{ "id": 3636978, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH BURBA, Defendant-Appellant", "name_abbreviation": "People v. Burba", "decision_date": "1985-05-14", "docket_number": "No. 84\u20141334", "first_page": "228", "last_page": "239", "citations": [ { "type": "official", "cite": "134 Ill. App. 3d 228" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "458 N.E.2d 1370", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "121 Ill. App. 3d 100", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3559532 ], "weight": 2, "pin_cites": [ { "page": "121" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/121/0100-01" ] }, { "cite": "441 N.E.2d 9", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "81 Ill. 2d 524", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5480180 ], "opinion_index": 0, "case_paths": [ "/ill-2d/81/0524-01" ] }, { "cite": "437 N.E.2d 892", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "107 Ill. App. 3d 505", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3018302 ], "weight": 2, "pin_cites": [ { "page": "515" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/107/0505-01" ] }, { "cite": "412 N.E.2d 181", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "89 Ill. App. 3d 803", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5538619 ], "pin_cites": [ { "page": "817" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/89/0803-01" ] }, { "cite": "460 N.E.2d 354", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "121 Ill. App. 3d 867", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3558678 ], "weight": 2, "pin_cites": [ { "page": "870" }, { "page": "870" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/121/0867-01" ] }, { "cite": "283 N.E.2d 882", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "51 Ill. 2d 590", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5392223 ], "year": 1984, "pin_cites": [ { "page": "593" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/51/0590-01" ] }, { "cite": "442 N.E.2d 154", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "92 Ill. 2d 490", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3098298 ], "year": 1972, "pin_cites": [ { "page": "506" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/92/0490-01" ] }, { "cite": "422 N.E.2d 1051", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "97 Ill. App. 3d 670", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3108106 ], "pin_cites": [ { "page": "679" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/97/0670-01" ] }, { "cite": "418 N.E.2d 1015", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "94 Ill. App. 3d 550", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3124922 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/94/0550-01" ] }, { "cite": "323 N.E.2d 30", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "25 Ill. App. 3d 235", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2705425 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/25/0235-01" ] }, { "cite": "268 N.E .2d 695", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "47 Ill. 2d 510", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2903225 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-2d/47/0510-01" ] }, { "cite": "430 N.E.2d 6", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "102 Ill. App. 3d 282", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3079861 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/102/0282-01" ] }, { "cite": "460 N.E.2d 392", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "121 Ill. App. 3d 1003", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3560554 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/121/1003-01" ] }, { "cite": "424 N.E.2d 1178", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "98 Ill. App. 3d 1105", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8501001 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/98/1105-01" ] }, { "cite": "137 N.E.2d 54", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1981, "opinion_index": 0 }, { "cite": "9 Ill. 2d 46", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5320614 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-2d/9/0046-01" ] }, { "cite": "189 N.E. 269", "category": "reporters:state_regional", "reporter": "N.E.", "weight": 3, "opinion_index": 0 }, { "cite": "355 Ill. 330", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5284960 ], "weight": 3, "pin_cites": [ { "page": "333" } ], "opinion_index": 0, "case_paths": [ "/ill/355/0330-01" ] } ], "analysis": { "cardinality": 1063, "char_count": 24766, "ocr_confidence": 0.755, "pagerank": { "raw": 1.6600340569907423e-07, "percentile": 0.6941167226351806 }, "sha256": "d9ee0ba252558e494e732aab935cb138c6036da814368089d6726b2a579185d7", "simhash": "1:22c6b0b6795c2555", "word_count": 4150 }, "last_updated": "2023-07-14T19:26:11.266607+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH BURBA, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE PERLIN\ndelivered the opinion of the court:\nDefendant, Joseph Burba, was charged by information with home invasion (Ill. Rev. Stat. 1981, ch. 38, par. 12\u201411(a)(2)); attempted rape (Ill. Rev. Stat. 1981, ch. 38, par. 8\u20144); and deviate sexual assault (Ill. Rev. Stat. 1981, ch. 38, par. 11\u20143). Defendant raised the affirmative defense of voluntary intoxication (Ill. Rev. Stat. 1981, ch. 38, par. 6\u20143). Following a jury trial, defendant was convicted of attempted rape and deviate sexual assault and was found not guilty of home invasion. He was sentenced to extended terms of 35 years for deviate sexual assault and 20 years for attempted rape, to be served concurrently.