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People v. Arnett

OPINION FILED DECEMBER 30, 1985.

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

v.

FRED S. ARNETT, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Champaign County; the Hon. Robert J. Steigmann, Judge, presiding.

PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

On October 22, 1984, defendant, Fred S. Arnett, was charged with attempt (residential burglary) (Ill. Rev. Stat. 1983, ch. 38, par. 8-4(a)) and conspiracy to commit residential burglary (Ill. Rev. Stat. 1983, ch. 38, par. 8-2(a)) by information in the circuit court of Champaign County. After a jury trial, defendant was convicted of both offenses on February 15, 1985. The defendant was sentenced on March 18, 1985, to concurrent terms of imprisonment for three years on the conspiracy charge and seven years on the attempt charge. The defendant has appealed both convictions, contending, first, that the prosecutor improperly defined reasonable doubt to the jury in her closing argument and second, that the convictions were improperly based upon the same act as the act taken in furtherance of the conspiracy and the substantial step taken in the attempt are the same. We hold that the first issue has been waived and, as to the second, we conclude that both convictions cannot stand. We vacate the conspiracy conviction and sentence.

During the prosecutor's closing argument, she made the following comments:

"You have got to find that the defendant is guilty beyond a reasonable doubt. Nowhere in these instructions are you going to see beyond any doubt, or beyond most incredible doubt, or beyond a slight doubt."

As the State points out, no objection was made to these comments at that time by defense counsel nor was the issue raised in defendant's post-trial motion.

• 1 The general rule followed in Illinois is that, absent plain error, the failure of a defendant to raise an issue at trial or in his written motion for a new trial constitutes a waiver of that issue and it cannot then be urged as a grounds for reversal on review. People v. Precup (1978), 73 Ill.2d 7, 382 N.E.2d 227; People v. Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856.

While it is improper for counsel to attempt to define reasonable doubt for the jury (People v. Cagle (1969), 41 Ill.2d 528, 244 N.E.2d 200), clearly no plain error occurred here. The prosecutor's argument was not couched in terms of definition and any possible impropriety was slight and could easily have been cured if an objection had been made. The issue was waived.

• 2 We now turn to defendant's contention that both convictions cannot stand. Multiple convictions for closely related conduct are prohibited when the convictions are (1) "carved from the same physical act," or (2) such that one is for an included offense of the other. (People v. King (1977), 66 Ill.2d 551, 566, 566, 363 N.E.2d 838, 844, 845.) Defendant's brief focuses more on the single act nature of the offense. We conclude that, as charged, the attempt offense was an included offense of the conspiracy.

Count I of the charge, the attempt count, stated that with the intent to commit the offense of residential burglary, defendant and others "performed a substantial step toward the commission of that offense, in that without authority, they knowingly pried on the sliding glass door and attempted to twist the door knobs off of a door to the dwelling place of Charles B. Craver * * *, with the intent to enter that dwelling place and commit therein a theft." (Emphasis added.) Count II, the conspiracy charge, stated defendant and others "with the intent that the offense of residential burglary, * * * be committed, agreed with each other to the commission of that offense and performed an act in furtherance of that agreement in that they attempted to enter the dwelling place of Charles B. Craver * * *, by prying on a sliding glass door and attempting to pry the door knob off of a door in that dwelling place." (Emphasis added.)

The Criminal Code of 1961 defines conspiracy as follows:

"A person commits conspiracy when, with intent that an offense be committed, he agrees with another to the commission of that offense. No person may be convicted of conspiracy to commit an offense unless an act in furtherance of such agreement is alleged and proved to have been committed by him or by a co-conspirator." Ill. Rev. Stat. 1983, ch. 38, par. 8-2(a).

The Criminal Code of 1961 defines attempt in the following way:

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


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