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People v. Gilman

OPINION FILED MARCH 9, 1983.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

EDWARD GILMAN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Macon County; the Hon. Rodney A. Scott, Judge, presiding.

PRESIDING JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Defendant, Edward Gilman, was charged by information, in the circuit court of Macon County, with the offense of attempt (burglary) in violation of section 8-4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 8-4). He was tried to a jury and found guilty. Defendant appeals his conviction and sentence arguing that the jury was improperly instructed. We affirm.

At the instruction conference, defense counsel tendered Illinois Pattern Jury Instructions, Criminal, No. 24-25.02 (2d ed. 1981) (hereinafter IPI Criminal) on the defense of voluntary intoxication. The instruction reads, in pertinent part, as follows:

"An intoxicated person is criminally responsible for his conduct unless his intoxication renders him incapable of acting [(knowingly) (intentionally)]."

A trial court is to select the mental state applicable to the crime charged. The trial court, upon urging by the assistant State's Attorney, elected to use "knowingly." Defense counsel objected, stating that intent is an element of the crime of attempt and, therefore, "intentionally" should have been inserted.

Although defense counsel raised the issue at the instructions conference, he failed to raise it in his written post-trial motion. The People contend that the issue has therefore been waived unless it rises to the level of plain error.

• 1 We hold that the issue has been waived and does not, in the instant case, rise to the level of plain error. The failure by a defendant to raise an issue in his written motion for a new trial constitutes waiver of that issue and it cannot be urged as a ground for reversal on review. (People v. Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856.) Error that rises to the level of plain error may be considered on review despite a defendant's failure to properly preserve an objection. People v. Baynes (1981), 88 Ill.2d 225, 430 N.E.2d 1070.

• 2, 3 The plain error rule is a narrow and limited exception to the general waiver rule. (People v. Pastorino (1982), 91 Ill.2d 178, 435 N.E.2d 1144.) To circumvent the general waiver rule the record must clearly show the commission of error that substantially affects a defendant's rights. (People v. Jackson (1981), 84 Ill.2d 350, 418 N.E.2d 739.) We hold that no substantial error such as to deprive defendant of a fair trial has occurred.

In addition to the instruction on the intoxication defense, the trial court instructed the jury as follows:

"A person commits the offense of attempt when he, with intent to commit the offense of Burglary, does any act which constitutes a substantial step toward the commission of the offense of Burglary.

The offense attempted need not have been committed." IPI Criminal No. 6.05.

"A person commits the offense of burglary when he, without authority, knowingly enters a building or any part thereof with intent to commit therein the offense of theft." IPI Criminal No. 14.05.

"To sustain the charge of attempt, the State must prove the following propositions:

FIRST: That the defendant performed an act which constituted a substantial step toward the commission of ...


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