SIXTH DIVISION
March 29, 2002

No. 1-99-2555

JUSTICE O'MARA FROSSARD delivered the opinion of the court:

Following a jury trial, defendant Leslie Henderson was convicted of two counts of recklesshomicide and one count of driving on a revoked licence. He was sentenced to 12 years in prison onthe Class 2 reckless homicide convictions. On appeal, defendant contends that section 9-3(c) of thereckless homicide statute (720 ILCS 5/9-3(c) (West 1998)) violates due process and isunconstitutional because it contains a mandatory irrebuttable presumption that relieves the State ofits burden to prove intoxication beyond a reasonable doubt; his sentence violates Apprendi v. NewJersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000); the trial court erred in admittinga photograph of the victim's body that lacked probative value; and one of the convictions for recklesshomicide must be vacated under the one-act, one-crime rule.

At trial, Allie Wiersema testified that around 1 a.m. on March 9, 1997, she was ridingnorthbound in the center lane on I-94 in a car driven by a friend. Just after they passed the 159thStreet exit, a white car passed them in the left lane. Wiersema estimated that the white car wastraveling at 90 or 100 miles per hour. Wiersema continued to watch the white car as it moved fromthe left lane to the center lane, back to the left lane, to the center, and then back to the right, passingother cars as it went. A few seconds later, she saw another car ignite in flames near the right lane,off to the shoulder. Wiersema stated that she also saw the white car roll over and land on its roof. On cross-examination, Wiersema testified that she never saw the white car go onto the shoulder oroff the shoulder into a dirt area.

Transito Villalvazos testified that he was driving northbound in the middle lane on I-94 whenhe noticed a white car in the left lane coming up behind him at a speed he estimated to be more than100 miles per hour. As the white car passed Villalvazos, it switched lanes toward the right andalmost hit the front driver's side of Villalvazos' car, causing Villalvazos to swerve. Villalvazostestified that the white car continued to pass cars "like that" until the driver lost control of the car,"went out of the expressway to the right," came back onto the expressway, and hit the back ofanother car, which then blew up. The white car rolled over onto its roof and slid. Villalvazosstopped and ran to the burning car. He saw a man lying on the steering wheel, but before he couldhelp the man, the fire moved from the back to the front of the car and the car blew up a second time. Villalvazos saw three men get out of the white car, but did not see their faces. Finally, Villalvazosstated that he saw the car that was on fire hit a tree. On cross-examination, Villalvazos testified thatthe white car went from the left lane all the way over to the right lane, and then back to the left lane. When asked whether the white car started going back to the right again, Villalvazos answered,"That's when he lost control. He lost control right there." Villalvazos then agreed that when thewhite car was moving toward the right, it hit the other car in the center lane, and that the second car"flew up," hit a tree on the side of the expressway, and came back onto the expressway.

Illinois State Police Trooper Gayle Murnane testified that she was on routine patrol on I-94when she saw two cars that had been involved in an accident. One car was engulfed in flames andoccupied by a driver. The other car, which was white, was overturned and unoccupied. TrooperMurnane spoke with defendant, who was at the scene, and noticed a strong odor of alcohol abouthim. She also noticed that his speech was slurred and his eyes were red and glassy. TrooperMurnane testified that based on her personal experience and experience as a police officer, shebelieved defendant was under the influence of alcohol. She then identified several photographs ofthe scene of the accident which included depictions of a case of beer in the white car, broken beerbottles on the road outside the car, and bottles and cans of beer throughout the interior of the car. On cross-examination, Trooper Murnane acknowledged that she did not prepare an alcohol influencereport for defendant, and that although she made a notation on the accident report indicating thatdefendant was impaired by alcohol, she did not note in that report that defendant's breath smelledof alcohol, his speech was slurred, or his eyes appeared red and glassy.

Daniel Mallard, an emergency department technician at St. Margaret's Hospital in Hammond,Indiana, testified that around 2 a.m. on March 9, 1997, defendant was brought to the emergencyroom by ambulance. Mallard drew defendant's blood, labeled and sealed the sample, and deliveredit to James Jackson, a laboratory technician at the hospital.

James Jackson testified that he tested the blood sample taken from defendant and determinedthat the blood serum alcohol concentration of the sample was "282." Jackson called the emergencyroom upon reading the results of defendant's blood test because any result over 100 is considered"panic level." He stated that a blood serum alcohol concentration over 100 is considered "paniclevel" due to the effect of alcohol on the body, and explained that such a level could depressrespiration or cause other medical problems.

