{ "id": 570928, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BERNARD BURNETTE, Defendant-Appellant", "name_abbreviation": "People v. Burnette", "decision_date": "2001-09-28", "docket_number": "No. 1\u201499\u20140740", "first_page": "792", "last_page": "811", "citations": [ { "type": "official", "cite": "325 Ill. App. 3d 792" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "68 Ill. App. 3d 687", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3305380 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "691" }, { "page": "688-89" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/68/0687-01" ] }, { "cite": "303 Ill. App. 3d 338", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 511415 ], "year": 1998, "pin_cites": [ { "page": "345" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/303/0338-01" ] }, { "cite": "376 Ill. 364", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2541248 ], "year": 1941, "pin_cites": [ { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/ill/376/0364-01" ] }, { "cite": "230 Ill. App. 3d 1093", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5212111 ], "year": 1992, "pin_cites": [ { "page": "1103" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/230/1093-01" ] }, { "cite": "212 Ill. App. 3d 613", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2600496 ], "year": 1991, "pin_cites": [ { "page": "617", "parenthetical": "holding that a defendant's use of a sawed-off shotgun, one of the most dangerous of weapons, in committing an armed robbery was a proper factor to be considered in aggravation" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/212/0613-01" ] }, { "cite": "193 Ill. App. 3d 250", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2500223 ], "year": 1990, "pin_cites": [ { "page": "264" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/193/0250-01" ] }, { "cite": "219 Ill. App. 3d 252", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5800435 ], "year": 1991, "pin_cites": [ { "page": "254-55" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/219/0252-01" ] }, { "cite": "113 Ill. 2d 256", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3173780 ], "year": 1986, "pin_cites": [ { "page": "268-69" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/113/0256-01" ] }, { "cite": "263 Ill. App. 3d 523", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5368972 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "533" }, { "page": "533" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/263/0523-01" ] }, { "cite": "306 Ill. App. 3d 616", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1336030 ], "year": 1999, "pin_cites": [ { "page": "633" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/306/0616-01" ] }, { "cite": "254 Ill. App. 3d 85", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2980726 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "91" }, { "page": "91" }, { "page": "88" }, { "page": "90" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/254/0085-01" ] }, { "cite": "256 Ill. App. 3d 102", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5383323 ], "year": 1993, "pin_cites": [ { "page": "114" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/256/0102-01" ] }, { "cite": "295 Ill. App. 3d 1050", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 45763 ], "year": 1998, "pin_cites": [ { "page": "1066" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/295/1050-01" ] }, { "cite": "229 Ill. App. 3d 1098", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5216782 ], "year": 1992, "pin_cites": [ { "page": "1102", "parenthetical": "holding that the court cannot ignore pertinent factors in mitigation" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/229/1098-01" ] }, { "cite": "184 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 926986 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "34" }, { "page": "34" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/184/0001-01" ] }, { "cite": "145 Ill. 2d 353", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5596242 ], "year": 1991, "pin_cites": [ { "page": "379" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/145/0353-01" ] }, { "cite": "278 Ill. App. 3d 286", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1156797 ], "year": 1996, "pin_cites": [ { "page": "293" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/278/0286-01" ] }, { "cite": "119 Ill. App. 3d 832", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3630450 ], "year": 1983, "pin_cites": [ { "page": "835" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/119/0834-01" ] }, { "cite": "188 Ill. 2d 293", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 535900 ], "year": 1999, "pin_cites": [ { "page": "307" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/188/0293-01" ] }, { "cite": "304 Ill. App. 3d 599", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 564600 ], "year": 1999, "pin_cites": [ { "page": "601" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/304/0599-01" ] }, { "cite": "108 Ill. 2d 301", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3129386 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "311" }, { "page": "311" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/108/0301-01" ] }, { "cite": "430 U.S. 564", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12126181 ], "weight": 6, "year": 1977, "pin_cites": [ { "page": "571" }, { "page": "651" }, { "page": "1355" }, { "page": "571" }, { "page": "651" }, { "page": "1355" } ], "opinion_index": 0, "case_paths": [ "/us/430/0564-01" ] }, { "cite": "194 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1096297 ], "year": 2000, "pin_cites": [ { "page": "16" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/194/0001-01" ] }, { "cite": "253 Ill. App. 3d 603", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5425786 ], "year": 1993, "pin_cites": [ { "page": "610", "parenthetical": "stating that defendant was reckless in first firing a loaded gun near the victim, then pointing what the defendant thought to be an unloaded gun at the victim and pulling the trigger, allegedly merely to frighten the victim but in reality shooting the victim to death" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/253/0603-01" ] }, { "cite": "301 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 257196 ], "year": 1998, "pin_cites": [ { "page": "6-7", "parenthetical": "finding that where a three-month-old infant victim died of heatstroke, the defendant was reckless in leaving the infant locked in an automobile for four hours on a hot summer day" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/301/0001-01" ] }, { "cite": "153 Ill. 2d 564", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1993, "opinion_index": 0 }, { "cite": "250 Ill. App. 3d 338", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2920024 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "351" }, { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/250/0338-01" ] }, { "cite": "188 Ill. 2d 536", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 