author: JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES MOORE, Defendant-Appellant.
    First District (1st Division)
    No. 1—85—0628
    Opinion filed December 31, 1990.

      Law Offices of Jeffrey A. Kripton, Ltd., of Des Plaines (Jeffrey A. Kripton, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Kenneth T. McCurry, Vickie E. Voukidis, and LaCoulton Walls, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MANNING

delivered the opinion of the court:

The defendant, James Moore, was charged by indictment on January 24, 1984, with the offenses of attempted murder (Ill. Rev. Stat. 1981, ch. 38, pars. 8 — 4, 9 — 1), aggravated battery (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 4(a)), aggravated battery to a child (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 4.3(a)), and cruelty to children (Ill. Rev. Stat. 1981, ch. 23, par. 2368). Following a jury trial, defendant was found guilty of all charges and sentenced to two concurrent 22-year terms in the Illinois Department of Corrections. Patricia Moore was also indicted for the same offenses. However, her case was disposed of on January 9, 1985, after her guilty plea was accepted by the trial court.

Christine Kasik, a children’s welfare attendant for the Chicago Board of Education, responsible for transporting handicapped children to school, testified that on January 13, 1984, as she approached the intersection of Washington and Kilpatrick, she noticed a half-naked child wearing only jeans standing in the snow. As Ms. Kasik approached the child (later determined to be eight-year-old Quantria Moore), she noticed that the child’s face, chest and arms were covered with blood. The child was also unsteady on her feet. Ms. Kasik wrapped the child in a scarf and assisted her onto the bus. When Ms. Kasik returned to the bus garage, she instructed the dispatcher to call the police and proceeded to wipe the blood from Quantria’s body.

LaShawn Amos, the next door neighbor of the Moores’, testified that on January 13, 1984, while taking garbage out of her back door, she noticed a little girl (later identified as six-year-old Shana Moore) lying facedown in the snow wearing only a pair of panties and one shoe. She went back into her apartment, called the police and returned outside. When she picked up Shana to carry her into the apartment, she noticed that Shana was unconscious and her eyes appeared to roll to the back of her head. She further noticed blood frozen to Shana’s mouth. Thereafter, the paramedics arrived and Shana was taken to the hospital.

Dr. Lee Major testified that he treated both Quantria and Shana at St. Anne’s Hospital on January 13, 1984. Shana suffered severe hypothermia and was placed on a heart machine. Quantria suffered a broken jaw, lacerated tongue and separated teeth.

Officer James Carter testified that on January 13,1984, he and Officer Charles Sisler responded to an unrelated call at 4708 West Washington. While there, they spoke to LaShawn Amos about the child found unconscious in the snow. Upon learning of the observations of Ms. Amos, they went to the defendant’s apartment on the third floor. The defendant let the police in, but when questioned about his children, he denied having any children. On further questioning he admitted having children but claimed that he did not know the whereabouts of his children. The defendant and his wife Patricia Moore were then arrested.

Detective Angelo Rinchiuso testified that on January 13, 1984, he was assigned to investigate this case. During the course of his investigation he interviewed Christine Kasik and LaShawn Amos prior to speaking with the defendant. He read the defendant his Miranda rights, and the defendant stated that he understood those rights. Detective Rinchiuso further testified that during this interview, the defendant was not handcuffed because he was not giving him any trouble. Detective Einchiuso stated that the defendant told him that on January 13, 1984, he and his wife used some cocaine and had taken codeine cough syrup. Thereafter, they had an argument and he and his wife each took an arm and leg, first of .Shana, then Quantria, and threw each of them off the back porch. The defendant explained to Detective Einchiuso that they did this to the children because they were “high.” Detective Einchiuso then called Assistant State’s Attorney Lester Joseph, who also interviewed the defendant. Detective Einchiuso and Joseph subsequently went to St. Anne’s Hospital and interviewed Quantria Moore.

Former Assistant States Attorney Lester Joseph (a Department of Justice lawyer at the time of the trial) testified that on January 13, 1984, he was assigned as an assistant State’s Attorney, felony review unit. He was assigned to handle this case. He initially spoke with Detectives Einchiuso and McCorkle and other witnesses about the case. Then he went to the hospital to see the children. When he interviewed the defendant after reading him his Miranda rights, the defendant restated what he had previously told the detectives. Joseph wrote down the details of the incident as it was told to him by the defendant. The defendant read the written statement with Joseph, confirmed its correctness and signed the document.

Prior to trial the defendant filed a motion to suppress the statement, alleging that he was under the influence of alcohol and drugs which rendered him incapable of giving a voluntary confession. During the evidentiary hearing on the motion, the State presented the testimony of four witnesses, i.e., Officer James Carter, Officer Charles Sisler, Detective Einchiuso and former Assistant State’s Attorney Lester Joseph, who at the time of the occurrence was on duty in the felony review unit of the State’s Attorney’s office and was assigned to the case at bar. Each of these witnesses attested to the defendant’s calm demeanor immediately before he made a statement regarding the incident. Officers Carter and Sisler confronted the defendant at his home, and they both testified to his lucidity during the colloquy that occurred prior to defendant being taken into custody. Likewise, Einchiuso and Joseph testified about their respective observations before and during the taking of the statement at Area 4 headquarters. Defendant introduced the testimony of Dr. Stanley Harper, a board-certified family practitioner, who had examined him on January 15, 1984, while he was in custody. Dr. Harper concluded that the defendant was showing psychotic behavior which was manifested by his extreme agitation, incoherence, violence and combativeness. As a result, upon completion of the examination, Dr. Harper ordered leather restraints for the defendant for 12 hours and a series of blood tests. He also concluded that defendant’s behavior was drug related, and he found it difficult to believe that the defendant would have given the lucid statement described by the State’s witnesses. He based that conclusion on opinions rendered by two psychiatrists whose reports he utilized in his analysis of defendant’s condition, and on defendant’s behavior of January 15, 1984, two days after the occurrence. Dr. Harper conceded on cross-examination that it is possible for a person to purposely act in a violent and agitated manner. He further testified that he had not recalled that the same two psychiatrists who examined the defendant had also concluded that defendant was a malingerer and a habitual liar.

Mary Moore, the defendant’s mother, testified that her son visited her two days before his arrest. During that visit, he acted in a very bizarre manner, i.e., made animal sounds, did not recognize her, called her a witch and slapped her.

The trial court determined that defendant’s statements were given voluntarily and denied defendant’s motion to suppress his custodial statements. The jury then heard the evidence and after deliberation found the defendant guilty of all charges. At the sentencing hearing the defendant’s motion for a' new trial was denied. The defendant was sentenced to serve two concurrent 22-year terms of imprisonment in the Illinois Department of Corrections.

We must initially determine whether the trial court properly denied defendant’s motion to suppress his statements. Defendant argues that the trial court erred in failing to suppress his custodial statements based on the defendant’s drug-intoxicated condition and psychotic behavior. Defendant asserts that the trial court had the written opinions of two psychiatrists which indicated defendant’s possible psychosis at the time the offense was committed as a result of his voluntary drug ingestion. Moreover, Dr. Harper testified that the defendant was psychotic when he was received in Cook County jail due to drug abuse. The State argues that the testimony of Dr. Harper did not support the defendant’s position that he was intoxicated at the time the statements were made since Dr. Harper was not with the defendant at the time of arrest or at the time of the making of the statement to observe the defendant’s calm demeanor. Moreover, Dr. Harper’s interview did not occur until two days after the statement was made and he testified that it was possible that the defendant was faking his psychotic symptoms when he examined him. The State asserts that the same reports that Dr. Harper used to form his opinion regarding defendant’s psychosis include opinions that defendant was a malingerer and a liar.

The voluntariness of a statement after a drug has been administered is a question to be decided by the trial court upon a motion to suppress. (People v. Kincaid (1981), 87 Ill. 2d 107, 117, 429 N.E.2d 508.) Moreover, it is well settled that depending upon the totality of the circumstances, a trial court’s finding that the statement was voluntarily made will not be disturbed on review unless it is contrary to the manifest weight of the evidence. (People v. Evans (1988), 125 Ill. 2d 50, 77, 530 N.E.2d 1360; People v. Rogers (1988), 123 Ill. 2d 487, 495, 528 N.E.2d 667, cert. denied (1989), 488 U.S. 1046, 102 L. Ed. 2d 1001, 109 S. Ct. 878; People v. Gacho (1988), 122 Ill. 2d 221, 237, 522 N.E.2d 1146; People v. Clark (1986), 114 Ill. 2d 450, 457, 501 N.E.2d 123.) However, it is the State’s burden to establish that a statement was knowingly, intelligently and voluntarily made. Miranda v. Arizona (1966), 384 U.S. 436, 475, 16 L. Ed. 2d 694, 724, 86 S. Ct. 1602, 1628; Kincaid, 87 Ill. 2d at 116.

In considering whether the defendant’s confession was voluntary, we must determine whether his will was overborne at the time he confessed. (Kincaid, 87 Ill. 2d at 117; Townsend v. Sain (1963), 372 U.S. 293, 307, 9 L. Ed. 2d 770, 782, 83 S. Ct. 745, 754.) A confession is not automatically inadmissible merely because the accused is under the influence of drugs when the confession is made. Kincaid, 87 Ill. 2d at 119.

In the instant case the record reveals that several witnesses observed the defendant’s calm demeanor just prior to defendant making his statements. Moreover, the defendant’s actions on the day the crime was committed do not support his intoxication defense. The evidence reveals that the defendant was very lucid before, during and after the commission of the offense. Specifically, the defendant provided Detective Rinchiuso and Assistant State’s Attorney Lester Joseph with detailed information as to what occurred on January 13, 1984.