Forensic toxicologist Dr. Daniel Brown testified that hospital records indicated that at thetime defendant was tested, his blood serum alcohol concentration was 282 milligrams of alcohol perdeciliter of blood serum, or .282 grams per deciliter of blood serum. Dr. Brown explained thatbecause whole blood is thicker than blood serum, defendant's whole blood-alcohol level was actuallyabout .245 grams of alcohol per deciliter of whole blood. Based on the rate the body metabolizesalcohol, Dr. Brown calculated that defendant's blood-alcohol level at the time of the accident was.269 grams per deciliter of blood, and estimated that a person defendant's size would have to havehad the equivalent of about 11 drinks in his body in order to obtain that blood-alcohol level. Dr.Brown further testified that humans are "measurably impaired" when their blood alcohol is .05 gramsper deciliter, and that .26 grams per deciliter "is going to be grossly impairing to greatly impairingthe motor skills, the muscular functions, as well as their mental activities." Finally, Dr. Brown statedthat to a reasonable degree of toxicological certainty, he was of the opinion that anyone "with a .26blood alcohol concentration is greatly impaired and highly intoxicated."

Illinois State Police Sergeant Joseph Micci testified that during the afternoon of March 9,1997, he interviewed defendant about the accident. In his statement to Sergeant Micci, defendantstated that on March 8, 1997, he drank one beer at Michael Johnson's house in Chicago Heightsbetween 4 and 5:15 p.m. Defendant and Johnson then drove to Chicago, where they picked up a mannamed Andre around 7 p.m. Defendant drank one or two beers at Andre's house. The group thenwent to a liquor store, where Andre bought a 12-pack of beer and some brandy. Around 9 p.m.,defendant drove the group to "Jimmie's Lounge" for a bachelor party. There, defendant drank "acouple of beers." Defendant and Andre left the party briefly, but returned around 11 p.m. Defendanttold Sergeant Micci that he did not remember how much he had to drink at the bachelor party, butstated that he left around 12 or 1 a.m. because he was tired and "bubbly." Defendant first drove toJohnson's house, where he dropped off some items. With regard to what happened next, defendanttold Sergeant Micci:

"I remember clicking my car alarm off and on. I know I did not askanyone to drive. I was not even thinking about who was driving afterleaving Michael Johnson's house.

I remember driving in either the left or the center lane. Iremember Andre was in the back seat, and Michael was in the frontpassenger's seat. I remember seeing brake lights in front of me. AndI remember applying my brakes and swerving. I don't remember theimpact or the crash."

Sergeant Micci testified that when he took defendant's statement, about 13 hours after the accident,defendant did not appear to be under the influence or intoxicated, although he was quite tired andcomplained of a headache.

Dr. Thamrong Chira, an assistant Cook County medical examiner, conducted an autopsy onAntonio McCray, the driver of the burned car. Dr. Chira testified that 100% of McCray's body wascovered with third- or fourth-degree burns and characterized the body as "charred." Dr. Chira notedseveral injuries, including laceration to the liver, kidneys, and abdominal/intestinal area; hemorrhageof the retroperitoneum behind the abdominal cavity; hemorrhage of the mesenteric tissue thatsupports the small intestine; subarachnoid hemorrhage into the pial area that supports and covers thebrain; and a skull fracture, which may not have been due to the accident. Most of the abdominalinjuries were due to impact with the lower part of the steering wheel. Dr. Chira stated that the causeof McCray's death was multiple injuries due to the automobile accident, that the lacerations to theabdomen area alone could have caused McCray's death, and that the burns occurred after McCray'sdeath. Dr. Chira also testified that McCray was identified by X rays of his teeth and right foot. Finally, Dr. Chira identified several photographs of McCray, including one photograph depictingMcCray's burned torso. On cross-examination, Dr. Chira reiterated that McCray was deceased priorto the time he received any burns on his body.

The parties stipulated that defendant's driver's licence had been revoked since November 27,1991, and that defendant owned the white 1996 Cutlass Oldsmobile.

Gilberto Perez, a Calumet City firefighter paramedic who responded to the accident, testifiedas the only defense witness. He indicated that he prepared an emergency medical services reportdescribing defendant's condition at the scene. Defendant was conscious, alert, and ambulatory atthe time of treatment. Perez noted in his report that defendant's pupils were equal and reactive tolight, his skin color was normal and not flushed, his temperature was normal, his eyes respondedspontaneously to testing, his motor reflexes were normal, his responses to questions were normal,his respiration was normal, his skin moisture was normal, and his blood pressure and pulse werenormal. Perez also noted in his report that there was alcohol on defendant's breath. Although hedid not note the strength of that odor in the report, Perez stated that if it had been strong or abnormal,he would have made such a notation. Finally, Perez wrote in his report that defendant told him thathe "was on the passenger side restraint, seat belt." On cross-examination, Perez acknowledged thathe did not ask defendant to walk a straight line or recite the alphabet backwards and forwards. Healso stated that pupils' reactions to light are tested to determine whether a person suffers from a headinjury, not whether the person is under the influence of alcohol.