\nDefendant appeals, presenting the following issues for review: (1) whether the trial court erred in denying defendant\u2019s motion for a continuance on the basis that his expert witness was unavailable; (2) whether the trial court erred in allowing into evidence for impeachment purposes defendant\u2019s prior burglary convictions; (3) whether certain remarks of the prosecutor in closing argument constituted reversible error; (4) whether defendant was proved guilty beyond a reasonable doubt; (5) whether the trial court failed to order a \u201ctimely\u201d presentence report; (6) whether the trial court failed to consider factors in mitigation in sentencing defendant; and (7) whether the trial court erred in imposing extended-term sentences.\nDefendant was arrested on November 26, 1982; his case was on the trial court\u2019s call for two years before coming to trial. Prior to trial defendant had been granted two continuances: one on March 13, 1984, for unspecified reasons; a second on April 13, 1984, because defendant\u2019s expert witness, Dr. Sellers, was not available to testify. On April 23, 1984, the date set for trial, after the voir dire of jurors had begun, defendant again sought a continuance because Dr. Sellers was unavailable. The trial court denied the motion for a continuance. Defense counsel stated that he had contacted the Alcohol Treatment Center at Ingalls Hospital and had been told that a doctor would be available to testify as an expert for defendant, but that he had not yet spoken with that doctor.\nThe court then stated:\n\u201cWell, all right, we will let the State know as soon as possible. If I feel that they need time, reasonable time to get them an expert, I will give them additional time, but I expect both sides to be as diligent as possible. We do have a jury in the box. I can see giving this a one day delay, if necessary, or whatever else is close to that. If either side has difficulty with their witnesses, but be diligent please.\u201d\nThe next day, April 24, 1984, the court allowed defendant to amend his discovery answer to add the name of Dr. Shumak of In-galls Hospital as defendant\u2019s expert witness. The defense did not request additional time to prepare that witness. When trial resumed on April 25, 1984, the defense called, not Dr. Shumak, but Dr. Abrams of Northwestern University Hospital as its expert witness. The defense did not request additional time to prepare Dr. Abrams for trial.\nOn April 24, 1984, the defense moved to bar the introduction into evidence of defendant\u2019s prior burglary convictions on the basis of inadequate notice to the defense as well as prejudice to the defendant. The court denied the motion.\nAt trial, the complaining witness (AC) testified: She was 64 years of age at the time of the offense and lived alone on Springfield Street in Chicago. On November 26, 1982, she left her home shortly after 9:30 p.m. to look for her dog. As she stood \u201cin the alley behind an apartment building,\u201d the defendant approached her and began a conversation. He continued to walk with her down the alley. He did not slur his words, stumble or lean on her for support. When she reached her home, she told the defendant not to come into her yard, but \u201cto remain outside of her gate.\u201d However, after she unlocked her door, defendant forced his way into her house. Defendant dragged her into the kitchen, where she picked up the telephone receiver. Defendant replaced the telephone and told her that if she resisted him he would break her arms. He dragged her into the bedroom and threw her onto her bed with her head hanging over the footboard. Defendant removed her dentures and placed his penis into her mouth. While holding her down with one arm, he removed her slacks and began to remove her pantyhose with the other. There was a knock at the door, and the victim was able to twist her head away from defendant\u2019s penis. Defendant began to leave the house.\nOn cross-examination, AC testified that when she met defendant in the alley, he told her that he was returning from a tavern; she did not remember stating at a preliminary hearing on November 29, 1982, that defendant told her \u201che drank a lot\u201d or that when she encountered defendant he \u201cappeared to be intoxicated.\u201d\nAC\u2019s neighbor, Marie, testified: She lived next door to AC. On November 26, 1982, she \u201cheard loud noises\u201d at about 10:30 p.m. She looked in AC\u2019s kitchen window and saw defendant attacking AC. She then telephoned the police.