Detective Rinchiuso testified that, after the defendant was read his Miranda rights, he stated that he understood those rights and proceeded to explain what happened on January 13, 1984. Defendant stated that his children had not attended school that day and he and his wife had used cocaine and taken codeine cough syrup. Thereafter, they had an argument, and he and his wife each took an arm and leg of first Shana, then Quantria, and threw each of them off the back porch. The defendant explained to Detective Rinchiuso that they did this to the children because they were “high.” Detective Rinchiuso further testified that during this interview, the defendant was not handcuffed because he was not giving him any trouble. He stated that the defendant did not display any inappropriate behavior. Moreover, on January 13, 1984, while being interviewed by Assistant State’s Attorney Lester Joseph, assigned to the felony review unit, the details of the incident were recited by defendant, put in writing by Joseph, and the defendant read the statement with Joseph, confirmed its correctness and signed the document. Joseph testified that the defendant was calm and cooperative during the interview. Additionally, Officer James Carter testified that when he and Officer Charles Sisler arrived at defendant’s apartment, he was lucid enough to fabricate a story by initially denying that he had any children. However, after the officers questioned him further about the pictures of the children on the mantle, he admitted that those were pictures of his children but stated that he did not know the whereabouts of his children. The defendant was quickly able to change his story to conform to the obvious evidence. Both Officer Carter and Officer Sisler stated that the defendant calmly responded to their questions and did not reveal any manifestations of violence. It is unlikely that a person whose will was overborne would be able to fabricate a story about his children and instantaneously change his story in response to a specific question in order to tailor his response to the evidence.

The aformentioned acts are not the acts of a person whose will was overborne. Nor do they support a claim that the defendant was so mentally impaired that all reason was suspended or that he was incapable of acting knowingly. To the contrary, the evidence reveals that the defendant acted knowingly and intentionally. (See People v. Hayes (1988), 173 Ill. App. 3d 1043, 1048, 527 N.E.2d 1342; People v. Terry (1987), 154 Ill. App. 3d 162, 166, 506 N.E.2d 786.) We, therefore, conclude that based on the totality of the circumstances, the finding by the trial court that the defendant’s statements were knowingly and voluntarily made is not against the manifest weight of the evidence.

Defendant next contends that he was denied his sixth amendment right to the effective assistance of counsel when his trial counsel failed to submit any evidence or testimony to support his intoxication defense. Generally, in order for a defendant to succeed on an ineffective assistance of counsel claim, he must show that counsel’s performance was so deficient, that it fell below an objective standard of reasonableness. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) Moreover, counsel’s performance does not constitute ineffective assistance unless it is shown that the performance so prejudiced the defense of the case that the defendant was denied a fair trial. Strickland, 466 U.S. at 686, 80 L. Ed. 2d at 692, 104 S. Ct. at 2064; People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246, cert. denied (1985), 471 U.S. 1120, 86 L. Ed. 2d 267, 105 S. Ct. 2368.

In determining whether a defendant has been prejudiced, “defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the- outcome.” (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; Albanese, 104 Ill. 2d at 525.) Furthermore, a totality of the evidence presented to the trier of fact must be considered when a court makes its determination that a reasonable probability exists that but for counsel’s errors the result of the proceedings would have been different. People v. Daniels (1987), 164 Ill. App. 3d 1055, 1083, 518 N.E.2d 669; People v. Wilson (1986), 149 Ill. App. 3d 1075, 1077-78, 501 N.E.2d 863.

The Strickland v. Washington court further concluded that it is unnecessary for courts to determine whether counsel’s performance was deficient before analyzing the prejudice suffered by the defendant as a result of the alleged deficiencies. (Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; People v. Enoch (1988), 122 Ill. 2d 176, 201, 522 N.E.2d 1124, 1137.) Moreover, the Illinois Supreme Court has recently held that in order for a defendant to establish prejudice, he must demonstrate, “not simply a possibility of prejudice, but that the claimed error worked to his actual and substantial disadvantage.” (People v. Owens (1989), 129 Ill. 2d 303, 318, 544 N.E.2d 276.) It is well settled that defendant is entitled to competent, not perfect, representation and mistakes concerning trial strategy, tactics or judgment do not render counsel’s representation incompetent. People v. Hillenbrand (1988), 121 Ill. 2d 537, 548, 521 N.E.2d 900; People v. Stewart (1984), 104 Ill. 2d 463, 492, 473 N.E.2d 1227, cert. denied (1985), 471 U.S. 1120, 86 L. Ed. 2d 267, 105 S. Ct. 2368; People v. Mitchell (1984), 105 Ill. 2d 1, 12, 473 N.E.2d 1270.

In reviewing counsel’s representation, we initially look to the existence of prejudice to determine if defendant was deprived of his constitutional right to the effective assistance of counsel. Defendant argues that trial counsel failed to present any evidence to support his intoxication defense. However, in examining the totality of defense counsel’s representation, we note that before the trial, counsel moved to suppress defendant’s statements alleging that he was under the influence of alcohol and drugs at the time the statement was allegedly made. Moreover, during the suppression hearing, Dr. Stanley Harper, who had examined the defendant on January 15, 1984, testified that the defendant was showing psychotic behavior which the doctor believed to be drug related. However, on cross-examination he acknowledged that it was possible for a person to purposely act in a violent and agitated manner. Why counsel chose not to call Dr. Harper at trial is not clear from the trial record; however, we fail to see how defendant was prejudiced thereby. Clearly, we do not have a situation where defense counsel neglected to investigate a potential defense. Counsel’s diligence in connection with the possible defense of intoxication is illuminated by the fact that he was aware of Dr. Harper’s role in examining defendant and was aware of what his testimony would have been at trial since he subpoenaed him for and examined him at the suppression hearing. It is logical to infer that it was a matter of trial strategy that caused him to decline to take further steps to bring him in as a trial witness. Counsel was confronted with the conflicting opinions of two other expert witnesses who could have been called in rebuttal to testify to defendant’s malingering. In addition, the State’s law enforcement witnesses, i.e., police officers and felony review assistant State’s Attorney, did dispute defendant’s contention regarding his mental state on the date of the occurrence. Moreover, defense counsel was cognizant that Dr. Harper had conceded at the suppression hearing that defendant could have been malingering and there is no reason to believe that this testimony would differ at trial. He was also aware that Dr. Harper had previously testified that while he did render an opinion regarding defendant’s mental state on January 15, 1984, the doctor acknowledged that he had insufficient information upon which to render such an opinion.

The record does reflect a colloquy that established that Dr. Harper was under subpoena, but unavailable on the day of the trial. However, counsel properly requested a continuance which the court granted. While the trial record is confusing regarding what occurred subsequently in having Dr. Harper testify at trial, it is clear that counsel rested without offering any witnesses. Therefore, the defendant has failed to show that the outcome of the trial would have been different had Dr. Harper testified. Furthermore, the defendant has failed to meet his burden of demonstrating that a reasonable probability existed that but for trial counsel’s errors, the result of the proceeding would have been different. Defense counsel’s decision not to present the testimony of additional witnesses involved the exercise of judgment and trial strategy. As previously noted, trial strategy is an insufficient basis to justify a finding of ineffective assistance of counsel. The record does not show that counsel’s performance fell below an objective standard of reasonableness. Nor does the record reveal that defendant was prejudiced by trial counsel’s failure to further pursue his voluntary intoxication defense, and the defendant has failed to state what additional evidence of intoxication could have been presented to support his intoxication defense. Accordingly, defendant’s argument that he was denied the effective assistance of counsel must fail.

Defendant next contends that the State failed to prove beyond a reasonable doubt that he had the mental capacity to commit the crimes for which he was charged since they were specific intent crimes. Defendant correctly asserts that the prosecution has the burden of establishing that he intended to kill the children. (Mitchell, 105 Ill. 2d at 9; People v. Treadway (1985), 138 Ill. App. 3d 899, 902, 486 N.E.2d 929.) However, it should be noted that the State has the burden of proving the defendant guilty beyond a reasonable doubt, not beyond any possible doubt. (People v. Madej (1985), 106 Ill. 2d 201, 218, 478 N.E.2d 392.) It is well settled that the specific intent to kill may be inferred from the surrounding circumstances, including the character of the assault upon the victim and other relevant matters. Treadway, 138 Ill. App. 3d at 902; Mitchell, 105 Ill. 2d at 9; People v. Ruiz (1982), 94 Ill. 2d 245, 263, 447 N.E.2d 148.

After carefully reviewing the record, we find that the same evidence which established that the defendant’s confession was voluntary also establishes that the defendant was proven guilty of the crimes charged beyond a reasonable doubt. The evidence revealed that the defendant voluntarily provided a detailed explanation of how he and his wife each took an arm and leg, first of Shana, then Quantria, and threw them from the third floor, a distance of approximately 30 to 50 feet. This was unlike the situation in Mitchell, wherein the defendant’s attempted murder conviction was reversed because the requisite intent was not established. In that case, the defendant repeatedly struck her child, and when the child lost consciousness, the defendant applied a cool cloth and proceeded to take the child to the hospital for emergency medical attention. (Mitchell, 105 Ill. 2d at 9.) In the case at bar, the surrounding circumstances show that after the children were thrown from the third-floor porch, the defendant did not offer any assistance. Instead, eight-year-old Quantria wandered into the intersection of a busy street covered with blood, half-naked in the snow wearing only jeans. Moreover, six-year-old Shana was found by a neighbor lying facedown in the snow, unconscious with her eyes rolled to the back of her head and wearing only a pair of panties and one shoe. In view of the defendant’s confession and the surrounding circumstances, we find the defendant’s guilt was established beyond a reasonable doubt.