The constitutionality of a statute is subject to de novo review. People v. Malchow, 193 Ill.2d 413, 418 (2000). Statutes carry a strong presumption of constitutionality and the challengingparty has the burden of rebutting that presumption. People v. Maness, 191 Ill. 2d 478, 483 (2000). This court has a duty to interpret a statute in a manner that upholds its validity and constitutionalityif it can be reasonably done. People v. Fisher, 184 Ill. 2d 441, 448 (1998). Defendant contends thatsection 9-3(c) of the reckless homicide statute violates due process under the Illinois and UnitedStates Constitutions because it contains a mandatory irrebuttable presumption that relieves the Stateof the burden of proving intoxication beyond a reasonable doubt. 720 ILCS 5/9-3(c) (West 1996).

Defendant offers two related arguments in support of the contention that section 9-3(c) of thereckless homicide statute is unconstitutional. First, defendant contends that section 9-3(c), by wayof a mandatory irrebuttable presumption, directs the trier of fact to presume the element of beingunder the influence of alcohol if it finds that defendant drove with a blood-alcohol concentration of0.10 or more or under the influence to a degree rendering him incapable of safely driving. 720 ILCS5/9-3(c)(1), (c)(2) (West 1996). We note the amended reckless homicide statute provides that aperson shall be considered to be under the influence of alcohol where the person's blood-alcoholconcentration is 0.08 or more; however, the pre-amended section applies to this case. See 720 ILCS5/9-3(c)(1) (West 1998). The pre-amended section 9-3(c) of the reckless homicide statute states asfollows:

"(c) For the purposes of this Section, a person shall beconsidered to be under the influence of alcohol or other drugs while:

1. The alcohol concentration in the person's blood or breath is 0.10 or more based on the definition of blood andbreath units in Section 11-501.2 of the Illinois Vehicle Code;

2. Under the influence of alcohol to a degree that renders the person incapable of safely driving;

3. Under the influence of any other drug or combination of drugs to a degree that renders the personincapable of safely driving; or

4. Under the combined influence of alcohol and any other drug or drugs to a degree which renders the personincapable of safely driving." 720 ILCS 5/9-3(c) (West 1996).

Second, defendant argues due process was violated by providing the jury with Illinois PatternJury Instructions, Criminal, No. 7.09X (3d ed. Supp. 1996) (hereinafter IPI Criminal 3d No. 7.09X(Supp. 1996)), because it mirrored the alleged unconstitutional mandatory irrebuttable presumptioncontained in sections 9-3(c)(1) and (c)(2) of the reckless homicide statute. IPI Criminal 3d No.7.09X (Supp. 1996), which mirrors the language of sections 9-3(c)(1) and (c)(2) of the recklesshomicide statute, was tendered to the jury and stated as follows:

"A person is under the influence of alcohol or other drugs for thepurposes of reckless homicide when he drives a vehicle while thealcohol concentration in his blood or breath is 0.10 percent or moreor under the influence of alcohol or other drug or drugs to a degreewhich renders him incapable of safely driving."

Defendant contends that the statute and jury instruction contain a mandatory irrebuttablepresumption that relieves the State of its burden of proving intoxication beyond a reasonable doubt,violating due process under the Illinois and United States Constitutions. A presumption is a legaldevice that permits or directs the finder of fact to assume the existence of a presumed or ultimate factonce certain predicate or basic facts have been established. People v. Watts, 181 Ill. 2d 133, 141(1998). Presumptions may be permissive or mandatory, and mandatory presumptions may berebuttable or irrebuttable. Watts, 181 Ill. 2d at 142. A mandatory presumption of the type defendantasserts is contained in the statute and jury instruction is one where the fact finder is not free to rejectthe proffered presumption. Watts, 181 Ill. 2d at 142; Francis v. Franklin, 471 U.S. 307, 317, 85 L.Ed. 2d 344, 355, 105 S. Ct. 1965, 1972 (1985). A permissive presumption is one where the factfinder is free to accept or reject the suggested presumption. People v. Hester, 131 Ill. 2d 91, 99(1989). In criminal cases the use of a presumption must not invade the territory of the fact finder todetermine the existence of the ultimate or elemental fact beyond a reasonable doubt. County Courtv. Allen, 442 U.S. 140, 156, 60 L. Ed. 2d 777, 791, 99 S. Ct. 2213, 2224 (1979).