536004 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "540-41" }, { "page": "544", "parenthetical": "Harrison, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/188/0536-01" ] }, { "cite": "304 Ill. App. 3d 847", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 564557 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "849" }, { "page": "851", "parenthetical": "holding that the nature of the beating that defendant inflicted on the victim would be dispositive of the recklessness of the defendant's actions" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/304/0847-01" ] }, { "cite": "36 Ill. App. 3d 177", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2634593 ], "year": 1976, "pin_cites": [ { "page": "179-80", "parenthetical": "court misstated defendant's testimony during defendant's closing argument" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/36/0177-01" ] }, { "cite": "152 Ill. 2d 274", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5602841 ], "year": 1992, "pin_cites": [ { "page": "321-26", "parenthetical": "court incorrectly recalled defendant's testimony during hearing on pretrial motion to suppress evidence" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/152/0274-01" ] }, { "cite": "123 Ill. 2d 560", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1988, "opinion_index": 0 }, { "cite": "171 Ill. App. 3d 548", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3616551 ], "year": 1988, "pin_cites": [ { "page": "557" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/171/0548-01" ] }, { "cite": "227 Ill. App. 3d 800", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5794593 ], "year": 1992, "pin_cites": [ { "page": "806" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/227/0800-01" ] }, { "cite": "313 Ill. App. 3d 510", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 186577 ], "year": 2000, "pin_cites": [ { "page": "515" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/313/0510-01" ] }, { "cite": "184 Ill. 2d 58", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 926989 ], "year": 1998, "pin_cites": [ { "page": "79" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/184/0058-01" ] }, { "cite": "311 Ill. App. 3d 467", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 415320 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "473" }, { "page": "473" }, { "page": "473" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/311/0467-01" ] } ], "analysis": { "cardinality": 1634, "char_count": 46428, "ocr_confidence": 0.785, "pagerank": { "raw": 7.859210659391656e-08, "percentile": 0.45895359150282505 }, "sha256": "2d079cb5a281d48165a9971775ef03b8f0c86b76ba1079a46b403297d30095a1", "simhash": "1:f37eeab1710405f3", "word_count": 7784 }, "last_updated": "2023-07-14T19:13:10.268443+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BERNARD BURNETTE, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE COHEN\ndelivered the opinion of the court:\nDefendant Bernard Burnette was charged by indictment with multiple counts of first degree murder, home invasion, armed violence and residential burglary. After a bench trial, Burnette was convicted of one count of involuntary manslaughter (720 ILCS 5/9 \u2014 3(a) (West 1998)) and one count of home invasion (720 ILCS 5/12 \u2014 11(a)(1) (West 1996) (now 720 ILCS 5/12 \u2014 11(a)(3) (West 2000))) and was sentenced to concurrent prison terms of 5 and 20 years, respectively. On appeal, Burnette challenges both the sufficiency of the evidence supporting his convictions as well as the basis of his sentence. We affirm in part and vacate in part.\nBACKGROUND\n1. Burnette\u2019s Testimony\nBurnette testified that he lived in an apartment at 2414 Monticello in Chicago. The apartment was burglarized twice, on February 13 and March 18, 1996. Property taken in the burglaries included a television, a stereo system and articles of clothing. Shortly after the first burglary, while awaiting the repair of his front door, Burnette purchased a .38-caliber handgun and ammunition on the street for $50, \u201cto use as protection.\u201d Burnette testified that on March 19, 1996, he had a telephone conversation with ex-girlfriend Lattice Grant, during which Grant confessed to him that she had burglarized his apartment. She also told him that he could retrieve his property the following weekend at her apartment at 2321 West Dickens, which Burnette knew Grant now shared with Michael Wells. Burnette stated that he had known Wells since 1994.\nBurnette testified that on Sunday, March 24, 1996, after first attempting to contact Grant by telephone, Burnette went to her apartment to collect his property. Burnette testified that his gun was in the pocket of the \u201cStarter\u201d jacket he wore to the apartment. Burnette denied that he had intentionally taken the gun to the apartment, stating that since he purchased the gun, he had carried it on a continuing basis for personal protection. Upon arriving at the apartment, Burnette climbed the five steps to the porch and knocked on the back door, which had been his custom while dating Grant. Wells answered the door, allowing Burnette into the kitchen and leaving him there while Wells walked farther into the apartment to notify Grant of Burnette\u2019s arrival. Wells returned shortly, telling Burnette that Grant was busy and that Burnette should return later. As he made his way out the door, Burnette asked Wells to tell Grant that he would be returning later that evening. As Burnette exited the back door, Wells closed the door on the fingers of Burnette\u2019s left hand, causing pain but no injury. When Burnette complained, Wells smirked and said that Burnette \u201cshouldn\u2019t] have had his hand there anyway.\u201d Burnette called Wells a \u201csilly ass,\u201d pushed the door back into Wells, and turned to walk away. As he turned, Burnette heard Wells say, \u201cYou motherfucker.\u201d Wells then followed Burnette out onto the porch and struck him on the back of the neck with his fist.\nA fight then ensued on the back porch. Burnette, who is 5 feet 6 inches tall and weighs approximately 140 to 150 pounds, testified on direct examination:\n\u201cQ. This struggle that happened at that point, tell the Judge what happened to the best of your ability?\nA. Well we start. By him being bigger [5 feet 10 inches, 198 pounds] than I was, I went to hit him and he hit me. I figured if I can go down and grab him by the leg and try to scoop him and flip him, but he was too heavy for me and somehow he, then I went down and he grabs me in a headlock.\nQ. A headlock?\nA. Yeah, and choke hold, whatever you want to call it.\nQ. What happened next?\nA. And then we was tussling right there and I am still trying to flip him and somehow we wind up into the kitchen. I don\u2019t know because I got my head down.\u201d\nWells and Burnette crashed into the cabinets and appliances opposite the kitchen door, with Wells threatening to kill Burnette and Burnette demanding to be released. During their struggle in the kitchen, Burnette\u2019s gun fell from his pocket to the kitchen floor, spinning to rest approximately three feet from the back door.