Accordingly, for all of the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

BUCKLEY, P.J., and O’CONNOR, J., concur.

       The transcript shows that the court granted the continuance to either bring in Dr. Harper the following Wednesday or to consider admitting his suppression testimony if he was yet unavailable. However, the transcript, in a very confusing colloquy, further reveals that the case actually resumed the Monday preceding the agreed-upon Wednesday date at which time both sides rested, the defense offering no evidence. If a discussion occurred off the record changing the agreed-upon strategy, the record is silent and offers no guidance regarding it.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FERNANDO GUZMAN, Defendant-Appellant.
    First District (1st Division)
    No. 1—85—2147
    Opinion filed December 31, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Sharon M. Shapiro and Aaron L. Meyers, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Inge Fryklund, Marie Quinlivan Czech, and Daniel J. Lynch, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MANNING

delivered the opinion of the court:

The defendant, Fernando Guzman, was indicted on two counts of attempted murder, six counts of aggravated battery and four counts of armed violence. Following a bench trial, he was convicted of one count of attempted murder, three counts of aggravated battery and one count of armed violence committed against Ricardo Suliveres. He was also convicted of three counts of aggravated battery committed against Moses Suliveres and acquitted of the attempted murder of Moses Suliveres. The defendant was sentenced to serve six years in the Illinois Department of Corrections for the attempted murder and armed violence convictions and a term of three years was imposed on the remaining counts with all sentences to run concurrently.

The defendant appeals these convictions, contending that: (1) the conviction for attempted murder must be reversed because the State failed to prove beyond a reasonable doubt that he did not act in self-defense; (2) convictions on six counts of aggravated battery must be vacated where the one physical act of shooting the gun constituted the basis for each of the convictions; (3) the conviction on one count of armed violence must be vacated because it constitutes double enhancement; and (4) he was denied effective assistance of counsel.

The following evidence was adduced at trial. Both Ricardo and Moses Suliveres testified to substantially the same facts. They were visiting friends in the area near 28th Street and Homan Avenue on the date in question. At approximately 12:45 a.m., they left the gathering in separate cars accompanied by some of their friends. Ricardo drove his friend “Munch” home to inform Munch’s mother that he was going to spend the night at Ricardo’s house. He then drove his friend “Rito” home because Rito was intoxicated. Rito lived directly across the street from a vacant lot known to be the “hang-out” for the Villalobos street gang. After Ricardo assisted Rito to his front door, he returned to his car, at which time he noticed defendant and 15 to 25 members of the Villalobos gang approach him while making gang signals. He further observed that defendant was carrying a bottle. Defendant challenged Ricardo to a fight, and an argument ensued. Defendant accused Ricardo, Moses, Munch and their friends of violating the Villalobos nation’s neighborhood. During the argument, Raphael, a member of the Villalobos’ gang, handed defendant a gun. The defendant then shot Ricardo, who was unarmed. He was shot six times. Moses made an attempt to take the gun from defendant. Defendant then shot Moses in the lower abdomen. Defendant pointed the gun at Munch and pulled the trigger, but the gun failed to discharge. Munch ran away from the scene to his home a half block away. Moses began running on St. Louis Street. However, his friends caught him, took him home, and thereafter, he was taken first to St. Anthony’s Hospital and subsequently to Cook County Hospital, where he spent a week and a half recuperating from the gunshot wound to his abdomen.

Ricardo drove himself to Cook County Hospital, where he spent three days recovering from the six shots in his chest, arm, index finger, hip, penis and thigh. He also spent two weeks at home recovering from his injuries. Munch testified for the State substantially similar to Moses and Ricardo with a few minor differences. All of the State witnesses testified that neither of the two victims was armed with a weapon.

Defendant’s testimony and that of Jose and Valentin differed greatly from that of the State’s witnesses. Jose and Valentin both testified on defendant’s behalf. Both of these witnesses recalled driving with the defendant past the victims at 24th and St. Louis. They stated that the victims and those accompanying the victims gave them prolonged stares as they drove by. They also corroborated defendant’s version as to who the initial aggressor was. They both testified that Ricardo initiated a conversation with defendant, accusing him of yelling at him or “representing.” They also both testified that Ricardo shoved defendant, and it was at that time that defendant invited Ricardo to walk to the alley and fight. Defendant’s witnesses agreed with the State’s witnesses that Ricardo was unarmed but disagreed that Moses was unarmed. They stated that Moses not only wielded a knife, but he approached defendant and threatened to kill him. Jose acknowledged that 10 to 15 individuals, some of whom he recognized as members of the Villalobos gang, were in the vicinity but not in the vacant lot. Defendant stated that he and two friends, Jose Sandoval and Valentin Rivera, were standing outside of Jose’s car, which was parked in a vacant lot on South St. Louis Avenue, eating pizza and laughing and joking loudly. He and Jose were prior members of the Villalobos street gang, but Valentin was currently a member of that gang. While he conceded that the vacant lot was a hangout for members of the Villalobos gang and that, as a matter of fact, there was a gathering of gang members at that location on the night of the shooting, he denied that he, Jose and Valentin were with them. He explained that they had decided to cruise the neighborhood girl watching, became hungry, purchased pizza and french fries and went to the vacant lot to eat and play around. He claimed they chose that location because it was close to home and they could think of nowhere else to go to eat. As they stood outside the parked car talking loudly -with one another, Ricardo Suliveres was passing by, stopped the car he was driving, and confronted them about why they were “representing” towards him. Defendant claims he denied they were “representing” (making gang signals) and then Ricardo pushed him. At that time he responded to the push by inviting Ricardo to a fight in the alley and an argument ensued. He further stated that about then he noticed Ricardo’s brother Moses approach him as Moses took a knife out of his pocket. He admits that Ricardo was unarmed. He said Moses came at him with the knife in his hand and threatened to kill him. He became frightened and began backing up, at which time somebody handed him a gun. He began shooting aimlessly at both brothers’ legs to “get them off of” him and because he thought they were going to kill him. After the shootings he hid from the police for approximately six weeks, spending one night each with two uncles in Chicago, and approximately six weeks with an uncle in California. The defendant then returned to Chicago and turned himself in to the Chicago police.

Defendant first contends that his convictions should be reversed because the State failed to prove beyond a reasonable doubt that he was not acting in self-defense when he shot Ricardo. A person is justified in using deadly force where the person “reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself.” (Ill. Rev. Stat. 1987, ch. 38, par. 7 — 1.) Moreover, when the affirmative defense of self-defense has been raised, the State has the burden of proving beyond a reasonable doubt that the defendant was not acting in self-defense. (Ill. Rev. Stat. 1987, ch. 38, par. 3 — 2(b).) The test to be utilized in making this determination is what a reasonable person under these circumstances would have subjectively believed. (People v. White (1980), 87 Ill. App. 3d 321, 323, 409 N.E.2d 73, 74; People v. Brumbeloe (1968), 97 Ill. App. 2d 370, 240 N.E.2d 150.) When it has been determined that a defendant was initially shooting in self-defense, the State must then prove that a sufficient amount of time had passed between the initial shot and any subsequent shots which would have allowed the defendant, as a reasonable person, to realize that no further shooting was necessary. Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254; People v. Bailey (1975), 27 Ill. App. 3d 128, 134, 326 N.E.2d 550, 555.

The defendant argues that in finding that he was acting in self-defense, the trial court properly concluded that he was not guilty of attempted murder of Moses, and the testimony revealed that all shots occurred within a matter of seconds. The defendant contends that the State failed to prove that he was not acting in self-defense when the shooting occurred where: two witnesses testified that it was Ricardo who initially confronted Guzman; three witnesses testified that Moses threatened to kill the defendant; Ricardo pushed Guzman, who responded by challenging Ricardo to a fight; and Moses approached the defendant with a knife who responded by shooting Ricardo and Moses in fear for his life. The defendant contends that he had reason to believe that Moses and Ricardo were going to kill him since Moses had a knife and they were in such close proximity when he shot them. Moreover, he argues that he was justified in using deadly force to protect himself from both men acting in concert and his response was reasonable under the circumstances. See White, 87 Ill. App. 3d 321.

The defendant maintains that the fact that Ricardo did not have a weapon does not establish that he was not acting in self-defense. Moreover, the State failed to produce any evidence that a sufficient amount of time had elapsed between the initial shot and subsequent shots which would have allowed the defendant to realize that further shooting was not necessary. Therefore, his conviction for attempted murder cannot stand. See Bailey, 27 Ill. App. 3d 128; People v. McGraw (1958), 13 Ill. 2d 249, 149 N.E.2d 100.

While we agree that the elements of self-defense as articulated by defendant are correct to the extent that he goes, we hasten to point out that he has not set forth every element of self-defense. Self defense is an affirmative defense which a defendant may raise only if he presents some evidence of each element of the defense (People v. Kyles (1980), 91 Ill. App. 3d 1019, 415 N.E.2d 499) or if the People’s evidence raises it. Ill. Rev. Stat. 1987, ch. 38, par. 3 — 2(a).

Such a defense is raised when (1) force is threatened against a person; (2) the person threatened is not the aggressor; (3) the danger of harm is imminent; (4) the person threatened must actually believe (a) that a danger exists, (b) the use of force is necessary to avert the danger, and (c) the kind and amount of force which he uses is necessary; and (5) the above beliefs are reasonable. Additionally, the use of deadly force is limited to those situations in which the threatened force will cause death or great bodily harm or the force threatened is a forcible felony. People v. Williams (1965), 56 Ill. App. 2d 159, 165-66, 205 N.E.2d 749, 752; People v. Ross (1981), 100 Ill. App. 3d 1033, 427 N.E.2d 955.

