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I was afraid he might shoot me with it. He was talking about he was going to 'killme, nigger.' 'I will kill your ass.' And I didn't want him shooting me with the gun."

Burnette testified: "[Wells] grabbed the barrel of the gun and I grabbed the other end of the gunwhile, you know, I was down on my knees. And he, and when [Wells] was coming [to his feet] thegun went off."

Burnette retrieved the gun and ran from the apartment through the kitchen door. As he randown the porch steps, he encountered a woman and her daughter, who both started screaming whenthey saw the gun. Burnette hastily discarded the gun on a set of stairs leading to the building'sbasement and ran through an adjoining alley.

Burnette denied that he had intended to shoot Wells, that Wells had ever tried to bar himfrom entering the apartment or that he had forced his way into the apartment.

B. State Witnesses

The State's occurrence witnesses, convicted felons Latrice Grant and Dion Nickles, testifiedthat they were present in Wells' apartment on the day of the shooting but offered conflicting accountsof the surrounding events. Grant testified that at 10 p.m. on the night before the shooting, she andNickles arrived at Wells' apartment with their baby. Grant testified that she saw Burnette sitting ina car outside Wells' apartment when she and Nickles arrived that night, but Burnette denied beingpresent at that time.

Nickles and Grant both testified that at 1:30 p.m. the next day, they were in bed with the baby in the bedroom of Wells' apartment. Grant was asleep but awoke to the sound of banging on theback (kitchen) door and the sound of an angry male voice asking, "Where's my shit?" They thenheard Wells reply that he did not know what the man was talking about. Grant testified that sherecognized the angry male voice as Burnette's; however, the parties stipulated that Grant had notidentified Burnette to investigating officers as the speaker.

Nickles testified that he then exited from the bedroom doorway, stepped two to three feet intothe hall and, from a distance of approximately 20 feet, saw Wells standing with his hands against theback door attempting to hold it closed against someone pushing in from the outside.⁽¹⁾ Nickles furthertestified that he heard a gunshot while standing in the hallway, at which point he returned to thebedroom, locked the door behind him and informed Grant that someone was forcing his or her wayinto the apartment.

Nickles testified that after he returned to the bedroom, he heard people walking around theapartment and the same voice asking, "Where is my shit?" The bedroom doorknob was rattled anda female voice said, "It's locked." The bedroom door was then kicked in and Nickles saw Burnettestanding at the door and holding a black steel .38-caliber revolver. A black female with a 9-mm handgun and a black male with a low-caliber semi-automatic handgun were standing behind and oneither side of Burnette.

Grant also testified that a few seconds after she heard the shot, the bedroom door was kickedin. Burnette and two others, a man and a woman, stood at the doorway holding handguns. Burnetteasked Grant "where his shit was," looked at them, shook his head and left.

Grant denied either having a previous conversation with Burnette about his missing propertyor knowing what Burnette was talking about when he asked "where his shit was." Nickles and Grantboth testified that they had informed police about seeing three people holding guns when thebedroom door was opened; however, the parties stipulated that Grant had not told the police aboutseeing anyone with Burnette when the door was kicked open.

Nickles and Grant both testified that they waited in the bedroom for three to four minutesafter Burnette left before phoning for assistance for Wells, whom they could hear moaning from thekitchen. Grant testified that when they reached the kitchen, the oven door was broken and hangingby a single hinge, and that it had been undamaged the previous evening. Paramedics arrived at 1:31p.m. and transported Wells to Illinois Masonic Hospital, where he was pronounced dead at 2:10 p.m.

The medical examiner, Dr. Chira, determined on postmortem examination that Wells bledto death as a result of the gunshot wound. The bullet struck Wells on the front of his left thigh, fiveor six inches from the groin, severed the left common iliac artery, traveled on a slight upward anglethrough Wells' left leg and pelvis, and exited Wells' right leg just below the hip. Dr. Chira testifiedthat there was no stippling, or powder burn, at the site of the entrance wound, indicating that the gunhad been at least 18 inches away from Wells' leg when the shot was fired. Dr. Chira further testifiedthat the path of the bullet was consistent with Wells standing with his hands against the door andsomeone reaching around the door with a gun and firing blind at Wells; however, Dr. Chira stated,such a scenario was not consistent with the absence of stippling on Wells' body. According to Dr.Chira, unless Wells had been wearing many layers of clothing -- which he had not, because thepolice recovered Wells' blood-soaked underwear and walking shorts from the kitchen -- stipplingwould have been present on the body if the shot had been fired from fewer than 18 inches. Therecord reflects that no gunshot residue test was performed postmortem on Wells' hands.

