FIFTH DIVISION

                                              September 20, 2002

1-01-2455

THE PEOPLE OF THE STATE OF ILLINOIS,	) Appeal from the

								) Circuit Court of

		Plaintiff-Appellee,			) Cook County.	

								)

			v.					)

								)		

GARY PESHAK,						) Honorable

								) Janice Bierman,

		Defendant-Appellant.		) Judge Presiding.

	JUSTICE QUINN delivered the opinion of the court:

	Following a bench trial, defendant Gary Peshak was convicted of three counts of reckless homicide and two counts of aggravated

driving under the influence of alcohol, resulting from the death

of Winceta Skrzypek, who was struck and killed by a truck driven

by defendant.  He was sentenced to a four-year prison term on the

reckless homicide convictions and a concurrent three-year term on

the aggravated driving under the influence of alcohol

convictions.  On appeal, defendant contends: (1) that the

reckless homicide statute under which he was convicted is

unconstitutional; (2) that the State failed to prove him guilty

beyond a reasonable doubt; (3) that the trial court erred in not

sua sponte providing an interpreter for a witness for the prosecution; (4) that the trial court erred when it allowed a

State witness to testify in violation of Supreme Court Rule 412 (188 Ill. 2d R. 412) regarding statements defendant allegedly made; and (5) that his sentence is improper.  For the reasons set

forth below, we affirm the judgment of the trial court.

BACKGROUND

	Ambalal Patel testified that about 2:15 p.m. on July 17,

2000, he was in Mount Prospect heading west on Golf Road in the

curbside lane at about 30 miles per hour.  Prior to reaching

Elmhurst Road, Patel saw a woman on the north side of Golf Road

attempting to cross it heading southbound.  In response, he

slowed down his vehicle.  While the woman was crossing the lane

to the left of the one Patel was in, he saw a red truck strike

her.  Patel did not see the truck brake prior to striking the

woman and did not see the driver of the vehicle that struck her.

	On cross-examination, Patel testified that the woman who had

been struck was not looking where she was crossing and was about

10 to 15 yards west of Country Lane Road, which was the nearest

intersection.  Patel stated that the woman was "running a little

fast" at the time she was struck.  Patel also stated that the

vehicle in question was traveling around 30 or 40 miles per hour

when it hit her and that it had "moved to its left side" before

hitting the victim.  Patel admitted telling Mount Prospect police

shortly after the accident that the driver of the truck had tried

to avoid hitting the victim.  

	Terry Thomas testified that at the time in question, he was

in the front passenger seat of a minivan going westbound on Golf Road just east of Elmhurst Road when he saw a woman crossing the

street.  When the woman was almost to the center median, a red

truck driven by defendant passed in the lane left of the lane

Thomas was in.  The truck then hit the woman, who was carried on

the truck's hood, before falling off it when the truck came to

rest on the center median.  Thomas stated that when the woman saw

the truck approaching, she attempted to get out of its path by

running.  He was unsure whether defendant attempted to brake the

truck before hitting the victim.  Following the accident, Jeffrey

Easton, the driver of the vehicle Thomas was riding in, got out

and tended to the victim.

	On cross-examination, Thomas testified that defendant was

nervous following the accident, but that he did not notice

anything unusual about defendant's behavior.  Thomas did not

recall whether defendant was walking around the scene after the

accident and stated that there was nothing unusual about

defendant's speech at the time.  Thomas stated that the victim

was "nowhere near" the corner when she was struck and that he was

unsure whether defendant swerved before striking her.  According

to Thomas, due to the speed defendant's truck was traveling, he

was unable to slow down prior to hitting the victim.  

	Officer Addante of the Mount Prospect police department

testified that about 2:20 p.m. on the day in issue, he arrived at

the accident scene where he saw Winceta Skrzypek lying in the

roadway.  Addante checked the victim's pulse and breathing, and she was unresponsive to both.  Addante then approached three men

who were standing on the side of the road to determine who was

driving the vehicle that struck Skrzypek.  Addante testified that

defendant was driving the vehicle that struck the victim and that

when Addante arrived on the scene, it was resting on the median

with flat tires.  

	On cross-examination, Addante stated that when he spoke with

defendant following the accident, he was within three or four

feet of him.  From that distance, Addante did not notice the

smell of alcohol on defendant's breath and did not notice

anything unusual about the way he spoke.  Addante testified that

defendant did not have any problems standing and admitted that

nothing regarding defendant's demeanor brought attention to the

fact that the accident may have involved alcohol.  