The resolution of the issue of self-defense is for the trier of fact, and the trier of fact need not accept as true the evidence in favor of self-defense. (People v. Johnson (1988), 172 Ill. App. 3d 371, 377, 526 N.E.2d 611.) Instead, the trier of fact must consider the probability or improbability of the evidence, the circumstances surrounding the crime, and the witnesses’ testimony. (Johnson, 172 Ill. App. 3d at 377.) A court of review will not disturb the trier of fact’s decision regarding self-defense unless the evidence is so improbable or unsatisfactory as to raise a reasonable doubt of guilt. (Johnson, 172 Ill. App. 3d at 377.) In a criminal bench trial, the trial court’s determinations of witness credibility and sufficiency of the evidence will not be reversed unless the evidence was so improbable as to create a reasonable doubt of guilt. (People v. Hall (1986), 114 Ill. 2d 376, 410, 499 N.E.2d 1335.) The standard of review, as articulated in a recent supreme court decision, is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) People v. West (1990), 137 Ill. 2d 558, 584.

In the case at bar, the resolution of defendant’s guilt depended upon the credibility of the witnesses and the weight accorded to their testimony. These determinations were within the province of the trial judge, who observed the witnesses and listened to their testimony. The State’s witnesses testified that the defendant was the aggressor and the defendant testified that the victim, Ricardo, approached and shoved him. In our view the trial court could have properly concluded that defendant’s testimony defied belief, considering that Ricardo was only accompanied by Moses, Munch and Noel but defendant was surrounded by not only Valentin and Jose, but 15 to 25 members of the Villalobos gang.

Moreover, we agree with the State that in the case at bar, neither defendant’s evidence, nor the prosecution’s evidence raised the issue of self-defense in connection with the charge of attempted murder of Ricardo Suliveres. Defendant used deadly force on both victims. However, by defendant’s own admission, Ricardo was unarmed. Notwithstanding that fact, defendant shot Ricardo six times from a distance of three feet. Assuming the truthfulness of everything defendant stated in his testimony, at the most Ricardo committed a plain assault or a simple battery. The alleged menacing manner in which Ricardo approached defendant could not have caused death or great bodily harm to defendant nor is a plain assault or simple battery a forcible felony.

Assuming arguendo that defendant raised the issue of self-defense, we further concur with the State that defendant’s acts nevertheless were inconsistent with self-defense. Defendant’s version of the occurrence was that while both brothers threatened him while in close proximity with one another, Moses was wielding the knife. Yet he turned first to unarmed Ricardo, who posed the least threat of the two, and shot him six times and then turned to the alleged knife-wielding Moses and shot him once.

While defendant argues that he was not shooting at either victim in particular, his own witness, Jose Sandoval, corroborated the testimony of State witnesses that defendant first shot Ricardo six times before turning to shoot Moses. It would appear more logical and reasonable that defendant would have shot at Moses first and would have also fired more shots at Moses, who posed a more serious threat because of the alleged knife. Accordingly, we find that deadly force as a means of self-defense was not justified even if the evidence raised the self-defense issue.

Defendant’s final argument on the issue of self-defense that the trial court’s finding of not guilty of attempted murder of Moses was indicative of the court’s finding that defendant acted in self-defense as to Ricardo is not supported by the trial record. The court did not articulate any reasons for its finding of not guilty. But, even if the court found defendant not guilty because it determined that he was acting in self-defense as to Moses, this would not relate to the unarmed Ricardo, who was shot, not one time, but six times.

Defendant next claims that the convictions for aggravated battery must be vacated. His argument is twofold: First, since he was found not guilty of attempted murder of Moses Suliveres with a gun, his aggravated battery convictions relating to Moses based on his use of the gun cannot stand, and secondly, that the convictions for aggravated battery against Ricardo should be vacated where all three counts were predicated on one physical act, i.e., the shooting of the gun. Defendant maintains that the act of shooting a gun cannot be the basis for multiple convictions since he was found guilty of attempted murder of Ricardo by shooting a gun.

With respect to victim Moses, the State concedes that the evidence presented during the trial only supports one of three convictions for the aggravated battery committed against Moses, who was shot once in the abdomen. In People v. King (1977), 66 Ill. 2d 551, 565, 363 N.E.2d 838, the Illinois Supreme Court concluded that a trial court could not carve out multiple offenses from the same physical act.

The State argues vigorously, however, that the finding of not guilty of the attempted murder of Moses has no bearing on the validity of the conviction for and sentence on the aggravated battery. We agree. Aggravated battery is a lesser-included charge of attempted murder and, as such, less need be proved. (People v. Anderson (1982), 108 Ill. App. 3d 563, 572, 439 N.E.2d 65; People v. Bryant (1984), 123 Ill. App. 3d 266, 462 N.E.2d 780.) Specifically, attempted murder requires proof of specific intent to kill, which is not a prerequisite to a finding of guilty of aggravated battery. People v. Myers (1981), 85 Ill. 2d 281, 426 N.E.2d 535.

Hence, we agree with the State that the evidence of one physical act supports only one conviction for the aggravated battery against Moses. Accordingly, we vacate two of the three judgments and sentences for aggravated battery committed against Moses.

We. next are called upon to determine whether defendant’s convictions and concurrent sentences for aggravated battery committed against Ricardo must be vacated because they were based upon the same physical act as the conviction for attempted murder. Defendant, in his brief and more vigorously at oral argument, asserts that he cannot be convicted of both attempted murder and aggravated battery predicated in both instances on the shooting of the gun at Ricardo and striking him. The State counters by suggesting that because the evidence revealed that Ricardo was shot five times in different parts of the body, each of these shots constituted separate and distinct physical acts, and therefore, each could be the basis for a conviction. The State cites People v. Myers (1981), 85 Ill. 2d 281, 426 N.E.2d 525, wherein the court determined that the slitting of the throat twice by defendant constituted two separate and distinct physical acts. (Myers, 85 Ill. 2d at 289.) While defendant, at oral argument, maintained that defendant was. charged only with shooting Ricardo in the abdomen, the criminal information which is part of the record herein reveals that, contrary to that representation, defendant was charged with shooting Ricardo “about the body.”

We believe, however, that notwithstanding the defendant’s mistaken factual belief regarding the language contained in the information, his legal position has merit in the instant factual matrix. The State’s reliance on Myers is misplaced. The question in Myers was whether defendant Myers’ behavior supported convictions and concurrent sentences for attempted murder and for armed violence based on aggravated battery. In Myers the defendant had cut a victim’s neck twice in two closely related movements with a knife, interrupted after the first cutting by an intervening act of attacking another victim. The appellate court held that the attempted murder was a lesser-included offense of the armed violence charge. The Illinois Supreme Court, in reversing the appellate court, held that the armed violence conviction was based upon the underlying felony of aggravated battery, which does not require proof of the intent to kill that is necessary for the attempted murder conviction. (Myers, 85 Ill. 2d at 287.) Accordingly, they held that under that particular factual matrix, attempted murder was not a lesser-included offense.

In the case at bar, the question is whether defendant’s behavior supports convictions and concurrent sentences for attempted murder and aggravated battery. In People v. King (1977), 66 Ill. 2d 551, the Illinois Supreme Court stated:

“Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses. *** We hold, therefore, that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered.” King, 66 Ill. 2d at 566.

Unlike the charges in Myers, aggravated battery, as we have previously discussed herein, is a lesser-included offense of the charge of attempted murder. (People v. Gvojic (1987), 160 Ill. App. 3d 1065, 1071, 513 N.E.2d 1083; People v. Washington (1984), 127 Ill. App. 3d 365, 389, 468 N.E.2d 1285; People v. Brock (1978), 64 Ill. App. 3d 64, 68, 380 N.E.2d 1102; People v. Childs (1978), 62 Ill. App. 3d 924, 926, 379 N.E.2d 721; People v. Washington (1978), 60 Ill. App. 3d 662, 668, 377 N.E.2d 397.) The question becomes whether the aggravated battery convictions in the case at bar emanate from the same physical act as the attempted murder conviction. The factors that must be taken into account in determining whether the defendant’s conduct constituted a single physical act or several separate and distinct acts are: (1) prosecutorial intent, as reflected in the language of the indictment; (2) the existence of an intervening act; (3) the time interval between successive parts of the defendant’s conduct; (4) the victim’s identity; (5) the similarity of the acts; and (6) the location of the acts. People v. Ellis (1986), 143 Ill. App. 3d 892, 895-96, 493 N.E.2d 739.

In applying the foregoing factors to the case at bar, we conclude that defendant’s convictions and sentences for aggravated battery must be vacated. The evidence revealed that defendant rapidly fired six consecutive shots at Ricardo in a single location. The shots struck him in the chest, arm, index finger, hip, penis and thigh. There were no intervening acts separating the shots. The criminal information charging defendant with the three counts of aggravated battery and the attempted murder of Ricardo predicated all four of the offenses upon “shooting him about the body with a gun.” In light of the foregoing circumstances, we find that defendant’s convictions for the attempted murder and three counts of aggravated battery were based upon a single physical act, and therefore, the aggravated battery convictions and sentences must be vacated. See Washington, 127 Ill. App. 3d at 389; Brock, 64 Ill. App. 3d at 68; People v. Smith (1978), 59 Ill. App. 3d 480, 493, 375 N.E.2d 941.