Upon observing Burnette's automobile near the intersection of Courtland and Pulaski, policearrested Burnette and took him to Area 5 headquarters, where he was identified by Nickles, who wasat the time being interviewed by a detective in an open office area.

Former Assistant State's Attorney Nicholas Arvanitis testified that he and Detective RichardCurley met with Burnette at Area 5 around 8:15 p.m. on the day of the shooting. At that meeting,Burnette gave an oral statement in which he told Arvanitis about the burglaries, related hissuspicions regarding Wells and Grant, described purchasing the gun and explained that he took thegun to the apartment to confront Wells and Grant about the missing property.

According to Arvanitis, Burnette said that he had asked Wells for permission to use thewashroom as a means of gaining entry into the apartment. Wells refused him entry and attemptedto slam the door closed, trapping Burnette's hand against the doorjamb. Burnette then drew his gunto frighten Wells. Wells grabbed the barrel of the gun, a struggle ensued in the doorway and the gundischarged. Burnette then entered the apartment in search of his property and saw Grant, a baby anda man whom he did not recognize in the bedroom. Unable to locate his property, Burnette then leftthe apartment.

The parties stipulated that Detective Curley would testify that prior to speaking to Arvanitis,Burnette had made a substantially similar oral statement to Curley. On cross-examination, Burnettedenied telling either Curley or Arvanitis that Wells had refused to allow him entry into theapartment. Defense counsel objected, noting that the word "refused" appeared nowhere in the State'sfelony review memorandum. Burnette further denied telling either Arvanitis or Curley that he hadasked to use the washroom in order to gain entry to the apartment or that he had ever drawn his gunin order to frighten Wells. Burnette testified that he had told Curley and Arvanitis that he and Wellswere struggling for the gun when it discharged, but that he did not go into detail with either of them.

C. Findings of the Trial Court

The trial court found Burnette not guilty of first degree murder. The court did, however, findBurnette guilty of involuntary manslaughter. The court noted that the testimony of Nickles andGrant was inconsistent regarding their respective locations in the apartment at the time the shot wasfired. The court also noted that Wells' wound was "consistent with the struggle as demonstrated byMr. Burnette" and that "photographs of the scene [were] consistent with Mr. Burnette's theory ofwhat occurred." The court predicated its finding of guilty as to involuntary manslaughter on thefollowing:

"THE COURT: Mr. Cohen, advocate that he is, suggests that this Defendantcould not even be guilty of involuntary manslaughter and presented cases in supportof his argument. Those cases I believe to be distinguishable from the facts in thiscase. As I have previously said, Mr. Burnette armed himself and went to thatapartment and obviously went with some animosity and I think one could reasonablyconclude that Mr. Burnette was also fortified with the knowledge that he carried thishandgun.

In the cases that Mr. Cohen relies upon, the opinion[s] suggest[] that onecould not be found guilty of an involuntary manslaughter as the result of the loss oflife which occurred not the fault [of] or not attributable to the Defendant. Mr.Burnette armed himself. Certainly that -- the victim would not have been murderedby a handgun if Mr. Burnette had not brought that handgun to the scene. If theAppellate Court is prepared to -- to suggest that this involuntary taking of life was notthe doing of Mr. Burnette, so be it. It defies logic. How one could lose a componentsystem, television equipment, electronic equipment, anything of personalty andrespond by arming himself is idiotic. It defies common sense and I do not believelends itself to an exemption at law.

Accordingly the Court finds the Defendant guilty of involuntarymanslaughter."

The court also found Burnette guilty as to one of the three counts of home invasion, which alleged that "[Burnette], not being a police officer acting in the line of duty, without authority knowinglyentered the dwelling place of Michael Wells and he had reason to know that one or more personswere present therein, and while armed with a dangerous weapon, to wit: a handgun did use forceupon Michael Wells, within said dwelling place, whether or not injury occurred." 720 ILCS 5/12-11(1) (West 1996) (now 720 ILCS 5/12-11(3) (West 2000).