\nBurnette then grabbed Wells\u2019 testicles, causing Wells to release Burnette from the headlock. Wells then dove for the gun. Just as Wells grasped the gun, Burnette kicked Wells\u2019 arm, causing the gun to fall to the floor a second time. Both men then went to their knees and took hold of opposite ends of the gun. Defense counsel asked Burnette:\n\u201cQ. [W]hy did you go for the gun as [Wells] was going for it the second time?\nA. I was afraid he might shoot me with it. He was talking about he was going to \u2018kill me, nigger.\u2019 T will kill your ass.\u2019 And I didn\u2019t want him shooting me with the gun.\u201d\nBurnette testified: \u201c[Wells] grabbed the barrel of the gun and I grabbed the other end of the gun while, you know, I was down on my knees. And he, and when [Wells] was coming [to his feet] the gun went off.\u201d\nBurnette retrieved the gun and ran from the apartment through the kitchen door. As he ran down the porch steps, he encountered a woman and her daughter, who both started screaming when they saw the gun. Burnette hastily discarded the gun on a set of stairs leading to the building\u2019s basement and ran through an adjoining alley.\nBurnette denied that he had intended to shoot Wells, that Wells had ever tried to bar him from entering the apartment or that he had forced his way into the apartment.\n2. State Witnesses\nThe State\u2019s occurrence witnesses, convicted felons Latrice Grant and Dion Nickles, testified that they were present in Wells\u2019 apartment on the day of the shooting but offered conflicting accounts of the surrounding events. Grant testified that at 10 p.m. on the night before the shooting, she and Nickles arrived at Wells\u2019 apartment with their baby. Grant testified that she saw Burnette sitting in a car outside Wells\u2019 apartment when she and Nickles arrived that night, but Burnette denied being present at that time.\nNickles 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\u2019 apartment. Grant was asleep but awoke to the sound of banging on the back (kitchen) door and the sound of an angry male voice asking, \u201cWhere\u2019s my shit?\u201d They then heard Wells reply that he did not know what the man was talking about. Grant testified that she recognized the angry male voice as Burnette\u2019s; however, the parties stipulated that Grant had not identified Burnette to investigating officers as the speaker.\nNickles testified that he then exited from the bedroom doorway, stepped two to three feet into the hall and, from a distance of approximately 20 feet, saw Wells standing with his hands against the back door attempting to hold it closed against someone pushing in from the outside. Nickles further testified that he heard a gunshot while standing in the hallway, at which point he returned to the bedroom, locked the door behind him and informed Grant that someone was forcing his or her way into the apartment.\nNickles testified that after he returned to the bedroom, he heard people walking around the apartment and the same voice asking, \u201cWhere is my shit?\u201d The bedroom doorknob was rattled and a female voice said, \u201cIt\u2019s locked.\u201d The bedroom door was then kicked in and Nickles saw Burnette standing at the door and holding a black steel .38-caliber revolver. A black female with a 9 millimeter handgun and a black male with a low-caliber semi-automatic handgun were standing behind and on either side of Burnette.\nGrant also testified that a few seconds after she heard the shot, the bedroom door was kicked in. Burnette and two others, a man and a woman, stood at the doorway holding handguns. Burnette asked Grant \u201cwhere his shit was,\u201d looked at them, shook his head and left.\nGrant denied either having a previous conversation with Burnette about his missing property or knowing what Burnette was talking about when he asked \u201cwhere his shit was.\u201d Nickles and Grant both testified that they had informed police about seeing three people holding guns when the bedroom door was opened; however, the parties stipulated that Grant had not told the police about seeing anyone with Burnette when the door was kicked open.\nNickles and Grant both testified that they waited in the bedroom for three to four minutes after Burnette left before phoning for assistance for Wells, whom they could hear moaning from the kitchen. Grant testified that, when they reached the kitchen, the oven door was broken and hanging by a single hinge and that it had been undamaged the previous evening. Paramedics arrived at 1:31 p.m. and transported Wells to Illinois Masonic Hospital, where he was pronounced dead at 2:10 p.m.\nThe medical examiner, Dr. Chira, determined on postmortem examination that Wells bled to death as a result of the gunshot wound.\nThe bullet struck Wells on the front of his left thigh, five or six inches from the groin, severed the left common iliac artery, traveled on a slight upward angle through Wells\u2019 left leg and pelvis, and exited Wells\u2019 right leg just below the hip. Dr. Chira testified that there was no stippling, or powder burn, at the site of the entrance wound, indicating that the gun had been at least 18 inches away from Wells\u2019 leg when the shot was fired. Dr. Chira further testified that the path of the bullet was consistent with Wells standing with his hands against the door and someone reaching around the door with a gun and firing blindly at Wells; however, Dr. Chira stated, such a scenario was not consistent with the absence of stippling on Wells\u2019 body. According to Dr. Chira, unless Wells had been wearing many layers of clothing\u2014 which he had not, because the police recovered Wells\u2019 blood-soaked underwear and walking shorts from the kitchen \u2014 stippling would have been present on the body if the shot had been fired from fewer than 18 inches. The record reflects that no gunshot residue test was performed postmortem on Wells\u2019 hands.\nUpon observing Burnette\u2019s automobile near the intersection of Courtland and Pulaski, police arrested Burnette and took him to Area 5 headquarters, where he was identified by Nickles, who was at the time being interviewed by a detective in an open office area.\nFormer Assistant State\u2019s Attorney Nicholas Arvanitis testified that he and Detective Richard Curley 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 his suspicions regarding Wells and Grant, described purchasing the gun and explained that he took the gun to the apartment to confront Wells and Grant about the missing property.\nAccording to Arvanitis, Burnette said that he had asked Wells for permission to use the washroom as a means of gaining entry into the apartment. Wells refused him entry and attempted to slam the door closed, trapping Burnette\u2019s hand against the doorjamb. Burnette then drew his gun to frighten Wells. Wells grabbed the barrel of the gun, a struggle ensued in the doorway and the gun discharged. Burnette then entered the apartment in search of his property and saw Grant, a baby and a man whom he did not recognize in the bedroom. Unable to locate his property, Burnette then left the apartment.