	Officer Justin Beach testified that shortly after 3 p.m. he

arrived at the accident scene.  After speaking with Addante,

Beach learned that defendant was the driver of the vehicle that

had struck Skrzypek.  Beach stated that from 10 to 15 feet away,

he noticed that defendant had bloodshot eyes.  After defendant

was escorted to a squad car, Beach was informed by Sergeant John

Dahlberg that when Dahlberg had opened the door of the car, he

smelled a strong odor of alcohol inside the vehicle and, upon

speaking with defendant, Dahlberg smelled a strong odor of

alcohol on defendant's breath.  Beach then asked, and defendant

agreed, to complete a series of field sobriety tests.  

	Beach testified that when defendant recited the alphabet

beginning with the letter "A," he spoke "very rapidly" until he

reached the letter "T," then paused for about three seconds and

successfully finished the alphabet.  While defendant was

performing this test, Beach could smell a "strong odor" of

alcohol on his breath.  When defendant took the same test a

second time, he successfully completed it. 

	Defendant was also given the "one-legged stand" test and the

"walk and turn" test.  Beach stated that these tests were

administered on a flat surface and that defendant failed both of

them.  Based upon defendant's performance on these tests, Beach

concluded that defendant was unfit to be operating a motor

vehicle. 

	On cross-examination, Beach testified that when he arrived

at the scene and saw defendant, he was standing and did not

appear to have a problem maintaining his balance.  Beach stated

that he did not smell alcohol on defendant's breath at the time

he placed him in the squad car prior to administering the

sobriety tests.  Beach further stated that he did not notice

anything about defendant which would indicate that he had been

driving under the influence of alcohol until he was advised by

Dahlberg that defendant smelled of alcohol.  Regarding the "one-

legged stand" test, Beach testified that although defendant

successfully counted to 30 and did not put his foot down,

defendant was swaying while the test was being administered.  On the "walk and turn" test, defendant took each of the nine

requested steps, but swayed when he turned.

	Ruthe Howes, an attorney with the Cook County State's

Attorney's office, testified that she met with defendant during

the evening of July 17, 2000.  Defendant told her that on the day

of the accident, he had been working at a construction site in

Lake Forest.  On his way to work that morning, defendant had

purchased a 1.75 liter of vodka.  At the construction site,

defendant had a "couple" of drinks consisting of vodka and 7-up

before eating lunch.  After lunch, defendant had "a couple of

drinks in the afternoon" before leaving for home.  Howes stated

that defendant told her that as he was about to get into the lane

on Golf Road that turns left onto Elmhurst Road, his vehicle

struck the victim.  Defendant told Howes that he did not see the

victim until he hit her and that as soon as he realized he had

hit something, he stopped the vehicle.  Howes further stated that

she was informed by defendant that, at the time of the accident,

he was traveling near the posted speed limit of 40 miles per hour

and he had swerved his truck in an attempt to avoid hitting the

victim.  Howes also testified that about 6:25 p.m. the day of the

accident, she went to the accident scene.  There, she saw a

bottle of vodka in the cab of defendant's truck, which had a

"strong odor" of vodka inside it.

	On cross-examination, Howes admitted to not including

anything about the smell of alcohol in defendant's truck in the notes she had prepared in connection to the case.  On redirect,

Howes testified without objection that defendant told her that he

would take responsibility for driving under the influence of

alcohol, but he would not take responsibility for the reckless

homicide.  On recross, Howes admitted that defendant's statements

with respect to taking responsibility on the charges were also

not included in her notes.  

	Officer Richard Tracy, an evidence technician with the Mount

Prospect police department, testified that a cup, which contained

about a teaspoon of liquid, was recovered from the console of

defendant's truck.  A bottle of "Skol" vodka, with about three-

quarters of its contents gone, was also recovered from

defendant's vehicle.  Tracy testified that there were no skid

marks from defendant's truck present at the scene.

	Sergeant John Dahlberg, who testified as an expert in the

field of accident reconstruction, stated that he arrived at the

scene about 3 p.m. on the day at issue.   Once there, Dahlberg

was informed by defendant that he had been traveling slightly

below the 40-mile-per-hour speed limit westbound on Golf Road

when the victim came "out of nowhere" and entered into his path. 

Dahlberg, while sitting in the backseat of a squad car with

defendant, detected a "relatively strong odor of alcoholic

beverage emanating from his breath."  Dahlberg testified that

defendant's eyes were "bloodshot" and "glassy."  When Dahlberg

asked defendant whether he had consumed any alcohol prior to the accident, defendant was "very hesitant" to answer and did not

commit to an answer.