Following trial, the court denied defense counsel's motion to reconsider its verdict. Whendefense counsel questioned the court's finding of guilty as to home invasion, the court stated,"[Burnette] was outside the apartment. He engaged in a tussle. He pushed [Wells] back into theapartment." The court also quoted Burnette as testifying that, "[he] could grab [Wells] down lowor something, push him back into the apartment."

The court rejected Burnette's claim of self-defense, stating that it did not believe that Burnetteforgot that he was carrying the gun when he went to the apartment to recover property from someonehe knew to be physically larger than himself. The court also roundly criticized Burnette forpurchasing a gun after the burglary rather than having his door repaired. Referring to Arvanitis'testimony that Burnette admitted to him that Burnette had pushed the door back on Wells afterBurnette's hand was caught in the door, the court concluded, "Now because you pinched my fingerI hit you with the door. All of this approaches self-defense. I don't think so. It is a return to a timebefore Dodge City, if you adopt that line of thinking. I am not prepared to go back that far."

The court then sentenced Burnette to concurrent prison terms of 5 and 20 years forinvoluntary manslaughter and home invasion, respectively. Three months after trial, the court deniedBurnette's motion for reconsideration of his sentence. This appeal followed.

2. Analysis

A. Home Invasion

Burnette first argues that the evidence adduced at trial was insufficient to support hisconviction for home invasion where "[t]here [was] no evidence that [he] made any conscious attemptto enter the apartment during the struggle." Burnette argues that in light of his trial testimony -- thathe and Wells "somehow [wound] up into [sic] the kitchen" during a struggle which began on Wells'back porch -- the State failed to prove beyond a reasonable doubt the element of "knowing" entrynecessary to support a conviction for home invasion.

We first consider the proper standard of review of a challenge to the sufficiency of evidencesupporting a criminal conviction:

"'A criminal conviction will not be set aside on review unless the evidence isso improbable or unsatisfactory that a reasonable doubt of the guilt of the defendantremains. [Citation.] Upon a challenge to the sufficiency of the evidence of adefendant's guilt, it is not the function of this court to retry the defendant. [Citation.] Rather, determinations of the credibility of witnesses, the weight to be given theirtestimony, and the reasonable inferences to be drawn from the evidence areresponsibilities of the trier of fact. [Citation.] In the consideration of a defendant'schallenge to the sufficiency of the evidence, the relevant question is whether, afterviewing all of the evidence in the light most favorable to the prosecution, any rationaltrier of fact could have found the essential elements of the crime beyond a reasonabledoubt. [Citation.]'" People v. Coleman, 311 Ill. App. 3d 467, 473 (2000), quotingPeople v. McLaurin, 184 Ill. 2d 58, 79 (1998).

See also People v. Thompson, 313 Ill. App. 3d 510, 515 (2000). The relevant section of the homeinvasion statute then in effect reads as follows:

"A person who is not a peace officer acting in the line of duty commits homeinvasion when without authority he * * * knowingly enters the dwelling place ofanother when he * * * knows or has reason to know that one or more persons ispresent * * * and

1) While armed with a dangerous weapon uses force or threatens theimminent use of force upon any person or persons within such dwelling placewhether or not injury occurs[.]" (Emphasis added.) 720 ILCS 5/12-11(1) (West1996) (now 720 ILCS 5/12-11(3) (West 2000).⁽²⁾

The record plainly contradicts Burnette's assertion that there was "no evidence" that his entryinto Wells' apartment was "knowing" within the meaning of the home invasion statute. The trialcourt made no specific finding as to Burnette's mental state upon entry into the apartment; however,in addition to Burnette's self-serving testimony, the record contains the trial testimony of formerassistant State's attorney Nick Arvanitis. Arvanitis testified that in Burnette's oral statement to himat Area 5 police headquarters, Burnette admitted to struggling with Wells on the back porch of theapartment. According to Arvanitis, Burnette further admitted to voluntarily entering the apartmentin search of his missing property after the fatal shot was fired. The record also contains the parties'stipulation that, if called as a witness, Detective Richard Curley would testify that prior to Burnette'sinterview with Arvanitis, Burnette gave a substantially similar oral statement to Curley. Determinations as to the credibility of witnesses and the weight given their testimony are theprovince of the trier of fact. Coleman, 311 Ill. App. 3d at 473. Nothing in the law requires the trierof fact to believe a defendant's exculpatory testimony. People v. Johnson, 227 Ill. App. 3d 800, 806(1992); People v. Berryman, 171 Ill. App. 3d 548, 557 (1988), appeal denied 123 Ill. 2d 560 (1988). Considering the totality of the evidence in the light most favorable to the prosecution, a rationalfinder of fact could have readily found that the State had proved the essential elements of homeinvasion, including the "knowing" nature of Burnette's entry into the apartment, beyond a reasonabledoubt. Coleman, 311 Ill. App. 3d at 473.