\nThe 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, Burnette denied telling either Curley or Arvanitis that Wells had refused to allow him entry into the apartment. Defense counsel objected, noting that the word \u201crefused\u201d appeared nowhere in the State\u2019s felony review memorandum. Burnette further denied telling either Arvanitis or Curley that he had asked to use the washroom in order to gain entry to the apartment or that he had ever drawn his gun in order to frighten Wells. Burnette testified that he had told Curley and Arvanitis that he and Wells were struggling for the gun when it discharged, but that he did not go into detail with either of them.\n3. Findings of the Trial Court\nThe trial court found Burnette not guilty of first degree murder. The court did, however, find Burnette guilty of involuntary manslaughter. The court noted that the testimony of Nickles and Grant was inconsistent regarding their respective locations in the apartment at the time the shot was fired. The court also noted that Wells\u2019 wound was \u201cconsistent with the struggle as demonstrated by Mr. Burnette\u201d and that \u201cphotographs of the scene [were] consistent with Mr. Burnette\u2019s theory of what occurred.\u201d The court predicated its finding of guilty as to involuntary manslaughter on the following:\n\u201cTHE COURT: Mr. Cohen, advocate that he is, suggests that this Defendant could not even be guilty of involuntary manslaughter and presented cases in support of his argument. Those cases I believe to be distinguishable from the facts in this case. As I have previously said, Mr. Burnette armed himself and went to that apartment and obviously went with some animosity and I think one could reasonably conclude that Mr. Burnette was also fortified with the knowledge that he carried this handgun.\nIn the cases that Mr. Cohen relies upon, the opinion[s] suggest[ ] that one could not be found guilty of an involuntary manslaughter as the result of the loss of life which occurred not the fault [of] or not attributable to the Defendant. Mr. Burnette armed himself. Certainly that \u2014 the victim would not have been murdered by a handgun if Mr. Burnette had not brought that handgun to the scene. If the Appellate Court is prepared to \u2014 to suggest that this involuntary taking of life was not the doing of Mr. Burnette, so be it. It defies logic. How one could lose a component system, television equipment, electronic equipment, anything of personalty and respond by arming himself is idiotic. It defies common sense and I do not believe lends itself to an exemption at law.\nAccordingly the Court finds the Defendant guilty of involuntary manslaughter. \u2019 \u2019\nThe court also found Burnette guilty as to one of the three counts of home invasion, which alleged that \u201c[Burnette], not being a police officer acting in the line of duty, without authority knowingly entered the dwelling place of Michael Wells and he had reason to know that one or more persons were present therein, and while armed with a dangerous weapon, to wit: a handgun did use force upon Michael Wells, within said dwelling place, whether or not injury occurred.\u201d 720 ILCS 5/12 \u2014 11(a)(1) (West 1996) (now 720 ILCS 5/12 \u2014 11(a)(3) (West 2000)).\nFollowing trial, the court denied defense counsel\u2019s motion to reconsider its verdict. When defense counsel questioned the court\u2019s finding of guilty as to home invasion, the court stated, \u201c[Burnette] was outside the apartment. He engaged in a tussle. He pushed [Wells] back into the apartment.\u201d The court also quoted Burnette as testifying that, \u201c[he] could grab [Wells] down low or something, push him back into the apartment.\u201d\nThe court rejected Burnette\u2019s claim of self-defense, stating that it did not believe that Burnette forgot that he was carrying the gun when he went to the apartment to recover property from someone he knew to be physically larger than himself. The court also roundly criticized Burnette for purchasing a gun after the burglary rather than having his door repaired. Referring to Arvanitis\u2019 testimony that Burnette admitted to him that Burnette had pushed the door back on Wells after Burnette\u2019s hand was caught in the door, the court concluded, \u201cNow because you pinched my finger I hit you with the door. All of this approaches self-defense. I don\u2019t think so. It is a return to a time before Dodge City, if you adopt that line of thinking. I am not prepared to go back that far.\u201d\nThe court then sentenced Burnette to concurrent prison terms of 5 and 20 years for involuntary manslaughter and home invasion, respectively. Three months after trial, the court denied Burnette\u2019s motion for reconsideration of his sentence. This appeal followed.\nANALYSIS\n1. Home Invasion\nBurnette first argues that the evidence adduced at trial was insufficient to support his conviction for home invasion where \u201c[t]here [was] no evidence that [he] made any conscious attempt to enter the apartment during the struggle.\u201d Burnette argues that in light of his trial testimony \u2014 that he and Wells \u201csomehow [wound] up into [sic] the kitchen\u201d during a struggle which began on Wells\u2019 back porch \u2014 the State failed to prove beyond a reasonable doubt the element of \u201cknowing\u201d entry necessary to support a conviction for home invasion.\nWe first consider the proper standard of review of a challenge to the sufficiency of evidence supporting a criminal conviction:\n\u201c \u2018A criminal conviction will not be set aside on review unless the evidence is so improbable or unsatisfactory that a reasonable doubt of the guilt of the defendant remains. [Citation.] Upon a challenge to the sufficiency of the evidence of a defendant\u2019s 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 their testimony, and the reasonable inferences to be drawn from the evidence are responsibilities of the trier of fact. [Citation.] In the consideration of a defendant\u2019s challenge to the sufficiency of the evidence, the relevant question is whether, after viewing all of 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. [Citation.]\u2019 \u201d People v. Coleman, 311 Ill. App. 3d 467, 473 (2000), quoting People v. McLaurin, 184 Ill. 2d 58, 79 (1998).\nSee also People v. Thompson, 313 Ill. App. 3d 510, 515 (2000). The relevant section of the home invasion statute then in effect reads as follows:\n\u201cA person who is not a peace officer acting in the line of duty commits home invasion when without authority he *** knowingly enters the dwelling place of another when he *** knows or has reason to know that one or more persons is present *** and\n1) While armed with a dangerous weapon uses force or threatens the imminent use of force upon any person or persons within such dwelling place whether or not injury occursf.]