy. The defendant told the child that they needed to speak after the church service. After the service, the defendant caught the child's attention and they walked out of the church together while talking. The child testified that the defendant asked him if he liked video games and the child answered in the affirmative. The defendant then asked the child if he had a parent present. The child told the defendant that his mother was waiting for him. The defendant spoke to the child's mother and gave her a note with his name and phone number. The defendant told the mother that he invited the child to come to his home to play video games. The mother consented and gave the defendant her phone number.

         ¶ 5 After receiving the phone number, the defendant, the mother, and the child walked out of the church together. The mother and the child laughed about the encounter in their car. The child then informed his mother that the defendant videotaped the party a month prior. The mother contacted a relative who worked for the police department. The relative asked a detective to "look into it" and speak with the mother and the child. The detective met with them and showed the child the defendant's photograph. The child positively identified the defendant. The detective obtained the photograph from the sex offender registry. Two days later, the detective questioned the defendant. The defendant stated that he was at the church, spoke to the child, and confirmed the mother and the child's stories. The defendant consented to a search of his home and the detective seized a video camera, the videotape of the party, and 14 other videotapes.

         ¶ 6 Two psychiatrists also testified at the hearing. Both psychiatrists opined that the defendant was a sexually dangerous person based on the defendant's prior convictions and interviews with the defendant. We note that the defendant's criminal history included: indecent liberties with a child (1981), aggravated criminal sexual abuse (1989), possession of child pornography (1989), and aggravated criminal sexual abuse (2002).

         ¶ 7 The jury found the defendant to be a sexually dangerous person. The trial court entered an order adjudicating the defendant a sexually dangerous person and committing him to the custody of the Illinois Department of Corrections. The defendant filed an appeal, challenging, inter alia, the State's charging instrument. This court affirmed the trial court's order declaring the defendant as a sexually dangerous person. See People v. Houde, No. 3-08-0402 (2009) (unpublished order under Illinois Supreme Court Rule 23).

         ¶ 8 In November 2016, the defendant filed an application for discharge or conditional release wherein he argued that he was no longer a sexually dangerous person (725 ILCS 205/9(a) (2016)). In May 2018, the court held a hearing on the defendant's application. Defense counsel asked that the defendant be appointed as an expert witness on his own behalf and argued that the court's refusal would result in a violation of the defendant's right to due process and equal protection because the defendant was allowed to have an expert witness to counter the State's expert witness. Relying on People v. Burns, 209 Ill.2d 551 (2004), the court held that the defendant was not entitled to an expert witness on a sexually dangerous person recovery petition.

         ¶ 9 The State called Dr. Kristopher Clounch, a licensed clinical psychologist employed by Wexford Health Sources, to testify. Dr. Clounch testified that he had worked for Wexford Health Source since 2012 and he was the primary evaluator for sexually dangerous persons recovery petitions. He engaged in continuing education and belonged to the Association for Treatment of Sexual Abusers. Defense counsel questioned Dr. Clounch at length regarding his training and experience with the assessments he used to evaluate the defendant. The court asked defense counsel if he was objecting to Dr. Clounch being tendered as a witness, to which he replied that he was not objecting at that point. The court then allowed Dr. Clounch to testify as an expert.

         ¶ 10 Dr. Clounch stated that he received a request to evaluate the defendant in 2017. Upon receiving this request, he (1) reviewed the defendant's criminal history, including court records and police reports, and treatment records; (2) met with the defendant's therapists from his program; (3) interviewed the defendant; and (4) completed his report.

         ¶ 11 As part of Dr. Clounch's evaluation, he completed a psychosexual history, which assessed the defendant's history of sexual behaviors, his masturbation history, his relationship history, the number of partners that he had engaged in sexual contact with, how he learned about sexual issues, and how these proceeded throughout his life. When Dr. Clounch was asked if there was anything significant in the defendant's psychosexual history, he noted that the defendant had his first sexual experience at the age of four or five when an adolescent male cousin molested him. The defendant stated that he was forced to touch the cousin's penis. Dr. Clounch noted, that at the age of eight, the defendant rubbed himself against a young girl at a swimming pool. The defendant also reported, that at the age of 12 or 13, he recalled that he and a male friend rubbed their penises against each other's buttocks with ...

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