Defendant contends that both section 9-3(c) and IPI Criminal 3d No. 7.09X (Supp. 1996)direct the trier of fact to irrebuttably presume that defendant's driving was impaired by alcohol ifdefendant had a blood-alcohol level of 0.10 or more. To determine whether a presumption iscontained in the statute or instruction, a court must begin by looking at the words contained therein. People v. O'Brien, 197 Ill. 2d 88, 90 (2001). Section 9-3(c) of the reckless homicide statute does notuse the word "presume" or invade the territory of the fact finder by directing the fact finder to inferone fact based upon another fact. 720 ILCS 5/9-3(c)(1), (c)(2) (West 1996). Rather, section 9-3(c)defines who "shall be considered to be under the influence of alcohol or other drugs" for purposesof the reckless homicide statute. IPI Criminal 3d No. 7.09X (Supp. 1996), which mirrors thelanguage of sections 9-3(c)(1) and (c)(2), contains the same definition. Based on the plain languageof both the statute and IPI Criminal 3d No. 7.09X (Supp. 1996), we find not a presumption but,rather, a definition of what constitutes being "under the influence of alcohol or other drugs." Therefore, neither section 9-3(c) of the reckless homicide statute nor IPI Criminal 3d No. 7.09X(Supp. 1996) violates due process under the Illinois and United States Constitutions.

We believe our analysis could end here; however, we are mindful that jury instructionsshould not be viewed in isolation, but should be considered as a whole. People v. Housby, 84 Ill.2d 415, 433-34 (1981). With that in mind we consider the jury instructions in their totality. Directlyafter receiving IPI Criminal 3d No. 7.09X (Supp. 1996), the jury was given the following instruction,based on Illinois Pattern Jury Instructions, Criminal, No. 23.30 (3d ed. 1992) (hereinafter IPICriminal 3d No. 23.30):

"If you find that at any time the defendant drove a vehicle thatthe alcohol concentration in the defendant's blood or breath was .05percent or less, you shall presume that the defendant was not underthe influence of alcohol.

If you find that at the time the defendant drove a vehicle thatthe alcohol concentration in the defendant's blood or breath was morethan .05 percent but less than on 0.10 percent, this does not give riseto any presumption the defendant was or was not under the influenceof alcohol. You should consider all the evidence in determiningwhether the defendant was under the influence of alcohol.

If you find that at the time the defendant drove a vehicle thatthe amount of alcohol concentration in the defendant's blood orbreath was .10 percent or more, you may presume that the defendantwas under the influence of alcohol. You never are required to makethis presumption.

It is for the jury to decide whether the presumption should bedrawn. You should consider all the evidence in determining whetherthe defendant was under the influence of alcohol."

In considering this instruction we are mindful that our supreme court has decided that allmandatory presumptions violate a defendant's due process rights under both the Illinois and UnitedStates Constitutions. Watts, 181 Ill. 2d at 147. To determine whether a presumption is mandatoryor permissive, a court must look at the words contained in the instruction and consider the way inwhich the jury could interpret the instruction. "[W]hether a defendant has been accorded hisconstitutional rights depends upon the way in which a reasonable juror could have interpreted theinstruction." Sandstrom v. Montana, 442 U.S. 510, 514, 61 L. Ed. 2d 39, 45, 99 S. Ct. 2450, 2454(1979).

In support of defendant's argument that the jury was instructed with a mandatory irrebuttablepresumption, defendant argues that "the jury in this case was instructed that it must find thedefendant was driving under the influence of alcohol if his blood level was .10 or more." No suchinstruction was given to this jury and the record does not support this argument. The jurors were notrequired to conclude that defendant was under the influence of alcohol based on the fact that thealcohol concentration in the defendant's blood or breath was 0.10 or more. Contrary to defendant'sargument, the jury received no instruction indicating that the jury "must find the defendant wasdriving under the influence of alcohol if his blood level was .10 or more." Rather, IPI Criminal 3dNo. 23.30, the instruction regarding this issue, as previously noted, instructed the jury as follows:

"If you find that at the time the defendant drove a vehicle thatthe amount of alcohol concentration in the defendant's blood orbreath was .10 percent or more, you may presume that the defendantwas under the influence of alcohol. You never are required to makethis presumption." (Emphasis added.) The paragraph of the instructions immediately following this discussion regarding the amountof alcohol concentration in defendant's blood or breath reiterated the permissive nature of thepresumption by specifically indicating:

"It is for the jury to decide whether the presumption should be drawn. You should consider all the evidence in determining whether thedefendant was under the influence of alcohol."

See IPI Criminal 3d No. 23.30.

Looking at the words contained in the instructions and considering the way in which areasonable juror could have interpreted the instructions, we find the jury instructions werepermissive. Sandstrom, 442 U.S. at 515, 61 L. Ed. 2d at 45, 99 S. Ct. at 2455; Housby, 84 Ill. 2d at432-33 ("may presume" or "may infer" indicative of permissive presumption); People v. Elliott, 143Ill. App. 3d 72, 77-80 (1986) ("may infer" avoids mandatory presumption). A reasonable juror couldonly interpret the instructions to be permissive, in that the juror could either accept or reject any ofthe various presumptions articulated in the instructions. Accordingly, reading the jury instructionsin their entirety, defendant was not deprived of his due process rights under the Illinois and UnitedStates Constitutions. Francis v. Franklin, 471 U.S. 307, 315, 85 L. Ed. 2d 344, 354, 105 S. Ct.1965,1971(1985); Housby, 84 Ill. 2d at 433-34; Frazier, 123 Ill. App. 3d at 573-74. See also Hester, 131Ill. 2d at 101-02 (Illinois Pattern Jury Instructions, Criminal, No. 23.06 (2d ed. 1981) (renumberedto IPI Criminal 3d No. 23.30) was permissive and the instructions given to the jury, taken as a whole,correctly instructed the jury as to the State's burden of proof).