\u201d (Emphasis added.) 720 ILCS 5/12 \u2014 11(a)(1) (West 1996) (now 720 ILCS 5/12 \u2014 11(a)(3) (West 2000)).\nThe record plainly contradicts Burnette\u2019s assertion that there was \u201cno evidence\u201d that his entry into Wells\u2019 apartment was \u201cknowing\u201d within the meaning of the home invasion statute. The trial court made no specific finding as to Burnette\u2019s mental state upon entry into the apartment; however, in addition to Burnette\u2019s self-serving testimony, the record contains the trial testimony of former Assistant State\u2019s Attorney Nick Arvanitis. Arvanitis testified that in Burnette\u2019s oral statement to him at Area 5 police headquarters, Burnette admitted to struggling with Wells on the back porch of the apartment. According to Arvanitis, Burnette further admitted to voluntarily entering the apartment in search of his missing property after the fatal shot was fired. The record also contains the parties\u2019 stipulation that, if called as a witness, Detective Richard Curley would testify that, prior to Burnette\u2019s interview 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 the province of the trier of fact. Coleman, 311 Ill. App. 3d at 473. Nothing in the law requires the trier of fact to believe a defendant\u2019s 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 rational finder of fact could have readily found that the State had proved the essential elements of home invasion, including the \u201cknowing\u201d nature of Burnette\u2019s entry into the apartment, beyond a reasonable doubt. Coleman, 311 Ill. App. 3d at 473.\nBurnette next argues that the guilty verdict as to home invasion was predicated on the trial court\u2019s \u201cflawed recollection\u201d of the evidence with respect to his mental state upon entering the apartment and that he should therefore be granted a new trial. It is critical to understand that what Burnette characterizes as the court\u2019s \u201cflawed recollection\u201d was adduced three full months following trial during the hearing on Burnette\u2019s motion for reconsideration and for a new trial. At that hearing, in response to defense counsel\u2019s argument that there was no evidence that Burnette had knowingly entered the apartment, the court stated:\n\u201cTHE COURT: He was outside the apartment. He engaged in a tussle. He pushed the gentleman back into the apartment.\n\u00cd-\u00cd }j< sjc\nTHE COURT: [Ostensibly quoting Burnette\u2019s testimony] T suggest I could grab him down low or something, push him back into the apartment.\u2019 \u201d (Emphasis added.)\nActually, Burnette testified that during the struggle, he was \u201cstill trying to flip [Wells] and somehow\u201d they ended up in the kitchen. (Emphasis added.) Burnette also testified that he was unsure exactly how they had managed to enter the kitchen because he \u201chad [his] head down\u201d at that point in the fight.\nBurnette cites two cases in support of his argument. Neither is on point. Both cases involve a trial court\u2019s 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\u2019s testimony during hearing on pretrial motion to suppress evidence); People v. Bowie, 36 Ill. App. 3d 177, 179-80 (1976) (court misstated defendant\u2019s testimony during defendant\u2019s closing argument).\nThe court\u2019s flawed posttrial recollection of Burnette\u2019s testimony does not vitiate the court\u2019s initial finding of guilt, which was made three months earlier at a time when the evidence was necessarily fresher in the court\u2019s mind. This is not error of sufficient magnitude to merit vacating Burnette\u2019s conviction. After a careful review of the record, we conclude that Burnette\u2019s challenge to the sufficiency of the evidence supporting his conviction for home invasion is without merit.\n2. Involuntary Manslaughter\nAfter trial, the court found Burnette not guilty of first degree murder, apparently accepting Burnette\u2019s assertion that he had killed Wells unintentionally during a struggle. However, the court found Burnette guilty of involuntary manslaughter predicated on Burnette\u2019s recklessness in bringing a gun to a potentially dangerous confrontation. According to the trial court, \u201cthe victim would not have been murdered by a handgun if Mr. Burnette had not brought that handgun to the scene.\u201d\nThe Criminal Code of 1961 (720 ILCS 5/1 \u2014 1 et seq. (West 1998)) (the Code) defines involuntary manslaughter as follows:\n\u201cA person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if 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 ***.\u201d 720 ILCS 5/9 \u2014 3(a) (West 1998).\n\u201cThe crux of involuntary manslaughter is recklessness.\u201d People v. Painter, 304 Ill. App. 3d 847, 849 (1999).\n\u201cA person is reckless or acts recklessly, when he 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.\u201d 720 ILCS 5/4 \u2014 6 (West 1998).\nThus, \u201c[flor purposes of involuntary manslaughter, a person acts recklessly when he consciously disregards a substantial and unjustifiable risk that his acts are likely to cause death or great bodily harm to another.\u201d People v. Castillo, 188 Ill. 2d 536, 540-41 (1999).\nWe believe that the trial court misconstrued the involuntary manslaughter statute in predicating Burnette\u2019s conviction solely on his recklessness in bringing the gun to Wells\u2019 apartment. The trial court ignored the fact that the State was required to prove beyond a reasonable doubt that Burnette was reckless in performing those \u201cacts *** which cause[d] the death.\u201d (Emphasis added.) 720 ILCS 5/9 \u2014 3(a) (West 1998). The question here is one of proximate cause. Wells died not because Burnette brought the gun to his apartment, but because he was shot when the gun discharged during the struggle in the kitchen. Although this may ostensibly appear to be a distinction without a difference, it is a critical one under the facts before us. The trial court credited Burnette\u2019s account of the struggle that resulted in the shooting, stating prior to passing sentence that both Wells\u2019 wound and the photographs of the scene of the shooting were \u201cconsistent with the struggle as demonstrated by Mr. Burnette.\u201d The court made no specific finding prior to sentencing as to whether Burnette ever drew the gun or purposefully introduced it into the fight. However, during the hearing on Burnette\u2019s motion for a new trial, in discussing with counsel Burnette\u2019s entry into the apartment, the court stated that \u201c[Burnette] did not use the gun in a way that was visible to [Wells].\u201d Inherent in the findings of the trial court is the determinative conclusion that the gun did not appear until it fell from Burnette\u2019s jacket by accident during the struggle in the kitchen, as Burnette had testified. This is not a 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)) or deliberately 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 the time of the shooting \u2014 the \u201cact[ ] *** which cause[d] the death\u201d \u2014 in order to convict Burnette of involuntary manslaughter. 