To compound the intricacy of the factual matrix in the instant case, defendant was also convicted of armed violence. Defendant maintains that this conviction must be vacated because it constitutes double enhancement. Defendant relies for this contention upon People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627, and People v. Bragg (1984), 126 Ill. App. 3d 826, 467 N.E.2d 1004. In Haron, defendant was charged with unlawful use of a weapon, aggravated battery and armed violence based upon the felony of aggravated battery. The enhancement of the offense of battery to that of aggravated battery was based on the use of a deadly weapon. The court held that the General Assembly did not intend that the presence of a weapon serve to enhance an offense from misdemeanor to felony and also to serve as the basis for a charge of armed violence. (Haron, 85 Ill. 2d at 278.) Likewise in Bragg, this court held that the defendant’s conviction of armed violence clearly constituted double enhancement and, accordingly, the conviction was reversed. The armed violence count in Bragg, however, was predicated on a conviction of aggravated battery with a deadly weapon under section 12— 4(b)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(b)(1)). Defendant’s reliance on Haron and Bragg is misplaced. Unlike Haron and Bragg, in the case at bar, the armed violence count upon which a conviction was entered is predicated upon the attempted murder charge, not the aggravated battery count. Hence, we fail to see any issue of double enhancement.

Lastly, the defendant claims that he was denied effective assistance of counsel, and therefore, his case must be reversed and remanded.

Specifically, defendant asserts that his trial counsel failed to file preliminary motions on his behalf; failed to object to hearsay; and failed to object or limit the introduction of prejudicial and immaterial evidence of gang involvement. (See People v. Cruz (1987), 164 Ill. App. 3d 802, 518 N.E.2d 320.) The defendant argues that he is entitled to a new trial where his trial attorney’s incompetence produced substantial prejudice to the defendant and but for counsel’s incompetence the result of the trial would probably have been different. People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203.

Defendant contends that the testimony pertaining to gang membership was irrelevant since neither the victims nor the defendant were members of a gang at the time the crimes occurred. However, the prosecutor made 22 references to gangs, and the defense counsel made over 27 references to gang activity. Both the prosecutor and the defense counsel posed their questions in such a way to imply that the defendant was a member of a gang at the time of the shootings which served to substantially prejudice the defendant.

The State argues that the defendant failed to prove that he was prejudiced by the conduct of his trial counsel. Moreover, even if the evidence was improperly admitted, the record does not reflect that the trial judge considered such evidence. In order to successfully raise an ineffective assistance of counsel argument, the defendant must show that counsel’s representations were unreasonable and counsel’s shortcomings were so serious that the defendant was denied a fair trial. (People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) The defendant must show that but for trial counsel’s errors, the result of the trial would have been different. Albanese, 104 Ill. 2d 504.

The State asserts that in the instant case, the defendant did not address the second element required to establish an ineffective assistance of counsel claim. The defendant alleges substantial prejudice; however, even without the disputed evidence, the remaining evidence proves beyond a reasonable doubt that the defendant committed the crimes for which he was convicted. The undisputed evidence reveals that the defendant first shot the unarmed Ricardo six times and then the armed Moses only once. He then fled from the scene of the crime. Moreover, where a case is tried before a bench, the trial judge is presumed to consider only competent evidence and that presumption can only be overcome when the record affirmatively shows the contrary. (People v. Alford (1982), 111 Ill. App. 3d 741, 444 N.E.2d 576.) In the present case, the record does not show that the trial judge considered incompetent evidence. The competency of trial counsel is determined by reviewing the totality of counsel’s conduct at trial. (Strickland v. Washington (1984), 466 U.S. 668, 696-98, 80 L. Ed. 2d 674, 699-700, 104 S. Ct. 2052, 2069-70.) Furthermore, incompetency of trial counsel is not established by the mere failure of counsel to object to inadmissible evidence. People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677.

For the foregoing reasons the judgment of the circuit court of Cook County is affirmed in part and vacated in part.

Affirmed in part; vacated in part.

BUCKLEY, P.J., and O’CONNOR, J., concur.


author: JUSTICE CAMPBELL PRESIDING JUSTICE BUCKLEY,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE SMITH, Defendant-Appellant.
    First District (1st Division)
    No. 1—88—0869
    Opinion filed December 31, 1990.
    BUCKLEY, P.J., dissenting.
    Ambrose & Cushing, P.C., of Chicago (John C. Ambrose, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Noreen M. Daly, Special Assistant State’s Attorney, and Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a jury trial, defendant, George Smith, was convicted of involuntary manslaughter (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 3) in the shooting of his wife, Carolyn Smith, and sentenced to one year of periodic imprisonment and 30 months’ probation with one year of supervision. On appeal, defendant contends that: (1) he was not proved guilty of involuntary manslaughter beyond a reasonable doubt; (2) the State’s opening statement distorted the evidence and prejudiced the jury, thereby denying defendant his constitutional right to a fair trial; (3) the trial court erred in allowing Officer Schwab to testify as to a prior inconsistent statement he had made; (4) the trial court erred in denying defendant’s motion for a mistrial predicated on the State’s violation of the court’s order in limine which prohibited evidence that defendant had been drinking unless there was evidence of intoxication; (5) the trial court erred in not allowing defendant’s jury instruction which stated that if intoxication had not been proved beyond a reasonable doubt, evidence as to the fact defendant had been drinking could not be considered; and (6) the trial court erred in denying defendant’s motion to suppress evidence of the gun acquired at the scene of the shooting. For the following reasons, the judgment of the trial court is reversed.

The record indicates that in the late afternoon of October 9, 1986, defendant was bowling with his weekly bowling league team at Rolling Lanes in Countryside, Illinois. Carolyn arrived at the bowling alley during defendant’s last game. After the last game, defendant and Carolyn joined some friends in the bowling alley lounge and danced, drank and played darts until approximately 11 p.m. They then drove the one-half block distance home. Although they had planned to go out to get something to eat, Carolyn changed her mind and suggested that they just stay home and pack a few more things. They had been packing to move into their new home and were going out of town for the weekend. They then packed a few figurines and were going to pack the guns next.

Defendant went into the bedroom, took Carolyn’s gun from the dresser drawer and told her to unload it while he got some boxes. However, because she always had trouble unloading the gun, Carolyn asked defendant to do it. While kneeling down next to Carolyn, who was sitting in a chair, defendant attempted to release the latch to unload the bullets when the gun fired and flew out of his hand. He looked at Carolyn and saw a little trickle of blood on her face. When she did not move after he repeatedly called her name, defendant called the paramedics and told them there had been a gunshot wound.

When the paramedics arrived, defendant was waiting for them in front of the building and preceded them up the three flights of stairs to his apartment. While the paramedics were working on Carolyn, defendant was very excited and even attempted to stop them from inserting a tube into her mouth, thinking that they were hurting her. When the police arrived, they tried to subdue defendant and to move him away from his wife’s side. At that point, defendant began to struggle with them and appeared to be out of control. As a result, the police had to handcuff him. When the police asked defendant where the gun was, he told them he had thrown it under the couch because he was scared of it. Defendant kept repeating that it had been an accident.

Although defendant wanted to accompany his wife to the hospital, the police drove him to the police station instead and placed him in a holding room. After several minutes, Detective Bozzi of the Countryside police department arrived and defendant told him that he wanted to see his wife. Bozzi then told defendant that his wife was dead. At that point, defendant began pounding the table with his fists and hitting his head on the floor. Bozzi did not ask him any further questions at that time. Defendant was then taken to another holding room, where he was left sitting on the floor for several hours. After further questioning, defendant was placed in a cell.

Office Mark Battaglia of the Countryside police department testified that on October 10, 1986, approximately 12:30 a.m., he responded to a radio call to proceed to defendant’s apartment. When he arrived, he saw Carolyn lying on the floor and a paramedic working on her. There was an extreme amount of blood around Carolyn’s face. Battaglia also saw defendant kneeling next to Carolyn, with his hands on his knees. He was emotionally upset, smelled strongly of alcohol, and had bloodshot eyes. Defendant’s speech was very loud and slurred and he kept repeating that it had been an accident. When the paramedics attempted to put a tube in Carolyn’s mouth, defendant grabbed the tube away. Battaglia told defendant to let the paramedics work on her. When Battaglia asked defendant where the weapon was, defendant told him that he had become scared and had thrown the gun under the couch. When another officer lifted the couch, Battaglia found the gun.

When Battaglia attempted to remove defendant from the area, defendant became violent, started shouting profanities at him and struggling. Battaglia stated that based upon his experience as a police officer, he believed that defendant was under the influence of alcohol at the time. On cross-examination, Battaglia indicated that he had not made any notations in his report that defendant smelled of alcohol or that his speech was slurred. In addition, defendant was not asked to submit to a blood-alcohol test or to a breathalyzer test. Battaglia did not notice that defendant had had any trouble maintaining his balance.

Countryside police officer Schwab testified that on October 10, 1986, approximately 12:34 a.m., he was dispatched to defendant’s apartment. When he arrived, paramedics were attending to Carolyn. Defendant kept repeating, “It was an accident” and “help my wife.” At two points, he attempted to grab the airway apparatus away from the paramedics. When the police attempted to subdue defendant, he began to struggle and they had to handcuff him to restrain him. Officer Schwab smelled alcohol on defendant’s breath and noticed that his speech was loud and slurred. In Officer Schwab’s opinion, defendant had been intoxicated. On cross-examination, Officer Schwab admitted that he had not indicated in his report that defendant had been intoxicated, and in contradiction to his testimony on direct, stated that he was not certain that defendant had been intoxicated.

James Wuitteman, paramedic/fire fighter, testified that on October 10, 1986, approximately 12:31 a.m., he and his partner, Chris Schuler, were dispatched to defendant’s apartment to treat a gunshot wound. When they arrived at the apartment building, they saw defendant standing in front of the building, waving. While they were walking up the stairs, defendant told them that his wife had shot herself. His speech appeared to be slurred. When they entered the apartment, they saw a middle-aged woman sitting in a chair, with blood over her face, blouse and hands and on the chair. Her hands were crossed on her lap and her feet were crossed at the ankles. She had no pulse. Wuitteman also noticed that her hands appeared to have abrasions on them.