We further note that Supreme Court Rule 451(a) (134 Ill. 2d R. 451 (a)) requires jurors incriminal cases to be instructed with the Illinois Pattern Jury Instructions unless the particularinstruction does not accurately state the law. People v. Haywood, 82 Ill. 2d 540, 545 (1980). Absenta clear abuse of discretion, a trial court's determination of the form in which an instruction is givenwill not be disturbed on review. People v. Curtis, 262 Ill. App. 3d 876 (1994). The Committee Noteto IPI Criminal 3d No. 7.09X (Supp. 1996) indicates that the instruction is to be given in cases inwhich the defendant is charged with reckless homicide including an allegation of intoxication, as inthis case. Here, the record reflects no unusual facts or new law which would require the court todeviate from the standard IPI instruction. People v. Whitaker, 263 Ill. App. 3d 92, 98 (1994). Inconnection with IPI Criminal 3d No. 7.09X (Supp. 1996), both the State and defense relied on theWatts case in support of their arguments made to the trial judge during the instruction conference. See Watts, 181 Ill. 2d 133. The trial judge considered the appropriate law, including Watts, and didnot abuse his discretion by instructing the jury with the Illinois Pattern Jury Instructions, includingIPI Criminal 3d No. 7.09X (Supp. 1996).

We are mindful that defendant's argument that IPI Criminal 3d No. 7.09X (Supp. 1996)contained a presumption that relieved the State of its burden of proof of the reckless homicide chargewas addressed in People v. Beck, 295 Ill. App. 3d 1050 (1998). Referring to IPI Criminal 3d No.7.09X (Supp. 1996), defendant in his brief contends, "The Beck court incorrectly found that theinstruction was proper because it 'did not require the jury to find defendant guilty of recklesshomicide based on that presumption.' " We disagree with defendant's conclusion that the Beck casewas incorrectly decided. In Beck, defendant was charged with reckless homicide and driving whileunder the influence of alcohol. Beck, 295 Ill. App. 3d at 1053. Defendant objected to IPI Criminal3d No. 7.09X (Supp. 1996) being given to the jury. The court found the instruction was proper anddid not relieve the State of its burden of proof of the reckless homicide charges. Beck, 295 Ill. App.3d at 1064.

The Beck court noted that Supreme Court Rule 451(a) (134 Ill. 2d R. 451) requires jurors incriminal cases to be instructed with Illinois Pattern Jury Instructions unless the particular instructiondoes not accurately state the law. Beck, 295 Ill. App. 3d at 1063. The Beck court recognized thatthe Committee Note to IPI Criminal 3d No. 7.09X (Supp. 1996) expressly indicated that theinstruction is to be given in cases in which the defendant is charged with reckless homicide includingan allegation of intoxication. Beck, 295 Ill. App. 3d at 1064, citing IPI Criminal 3d No. 7.09X,Committee Note, at 81 (Supp. 1996). The Beck court reasoned that "Despite the fact that thisinstruction required the jury to presume defendant to be under the influence of alcohol sincedefendant's blood-alcohol level was .1392, this instruction did not require the jury to find defendantguilty of reckless homicide based on that presumption." Beck, 295 Ill. App. 3d at 1064. The Beckcourt concluded that the trial court did not abuse its discretion in giving IPI Criminal 3d No. 7.09X(Supp. 1996) and found that the instruction did not relieve the State of its burden of proof of thereckless homicide charges. Beck, 295 Ill. App. 3d at 1064.

Similarly, in this case even if the instruction is regarded as providing a presumption, ratherthan a definition, the instruction did not relieve the State of its burden of proof of the recklesshomicide charge. For the reasons previously discussed, the jury instructions considered as a wholecontain language, including the phrase "may presume," indicative of a permissive presumption. Housby, 84 Ill. 2d at 432-33. IPI Criminal 3d No. 7.09X (Supp. 1996) did not require the jury to finddefendant guilty of reckless homicide based on any presumption. Therefore, if this instruction isinterpreted as providing a presumption, rather than a definition, the presumption is permissive.