\nBrian Burke testified that he is a Chicago police officer. On November 26, 1982, he responded to a call of \u201chome invasion in progress\u201d at AC\u2019s address. When he and his partner reached the house, defendant ran out the side door. Defendant\u2019s pants were open, and he appeared \u201ccalm.\u201d When Burke\u2019s partner grabbed defendant, defendant stated, \"Everybody is all right.\u201d When Burke entered the house, AC told him, \u201cI have been attacked.\u201d On cross-examination, Burke stated that when they placed him under arrest, defendant began to struggle with the police officers.\nDefendant testified as follows: In 1981 he had pleaded guilty to three \u201cgarage burglaries.\u201d Over the past several years he had \u201cused alcoholic beverages\u201d as well as \u201cPCP, cocaine, valium, and heroin.\u201d He had used alcohol since his junior year in high school. He had begun using other drugs while in the army. He believed he was \u201cin need of\u201d a drug abuse program.\nOn November 26, 1982, he had gone to visit his mother at about 11:30 a.m. He drank a quart of beer en route to his mother\u2019s house. He ate while at his mother\u2019s. At approximately 3:30 p.m. he left for a tavern called \u201cT.R.\u2019s Pub.\u201d He had \u201cabout ten beers and eight to ten mixed drinks\u201d at the tavern. He also ingested \u201cten to fifteen cents worth\u201d of the drug PCP while at the tavern. He ate no food after leaving his mother\u2019s home. The last thing he remembered before waking up in a jail cell the next day was playing \u201cthe baseball machine\u201d at the tavern.\nOn cross-examination, the defendant testified: Although he had been using drugs for nine years, he had never before sought help for his problem. On other occasions when he used PCP, he had \u201csometimes been unable to recall what happened.\u201d He did not remember ever seeing AC before trial. He did not recall attacking her.\nIt was stipulated that defendant was 28 years of age on the date of the offense and that at 1:30 a.m. on November 27, 1982, at Little Company of Mary Hospital, defendant\u2019s blood was analyzed and found to contain \u201cone hundred eighty-six milligrams per deciliter of ethanol.\u201d His blood was negative for \u201camphetamines, barbiturates, benzothiadiazines, cocaine, methadone, opiates, propoxyphene, and phenothiazines.\u201d\nDr. Richard Abrams testified as an expert witness for defendant as follows: Based on the stipulated \u201cblood level\u201d of the defendant at 1:30 a.m., he estimated that defendant\u2019s \u201cblood level\u201d at approximately 10 p.m. the night before would have been \u201ctwo hundred sixty-five.\u201d In Dr. Abrams\u2019 professional opinion, the defendant \u201cwas not capable of knowing what he was doing or acting intentionally with that blood level.\u201d\nOn cross-examination, Dr. Abrams testified: He had never before seen, examined or spoken with the defendant. He had been contacted one day earlier by defense counsel with regard to this case. He had been acquainted with defense counsel \u201coff and on for about a year or two.\u201d He did not know what crime defendant was charged with committing. He did not know defendant\u2019s drinking habits, and had based his opinion on a \u201cnormal physical standard.\u201d If he had actually been acquainted with defendant and his drinking habits, it could have \u201cto some extent\u201d affected his opinion of defendant\u2019s ability to know what he was doing on the night of the offense. However, it was \u201cmost unlikely\u201d based on defendant\u2019s stipulated blood level that defendant was \u201cin control of his faculties\u201d at the time of the attack.\nIn rebuttal, the State called Officer Robert Anderson of the Chicago police department, who testified as follows: He was working with Officer Burke on the night of defendant\u2019s arrest. When he arrived at the side door of AC\u2019s house, he saw defendant pulling up his pants and \u201cstuffing his shirt into his pants.\u201d When he stopped defendant from leaving, defendant stated, \u201cThat\u2019s okay. Everything is cool. There\u2019s no problem here.\u201d Defendant was calm until the police officers tried to handcuff him. Although \u201cfour or five\u201d officers had to struggle to handcuff defendant, he was \u201ccalm\u201d at the police station. He answered questions coherently and did not slur his words. Anderson had, in his 14 years as a police officer, seen, arrested, or had contact with \u201cthousands\u201d of people who were drunk. In his opinion, defendant \u201chad been drinking.\u201d\nThe prosecution published to the jury that on February 4, 1981, the defendant had been convicted of three burglaries.\nIn closing argument the prosecution stated:\n\u201cthe fact he [Dr. Abrams] gets up here and said he\u2019s a doctor and he\u2019s going to tell you all about it, that doesn\u2019t mean you have to believe him. And why is he here? He\u2019s a friend of one of the defense attorneys. Strike that.\u201d\nFollowing an objection by defense counsel, the prosecution continued:\n\u201cWithdraw that, Judge. He knows one of the defense attorneys and has known him for a period of time. The defense attorney called him yesterday morning and asked him to come in. The doctor cleared his schedule to be here today to testify.