Burnette next argues that the guilty verdict as to home invasion was predicated on the trialcourt's "flawed recollection" of the evidence with respect to his mental state upon entering theapartment and that he should therefore be granted a new trial. It is critical to understand that what Burnette characterizes as the court's "flawed recollection" was adduced three full months followingtrial during the hearing on Burnette's motion for reconsideration and for a new trial. At that hearing,in response to defense counsel's argument that there was no evidence that Burnette had knowinglyentered the apartment, the court stated:

"THE COURT: He was outside the apartment. He engaged in a tussle. Hepushed the gentleman back into the apartment.

* * *

THE COURT: [Ostensibly quoting Burnette's testimony] 'I suggest I couldgrab him down low or something, push him back into the apartment.'" (Emphasisadded.)

Actually, Burnette testified that during the struggle, he was "still trying to flip [Wells] and somehow"they ended up in the kitchen. (Emphasis added.) Burnette also testified that he was unsure exactlyhow they had managed to enter the kitchen because he "had [his] head down" at that point in thefight.

Burnette cites two cases in support of his argument. Neither is on point. Both cases involvea trial court's misapprehension of the evidence prior to a finding of guilt. See People v. Mitchell,152 Ill. 2d 274, 321-26 (1992) (court incorrectly recalled defendant's testimony during hearing onpretrial motion to suppress evidence); People v. Bowie, 36 Ill. App. 3d 177, 179-80 (1976) (courtmisstated defendant's testimony during defendant's closing argument).

The court's flawed post-trial recollection of Burnette's testimony does not vitiate the court'sinitial finding of guilt, which was made three months earlier at a time when the evidence wasnecessarily fresher in the court's mind. This is not error of sufficient magnitude to merit vacatingBurnette's conviction. After a careful review of the record, we conclude that Burnette's challengeto the sufficiency of the evidence supporting his conviction for home invasion is without merit.

B. Involuntary Manslaughter

After trial, the court found Burnette not guilty of first degree murder, apparently acceptingBurnette's assertion that he had killed Wells unintentionally during a struggle. However, the courtfound Burnette guilty of involuntary manslaughter predicated on Burnette's recklessness in bringinga gun to a potentially dangerous confrontation. According to the trial court, "the victim would nothave been murdered by a handgun if Mr. Burnette had not brought that handgun to the scene."⁽³⁾

The Criminal Code of 1961 (720 ILCS 5/1-1 et seq. (West 1998)) (the Code) definesinvoluntary manslaughter as follows:

"A person who unintentionally kills an individual without lawful justificationcommits involuntary manslaughter if his acts whether lawful or unlawful which causethe death are such as are likely to cause death or great bodily harm to someindividual, and he performs them recklessly * * * ." 720 ILCS 5/9-3(a) (West 1998).

"The crux of involuntary manslaughter is recklessness." People v. Tainter, 304 Ill. App. 3d 847, 849(1999).

"A person is reckless or acts recklessly, when he consciously disregards asubstantial and unjustifiable risk that circumstances exist or that a result will follow,described by the statute defining the offense; and such disregard constitutes a grossdeviation from the standard of care which a reasonable person would exercise in thesituation." 720 ILCS 5/4-6 (West 1998).

Thus, "[f]or purposes of involuntary manslaughter, a person acts recklessly when he consciouslydisregards a substantial and unjustifiable risk that his acts are likely to cause death or great bodilyharm to another." People v. Castillo, 188 Ill. 2d 536, 540-41 (1999).