We further note that, here, the State introduced evidence that defendant drove his vehicle atan excessive speed, was recklessly passing other vehicles and was recklessly swerving in and out oftraffic. Both Allie Wiersema and Transito Villalvazos testified that defendant's car was travelingon I-94 at speeds of 90 to 100 miles per hour. Villalvazos testified defendant's car switched lanes,almost struck Villalvazos' car, and continued in that manner until the driver lost control. Heestimated the speed to be more than 100 miles per hour. Wiersema observed defendant's car movefrom the left lane to the center, back to the left, to the center, and back to the right, passing other carsas it switched lanes. She estimated the speed to be between 90 or 100 miles per hour. The Stateintroduced not only evidence of intoxication, but additional evidence of recklessness.

We are mindful that the determination as to whether a statute is constitutionally infirm mustbe made in the factual context of a particular case. Russell v. Department of Natural Resources, 183Ill. 2d 434, 442 (1998). We note that the Third District has recently addressed the constitutionalityof section 9-3(b) of the reckless homicide statute (720 ILCS 5/9-3(b) (West 1998)) in People v.Pomykala, 326 Ill. App. 3d 390 (2001), appeal pending, No. 93089. Section 9-3(b), which was atissue in that case, stated as follows: "In cases involving reckless homicide, being under theinfluence of alcohol or any other drug or drugs at the time of thealleged violation shall be presumed to be evidence of a reckless actunless disproved by evidence to the contrary." 720 ILCS 5/9-3(b)(West 1998).

The defendant objected to a non-IPI instruction offered by the State which was based on section 9-3(b) of the statute and indicated as follows:

"If you find from your consideration of all the evidence thatthe defendant was under the influence of alcohol at the time of thealleged violation, such evidence shall be presumed to be evidence ofa reckless act unless disproved by evidence to the contrary." 326 Ill.App. 3d at 393.

That non-IPI instruction offered by the State was given over defense objection.

In addressing the defendant's argument that section 9-3(b) of the reckless homicide statutetogether with the non-IPI jury instruction established a mandatory presumption, the Pomykala courtrelied on the Watts case, in which, as previously discussed, our supreme court determined that allmandatory presumptions violate defendant's due process rights under both the Illinois and UnitedStates Constitutions. Pomykala, 326 Ill. App. 3d at 394, citing Watts, 181 Ill. 2d 133. The court inPomykala found section 9-3(b) of the reckless homicide statute together with the non-IPI juryinstruction established a mandatory presumption. Pomykala, 326 Ill. App. 3d at 394. The court inPomykala noted that "[t]he jury was instructed that evidence that the defendant was under theinfluence of alcohol 'shall be presumed' to be evidence of a reckless act." Pomykala, 326 Ill. App.3d at 394. The Pomykala court concluded, "This mandatory presumption compelled the jury topresume that the defendant was acting recklessly when the incident occurred, thus effectivelyremoving the burden of proving that element from the State." Pomykala, 326 Ill. App. 3d at 394.

We find Pomykala distinguishable from the present case. Here, section 9-3(c), not section9-3(b), of the reckless homicide statute is challenged. While a non-IPI instruction based on section9-3(b) which was similar to the instruction at issue in Pomykala was offered by the State in this case,the trial judge sustained defendant's objection to the instruction and wisely refused to give it to thejury. Moreover, unlike the non-IPI instruction given in Pomykala, the standard IPI instruction basedon IPI Criminal 3d No. 23.30 given here made it clear that any presumption regarding whether thedefendant was under the influence of alcohol was permissive, not mandatory. In Pomykala the non-IPI instruction stated that evidence that the defendant was under the influence of alcohol "shall bepresumed to be evidence of a reckless act unless disproved to the contrary." 326 Ill. App. 3d at 393. No such instruction was given to the jury in this case and no instruction in this case compelled thejury to presume the defendant was acting recklessly. Unlike Pomykala, in this case, together withIPI Criminal 3d No. 7.09X (Supp. 1996), the jury was specifically instructed with the following fromIPI Criminal 3d No. 23.30:

"If you find that at the time the defendant drove a vehicle thatthe amount of alcohol concentration in the defendant's blood orbreath was 0.10 percent or more, you may presume that the defendantwas under the influence of alcohol. You never are required to makethis presumption. It is for the jury to determine whether thepresumption should be drawn. You should consider all of theevidence in determining whether the defendant was under theinfluence of alcohol."

We resolve the constitutional challenge to the reckless homicide statute in the factual contextof this case. Statutes are presumed to be constitutional and the party challenging the constitutionalityof the statute has the burden of rebutting this presumption. In re R.C., 195 Ill. 2d 291, 296 (2001). It is the duty of the court to construe acts of the legislature so as to affirm their constitutionality andvalidity if it can reasonably do so. R. W. Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d 153, 163(1998). Here, our ruling is limited to the issue before us regarding whether, in the factual contextof this case, sections 9-3(c)(1) and (c)(2) of the reckless homicide statute and the corresponding juryinstruction, IPI Criminal 3d No. 7.09X (Supp. 1996), are unconstitutional and violate due processby providing a mandatory irrebuttable presumption relieving the State of its burden of provingintoxication beyond a reasonable doubt. 720 ILCS 5/9-3(c) (West 1998). For the reasons previouslydiscussed, sections 9-3(c)(1) and (c)(2) of the reckless homicide statute together with the instructionsprovided to the jury in this case did not violate due process under the Illinois or United StatesConstitution.