\u201d\nThe jury was instructed that \u201can intoxicated person is criminally responsible for his conduct unless his intoxication renders him incapable of acting knowingly or intentionally.\u201d\nThe jury found defendant guilty of attempted rape and deviate sexual assault, and not guilty of home invasion. On May 23, 1984, following a sentencing hearing, the trial court entered extended sentences of 35 years for deviate sexual assault and 20 years for attempted rape, to be served concurrently.\nI\nDefendant first contends that the trial court erred in denying defendant\u2019s motion for a continuance in order to obtain an expert witness. With regard to the granting of a continuance in such a situation, our supreme court has stated:\n\u201cIt is, of course, true, as has been many times pointed out in this court, that every defendant, guilty or innocent, has a right to a fair trial, and that this right includes a reasonable opportunity for him to acquaint his counsel with the nature of his defense and an opportunity for the attorney to prepare. [Citations.] It is also true that it is only where the record shows that the trial court has abused its discretion by denying reasonable time for the preparation of the defense that a reviewing court will interfere. [Citation.]\nBefore there can be any reversible error on account of a lack of time to prepare for trial it must appear from the record that time was asked for and the court\u2019s refusal to give it in some way embarrassed the defendant\u2019s case or prejudiced his rights.\u201d People v. Dale (1934), 355 Ill. 330, 333, 189 N.E. 269.\nIt is well established that whether to grant a continuance is a matter within the sound discretion of the trial court (Ill. Rev. Stat. 1981, ch. 38, par. 114\u20144(e); People v. Clark (1956), 9 Ill. 2d 46, 137 N.E.2d 54; People v. Thibudeaux (1981), 98 Ill. App. 3d 1105, 424 N.E.2d 1178), to be determined according to the facts and circumstances surrounding the request. (People v. Clark (1956), 9 Ill. 2d 46, 137 N.E.2d 54.) That determination will not be disturbed unless it appears that the denial of a continuance impeded the accused\u2019s preparation of his defense or prejudiced his rights. People v. Robin son (1984), 121 Ill. App. 3d 1003, 460 N.E.2d 392; People v. Petrovic (1981), 102 Ill. App. 3d 282, 430 N.E.2d 6.\nIn the instant case, defendant was granted a 10-day continuance on April 13, 1984, because his expert witness, Dr. Sellers, was not available to testify. Defendant had been granted a prior continuance on March 13, 1984, although its purpose is not specified in the record. On April 23, 1984, after the jury had been impaneled, defendant again requested a continuance because Dr. Sellers was not available. The trial court denied the continuance and advised defense counsel to obtain another expert witness. At this point, defense counsel stated that he had contacted the Alcohol Treatment Center at Ingalls Hospital and was advised that a doctor would be available to testify for defendant, although he had not yet talked to such doctor. The court then indicated clearly that, if necessary, a \u201cone day delay\u201d or \u201cwhatever else is close to that\u201d would be available if \u201ceither side has difficulty with their witnesses.\u201d\nOn April 24, 1984, defense counsel moved to amend his answer to add Dr. Shumak of Ingalls Hospital as defendant\u2019s expert witness. Defendant\u2019s counsel requested no additional time to prepare the witness. On April 25, 1984, the defense called Dr. Abrams of Northwestern Hospital as its expert witness. Again, no additional time was requested for preparation.\nBased on the hypothetical question presented to him, Dr. Abrams testified that defendant was incapable of acting intentionally or \u201cknowing what he was doing\u201d on the night of the offense. Although on cross-examination Dr. Abrams conceded that he had not personally examined defendant or familiarized himself with the facts of the case, he stated that his opinion of defendant\u2019s ability to act intentionally was based upon the defendant\u2019s \u201cblood level\u201d which had been stipulated to by the parties. Thus, since the \u201cblood level\u201d was the key factor in forming Dr. Abrams\u2019 opinion, it did not appear that greater familiarity with defendant or the case would have served to alter Dr. Abrams\u2019 opinion.\nIn our opinion, the trial court did not abuse its discretion in denying defendant\u2019s motion for a continuance on April 23, 1984. At that point, defendant had already been granted two continuances, one for the express purpose of obtaining the services of an expert \"witness. The voir dire of the jury had begun, and the trial court made it clear that extra time to prepare an expert witness would be granted to either side if requested. Under such circumstances, the trial court\u2019s decision not to grant an additional continuance was clearly not unreasonable. (People v. Dale (1934), 355 Ill. 330, 189 N.E. 269.) Moreover, once defendant had an expert witness, he did not request any additional time as offered by the trial court in order to prepare that witness. Therefore, as the State points out, defendant should not now be heard to complain that his rights were prejudiced thereby. (People v. Dale (1934), 355 Ill. 330, 189 N.E. 269.) Finally, defendant does not, in fact, appear to have suffered any prejudice. His expert\u2019s testimony was unequivocal and substantially unimpeached. As noted, it was based not on the facts of the case, but rather on the ability of any individual to form the requisite intent to commit a criminal act with the stipulated \u201cblood level.