	Based upon the condition of the truck defendant was driving,

Dahlberg concluded that the damage was consistent with

defendant's version of events that he had attempted to avoid

hitting the victim prior to impact.  Dahlberg further testified

that there were no tire marks in the area before the location

where the victim was struck and that tire marks past the area did

not come from defendant's truck. 

	On cross-examination, Dahlberg testified that prior to

speaking with defendant, he had not been told that the accident

was alcohol related.  Dahlberg stated that during his

conversation with defendant, he had no problem understanding him. 

He also stated that there appeared to be "a lack of pre-impact

braking and a lack of post-impact braking" on defendant's part.

	The parties stipulated that the vodka bottle and cup

recovered from defendant's vehicle contained ethyl alcohol.  The

parties further stipulated that based upon a blood sample taken

from defendant at 5:40 p.m. the day of the accident, his blood-

alcohol concentration (BAC) was .13. 

	The parties also stipulated that if called as a witness at

trial, Officer Szmergalski of the Mount Prospect police

department would testify that he spoke with Jeffrey Easton, the

driver of the vehicle in which Terry Thomas was a passenger,

after the accident.  Easton told the officer that he saw the victim step off the curb and look to her left.  When she saw the

approaching traffic, the victim ran in front of the truck driven

by defendant and he "tried to swerve to avoid hitting her." 

	After the parties rested, the court heard closing arguments. 

It then found defendant guilty of three counts of reckless

homicide and two counts of aggravated driving under the influence

of alcohol.  Defendant was subsequently sentenced and he now

appeals.     

ANALYSIS

	I.  Constitutionality of the Reckless Homicide Statute

	Defendant first contends that section 9-3(b) of the Illinois

Criminal Code of 1961 (720 ILCS 5/9-3(b) (West 2000)), the

reckless homicide statute, is unconstitutional.

	The statute provides:

		"(b) In cases involving reckless homicide, being

under the influence of alcohol or any other drug or

drugs at the time of the alleged violation shall be

presumed to be evidence of a reckless act unless

disproved by evidence to the contrary."  720 ILCS 5/9-

	3(b) (West 2000).

	Defendant argues this statute is unconstitutional because it

violates his due process rights by creating a mandatory

presumption of recklessness.  He asserts that the effect of this

is to improperly relieve the State of its burden of proving

recklessness beyond a reasonable doubt.

	It is well settled that in establishing a defendant's guilt,

the State may rely upon presumptions or inferences.  People v. Hester, 131 Ill. 2d 91, 98 (1989).  "A presumption is a legal device which permits or requires the fact finder to assume the

existence of a presumed or ultimate fact, after certain predicate

or basic facts have been established."  People v. Watts, 181 Ill. 2d 133, 141 (1998).  A presumption that is permissive allows, but

does not require, the finder of fact "to infer the existence of

the ultimate or presumed fact upon proof of the predicate fact,

without placing any burden on the defendant."  Watts, 181 Ill. 2d at 142.  "With a permissive presumption, the fact finder 'is free

to accept or reject the suggested presumption.' "  Watts, 181 Ill. 3d at 142, quoting Hester, 131 Ill. 2d at 99.  

	"A mandatory presumption instructs the jury that it must

infer the presumed fact if the State proves certain predicate

facts."  Francis v. Franklin, 471 U.S. 307, 314, 85 L. Ed. 2d 344, 353, 105 S. Ct. 1965, 1971 (1985).  In Francis the Supreme Court explained:

		"A mandatory presumption may be either

conclusive or rebuttable.  A conclusive

presumption removes the presumed element from

the case once the State has proved the

predicate facts giving rise to the

presumption.  A rebuttable presumption does

not remove the presumed element from the case but nevertheless requires the jury to find

the presumed element unless the defendant

persuades the jury that such a finding is

unwarranted."  Francis, 471 U.S. at 314 n.2, 85 L. Ed. 2d at 353 n.2, 105 S. Ct. at 1971

n.2.  

Mandatory presumptions are unconstitutional because they violate

a defendant's due process rights under the Illinois and United

States Constitutions.  Watts, 181 Ill. 2d at 142-49.

	In support of his claim that the reckless homicide statute

under which he was convicted is unconstitutional, defendant

relies upon People v. Pomykala, 326 Ill. App. 3d 390 (2001), appeal allowed, 198 Ill. 2d 628 (2002), where the Third District held that section 9-3(b) is unconstitutional.  In so ruling, the

Pomykala court reviewed the language of the reckless homicide statute and concluded that the phrase "shall be presumed evidence

of a reckless act" communicated "the mandatory nature of the

presumption and causes the burden of proof to shift to the

defendant."  Pomykala, 326 Ill. App. 3d at 394.   

