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People v. Davis

OPINION FILED FEBRUARY 7, 1985.

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

v.

STEVE DAVIS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Sangamon County; the Hon. Simon L. Friedman, Judge, presiding.

JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Defendant appeals his convictions upon jury verdicts of attempted robbery (Ill. Rev. Stat. 1983, ch. 38, par. 8-4(a)) and criminal damage to property (Ill. Rev. Stat. 1983, ch. 38, par. 21-1(a)), and from the respective concurrent sentences of three years and 364 days.

Upon appeal, defendant argues that the trial court erred in failing to instruct the jury sua sponte upon the elements of the offense of robbery, and in admitting into evidence the entire prior statement of the prosecuting witness after the latter had been impeached in cross-examination.

The course of events in evidence is bizarre, if not slapstick. Pokora, the complaining witness, testified that he was working at a small grocery store of which he is part-owner when a black male entered the store about 4:45 p.m. At that time there were three other persons in the store. When these customers left, the black male went to the cooler and took a quart of orange juice and walked to the meat counter where Pokora was working. The latter stated that he told the black male that he would check him out at the end of the counter. That statement was repeated when the black male ignored the statement. Pokora, who had placed a gun in his belt, moved to the opening in the meat counter and blocked the passage with a ladder, upon which he placed a case of quart bottles of beer.

Pokora stated that the black male attempted to come behind the counter, ripped open the case of beer and grabbed one of the bottles by the neck. Pokora testified that as that individual started to come towards him, he asked what the man wanted and the black male responded, "You know what I want." Pokora in turn stated, "Yes, I know what you want" and told the man to get out. As he walked towards the front of the store, the black male turned and threw the bottle of beer toward Pokora and then picked up jars of food which he hurled at the latter. Pokora then fired a charge of BB's into a display of paper products where the man was standing. The gun was otherwise loaded with live bullets. The black male fled out the front door. Pokora called the police, but before he finished the call, the man returned to the store through the front door, and Pokora fired a shot in the door frame.

Pokora testified that the man then went around to the back of the store, broke the glass in the back door, unlatched the hook lock and entered the store. Crouching low, he approached the cash register and reached for the knob on the side of the register which would open the drawer. Pokora then fired another shot and the black male fled through the back door and ran down the street.

Evidence technicians testified that no fingerprints capable of comparison were found on the jars, bottles or cash register knob but that defendant's fingerprints were found on the flap of the case of beer.

Defendant argues that he was denied a fair trial because the jury was not instructed on the elements of the offense of robbery. Upon this record, the issue is available only if the omission is found to be plain error. The following instructions tendered by the State were given without objection and without preservation in the record by post-trial motion.

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

The offense attempted need not have been committed.

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 the offense of Robbery; and

SECOND: That the defendant did so with intent to commit the offense of Robbery.

If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, ...


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