We believe that the trial court misconstrued the involuntary manslaughter statute inpredicating Burnette's conviction solely on his recklessness in bringing the gun to Wells' apartment.The trial court ignored the fact that the State was required to prove beyond a reasonable doubt thatBurnette was reckless in performing those "acts * * * which cause[d] the death." (Emphasis added.) 720 ILCS 5/9-3(a) (West 1998). The question here is one of proximate cause. Wells died notbecause Burnette brought the gun to his apartment, but because he was shot when the gun dischargedduring the struggle in the kitchen. Although this may ostensibly appear to be a distinction withouta difference, it is a critical one under the facts before us. The trial court credited Burnette's accountof the struggle that resulted in the shooting, stating prior to passing sentence that both Wells' woundand the photographs of the scene of the shooting were "consistent with the struggle as demonstratedby Mr. Burnette." The court made no specific finding prior to sentencing as to whether Burnette everdrew the gun or purposefully introduced it into the fight. However, during the hearing on Burnette'smotion for a new trial, in discussing with counsel Burnette's entry into the apartment, the court statedthat "[Burnette] did not use the gun in a way that was visible to [Wells]." Inherent in the findingsof the trial court is the determinative conclusion that the gun did not appear until it fell fromBurnette's jacket by accident during the struggle in the kitchen, as Burnette had testified. This is nota case in which a defendant deliberately drew a handgun and brought it into play during a fight(People v. Hoover, 250 Ill. App. 3d 338, 351 (1993), appeal denied, 153 Ill. 2d 564 (1993)) ordeliberately pointed a loaded gun at another while intoxicated (People v. Castillo, 188 Ill. 2d 536, 544 (1999) (Harrison, J., dissenting)). The trial court was required to find Burnette reckless at thetime of the shooting -- the "act[] * * * which cause[d] the death" -- in order to convict Burnette ofinvoluntary manslaughter. 720 ILCS 5/9-3(a) (West 1998). See People v. Tainter, 304 Ill. App. 3d847, 851 (1999) (holding that the nature of the beating that defendant inflicted on the victim wouldbe dispositive of the recklessness of the defendant's actions); People v. Kolzow, 301 Ill. App. 3d 1,6-7 (1998) (finding that where a three-month-old infant victim died of heatstroke, the defendant wasreckless in leaving the infant locked in an automobile for four hours on a hot summer day); andPeople v. Cole, 253 Ill. App. 3d 603, 610 (1993) (stating that defendant was reckless in first firinga loaded gun near victim, then pointing what the defendant thought to be an unloaded gun at victimand pulling the trigger, allegedly merely to frighten victim but in reality shooting victim to death).

Because a conviction may be affirmed on any basis in the record, even if the circuit court didnot rely on those grounds (People v. Wright, 194 Ill. 2d 1, 16 (2000)), we examine the record in orderto analyze Burnette's conduct at the time of the shooting and determine whether it was recklesswithin the meaning of the involuntary manslaughter statute.

Based on the evidence credited by the trial court, the gun fell from Burnette's pocket in thekitchen during his struggle with Wells. Wells reached the gun first, but Burnette kicked it from hishand. Both men then dove for the gun, reaching it at the same time. When asked why he thenreached for the gun, Burnette replied, "I was afraid [Wells] might shoot me with it. He was talkingabout he was going to 'kill me, nigger.' 'I will kill your ass.' And I didn't want him shooting me withthe gun." In convicting Burnette of involuntary manslaughter, the trial court accepted Burnette'sstatement that the firing of the gun was unintentional. 720 ILCS 5/9-3(a) (West 1998). Logically,then, the killing must have been the result of either recklessness or accident.

The determination of whether a killing has resulted from reckless conduct is a question forthe trier of fact and will not be disturbed unless it is "palpably contrary to the weight of theevidence." Hoover, 250 Ill. App. 3d at 351. The trial judge, sitting as the finder of fact, acceptedBurnette's account of the struggle that resulted in the shooting. After a careful review of the record,we hold that the trial judge's subsequent determination that Wells died as the result of recklessnessis contrary to the manifest weight of the evidence. Burnette's recklessness in bringing the gun to theapartment was too attenuated with respect to the shooting itself, the "act which cause[d] the death,"to support an involuntary manslaughter conviction. 720 ILCS 5/9-3(a) (West 1998). The State failedto prove beyond a reasonable doubt that Burnette was reckless at the time of the shooting. Burnette'sconviction on the charge of involuntary manslaughter is therefore vacated.⁽⁴⁾

C. Double Jeopardy

Burnette further challenges his conviction of home invasion on the grounds that the trial courtacquitted him of home invasion and was barred thereafter from convicting him on that charge by theconstitutional prohibition against double jeopardy. Double jeopardy prohibits a defendant frombeing prosecuted for an offense after having been acquitted of that same offense. U.S. Const.,amend. V; Ill. Const 1970, art. I,