	The State argues that section 9-3(b) does not create a

mandatory presumption.  Rather, the State asserts that the

presumption is permissive and that the trier of fact may accept

or reject it.  It argues that a finding by the trier of fact that

a defendant is under the influence of alcohol does not require a

finding of recklessness.  Instead, it only requires that the trier of fact consider intoxication as "evidence of a reckless act."  (Emphasis added.)  720 ILCS 5/9-3(b) (West 2000).  

	Although this argument was expressly rejected by the

Pomykala court, the State directs this court to the legislative history of section 9-3(b).  The State notes that Public Act 87-

1198 (Pub. Act 87-1198, eff. September 25, 1992) changed the

language of the reckless homicide statute from "being under the

influence of alcohol *** at the time of the alleged violation

shall be prima facie evidence of a reckless act" to "being under the influence of alcohol *** at the time of the alleged violation

shall be presumed to be evidence of a reckless act unless

disproved by evidence to the contrary."  The State directs this

court to a statement made by Senator Dart during debates on the

amendment when he stated that the amendment "makes a technical

change in the definition of 'prima facie' *** in response to a

recent case law [sic], People versus Atteberry."  87th Ill. Gen. Assem., Senate Proceedings, July 1, 1992, at 21-22 (statements of

Senator Dart).  The State also directs us to a statement made by

Representative Homer where he explained that the change was

intended to "substitute the actual legal definition of 'prima

facie' evidence."  87th Ill. Gen. Assem., House Proceedings, June

30, 1992, at 67-68 (statements of Representative Homer).

	We must begin our analysis with the premise that courts have

a duty to affirm the constitutionality of a statute if possible. 

See People v. Falbe, 189 Ill. 2d 635, 639 (2000).  Also, a statute is presumed constitutional and any doubts must be

resolved in favor of validity.  Falbe, 189 Ill. 2d at 639.    

	In People v. Atteberry, 213 Ill. App. 3d 851 (1991), this court reversed a defendant's conviction for reckless homicide

where the jury received a non-pattern instruction that used the

phrase "prima facie evidence" in the absence of a definition of

the phrase.  The Atteberry court quoted Black's Law Dictionary's definition of prima facie as being " 'a fact presumed to be true unless disproved by some evidence to the contrary.' "  Atteberry, 213 Ill. App. 3d at 854, quoting Black's Law Dictionary 1071 (5th

ed. 1979).  The court explained that "[w]hen using the term

'prima facie' within an instruction, the instruction should contain an explanation of its meaning."  Atteberry, 213 Ill. App. 3d at 854.  As the legislative history makes clear, Public Act

87-1198, which amended the language of section 9-3(b) into its

current form, was passed to address Atteberry.  However, the court in Atteberry did not find section 9-3(b) to be unconstitutional; it merely required that when a jury was to be

instructed regarding "prima facie evidence," it must also be instructed as to the definition of the term "prima facie."  

	Prior to Atteberry, our supreme court addressed the preamended version of section 9-3(b) in People v. Jackson, 118 Ill. 2d 179 (1987).  There, the court stated, in the context of a

double jeopardy analysis, that a conviction for driving under the

influence of alcohol is "only evidence of the reckless act" and that 

		"such a conviction is prima facie evidence, but it is not conclusive.  The conviction

does not establish an essential element of

reckless homicide, that is, a reckless act. 

The prima facie evidence may be rebutted by showing that although the accused was under

the influence of alcohol when he performed

the acts causing the death of another, the

acts were not in fact performed recklessly." 

Jackson, 118 Ill. 2d at 191, overruled on other grounds by People v. Stefan, 146 Ill. 2d 324, 338 (1992). 

	In reliance upon the supreme court's decision in Jackson, this court in People v. Garofalo, 181 Ill. App. 3d 972 (1989), upheld the preamended version of section 9-3(b) against a

constitutional challenge.  This court held that the language

"being under the influence of alcohol *** shall be prima facie evidence of a reckless act" did not create a mandatory

presumption because the statute spoke in terms of prima facie, rather than conclusive, evidence.  Garofalo, 181 Ill. App. 3d at 978.

	In People v. Robinson, 167 Ill. 2d 53, 75 (1995), our supreme court stated:

			"In the criminal context, prima facie evidence is in the nature of a presumption,

more accurately described as an instructed

inference.  (See M. Graham, Cleary & Graham's

Handbook of Illinois Evidence §304.1, at

114-16 (5th ed. 1990).)  Prima facie evidence may be defined as a quantum of evidence

sufficient to satisfy the burden of

production concerning a basic fact that

allows an inference of a presumed fact.  (See

M. Graham, Cleary & Graham's Handbook of

Illinois Evidence §302.8, at 102 (5th ed.