720 ILCS 5/9 \u2014 3(a) (West 1998). See People v. Tainter, 304 Ill. App. 3d 847, 851 (1999) (holding that the nature of the beating that defendant inflicted on the victim would be dispositive of the recklessness of the defendant\u2019s 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 was reckless in leaving the infant locked in an automobile for four hours on a hot summer day); People v. Cole, 253 Ill. App. 3d 603, 610 (1993) (stating that defendant was reckless in first firing a loaded gun near the victim, then pointing what the defendant thought to be an unloaded gun at the victim and pulling the trigger, allegedly merely to frighten the victim but in reality shooting the victim to death).\nBecause a conviction may be affirmed on any basis in the record, even if the circuit court did not rely on those grounds (People v. Wright, 194 Ill. 2d 1, 16 (2000)), we examine the record in order to analyze Burnette\u2019s conduct at the time of the shooting and determine whether it was reckless within the meaning of the involuntary manslaughter statute.\nBased on the evidence credited by the trial court, the gun fell from Burnette\u2019s pocket in the kitchen during his struggle with Wells. Wells reached the gun first, but Burnette kicked it from his hand. Both men then dove for the gun, reaching it at the same time. When asked why he then reached for the gun, Burnette replied, \u201cI was afraid [Wells] might shoot me with it. He was talking about he was going to \u2018kill me, nigger.\u2019 T will kill your ass.\u2019 And I didn\u2019t want him shooting me with the gun.\u201d In convicting Burnette of involuntary manslaughter, the trial court accepted Burnette\u2019s statement that the firing of the gun was unintentional. 720 ILCS 5/9 \u2014 3(a) (West 1998). Logically, then, the killing must have been the result of either recklessness or accident.\nThe determination of whether a killing has resulted from reckless conduct is a question for the trier of fact and will not be disturbed unless it is \u201cpalpably contrary to the weight of the evidence.\u201d Hoover, 250 Ill. App. 3d at 351. The trial judge, sitting as the finder of fact, accepted Burnette\u2019s account of the struggle that resulted in the shooting. After a careful review of the record, we hold that the trial judge\u2019s subsequent determination that Wells died as the result of recklessness is contrary to the manifest weight of the evidence. Burnette\u2019s recklessness in bringing the gun to the apartment was too attenuated with respect to the shooting itself, the \u201cact [ ] *** which cause[d] the death,\u201d to support an involuntary manslaughter conviction. 720 ILCS 5/9\u2014 3(a) (West 1998). The State failed to prove beyond a reasonable doubt that Burnette was reckless at the time of the shooting. Burnette\u2019s conviction on the charge of involuntary manslaughter is therefore vacated.\n3. Double Jeopardy\nBurnette further challenges his conviction of home invasion on the grounds that the trial court acquitted him of home invasion and was barred thereafter from convicting him on that charge by the constitutional prohibition against double jeopardy. Double jeopardy prohibits a defendant from being prosecuted for an offense after having been acquitted of that same offense. U.S. Const., amend. V; Ill. Const 1970, art. I, \u00a7 10. An acquittal triggers the double jeopardy bar only if it \u201cactually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.\u201d United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 51 L. Ed. 2d 642, 651, 97 S. Ct. 1349, 1355 (1977); People ex rel. Daley v. Crilly, 108 Ill. 2d 301, 311 (1985). Whether jeopardy has actually attached under a given set of circumstances is a question of law that we review de novo. People v. Johnson, 304 Ill. App. 3d 599, 601 (1999).\nThe indictment in this case charged Burnette with three counts of home invasion, each tracking a different part of the language of the statute. Counts VIII, IX and X alleged, respectively, that Burnette \u201cuse[d] force upon,\u201d \u201cthreaten[ed] the imminent use of force upon,\u201d and \u201cintentionally injured\u201d Michael Wells. 720 ILCS 5/12 \u2014 11(a)(1), (a)(2) (West 1996) (now 720 ILCS 5/12 \u2014 11(a)(2), (a)(3) (West 2000). Burnette rests his double jeopardy claim upon the following exchange between the trial court and the prosecutor:\n\u201cTHE COURT: [TJhere\u2019s a finding of not guilty as to the second count alleging as follows: \u2018That he not being a police officer acting in the line of duty without authority knowingly entered the dwelling place of Michael Wells and he had reason to know that one or more persons were present therein and while armed with a dangerous weapon, to wit, a handgun, did use force upon Michael Wells within said dwelling place, whether or not injury occurred.\u2019 Finding of guilty.\nMR. HOLZMAN: Judge, there\u2019s a finding of guilty ?\nTHE COURT: There\u2019s a finding of guilty. And as to the third and last home invasion count there\u2019s a finding of not guilty.\u201d (Emphasis added.)\nA thorough reading of the record reveals Burnette\u2019s claim to be without merit. The trial court was initially under the mistaken impression that counts IX and X were the only two counts of home invasion pending. When the existence of count VIII was brought to its attention, the court ruled that Burnette was guilty of home invasion predicated on the use of force against Wells. To the extent that the court inadvertently made statements suggesting a finding of not guilty as to count VIII, those statements were immediately corrected by the court\u2019s unequivocal statements to the contrary.\nDouble jeopardy protects against the harassment of successive prosecutions. People v. Williams, 188 Ill. 2d 293, 307 (1999). Such concerns are not implicated where, as here, the trial court makes an inadvertent statement and then corrects it \u201cvirtually with the same breath.\u201d People v. Vilt, 119 Ill. App. 3d 832, 835 (1983). The trial court\u2019s statement did not represent a resolution of \u201csome or all of the factual elements of the offense charged.\u201d Martin Linen Supply Co., 430 U.S. at 571, 51 L. Ed. 2d at 651, 97 S. Ct. at 1355; Crilly, 108 Ill. 2d at 311. Burnette\u2019s double jeopardy claim must fail.\n4. Sentencing\na. Mitigation\nBurnette challenges his sentence on multiple grounds. Burnette first argues that this court should reduce his 20-year sentence for home invasion to the minimum term of imprisonment of 6 years predicated on the trial court\u2019s failure to take into account in mitigation both the \u201cunusual\u201d circumstances surrounding the offense and his own rehabilitative potential.