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.