1990).)  Where the burden of production is

satisfied, the trier of fact is permitted but

not required to find the presumed fact.  See

M. Graham, Cleary & Graham's Handbook of

Illinois Evidence §304.1, at 115-16 (5th ed.

1990).

			Even where the State satisfies the burden of

production concerning a basic fact, a defendant bears

no actual burden to produce evidence to prevent

operation of the inference." 

	We do not find the presumption contained in the current

version of section 9-3(b) to be mandatory.  The amendment to the

statute under Public Act 87-1198 was not a substantive change. 

Rather, the purpose of the change to the statute, as shown by the legislative history of Public Act 87-1198, was merely technical

in that it replaced the words "prima facie" with the definition of the phrase.  Our supreme court in Robinson makes clear that even if the State satisfies its burden of producing "prima facie evidence," the trier of fact may reject the presumed fact, even

where the defendant has failed to produce any evidence.  

	Under section 9-3(b), when the State presents evidence of

intoxication, the "presumed element" of recklessness is not

removed from the case, nor is the finder of fact required to find

recklessness.  Instead, a plain reading of the statute

establishes that while intoxication is presumed to be evidence of

a reckless act, it is not conclusive evidence.  The presumed

element of recklessness is not removed from the case even though

the trier of fact must consider intoxication as evidence of

recklessness "unless disproved by evidence to the contrary."  720

ILCS 5/9-3(b) (West 2000).  The statute also does not shift the

burden of proof.  The "evidence to the contrary" may be presented

in the State's case, as it was here.  Thus, we find that the

holding in Garofalo, 181 Ill. App. 3d at 978, that the language "being under the influence of alcohol *** shall be prima facie evidence of a reckless act," does not equate to a mandatory

presumption, applicable to the current version of section 9-3(b). 

This conclusion is supported by cases decided subsequent to the

enactment of Public Act 87-1198.  In People v. Latto, 304 Ill. App. 3d 791, 799 (1999), this court, when deciding a case involving the language at issue here, stated that "[b]eing under

the influence of alcohol is prima facie evidence of a reckless act."  Likewise, in People v. Kraus, 318 Ill. App. 3d 774, 784 (2000), this court stated "[b]eing under the influence of alcohol

at the time of the incident resulting in death is prima facie evidence of a reckless act."  For the above reasons, we disagree

with the holding in Pomykala and we decline to follow it.     

II.  Sufficiency of the Evidence

	Defendant contends next that the State failed to prove him

guilty beyond a reasonable doubt.  He first argues that the State

failed to prove that he drove his vehicle while under the

influence of alcohol.  He directs this court to the testimony of

the witnesses who observed the accident, none of whom testified

that defendant was driving in an erratic manner prior to the

accident.  He also directs this court to the testimony of the

investigating officers, such as Officer Addante, who spoke with

defendant from about three or four feet and did not smell alcohol

on him or notice anything unusual about his behavior.    

	When considering the sufficiency of the evidence, a

reviewing court will look at the evidence in the light most

favorable to the prosecution and determine whether any rational

trier of fact could have found the defendant guilty beyond a

reasonable doubt.  People v. Brown, 185 Ill. 2d 229, 247 (1998).  On appeal, it is not the function of this court to retry a

defendant when considering a challenge to the sufficiency of the evidence; rather, determinations as to the credibility of

witnesses, the weight to be given their testimony and the

reasonable inferences to be drawn from the evidence are for the

trier of fact.  People v. Steidl, 142 Ill. 2d 204, 226 (1991).

	Under Illinois law, a person with a BAC of 0.08 is

considered to be under the influence of alcohol.  See 625 ILCS

5/11-501.2(b)(3) (West 2000).  Evidence was presented that more

than three hours after the accident, defendant's BAC was 0.13. 

Investigating officers testified that, at the scene, defendant's

eyes were glassy and he smelled of alcohol.  Also, Addante

testified that defendant failed two sobriety tests.  Therefore,

we find that sufficient evidence was presented to establish that

defendant drove while under the influence of alcohol.

	Defendant argues next that the State failed to prove that

his acts were the proximate cause of the victim's death.  He

asserts that the undisputed evidence shows that at the time of

the accident, he was driving within his lane of traffic while at

or below the speed limit of 40 miles per hour.  Defendant further

asserts that the evidence established that the victim was

crossing outside of the crosswalk, without turning her head to

check for oncoming traffic, in an area where cars were traveling

approximately 40 miles per hour, a relatively high rate of speed.