II. APPRENDI

Reckless homicide is a Class 3 felony, with a penalty of 2 to 5 years. 720 ILCS 5/9-3(d)(2)(West 1996). However, if the State proves beyond a reasonable doubt that the defendant was underthe influence of alcohol or any other drug or drugs, "the penalty shall be a Class 2 felony, for whicha person, if sentenced to a term of imprisonment, shall be sentenced to a term of not less than 3 yearsand not more than 14 years." 720 ILCS 5/9-3(e) (West 1996). In this case, intoxication is a fact thatincreased the penalty for reckless homicide beyond the prescribed Class 3 sentencing range of 2 to5 years to the Class 2 sentencing range of 3 to 14 years. Defendant was sentenced to 12 years inprison for a Class 2 reckless homicide, which exceeds the maximum for Class 3 reckless homicideby 7 years. In Apprendi, the Supreme Court held that "[o]ther than the fact of a prior conviction, anyfact that increases the penalty for a crime beyond the prescribed statutory maximum must besubmitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490, 147 L. Ed.2d at 455, 120 S. Ct. at 2362-63. Defendant contends his sentence violates Apprendi because thesingle fact of a defendant's intoxication increases the prescribed range of penalties for recklesshomicide from a Class 3 offense with a range of 2 to 5 years to a Class 2 offense with a range of 3to 14 years, and therefore, intoxication must be charged in the indictment, tried by a jury, and provenbeyond a reasonable doubt.

Here, count II of the indictment charged defendant with reckless homicide in violation ofsection 9-3(c)(1) of the Code as follows:

"[Defendant] unintentionally killed Antonio McCray withoutlegal justification in that he drove a motor vehicle recklessly, to wit:he drove a motor vehicle while his blood alcohol concentration was.10 or more based on the identification of blood units in Section 11-501.2 of the Illinois Vehicle Code and such acts caused the death ofAntonio McCray."

Count III of the indictment charged defendant with reckless homicide in violation of section9-3(c)(2) of the Criminal Code of 1961 (the Code) as follows:

"[Defendant] unintentionally killed Antonio McCray withoutlegal justification in that he drove a motor vehicle recklessly, to wit:while he was under the influence of alcohol to a degree that renderedhim incapable of safely driving and such acts caused the death orgreat bodily harm to some individual."

The jury returned separate guilty verdicts on both count II and count III of reckless homicide:count II charging defendant with driving a car "while his blood alcohol concentration was .10 ormore," and count III charging defendant with driving a car "while he was under the influence ofalcohol to a degree that rendered him incapable of safely driving." The fact of intoxication wascharged in both counts of this indictment. Evidence regarding the reckless homicide charged in theindictment was presented to a jury. The evidence in the record is more than sufficient to sustainbeyond a reasonable doubt both guilty verdicts for reckless homicide returned by the jury. Therecord in this case indicates that not only was the fact of intoxication included in the indictment andsubmitted to the jury, but the jury determined that intoxication was proven beyond a reasonabledoubt by returning separate guilty verdicts on both reckless homicide counts.

The jury was properly provided with a standard IPI issues instruction, based on IllinoisPattern Jury Instructions, Criminal, No. 7.10A (3d ed. Supp. 1996), which in relevant part indicatedas follows:

"To sustain the charge of reckless homicide, the State mustprove the following propositions:

First Proposition, that the defendant caused the death ofAntonio McCray by driving a motor vehicle;

And Second Proposition, that the defendant drove the motorvehicle recklessly;

And Third Proposition, that the defendant drove the motorvehicle in a manner likely to cause death or great bodily harm;

And Fourth Proposition, that the defendant was then under theinfluence of alcohol or any other drug or drugs.

If you find from your consideration of all the evidence thateach of these propositions has been proved beyond a reasonabledoubt, you should find the defendant guilty.

If you find from your consideration of all the evidence thatany one of these propositions has not been proved beyond areasonable doubt, you should find the defendant not guilty."

We note the jury was properly instructed with the "beyond a reasonable doubt" standard inthis instruction. The jury returned separate verdicts finding the defendant guilty of reckless homicidewith a blood-alcohol concentration of 0.10 or more and finding defendant guilty of reckless homicideunder the influence of alcohol.