\nWhere the sentence imposed is within the permissible statutory range for the offense of which the defendant was convicted, we may reduce the sentence only where its imposition was an abuse of discretion. People v. Juarez, 278 Ill. App. 3d 286, 293 (1996). Home invasion is a Class X felony with a sentencing range between 6 and 30 years. 730 ILCS 5/5 \u2014 8\u20141(a)(3) (West 1998). We accord the trial court great deference with respect to its role in balancing factors in mitigation and aggravation in order to craft a proper sentence. People v. Ill- gen, 145 Ill. 2d 353, 379 (1991). In the absence of evidence to the contrary, we generally presume that the trial court considered any mitigating evidence before it. People v. Burton, 184 Ill. 2d 1, 34 (1998).\nBurnette argues by way of \u201cunusual\u201d circumstances that: (1) he acted only in response to the \u201cstrong provocation\u201d of the burglary and that such a circumstance is unlikely to recur (730 ILCS 5/5 \u2014 5\u2014 3.1(a)(3) (West 1998)); and (2) he had no intention of threatening or causing physical harm in acting as he did (730 ILCS 5/5 \u2014 5\u20143.1(a)(2) (West 1998)). However, Burnette points to nothing in the record that might indicate that the trial court failed to consider these factors in mitigation. We therefore defer to its judgment in this respect. Burton, 184 Ill. 2d at 34.\nBurnette also argues that the trial court failed to consider in mitigation his rehabilitative potential as evidenced by his lack of a criminal record. The court stated for the record prior to sentencing Burnette that it had considered Burnette\u2019s lack of criminal record in mitigation. Defense counsel then moved for reconsideration of Burnette\u2019s sentence. Three months later, during a hearing on counsel\u2019s motion, counsel argued that the court had failed to give Burnette\u2019s lack of a criminal record adequate weight in mitigation. The court responded:\n\u201cMr. Cohen, Mr. Burnette, I am mindful of the absence of the criminal background up to this point. And, in terms of those that I see on a daily basis, that is unique.\nBut I am also mindful that for every person that I see, there are, if you want to argue the statistics or accept the statistics, there are at least another two-thirds or 66% more people who walk the streets and manage to complete their entire adult life without any criminal sanctions.\nSo, if we are to measure Mr. Burnette\u2019s lack of criminal background on the standard or scale of criminals, his is remarkable. But in terms of citizens at large, he is in one hell of a position.\u201d\nPredicated on this comment, Burnette argues that rather than considering Burnette\u2019s lack of a criminal record in mitigation, the court inexplicably deemed it at best a neutral factor, and at worst actually viewed it in aggravation. We disagree.\nThe trial court has a statutory duty to consider evidence in mitigation in crafting a just sentence. 730 ILCS 5/5 \u2014 5\u20143.1(a)(7) (West 1998) (\u201cThe following grounds shall be accorded weight in favor of withholding or minimizing a sentence of imprisonment ***\u201d) (emphasis added); Burton, 184 Ill. 2d at 34; People v. Spencer, 229 Ill. App. 3d 1098, 1102 (1992) (holding that the court cannot ignore pertinent factors in mitigation). Prior to sentencing Burnette, the trial judge explicitly stated on the record that he had considered in mitigation Burnette\u2019s lack of a criminal record. Without more, the trial judge\u2019s comments three months after sentencing are insufficient to overcome the presumption that the trial judge properly considered all evidence in mitigation at the time of sentencing. Burton, 184 Ill. 2d at 34. We find Burnette\u2019s argument that the trial court failed to consider mitigating evidence in passing sentence to be without merit.\nb. Aggravation\nBurnette also argues that the trial court improperly considered both elements of the charged offense and the race of the victim as factors in aggravation. Consideration of improper factors in sentencing has been treated as both a form of abuse of discretion (People v. Beck, 295 Ill. App. 3d 1050, 1066 (1998); People v. McPhee, 256 Ill. App. 3d 102, 114 (1993); People v. Burge, 254 Ill. App. 3d 85, 91 (1993)) as well as an independent basis for reversal (People v. Morgan, 306 Ill. App. 3d 616, 633 (1999)). We prefer the approach followed in Morgan, for to treat the consideration of improper factors in sentencing as an abuse of discretion seems flawed. How may a court have discretion to consider a factor that is \u2014 by its very nature \u2014 excluded from such consideration?\nWhere a defendant claims that the trial court considered improper factors in sentencing, there is a rebuttable presumption that the sentence was proper. The burden is on the defendant to affirmatively demonstrate error. People v. Lindsay, 263 Ill. App. 3d 523, 533 (1994). Note, however, that not every instance in which an aggravating factor is improperly considered in sentencing calls for automatic reversal. \u201cWhen the weight placed on an improperly considered aggravating factor is so insignificant that it did not lead to a greater sentence, a remand for resentencing is not required.\u201d Burge, 254 Ill. App. 3d at 91.\n\u201cAs a general rule, the consideration of a factor which is necessarily implicit in an offense cannot be used as an aggravating factor in sentencing.\u201d Burge, 254 Ill. App. 3d at 88. However, this rule should not be applied rigidly. People v. Saldivar, 113 Ill. 2d 256, 268-69 (1986). Burnette first argues that the trial court improperly considered Wells\u2019 death in sentencing him because the death of the victim is an element of involuntary manslaughter. Although we have otherwise disposed of Burnette\u2019s conviction, we note that the trial court never stated that it was considering Wells\u2019 death in aggravation in sentencing Burnette for involuntary manslaughter. However, death of a victim is not an element of home invasion and may properly be considered in aggravation in sentencing a defendant for that offense. People v. McGlasson, 219 Ill. App. 3d 252, 254-55 (1991).\nBurnette\u2019s second argument along these lines is also flawed. Burnette asserts that because being armed is an element of the offense of home invasion, the trial court improperly considered in aggravation the fact that he was armed with a gun. Burnette misstates the issue. The home invasion statute in effect at the time of the offense required not only that a defendant be \u201carmed,\u201d but that he be \u201carmed with a dangerous weapon.\u201d 720 ILCS 5/12 \u2014 11(a)(1) (West 1996) (now 720 ILCS 5/12 \u2014 11(a)(3) (West 2000)). The State argues that the trial court was allowed to consider the gun in aggravation under the previous version of the statute as one of the deadliest of \u201cdangerous weapons.\u201d We agree. A firearm is undoubtedly a \u201cdangerous weapon\u201d within the meaning of the statute in effect at time of trial. People v. Maberry, 193 Ill. App. 3d 250, 264 (1990); Burge, 254 Ill. App. 3d at 90. However, a kitchen knife is also a \u201cdangerous weapon.