\u201d Further, based on Dr. Abrams\u2019 testimony on cross-examination, the implication was that had the doctor been aware that defendant was habitually a heavy drinker, his testimony as to defendant\u2019s ability to act intentionally would have, in fact, been weakened.\nII\nDefendant next contends that the trial court erred in denying his motion in limine to bar the admission of evidence of his three burglary convictions. The trial court allowed the prosecution to present such evidence to the jury for impeachment purposes.\nIt is well established that a prior criminal conviction is admissible to impeach a witness if: (1) it is less than 10 years old; (2) it is punishable by death or imprisonment for more than one year; (3) it involved dishonesty or false statement regardless of the punishment; and (4) the probative value outweighs the danger of unfair prejudice. (People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E .2d 695.) Convictions for burglary indicate dishonesty. People v. Jones (1974), 25 Ill. App. 3d 235, 323 N.E.2d 30.\nIn the instant case, defendant\u2019s credibility was clearly at issue because his was the only testimony which related to the amount and what he had drunk and the PCP he had allegedly ingested prior to the attack on AC. Defendant\u2019s convictions occurred in 1981, only three years prior to trial, and were punishable by more than one year in prison. Moreover, as the State correctly notes, since defendant\u2019s credibility was at issue in the case, his convictions indicating dishonesty were more probative than prejudicial. All of the requirements of Montgomery were met, and the trial court did not err in denying defendant\u2019s motion in limine.\nIII\nDefendant next contends that the prosecutor\u2019s comment in closing argument regarding Dr. Abrams\u2019 alleged friendship with defense counsel constituted reversible error. During cross-examination, Dr. Abrams stated that he had known counsel \u201coff and on perhaps for a year or two.\u201d As noted in closing argument, the prosecutor made reference to this relationship. Defendant contends that \u201cby this insidious comment to the jury, the prosecutor insinuated that Dr. Abrams had come to court \u2014 not to tell the truth \u2014 but to help his friend, the defense attorney.\u201d\nClosing argument must be based on facts in evidence and the reasonable inferences drawn therefrom. (People v. Watson (1981), 94 Ill. App. 3d 550, 418 N.E.2d 1015.) Furthermore, a prosecutor has a duty to discuss witnesses and their credibility. (People v. Spann (1981), 97 Ill. App. 3d 670, 679, 422 N.E.2d 1051.) Here the prosecutor\u2019s comments were based on Dr. Abrams\u2019 testimony on cross-examination and the fact that he had known defense. counsel for \u201ca year or two\u201d and that he had \u201crescheduled his appointments\u201d to be present in court, and were therefore within the parameters of his \u201cduty to discuss witnesses and their credibility.\u201d We find that the prosecutor\u2019s comments were within the bounds of proper closing argument.\nIV\nDefendant next contends that he was not proved guilty beyond a reasonable doubt. This court recently stated:\n\u201c[I]t is the prerogative of the trial court to ascertain the truth. This court may not substitute its own feeling or judgment for the result reached by the trier of fact where the outcome of the case depends upon the weight of the evidence or the credibility of the witnesses. [Citations.] It has been repeatedly held that a \u2018 \u201c ' \u201c*** finding of guilty will be disturbed only where the evidence is so unreasonable, improbable or unsatisfactory as to leave a reasonable doubt as to the defendant\u2019s guilt. [Citation.]\u201d \u2019 \u201d \u2019 People v. Kline (1982), 92 Ill. 2d 490, 506 [442 N.E.2d 154] quoting People v. Durley (1972), 51 Ill. 2d 590, 593, 283 N.E.2d 882.\u201d People v. Gray (1984), 121 Ill. App. 3d 867, 870, 460 N.E.2d 354.\nIn the instant case, the jury reasonably chose to believe the testimony of the four witnesses for the State which consistently depicted defendant\u2019s actions as those of an individual capable of forming an intent. Although the defendant\u2019s expert witness testified to the contrary, \u201c[i]n all situations in which experts are called to testify, their comparative credibility and the weight to be accorded to their testimony \u2018is a matter for the trier of fact to determine.\u2019 \u201d People v. Gray (1984), 121 Ill. App. 3d 867, 870, quoting People v. Platter (1980), 89 Ill. App. 3d 803, 817, 412 N.E.2d 181.