	While it is true that the victim's actions immediately

before the accident contributed to her death, in a prosecution

for reckless homicide, the State is not required to prove that the defendant's acts were the sole and immediate cause of the

victim's death.  Latto, 304 Ill. App. 3d at 800.  Instead, the State is required to prove that the defendant's acts were a

contributing cause such that death did not result from a cause

unconnected with the defendant.  Latto, 304 Ill. App. 3d at 800.  

	Evidence was presented establishing that defendant consumed

several drinks prior to the accident and that his intoxication

was evident based upon a strong odor of alcohol on his breath and

the "bloodshot" and "glassy" condition of his eyes.  It was

established at trial that soon after the accident, defendant

failed two field sobriety tests and that more than three hours

after the accident, defendant's BAC was .13.  Dahlberg, who

testified as an expert in accident reconstruction, testified that

there was no evidence of defendant braking his vehicle either

before or after the accident.  Given defendant's level of

intoxication and his failure to brake his truck at the scene, we

find that defendant's dulled reflexes resulting from his

intoxication is sufficient to establish causation.  See People v. Petersen, 110 Ill. App. 3d 647, 660 (1982). 

	Defendant also argues that the State failed to prove that he

acted recklessly on the day in question.  He asserts that no

evidence was presented of erratic or improper driving on his part

prior to the accident.  He also argues that he performed

"remarkably well" on many parts of the field sobriety tests and

that the victim was crossing the street against traffic in a 40- mile-per-hour speed zone without being in a crosswalk.

	Pursuant to the Illinois Criminal Code, "[a] person is

reckless or acts recklessly, when he consciously disregards a

substantial and unjustifiable risk *** and such disregard

constitutes a gross deviation from the standard of care which a

reasonable person would exercise in the situation."  720 ILCS

5/4-6 (West 2000).  It is for the trier of fact to determine

whether recklessness has been proved.  People v. Wilson, 143 Ill. 2d 236, 246 (1991).  In a prosecution for reckless homicide,

recklessness should be inferred from all the facts and

circumstances present in the record, viewed as a whole, and may

be established by evidence regarding the defendant driver's

physical condition.  People v. Spencer, 303 Ill. App. 3d 861, 869 (1999).  Intoxication is probative on the issue of recklessness. 

People v. Smith, 149 Ill. 2d 558, 565 (1992).  "If the State introduces evidence of intoxication in *** [a] reckless homicide

case, it need only present some evidence of intoxication from

which, along with other circumstances, recklessness may be

inferred."  Smith, 149 Ill. 2d at 565.

	Evidence was presented that on the morning of the accident

defendant purchased a 1.75 liter of vodka and consumed several

drinks of alcohol before getting into his truck to drive home. 

After the accident, the bottle of vodka, which only had about

one-quarter of its contents remaining, and a cup containing

alcohol were recovered from defendant's truck.  Following the accident, defendant had a "strong odor" of alcohol on his breath

and he failed two field sobriety tests.  The trial court also

heard evidence establishing that other drivers on Golf Road near

defendant saw the victim prior to her being struck, whereas he

did not.  It was for the trial court to determine the weight to

be given this evidence.  Under the facts of this case, we cannot

say that the evidence was "so unreasonable, improbable, or so

unsatisfactory" as to warrant reversal of defendant's reckless

homicide convictions.  People v. Young, 128 Ill. 2d 1, 52 (1989).

III.  Providing an Interpreter

	Defendant's next contention is that the trial court erred in

failing to provide sua sponte an interpreter for Ambala Patel.  He argues that because Mr. Patel had great difficulty in

understanding and answering questions, he was incompetent as a

witness.

	Defendant directs this court to several instances during

Patel's testimony where he either failed to answer a question

posed to him or his answer was nonresponsive.  He further directs

this court to an exchange wherein the trial court allowed the

State to ask Patel leading questions and stated that it had

difficulty understanding his testimony.

	Normally, the calling of an interpreter is within the

discretion of the trial court.  People v. Soldat, 32 Ill. 2d 478, 481 (1965).  An abuse of discretion may be shown where the record establishes that the witness was not understandable, comprehensible or intelligible such that the lack of an

interpreter deprived the defendant of a basic right.  People v. Bragg, 68 Ill. App. 3d 622, 630 (1979).