The paramedics then laid Carolyn on the floor and they commenced CPU techniques. Wuitteman could not understand what defendant was saying at the time. Two police officers then arrived. The defendant kept interfering with the paramedics’ work until the police restrained him. More paramedics arrived and they transported Carolyn to the hospital. On cross-examination, Wuitteman stated that when he heard the initial call come in from defendant, he noticed that defendant’s voice was slurred. However, he never indicated this observation in his report.

Debbie Smith testified on behalf of defendant that she had known defendant for approximately three years and had known Carolyn for approximately two years. Debbie’s husband, Bruce, and defendant worked together at Reynolds Aluminum. On October 9, 1986, Debbie had gone to the Rolling Lanes bowling alley to watch her husband bowl on the Reynolds’ men’s league. Defendant also bowled in that league. The bowling ended approximately 6:30 p.m. and several of the bowlers and their wives went to the bowling alley lounge. Defendant and Carolyn were there and appeared to be very happy because the deal on their new house had gone through and they were going away for the weekend. Defendant and Carolyn danced together and defendant also played darts. Debbie and.her husband left the bowling alley approximately 9:30 p.m. Defendant and Carolyn were still there. In her opinion, defendant was not intoxicated.

Next, Frank Borgman testified that he had known defendant for approximately six years through work and work-related social events such as the bowling league. After bowling on October 9, Borgman went into the bar area with defendant, Carolyn and other bowling league members and spouses. Defendant and Carolyn were dancing and seemed very happy. Defendant was playing darts against Borgman and beat him. In Borgman’s opinion, defendant was not intoxicated. Borgman left the bowling alley approximately 10:30 p.m.

Countryside detective Frank Bozzi testified that on October 10, 1986, approximately 12:40 a.m., he was called into the police station to interview defendant. He was with defendant approximately five minutes. The first thing he noticed was that defendant’s pants were wet in the front and there was liquid on the floor. When he said to defendant, “You urinated in your pants,” defendant replied, “Well, I had no place to go to the washroom.”

Bozzi then went to defendant’s apartment where a police officer gave him the weapon. He then observed the chair in which Carolyn had been sitting and noticed a hole in the headrest area from where he retrieved the bullet. Later that morning, approximately 4:40 a.m., he returned to ■ the station to interview defendant. Defendant then told him that he had had three mixed drinks while he was bowling and then had had -five more drinks in the bar. Defendant explained that the gun had accidentally discharged. Bozzi could not determine whether defendant was intoxicated. He could not smell alcohol on his breath.

-Bruce Smith, a co-worker of defendant, then- testified that on October 9, 1986, he was at Rolling Lanes bowling alley with his wife, defendant and Carolyn. After the league games were completed, he talked to defendant in the bar about buying a house. In Bruce’s opinion, defendant was not intoxicated.

.Next, Frank Esposito, defendant’s apartment neighbor, testified that on October 10, 1986, shortly after midnight, he had heard a loud bang and then a loud male scream. When he looked out of the peephole in his front door, he heard a man crying in the hallway. He then heard defendant come out of his apartment, go down the stairs, say “gunshot wound on the third floor,” and then come back up the stairs, followed by the paramedics.

Defendant then testified in his own behalf that after bowling on October 9, 1986, he and Carolyn went into the lounge and talked, . danced and played darts. They left at approximately 11 p.m. Defendant denied telling Detective Bozzi that he had had eight alcoholic drinks that night. When defendant removed Carolyn’s gun from her drawer, he did not notice that it was cocked. However, defendant testified that the gun had been put away in the cocked position because Carolyn had trouble shooting the gun otherwise. When the gun was in that position, the slightest touch could cause it to fire. He then carried the gun into the living room and was handing it to Carolyn while simultaneously releasing the latch to unload the bullets when the gun fired. Defendant stated that Carolyn was reaching up toward the gun at the time it went off. He denied having had his finger on the trigger.

Following closing arguments, the jury entered a verdict of guilty on the charge of involuntary manslaughter. Defendant was sentenced to one year of periodic imprisonment and 30 months’ probation with one year of supervision by the intensive probation unit. Defendant’s timely appeal followed.

Initially, defendant contends that the State failed to prove him guilty of involuntary manslaughter beyond a reasonable doubt on the grounds that: (1) the evidence that he was intoxicated at the time of the shooting was unsupported, contradicted and based on insinuations; and (2) the State failed to show that defendant’s actions were likely to cause death or grossly differed from proper standards of conduct.

A person commits involuntary manslaughter when he “unintentionally kills an individual without lawful justification *** [and] his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly ***. 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 prima facie evidence of a reckless act.” (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 3(a), (b).) Reckless conduct occurs when a person “consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the. situation.” (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 6.) The mental state of recklessness is to be inferred from all of the facts and circumstances in the record (People v. McDermott (1985), 141 Ill. App. 3d 996, 490 N.E.2d 1293), and it is incumbent upon the trier of fact to resolve all issues arising from these facts and circumstances on the theory of innocence, not guilt. (People v. Ibom (1962), 25 Ill. 2d 585, 185 N.E.2d 690.) The particular acts relied upon to sustain a charge of recklessness are a part of the nature and elements of the offense and must be proved beyond a reasonable doubt. (See People v. Chambers (1972), 8 Ill. App. 3d 430, 289 N.E.2d 476.) Although recklessness is a fact question (People v. McDermott, 141 Ill. App. 3d 996, 490 N.E.2d 1293), where the record leaves a grave and substantial doubt as to the defendant’s guilt, the reviewing court will reverse the conviction. (People v. Ibom, 25 Ill. 2d 585, 185 N.E.2d 690.) In the present case, the State’s allegation of recklessness is predicated on intoxication and the discharge of a loaded gun pointed at another. Because these acts are relied upon to prove recklessness, they must be established beyond a reasonable doubt.

The following evidence was admitted regarding the issue of whether defendant had been intoxicated on the night of the shooting. Debbie Smith, Bruce Smith and Frank Borgman testified that they were with defendant and Carolyn on the evening of October 9, 1986 at Rolling Lanes bowling alley. Defendant bowled in a men’s bowling league with Bruce and Frank, co-workers at Reynolds Aluminum. Approximately 6:30 p.m., when the bowling games were completed, the men and their spouses went to the bowling alley lounge to talk, to dance and to play darts. Defendant beat Frank at darts, discussed the closing on their new home with Bruce, and danced with Carolyn. Bruce and Debbie Smith left the bowling alley approximately 9:30 p.m. Frank left approximately 10:30 p.m., and defendant and Carolyn left about one-half hour later. During the bowling games and while visiting in the lounge, Frank, Bruce, Debbie, Carolyn and defendant were drinking. Frank stated that he had been drinking Coke and did not know what the others had been drinking. Defendant denied telling the police officers on the night of his arrest that he had had eight mixed drinks from 4 p.m. to 11 p.m. However, he did state that he had had a few mixed drinks along with other beverages. Frank, Bruce and Debbie testified that when they left defendant that night, he was not intoxicated.

Countryside police officer Battaglia testified that when he arrived at defendant’s apartment, defendant was emotionally upset, smelled strongly of alcohol, had bloodshot eyes, and his speech was loud and slurred. Further, defendant had to be restrained because he was interfering with the paramedics. When the officers tried to restrain him, defendant began to struggle. Battaglia stated that, in his opinion, defendant was intoxicated. However, he had not made any such notation in his report and defendant did not appear to be having any trouble maintaining his balance.

Police officer Schwab also testified that he could smell alcohol on defendant’s breath and that his speech was loud and slurred. During direct examination, Schwab stated that, in his opinion, defendant had been intoxicated. However, during cross-examination, Schwab stated that he was not certain that defendant had been intoxicated. Schwab further stated that defendant had told him that he had had eight mixed drinks that night.

Paramedics Wuitteman and Schuler testified that defendant’s voice appeared to be slurred, but neither gave an opinion as to intoxication. Finally, Detective Bozzi, who had interviewed defendant at the police station, testified that defendant had urinated in his pants while he was waiting in the first holding room, but he could not make a determination as to whether he was intoxicated.

As the preceding testimony indicates, out of the testimony of three police officers, two paramedics and three friends of defendant, only one police officer unequivocally stated that, in his opinion, defendant had been intoxicated. One police officer stated that he could not make a determination, and another police officer vacillated as to his opinion. The paramedics did not give an opinion as to defendant’s condition, and all three friends stated that defendant had not been intoxicated. Further, the lone opinion of intoxication was based on the smell of alcohol on defendant’s breath, his loud and slurred speech, and his erratic behavior.

It is well established that testimony that the breath of an accused smelled of liquor is not sufficient by itself to prove intoxication. (People v. Thomas (1975), 34 Ill. App. 3d 578, 340 N.E.2d 174.) Furthermore, when an accused’s physical condition can be rationally explained as the result of conditions other than intoxication, such as physical or emotional trauma, a reasonable doubt of intoxication arises. See People v. Thomas (1975), 34 Ill. App. 3d 578, 340 N.E.2d 174; People v. Winfield (1973), 15 Ill. App. 3d 688, 304 N.E.2d 693.

In Thomas, defendant was convicted of driving while under the influence of alcohol. At trial, defendant testified that approximately 3 p.m. on March 25, 1974, he stopped at a tavern, had one beer and ordered a second beer. After that, he remembered nothing for a period of one month. In the early morning of March 27, two Chicago police officers found defendant in his car. The car was wrapped around a light pole. The defendant was behind the wheel, the key was in the ignition, the motor was running, and the doors were closed.