\u201d The trial court was certainly allowed to consider in aggravation the degree of danger presented by the type of weapon used in the offense. See People v. Gray, 212 Ill. App. 3d 613, 617 (1991) (holding that a defendant\u2019s use of a sawed-off shotgun, one of the most dangerous of weapons, in committing an armed robbery was a proper factor to be considered in aggravation). We therefore cannot say that the trial court improperly considered in aggravation an element of the offense of home invasion in passing sentence.\nFinally, Burnette argues that the trial court improperly considered in aggravation the race of the victim. In ruling on defense counsel\u2019s motion for reconsideration of sentence, the trial court stated:\n\u201cTHE COURT: If this had happened in Auburn and not in Austin, everybody would be up in arms, \u2018How dare you.\u2019 I am not prepared to minimize the life of this young man and suggest oh, well, you know, look at what happened. If the victim had been a member of the majority community, we would not be here talking about \u2018Oh, this is just an aberration.\u2019 * * *\nTHE COURT: It would not be accepted on the North Side of the city. That kind of thinking would not be accepted on the North Side of the city. Should not be accepted on the West Side of the city.\nMR. COHEN: I don\u2019t mean \u2014 I don\u2019t.\nTHE COURT: You know exactly what I am talking about.\nMR. COHEN: Yes, sir.\nTHE COURT: I am not going to minimize the life or the value of that victim to any less degree than I would the life or value of a victim from Lincoln Park. It happens all the time. Never in this courtroom. Never. Everybody is dealt the same hand.\u201d\nIn support of Burnette\u2019s sentence, the State makes the disingenuous argument that the trial court\u2019s references to different areas of the city were comments on the relative affluence of the residents and not their race. This argument is belied by the trial court\u2019s reference to the \u201cmajority community,\u201d a reference commonly used with respect to race. The trial judge then commented to defense counsel that \u201cYou know exactly what I am talking about.\u201d We also are aware of the trial judge\u2019s meaning, and find that such comments clearly raised the question of the race of the victim.\nDespite the trial judge\u2019s otherwise laudable aim of informing the parties that Burnette\u2019s sentence would be determined in a race-neutral manner, we must admonish the trial judge to refrain from commentary on the record that might be misconstrued. Notwithstanding, we refuse to read into the trial judge\u2019s comments any meaning other than that plainly stated: the trial judge merely emphasized that although the deaths of minorities might elsewhere be minimized, he would not allow the race of the victim to affect his sentencing decisions. This is an accurate statement of the law. \u201cThe sentencing judge \u2018owes the same duty to the defendant to protect his own mind from the possible prejudicial effect of incompetent evidence that he would owe in protecting a jury from the same contaminating influence.\u2019 \u201d People v. Wardell, 230 Ill. App. 3d 1093, 1103 (1992), quoting People v. Riley, 376 Ill. 364, 369 (1941).\nAfter a careful review of the record, we conclude that the trial court did not improperly consider in aggravation the race of the victim. Burnette has failed to carry his burden in affirmatively demonstrating prejudicial error in sentencing. Lindsay, 263 Ill. App. 3d at 533.\n5. Mittimus\nBurnette argues, and the State concedes, that the mittimus must be corrected to accurately reflect his convictions. A corrected mittimus shall therefore issue reflecting Burnette\u2019s conviction on count VIII of the indictment (home invasion under section 12\u2014 11(a)(1) (720 ILCS 5/12 \u2014 11(a)(1) (West 1996))). 134 Ill. 2d R 615(b)(1); People v. Kyles, 303 Ill. App. 3d 338, 345 (1998).\nCONCLUSION\nFor the foregoing reasons, we vacate Burnette\u2019s conviction of involuntary manslaughter but otherwise affirm the judgment of the trial court.\nAffirmed in part and vacated in part.\nTULLY and COUSINS, JJ., concur.\nThe record contains contradictory testimony on the respective positions of Nickles and Grant in the apartment at the time of the gunshot. Grant testified that when she heard the shot, Nickles returned to the bedroom and locked the door. At a pretrial suppression hearing, however, Grant testified that Nickles had returned to the bedroom and that she had locked the door before the shot was fired. Similarly, Grant testified before the grand jury that she had closed the bedroom door when she heard a \u201cbanging\u201d noise coming from the kitchen and had locked the door at \u201csome point.\u201d On cross-examination at trial, however, Grant denied making such a statement, even when confronted with a transcript of the grand jury proceedings.\nSinee 1996, the home invasion statute has been amended to separately address offenses committed \u201cwhile armed with a firearm\u201d (as opposed to any other dangerous weapon), and to add a mandatory sentence enhancement of 15 years in such cases. Under the amended statute, a defendant who personally discharges a firearm during the commission of such an offense is faced with a mandatory sentence enhancement ranging from 20 years to natural life in prison. Pub. Act 91 \u2014 404, \u00a7 5, eff. Jan 1, 2000 (amending 720 ILCS 5/12 \u2014 11 (West 1996)).\nIn support of the trial court\u2019s finding of recklessness, the State relies on People v. Robinson, 68 Ill. App. 3d 687 (1979), for the proposition that the \u201crule of the gun\u201d should not be allowed to supplant the \u201crule of reason\u201d in Illinois. Robinson, 68 Ill. App. 3d at 691. Although we agree with the sentiment, we fail to see the relevance of the cited case. Robinson addresses whether one is permitted to use force to retake money lost as the result of illegal gambling or whether such conduct constitutes armed robbery. Robinson, 68 Ill. App. 3d at 688-89. As such, Robinson is of no help to us in deciding the case at bar.\nBased on our disposition of this matter, we do not reach Burnette\u2019s arguments with respect to self-defense.\nAs we have otherwise disposed of Burnette\u2019s involuntary manslaughter conviction, we consider his sentencing arguments with respect to home invasion only.", "type": "majority", "author": "PRESIDING JUSTICE COHEN" } ], "attorneys": [ "Michael J. Pelletier and Patricia Unsinn, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Katherine Blakey Cox, and James D. Ridgway, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BERNARD BURNETTE, Defendant-Appellant.\nFirst District (1st Division)\nNo. 1\u201499\u20140740\nOpinion filed September 28, 2001.\nRehearing denied November 5, 2001.\nMichael J. Pelletier and Patricia Unsinn, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Katherine Blakey Cox, and James D. Ridgway, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0792-01", "first_page_order": 810, "last_page_order": 829 }