	A review of Patel's testimony establishes that, for the most

part, he gave appropriate responses to questions.  While it is

true that at times he either did not answer a question or gave a

response that failed to answer a question, each time that

occurred, he ultimately answered the question after it was

repeated, rephrased or broken down into parts.  Under these

circumstances, we cannot sat that Patel's testimony was not

understandable, comprehensible or intelligible.  See Bragg, 68 Ill. App. 3d at 630.

IV.  Supreme Court Rule 412 Violation

	Defendant's next contention is that he was prejudiced by the

State's violation of Supreme Court Rule 412(a)(ii), when it

failed to disclose to the defense his statement to Assistant

State's Attorney Howes, that he would take responsibility for

driving under the influence of alcohol, but would not take

responsibility for the reckless homicide.

	Rule 412(a)(ii) provides in relevant part:

		"(a) Except as otherwise provided in these rules

as to matters not subject to disclosure and protective

orders, the State shall, upon written motion of defense

counsel, disclose to defense counsel ***:

			***

			(ii) any written or recorded statements 

		and the substance of any oral statements made 

		by the accused or by a codefendant, and a list 

		of witnesses to the making and acknowledgment 

		of such statements[.]"  188 Ill. 2d R. 412(a)(ii).

	Initially, defendant has waived his challenge to admission

of this testimony by failing to object to it at trial.  People v. Heard, 187 Ill. 2d 36, 65 (1999).  By failing to object, defense counsel deprived the trial court of the opportunity to prevent or

correct any error associated with the alleged discovery

violation, and under the circumstances, we will not allow counsel

to "gain the advantage of obtaining a reversal through his own

failure to act, either intentionally or inadvertently."  People v. Carlson, 79 Ill. 2d 564, 577 (1980).  

	While we find the issue waived in this case, we choose to

address it in order to provide guidance to the trial courts,

which must often deal with this serious problem.  We find that

the actions of the trial prosecutor violated Rule 412(a)(ii). 

The State argues that the soliciting of the nondisclosed

statements was entirely inadvertent.  The record shows otherwise. 

The actual question posed to Howes on redirect, which elicited

her response regarding defendant's alleged admissions, was, "Did

you hear about whether he was in an intoxicated condition?" 

Since  any response to this question besides an admission against

interest would have been objectionable as hearsay, we are of the opinion that the trial prosecutor could only have sought an

admission on defendant's part from Howe.  

	Despite this conclusion, the State's failure to comply with

the discovery rules does not require reversal of a conviction in

the absence of a showing of prejudice.  People v. Robinson, 157 Ill. 2d 68, 78 (1993).  The burden is upon the defendant to show

surprise or prejudice.  Heard, 187 Ill. 2d at 63.  "The defendant's failure to request a continuance upon learning of a

discovery violation is a relevant factor to consider in

determining whether the new evidence prejudiced the defendant." 

Heard, 187 Ill. 2d at 63.  Under Rule 412, a "defendant cannot persuasively claim prejudice if he does not request a continuance

to investigate the alleged surprise statement, but instead

proceeds with the trial."  People v. Young, 263 Ill. App. 3d 627, 633 (1994).  

	Defendant's argument that he was prejudiced is also undercut

by defense counsel's concession that defendant had consumed

alcohol prior to the accident and that, at the time he was

tested, his BAC was above the legal limit.  During closing

arguments, defense counsel stated, "Granted, the defendant did

consume alcohol.  There is no question at all.  He did have a

blood alcohol content of point 13 ***."  Consequently, the

complained-of testimony from Howes theoretically supported the

defense theory that while defendant may have been guilty of

aggravated driving under the influence, he was not guilty of the reckless homicide charge.  This would explain the lack of an

objection to the testimony.  We find that defendant has not met

his burden of proving that he was prejudiced by the State's

discovery violation.

V.  Sentencing Issues

	Finally, defendant contends that the trial court erred when

it sentenced him to four years' imprisonment on his reckless

homicide conviction.  He first argues that the trial court erred

when it denied his request for probation.

	At sentencing, the State introduced the victim impact

statements of three of the victim's children.  The State then

requested a 10-year prison term for defendant.  In mitigation,

defense counsel noted that numerous members of defendant's family

were present at sentencing and that defendant was sincerely

contrite about the victim's death.  While addressing the contents

of the presentence report, defense counsel noted that at the time

of sentencing, defendant was 61 years old, was married with

children and had received a master's degree in engineering. 

Counsel argued that defendant had no prior arrests and had

recently undergone self-imposed treatment for alcohol abuse. 

Defense counsel recommended a sentence of probation. 