One officer testified that there was a strong odor of alcohol on defendant’s breath, defendant’s face and eyes were red, he was uncooperative, he swayed slightly while walking to the squad car, and his speech was slurred. The officer stated that, in his opinion, defendant was under the influence of intoxicating beverages. Three days later, defendant was taken to the hospital where it was discovered that he had a blood clot on the left side of his brain which required surgery. The officer further testified that while at the police station, defendant had told him that he had been drinking beer and shots of whiskey.

Defendant’s wife testified that when defendant failed to return home, she went to the tavern, and the bartender told her that defendant had fallen off of a bar stool and had hit the back of his head on the floor. The bartender had then helped defendant to a booth, where he slept for a while.

In reversing the trial court’s conviction, the Thomas court stated that all of the symptoms observed by the police officer, i.e., slurred speech, unsure balance and bloodshot eyes, could have been caused by the head injury or by the traumatic impact of the accident. Therefore, there was reasonable doubt as to defendant’s intoxication.

In the present case, although there was no evidence of physical injury to defendant, there is ample evidence as to the emotional trauma he was experiencing as the result of his wife’s condition. The slurred speech, bloodshot eyes and erratic behavior are readily explainable as the effects of severe emotional stress. As stated, the mere fact that his breath smelled of alcohol is insufficient to establish intoxication. (People v. Thomas, 34 Ill. App. 3d 578, 340 N.E.2d 174.) Accordingly, we find that the State failed to prove that defendant had been intoxicated beyond a reasonable doubt.

Defendant further contends that there was no evidence regarding the shooting incident itself from which recklessness can be inferred. Defendant testified that he had not pointed the gun at his wife and had not pulled the trigger. Instead, he had carried the gun into the living room from the bedroom by the butt of the gun, carrying it down by his side. When he approached the chair in which his wife was sitting, he started to kneel down next to her while he was attempting to pull back the latch to unload the bullets. Defendant stated that his wife was reaching toward the gun when the gun fired.

The State argues that the intentional discharge of a loaded gun pointed at another constitutes a conscious disregard of a substantial and unjustifiable risk and, therefore, constitutes reckless conduct. In support of this argument, the State relies on People v. Roberts (1976), 36 Ill. App. 3d 811, 345 N.E.2d 132, People v. Chew (1977), 45 Ill. App. 3d 1024, 360 N.E.2d 417, People v. Bembroy (1972), 4 Ill. App. 3d 522, 281 N.E.2d 389, People v. Schwartz (1978), 64 Ill. App. 3d 989, 382 N.E.2d 59, and People v. Andersch (1982), 107 Ill. App. 3d 810, 438 N.E.2d 482. With the exception of Bembroy, in each of the aforementioned cases, the defendant was deliberately pointing the gun at the victim. In Bembroy, defendant was carrying a loaded gun across the room with his finger on the trigger. The gun was pointed at his daughter when it discharged.

In the present case, there is no evidence that defendant was deliberately pointing the gun at his wife. The State argues that if the bullet hit her in the face, then the gun had to have been pointed at her. While this is obviously true, there is no evidence that he was deliberately pointing it at her. Instead, he was getting ready to hand it to her after he unloaded the bullets. If the State’s reasoning were to be followed, then every accidental shooting would constitute involuntary manslaughter because in order for a person to be wounded by a bullet, the gun has to have been pointed in that person’s direction.

The situation in the present case is similar to that in People v. Smith (1973), 16 Ill. App. 3d 553, 306 N.E.2d 606. In Smith, defendant was found guilty of voluntary manslaughter in the shooting death of his wife. Defendant claimed that he had been cleaning his revolver with a handkerchief when he accidentally shot his wife. On appeal, the State confessed error as to defendant’s conviction for voluntary manslaughter and requested the court to enter an order finding defendant guilty of involuntary manslaughter on the grounds that defendant had pointed a loaded gun at his wife in the presence of his four children, which act constituted a reckless act and a conscious disregard of a substantial and unjustified risk.

The Smith court agreed to review the evidence as to a conviction of involuntary manslaughter. In doing so, the court stated that it was incumbent upon the State to show that defendant’s actions were grossly different from proper standards of conduct. After reviewing the record, the Smith court held that the evidence was insufficient to justify a finding that defendant’s conduct had been reckless. In reaching this conclusion, the court stated:

“The State’s theory rests solely on an inference from the fact of the shooting. *** No eyewitnesses to the shooting were presented. While the State has introduced evidence which demonstrated that some of defendant’s actions prior to the shooting may have been deliberate, there is nothing to show that defendant’s actions were reckless or that defendant’s actions were likely to cause death. Nor was it demonstrated that defendant’s actions were different from proper standards of conduct.
The sole evidence relating to the actual circumstances of the shooting comes from statements defendant made to the police officers. In these statements defendant asserts that while dusting his gun he accidentally shot his wife. We cannot exclusively infer from these statements, nor from the other evidence presented, that defendant pointed the gun at his wife. From this evidence it could just as easily be inferred that [the wife] moved in front of the gun at the moment the gun was discharged. While the trial court found against the defense of accident, we cannot say that when a person is dusting or handling a loaded gun in his own apartment, in the presence of others, and under the meager evidence here presented, that this is per se a reckless act.” 16 Ill. App. 3d at 556-57.

In the present case, there is a similar lack of evidence. The State argues that the “strippling” on the victim’s hands, wrists and fingers contradicts defendant’s statement that the victim had had her hands on the gun at the time it was fired. However, the defendant did not state that the victim had had her hands on the gun. Instead, he stated that she was reaching for the gun. Contrary to the State’s position, the “strippling” on the victim’s hands would support this testimony.

The State further attempts to discredit defendant’s testimony with the testimony of a firearms specialist who testified that the only way the gun would fire was to pull the trigger. Defendant had stated that he had not had his finger on the trigger and that he was unaware the gun was cocked. Similar testimony from a firearms specialist was introduced in People v. Smith (1973), 16 Ill. App. 3d 553, 306 N.E.2d 606. However, the Smith court held there was insufficient evidence to support a conviction of involuntary manslaughter.

The State also argues that defendant’s testimony was improbable and contradicted. In this regard, the State compares the present case to People v. Carlton (1975), 26 Ill. App. 3d 995, 326 N.E.2d 100, where there was evidence that the trigger pull was so hard, it was improbable the gun could have been accidentally fired; powder burns proved the gun had been held close to the victim’s head; defendant had wiped his fingerprints from the gun; defendant had done nothing to help the victim and had not summoned medical help; and defendant had fled the scene. The Carlton facts are not remotely close to those at bar. Although defendant had thrown the gun under the couch, as soon as the police officers asked him where the weapon was, he told them. The facts clearly demonstrate defendant’s emotional anguish, his summons for help, his fear that the paramedics were hurting his wife and his reluctance to leave his wife’s side.

Based on the facts present in this case, we conclude that the evidence was not so overwhelming or free from reasonable doubt as to support defendant’s conviction of involuntary manslaughter. While defendant may have been negligent, without proof of intoxication or other circumstances, his conduct cannot be characterized as showing a conscious disregard of a substantial and unjustifiable risk which would constitute a gross deviation from the standard of care which a reasonable person would exercise under the circumstances. (People v. Gosse (1983), 119 Ill. App. 3d 733, 457 N.E.2d 129.) This determination obviates the need to address the remaining issues raised by defendant on appeal.

For the following reasons, the judgment of the trial court is reversed.

Reversed.

MANNING, J., concurs.

PRESIDING JUSTICE BUCKLEY,

dissenting:

I dissent in this case because I believe the majority has wrongfully set aside a jury verdict of guilt that is supported by the evidence. I also take issue with the majority’s premise that the State, in proving defendant’s mental state, was required to prove that defendant was intoxicated beyond a reasonable doubt.

Defendant was charged with involuntary manslaughter. A person commits involuntary manslaughter when he “unintentionally kills an individual without lawful justification [and] his acts *** which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.” (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 3(a).) A person is reckless or acts recklessly when he “consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, *** and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” Ill. Rev. Stat. 1985, ch. 38, par. 4 — 6.

My disagreement with the majority opinion centers on the State’s burden of proof regarding the mental state of recklessness. The majority opinion asserts, without citation to or discussion of any authority, that because “the State’s allegation of recklessness is predicated on intoxication and the discharge of a loaded gun pointed at another[,] *** [these allegations] must be established beyond a reasonable doubt.” (208 Ill. App. 3d at 544.) In my opinion, this assertion misstates the State’s burden.

In this case, intoxication is not an element of involuntary manslaughter. Moreover, the indictment against defendant does not state that defendant’s recklessness is predicated on defendant’s intoxication. In fact, the word “intoxication” does not appear. It provides that defendant, “acting in a reckless manner[,] unintentionally shot and killed Carolyn Smith with a handgun, an act likely to cause death or great bodily harm, without lawful justification.”

In presenting its case to the jury, the State’s theory was that the mental state of recklessness could be inferred beyond a reasonable doubt from many factors, one of which was the evidence of defendant’s intoxication. Other factors the jury could consider was that the gun was loaded and in a cocked position, that defendant was familiar with weapons, and that defendant was attempting to unload a cocked gun that was pointed at his wife sitting merely a few feet away. In other words, the State’s theory was that under all the circumstances, including the evidence of defendant’s intoxication, the victim’s death was attributable to defendant’s reckless conduct.