\nThe decision of the jury is not unreasonable in light of testimony that the defendant had the presence of mind to follow AC home from the alley while making coherent conversation; wait for her to unlock her door before forcing himself into her house; and replace the telephone receiver when she tried to summon assistance. He removed her dentures before placing his penis in her mouth. Defendant\u2019s comments to the police were also rational. We find the decision of the jury to be well supported by the evidence. Therefore, defendant\u2019s contention that he was not proved guilty beyond a reasonable doubt is without merit.\nV\nDefendant next contends that the trial court erred in failing to order a \u201ctimely presentence report.\u201d A review of the record reveals a \u201cPresentence Investigation\u201d of defendant dated April 21, 1983. No further presentence report was ordered by either party prior to defendant\u2019s sentencing hearing on May 23, 1984. Defendant\u2019s argument appears to be that the court had a duty to sua sponte order a more timely report. However, this court recently held in People v. Gornick (1982), 107 Ill. App. 3d 505, 437 N.E.2d 892, that \u201cany purported deficiency in the [ten-month-old] presentence report with respect to its lack of current information was waived by defendant\u2019s failure to object.\u201d (People v. Gornick (1982), 107 Ill. App. 3d 505, 515.) The same principle would appear applicable in the instant case involving a 13-month-old report. Therefore, defendant has waived this issue by failing to object to the timeliness of his presentencing report prior to sentencing. See also People v. Meeks (1980), 81 Ill. 2d 524, 441 N.E.2d 9.\nIn a related argument, defendant contends that the court failed to \u201cconsider\u201d his presentencing report in imposing sentence. It is well established that a trial court is not required to detail for the record the process it uses in reaching its determination of a proper sentence. (People v. Bergman (1984), 121 Ill. App. 3d 100, 458 N.E.2d 1370.) Moreover, comments of the trial court at the sentencing hearing in this case indicate that the report was considered by the court: e.g., the court noted that there was nothing in defendant\u2019s background to suggest that he would \u201cbe the type of citizen that the court would ever want to see on the street.\u201d In addition, the prosecution at the sentencing hearing referred specifically to the report in arguing for an extended-term sentence for defendant. Thus, defendant\u2019s contention that the court failed to consider the report lacks merit.\nVI\nDefendant contends that the trial court failed to consider factors in mitigation in sentencing defendant. Defendant suggests that his conduct \u201cneither caused nor threatened serious physical harm to another.\u201d While this is recognized as a \u201cfactor in mitigation\u201d under the statute (Ill. Rev. Stat. 1981, ch. 38, par. 1005\u20145\u20143.1), we opine that the acts of which defendant was found guilty\u2014 the attempted rape and deviate sexual assault of a 64-year-old woman with a fractured hip \u2014 accompanied by threats that he would break her arms if she resisted, at the very least threatened serious physical harm.\nMoreover, a review of the record establishes that defense attorney did, in fact, argue factors in mitigation, including the one here stated at the sentencing hearing. Thus, it is assumed that the court considered such factor. People v. Bergman (1984), 121 Ill. App. 3d 100, 121.\nVII\nFinally defendant contends that the court erred in imposing extended-term sentences. In Illinois, a defendant may be sentenced to an extended-term sentence if he is convicted of a felony committed against: (1) a person 60 years of age or older at the time of the offense, or against (2) a person physically handicapped at the time of the offense. (Ill. Rev. Stat. 1981, ch. 38, pars. 1005\u20145\u20143.2(b)(2)(ii), (iii).) A handicap is a permanent and disabling physical condition which \u201cimpairs the ability of the person to avoid or prevent the commission of the offense.\u201d Ill. Rev. Stat. 1981, ch. 38, par. 1005-5-3.2(b)(2).\nThe victim here was 64 years of age at the time of the offense and had difficulty walking because of a hip fracture. The age of this victim alone is sufficient to justify the extended-term sentence. We can therefore find no error with the sentences imposed by the trial court.\nAffirmed.\nHARTMAN and BILANDIC, JJ., concur.", "type": "majority", "author": "JUSTICE PERLIN" } ], "attorneys": [ "Robert B. Rosen, of Chicago, for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and C. Jeffrey Thut, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH BURBA, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 84\u20141334\nOpinion filed May 14, 1985.\n\u2014 Rehearing denied July 16, 1985.\nRobert B. Rosen, of Chicago, for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and C. Jeffrey Thut, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0228-01", "first_page_order": 250, "last_page_order": 261 }