	The trial court imposed a four-year term of imprisonment on

all of defendant's convictions for reckless homicide and

aggravated driving under the influence of alcohol.  After

defendant filed a motion to reduce sentence, the trial court sentenced defendant to a three-year prison term on his aggravated

driving under the influence of alcohol convictions, to be served

concurrently with the previously imposed four-year term on the

reckless homicide convictions. 

	Section 5-6-1(a) of the Unified Code of Corrections (730

ILCS 5/5-6-1(a) (West 2000)) provides, in relevant part:

		"(a)  Except where specifically prohibited by

other provisions of this Code, the court shall impose a

sentence of probation or conditional discharge upon an

offender unless, having regard to the nature and

circumstance of the offense, and to the history,

character and condition of the offender, the court is

of the opinion that:

			(1) his imprisonment or periodic 

		imprisonment is necessary for the protection 

		of the public; or 

			(2) probation or conditional discharge 

		would deprecate the seriousness of the offender's

conduct and would be inconsistent with the ends 

		of justice."  

	In reliance upon this statute, defendant argues that the

trial court erred in denying his request for probation because

the trial court failed to make any findings with respect to its

decision to deny probation.

	"The granting or denial of probation rests within the sound discretion of the trial court, and refusal to grant probation

will be disturbed by a reviewing court only upon a showing of an

abuse of the trial court's discretion."  People v. Ruskey, 149 Ill. App. 3d 482, 494 (1986).  The record must show the trial

court's substantial compliance with the requirements of section

5-6-1.  People v. Cox, 82 Ill. 2d 268, 281 (1980).  The trial court is not required to expressly set forth its specific

findings or to verbalize its reasons or to expressly state the

basis on which it relied in refusing to grant probation.  Ruskey, 149 Ill. App. 3d at 495.  Rather, substantial compliance with the

statute will be found where the trial court considered "all

relevant factors presented at the sentencing hearing."  People v. Binkley, 176 Ill. App. 3d 539, 543 (1988).

	Based upon the record before us, we find that the trial

court considered the evidence presented at sentencing and was

clearly of the opinion that sentencing defendant to probation

would deprecate the seriousness of his conduct and would be

inconsistent with the ends of justice.  Thus, the trial court did

not err in denying defendant's request for probation.

	Next, defendant directs this court to the trial court's

statement that "but for your act of drinking and driving there

would not be a dead woman today."  Based upon this statement,

defendant argues that the trial court improperly considered the

death of the victim, an element inherent in the offense of

reckless homicide, when sentencing him.  See People v. Beck, 295 Ill. App. 3d 1050, 1066 (1998).

	The trial court's determination as to the appropriate

sentence is entitled to great deference and will not be disturbed

absent an abuse of discretion.  People v. Illgen, 145 Ill. 2d 353, 379 (1991).  To establish that the trial court abused its

discretion in imposing sentence, a defendant must affirmatively

establish that the sentence was based upon improper

considerations or was otherwise erroneous.  People v. Conley, 118 Ill. App. 3d 122, 133 (1983).  In reviewing whether a sentence

was based on proper factors, this court will not focus on a few

words or statements by the trial court; rather, the record will

be considered as a whole.  People v. Sutton, 252 Ill. App. 3d 172, 191 (1993).  

	We disagree with defendant's assertion that the trial court

improperly considered the death of the victim when sentencing

him.  Taken in context, the trial court was not using the death

of the victim as a factor in aggravation.  Rather, the trial

court was briefly summarizing the circumstances of the case,

which had resulted in defendant's convictions.  It is appropriate

for the trial court when sentencing a defendant to consider the

particular circumstances of the case, including the gravity of

the offense and the circumstances surrounding the commission of

the offense.  People v. Bradford, 187 Ill. App. 3d 903, 922 (1989).

	Accordingly, the judgment of the circuit court of Cook County is affirmed.

	Affirmed.

	CAMPBELL, P.J. concurs.

	GREIMAN, J., dissents.

	JUSTICE GREIMAN, dissenting:

	I am compelled to dissent from the majority's thoughtful

analysis with respect to the constitutionality of section 9-3(b).

	While the majority provides a compelling argument as to the

constitutionality of the statute, I believe that the language

"shall be presumed to be evidence of a reckless act***" expresses

a presumption which relieves the State from the obligation of

proving an essential element of the crime and inappropriately

shifts the burden of coming forward with evidence to the

defendant.

	The constitutionality of the statute has been previously

considered by the Appellate Court, Third District in People v. Pomykala, 326 Ill. App. 3d 390 (12001) and is presently on appeal to our suprmesupreme court.  I agree with the Third District in its

annalaysis.