The State’s theory and presentation of its case against defendant were consistent with Illinois law. In Illinois, evidence of an accused’s intoxication is probative of recklessness (see, e.g., People v. Gosse (1983), 119 Ill. App. 3d 733, 736, 457 N.E.2d 129, 132) and is only one circumstance of many that a jury may consider in assessing a defendant’s mental state (People v. Bolar (1982), 109 Ill. App. 3d 384, 440 N.E.2d 639, 645). As one court has stated:

“The mental state of recklessness is to be inferred from all of the facts and circumstances in the record and whether the given conduct is reckless is a fact question for the trier of fact to decide.” People v. McDermott (1985), 141 Ill. App. 3d 996, 1006, 490 N.E.2d 1293, 1300.

The majority’s confusion over the State’s proper burden of proof perhaps arises from the evidentiary posture this case took after the circuit court ruled on a defense motion in limine. Prior to trial, defendant moved to bar the State from presenting any evidence in reference to defendant being intoxicated at the time of the shooting. This motion was granted in part; with the circuit court stating that no evidence of drinking would be allowed unless there was also evidence of defendant’s intoxication. As discussed below, this ruling was well founded in Illinois law.

In People v. Gosse (1983), 119 Ill. App. 3d 733, 457 N.E.2d 129, defendant was found guilty by a jury of the crime of reckless conduct. The information charged that defendant’s reckless conduct caused great bodily injury when his jeep flipped after he attempted to make a right-hand turn while travelling at an excessive rate of speed. The principal issue on appeal was whether the trial court erred in not granting defendant’s motion in limine to exclude evidence of his consumption of alcohol and cannabis. After reviewing Illinois law on the issue, the court accepted the following rule:

“We favor a rule that would preclude the State from offering evidence of drinking alcoholic beverages or the use of narcotics without further evidence tying these facts to an inference of intoxication, i.e., that the defendant’s mental or physical faculties were impaired as a result of this consumption. We deem evidence of a nominal consumption of alcohol and cannabis without more or any showing that the defendant’s mental and physical abilities were impaired is so inflammatory as to constitute reversible error. See Wagner v. Zboncak (1982), 111 Ill. App. 3d 268, 270, 443 N.E.2d 1085; Parrish v. Donahue (1982), 110 Ill. App. 3d 1081, 1085, 443 N.E.2d 786.” Gosse, 119 Ill. App. 3d at 737, 457 N.E.2d at 132.

In ruling on defendant’s motion in limine, the circuit court understood the teachings of Gosse. It allowed evidence that defendant drank that night only to the extent that this evidence was coupled with further evidence of defendant’s intoxication. By so ruling, however, the circuit court did not place an additional burden on the State by requiring it to prove defendant’s intoxication beyond a reasonable doubt. Indeed, in denying defendant’s motion for a directed verdict, the circuit court specifically rejected defendant’s argument that the State was required to prove defendant’s intoxication beyond a reasonable doubt. It similarly acted at the jury instruction stage of the trial, again rejecting a proffered jury instruction that defendant’s intoxication must be proven beyond a reasonable doubt.

Accordingly, I believe the majority opinion misstates the State’s burden of proof regarding defendant’s mental state. Illinois law does not require that defendant’s intoxication be proven beyond a reasonable doubt. Rather, the evidence of defendant’s intoxication, i.e., evidence of an impairment of physical or mental abilities, was but one “circumstance” of many that the jury could consider in assessing defendant’s mental state. This statement of the law was the one that the jury used in returning the verdict that it did, and my review of the record demonstrates that the jury’s verdict is not so palpably contrary to the evidence as to create a reasonable doubt of guilt. People v. Hawn (1981), 99 Ill. App. 3d 334, 338, 425 N.E.2d 1024.

Paramedic James Wuitteman, one of the first people on the scene, testified that when he initially heard the defendant’s voice on the radio, it was slurred. Paramedic Chris Schuler also testified to this effect. Wuitteman also testified that at the scene, defendant’s speech was slurred, he walked slowly up the stairs when leading the paramedics up, and that while the paramedics were trying to assist the victim, he could not understand anything defendant was saying. He stated further that defendant became violent, yelled profanities, and while the paramedics were assisting his wife, he tried to pull out an intubation tube that the paramedics had inserted in her.

Patrolman Mark Battaglia, one of the first officers on the scene, testified that as soon as he arrived at the scene he could smell a strong odor of alcohol when near defendant, and that defendant’s eyes were bloodshot and his speech was slurred and very loud. Based on these factors, Officer Battaglia testified that in his opinion defendant was intoxicated.

Officer Schwab’s testimony also supported Officer Battaglia’s. He too smelled alcohol and noticed that defendant’s speech was slurred and loud. It was also Schwab’s opinion that defendant as intoxicated. Furthermore, Schwab testified that reasoning with defendant was difficult.

Detective Bozzi testified that when he first observed defendant, defendant had urinated in his pants while situated in a holding room at the police station. This occurred shortly after defendant was removed from the scene. When defendant gave a statement four hours later that morning in Bozzi’s presence, defendant admitted to drinking the evening of the shooting. Bozzi testified defendant admitted to him that he had at least eight drinks. Although defendant denies making that statement, he admits to drinking “some Seven and Sevens” that night.

Defendant argues that on the evening of the shooting he was in the company of friends and that their testimony was that he was not intoxicated. However, Bruce Smith had worked with defendant for approximately 15 years. Debra Smith, Bruce Smith’s wife, testified that she had known defendant for three years. Frank Borgman also worked with defendant and had known him socially for six or seven years. This particular group had bowled together for some time. In light of these witnesses' long-standing relationships with defendant, it is possible that the jury found their testimony to be biased.

In addition, while these witnesses may have given an opinion that defendant was not intoxicated, none of them were actually aware of how much alcohol defendant had consumed that night. On cross-examination, Debbie and Bruce Smith admitted that they had no idea how many drinks defendant had that evening. Also, during their stay at the bar, the Smith’s admitted to drinking. Finally, the Smith’s left the bar at 9:30 p.m., an hour and a half before defendant and his wife departed. Therefore, the Smith’s would have no idea how many drinks defendant had after they left nor his condition.

Frank Borgman also admitted to drinking his four-hour stay in the bar. He also stated that he did not keep a close watch on defendant the whole time and that he had no idea how many drinks defendant had while bowling or after. Borgman stated that everyone in his group appeared to be “pretty happy” the night of the occurrence.

As for defendant’s testimony, defendant stated that he began bowling at 4 p.m. After bowling, defendant and his wife joined a large group of their friends in the bar in the bowling alley. Defendant and his wife remained in the bar until 11 p.m.

When they reached home, defendant and his wife sat down and talked for a couple of minutes about going out of town in the morning. They then decided to pack their guns. Defendant stated that he went into his wife’s dresser, reached into the drawer, and pulled out his wife’s gun. He then took the gun into the living room so she could unload it. When his wife stated that she had trouble with unloading that gun, he offered to unload it for her.

After reentering the living room, defendant stated that he started to kneel down in front and to the right of his wife. He stated that as he was kneeling, he was trying to release the latch to the cylinder that held the bullets. He was not looking at the gun as he was beginning to unload it, but was instead looking at his wife. It was at that point that the gun “just went off.”

Defendant admitted that he knew how to unload his wife’s gun and had showed her how to do it in the past. He had had experience with different kinds of weapons and was a past member of the National Rifle Association. He had fired many different handguns a thousand times.

In a cocked position, defendant stated, a gun is dangerous; one need just touch the trigger and the gun will discharge. Defendant stated he knew that his wife’s gun was loaded and that, in the past, she had left her gun in a cocked position because she had trouble pulling the trigger. Defendant testified that on the evening of the shooting, however, he did not actually see it in a cocked' position since he just reached into the drawer and picked the gun up by the butt of the gun. He further testified that he never looked at it while walking towards his wife in the living room — a 3-foot distance.

I believe that the above state of the record justifies the jury’s finding that defendant acted recklessly. It was the jury’s prerogative to resolve evidentiary conflicts as it did. (People v. Gruner (1985), 130 Ill. App. 3d 1042, 1048, 474 N.E.2d 1355, 1360.) It was the jury’s function as trier of fact to assess the credibility of the witnesses, the weight to be given their testimony, and the inferences to be drawn from all the evidence. (People v. Young (1989), 128 Ill. 2d 1, 51, 538 N.E.2d 453, 473.) It is improper for this court to substitute its judgment for that of the jury. Additionally, to so act in this case would in effect ignore a string of cases upholding involuntary manslaughter convictions where the defendant was not deliberately pointing the gun at the victim when it unintentionally discharged. (See People v. Moczarney (1978), 65 Ill. App. 3d 410, 382 N.E.2d 544; People v. Chew (1977), 45 Ill. App. 3d 1024, 360 N.E.2d 417; People v. Carlton (1975), 26 Ill. App. 3d 995, 326 N.E.2d 100; People v. Tarpley (1972), 8 Ill. App. 3d 960, 291 N.E.2d 262; People v. Rodgers (1971), 2 Ill. App. 3d 507, 276 N.E.2d 504; People v. Thomas (1971), 1 Ill. App. 3d 139, 275 N.E.2d 253.) Moreover, to so act would ignore certain peculiar circumstances presented to the jury, such as the 15-minute delay before the paramedics were summoned, defendant throwing the gun under the couch after it discharged, defendant claiming that his wife shot herself, and the fact that the victim’s hands and feet were folded when the paramedics arrived despite the victim taking a close-range gunshot blast to the face. These circumstances are a reflection of the defendant’s state of mind and are, in my opinion, consistent with my conclusion that the victim’s death was caused by recklessness, rather than a negligent act as the majority opinion leads one to conclude.

Accordingly, for the foregoing reasons, I would affirm.