Defendant's intoxication increased the penalty for reckless homicide beyond the prescribedstatutory maximum of 5 years in prison for a Class 3 reckless homicide to a maximum of 14 yearsin prison for a Class 2 reckless homicide. The fact of intoxication which increased the penalty forreckless homicide was included in the indictment, tried by a jury, and proven beyond a reasonabledoubt. Accordingly, defendant's sentence of 12 years in prison for the Class 2 reckless homicideconviction does not violate Apprendi. Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct.at 2362-63.

III. PHOTOGRAPH ADMITTED INTO EVIDENCE

Defendant's final contention is that the trial court erred in admitting into evidence thephotograph of McCray's burned torso. He argues that the photograph lacked probative value, asMcCray died before being burned, and only served to prejudice the jury against him. Defendant didnot include this issue in a posttrial motion. Accordingly, it is waived. People v. Enoch, 122 Ill. 2d176, 186 (1988).

Even if defendant had properly preserved this issue for review, it nevertheless would havefailed. The responsibility of weighing the probative value and potentially prejudicial effect ofphotographic evidence rests within the discretion of the trial court. People v. Brown, 172 Ill. 2d 1,40-41 (1996). Such photographs are admissible if they are relevant and their probative value is notoutweighed by their prejudicial effect. People v. Henderson, 142 Ill. 2d 258, 319 (1990). Photographs of a deceased person may be relevant to prove the nature and extent of injuries and theforce required to inflict them; to show the position, condition, and location of the body; to show themanner and cause of death; to corroborate a defendant's confession; and to aid in understanding thetestimony of a pathologist or other witness. Henderson, 142 Ill. 2d at 319-20.

Here, the State contends that the photograph of McCray's burned torso was relevant becauseit corroborated Dr. Chira's testimony, helped establish the fact and cause of McCray's death, andshowed the area where McCray's fatal injuries were sustained. "Relevancy is established wherewhat is offered as evidence has any tendency to make the existence of any fact in consequence to thedetermination of the action more or less probable than it would be without the evidence." Peoplev. Peeples, 155 Ill. 2d 422, 455-56 (1993). Photographs are properly admitted where they are usedto establish any relevant fact, even if the defendant fails to contest an issue or is willing to stipulateto a fact. People v. Bounds, 171 Ill. 2d 1, 47 (1995). Photographs are relevant to demonstrate theextent and severity of the injuries suffered by the victim. People v. Kitchen, 159 Ill. 2d 1, 35 (1994).

Defendant relies on People v. Peterson, 171 Ill. App. 3d 730, 736-37 (1988), in support ofhis contention that the photograph depicting burns sustained after the victim's death wasinadmissible because it lacked any probative value. However, unlike Peterson, in this case thephotograph contributed to the understanding of the cause of the victim's death and supplemented thetestimony. Here, defendant contested the way in which the accident happened. The State arguedbased on the evidence that defendant hit McCray's car from behind. However, defendant claimedthat a third car cut him off and caused the accident. Dr. Chira testified that the lacerations toMcCray's liver, kidney, and abdomen area, alone, could have caused his death, and that thelacerations were consistent with a driver who was hit from the rear. Therefore, the photograph wasrelevant because it helped the jury understand Dr. Chira's testimony regarding the manner and causeof death.

A photograph that is gruesome is admissible if it is relevant to corroborate oral testimony orto show the condition of the crime scene. People v. Armstrong, 183 Ill. 2d 130, 147 (1998). Here,the photograph corroborates the eyewitness testimony of Transito Villalvazos, who testified thatMcCray was hit from the rear. That testimony corroborated the State's theory.

In this case, we further note that the experienced trial judge weighed the prejudicial effectof the photograph against the probative value of the photograph. In exercising his discretion, the trialjudge ruled at the close of the evidence that only one of seven photographs of McCray would bepublished to the jury, namely, the photograph of McCray's burned torso. Mindful of the prejudicialeffect of photographic evidence, the trial judge ruled in favor of defendant regarding the other sixphotographs of McCray which the State sought to publish. In exercising discretion the trial judgewisely disallowed the State's motion to publish to the jury any additional photographs of McCray'sburned corpse. Based on the record, we conclude that the probative value of the single photographpublished to the jury clearly outweighed any potential prejudice to defendant. There was no abuseof discretion.

Moreover, if the admission into evidence of the single photograph was improper, theoverwhelming evidence in this case would render the error harmless. Peterson, 171 Ill. App. 3d at737.

IV. ONE-ACT, ONE-CRIME RULE

Defendant's final contention is that because there was only one decedent in this case, one ofhis convictions for reckless homicide must be vacated under the one-act, one-crime rule of Peoplev. King, 66 Ill. 2d 551 (1977). The State agrees.

We vacate defendant's conviction for reckless homicide under count III of the indictment andorder the mittimus to reflect this correction. Defendant's conviction for reckless homicide undercount II of the indictment is affirmed. The remainder of the circuit court's judgment and sentenceis affirmed.

Affirmed in part; vacated in part.

COHEN, P.J., and McNULTY, J., concur.