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JUSTICE REID delivered the opinion of the court:

Following a jury trial, the defendant, Natale Saraceno, wasfound guilty of one count of residential burglary and as a resultof his criminal background, he was sentenced as a Class Xoffender to serve 20 years' imprisonment. The issues Saracenoraises on appeal are whether: (1) the trial court improperlystated Illinois Pattern Jury Instruction, Criminal No. 3.15 (4thed. 2000 (hereinafter IPI Criminal)) when it was submitted to thejury; (2) the trial court improperly restricted the testimony ofwitnesses; (3) the State made improper remarks during its closingargument; (4) the trial court erred when it refused to considerSaraceno's pro se motion for a new trial which allegedineffective assistance of counsel; and (5) the mandatory Class Xsentencing provision of section 5-5-3(c)(8) of the Unified Codeof Corrections (730 ILCS 5/5-5-3(c)(8) (West 2000)) violatesApprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S.Ct. 2348 (2000). For the reasons that follow, we reverse thedecision of the trial court and remand this cause for a newtrial.

BACKGROUND

At trial, Beverly Verner testified that on May 4, 1998, shelived in Berwyn, Illinois, with her father. At the time, Vernersaid that her next-door neighbor was having his roof replaced andthat there were workmen on his roof. The neighbor's house waslocated on the western side of Verner's home.

At approximately 1:30 p.m., Verner was in her bedroom lyingdown watching television when someone rang her front doorbell.The door to her bedroom was closed and she was the only person inthe house. Verner testified that she did not answer the doorbecause she was not feeling well and she was not expectingvisitors.

After the front doorbell stopped ringing, the back doorbellbegan to ring. Again, Verner did nothing. After the back bellstopped, the front doorbell began ringing again. Verner did notanswer the door. Next, the front doorbell stopped ringing, andthe backdoor bell began ringing again. Verner still did notanswer the door.

Verner testified that at approximately 1:50 p.m. she heard"creeping" in the house. Verner said that she has hardwoodfloors and she could hear someone walking slowly in the house. Verner testified that she heard someone walk from the kitchenthrough various rooms in the house. Verner testified that thenoise was not familiar to her. She explained that when herfather walked through the house it made a different sound. Verner picked up her telephone and dialed 91 and sat in her bedwaiting to dial the last number to 911.

Verner then saw her bedroom doorknob turn slowly. When shesaw a gloved hand opening the door, she completed dialing thelast number to 911. Verner described the gloves as big rugged,gray gloves.

When her bedroom door opened, Verner saw a man standing inthe doorway. He was approximately three feet from where she wassitting on her bed. Verner said that she could see the man'sface and that she in fact focused on his face. She identifiedthe man as Saraceno.

Verner then yelled and said "who are you and what are youdoing here?" She then proceeded to tell the 911 operator thatshe had a home invader. The intruder then shut her door. Afterspeaking to the 911 operator, Verner telephoned her father butwas unable to contact him. She then called and spoke to herbrother.

Verner testified that while she was on the phone trying tocontact her father and brother, she could still hear the intruderwalking around her house. After speaking to her brother, Vernersaid, she walked to the window and waited until she heard thepolice outside. She testified that it took the policeapproximately two minutes to arrive.

When the police arrived, Verner explained to them whathappened and gave them a description of the intruder. Shetestified that she told the police that the intruder wasHispanic, with deep-set eyes, and that he was wearing a baseballhat and a T-shirt. Verner also testified that she thought thatshe noticed a tattoo on the intruder's arm, although she couldnot remember if she conveyed this information to the policeofficers. The police officer with whom she was speaking relayedthe description over the radio.

Approximately a minute later, she was asked to walk over toher window and look outside. When Verner looked out of herwindow, she saw Saraceno standing between two officers. Sheinformed the officers that he was the man who had entered herhome. After identifying Saraceno, Verner said that she wentoutside on the porch to take one last look at Saraceno out ofcuriosity. Verner testified that when she saw Saraceno she said"that's him." Verner said that she also looked at the other menwho were working on her neighbor's roof and that none of themresembled the man who entered her home.

Verner was then taken to the back of her house to its rearentrance. There she saw damage to the back door. The door hadbeen jimmied opened. Later that afternoon, at approximately 3:30p.m., Verner was exiting the rear of her house where she sawtools on the ground. In particular, she saw "a long rod iron,like a hook," and a pair of gloves that were similar to thosethat were worn by the man who had entered her apartment. Shesaid the gloves were lying on the ground approximately seven feetfrom her backdoor.

Detective Becvar testified that on May 4, 1998, atapproximately 1:50 p.m. he was on duty and received an assignmentconcerning an intruder. When he arrived at Verner's apartment,he observed damage to her rear door. Becvar said that there werechips around the doorknob and he could see that the doorjamb hadbeen pried. However, he did not see a pry bar or work glovesnear the rear entrance. Becvar met with Officer Haennicke andVerner. Verner described the intruder as being "a male Hispanicwearing a black baseball cap, tee-shirt with deep set eyes." Officer Haennicke radioed the description to the other units.

Approximately 30 seconds later, Sergeant David Ehle responded by radioing that he had an offender who matched thedescription. Based on that transmission, Becvar had Vernerapproach the front window of her apartment. Becvar testifiedthat Verner "instantly said, that's him."

Ehle testified that on May 4, 1998, he was working withSergeant Ken Zolecke. At approximately 1:50 p.m., they receivedan assignment concerning a home invasion and proceeded toVerner's apartment. As they were en route, they received a radiotransmission of the description of the intruder. Ehle testifiedthat the description was of a "male Hispanic with a tee-shirt anddeep set eyes."

After arriving, Ehle observed a Hispanic male walking towarda vehicle parked on the street, approximately four houses awayfrom Verner's residence. As Ehle approached the man and calledto him, Ehle noticed that the man also had deep set eyes. Sergeant Ehle testified that Saraceno was wearing a white T-shirt, but he was not wearing a black baseball cap nor was oneever recovered. Ehle asked the man to accompany him back toVerner's residence. Ehle then radioed Officer Haennicke and toldhim that he was bringing the subject back to Verner's house.

After standing in front of Verner's home with Saraceno, Ehlereceived a radio communication from Detective Becvar, who saidthat Verner had identified the man as the intruder. Ehle thentook Saraceno into custody.

Stephen McCord, called by the defendant as a witness,testified that he was working for Trent Roofing on May 4, 1998. McCord was the foreman on the roofing job that was located nextdoor to Verner's home. McCord testified that he had knownSaraceno for approximately five to six years. McCord said thatthere were nine members on his work crew that day, includingSaraceno. Saraceno arrived at work at 7 a.m. McCord testifiedthat Saraceno was wearing a white T-shirt but that Saraceno didnot wear a hat that day.

McCord testified that from noon until Saraceno left theworksite, Saraceno was on the roof working. When Saraceno leftthe roof, McCord saw him leave his tools on the roof, climb downthe ladder, use a hose to wash off and walk toward his car. McCord saw Saraceno get into his car and start it after severalattempts. At this point, the police arrived and ordered everyoneoff the roof. The police were asking the workers questions.McCord then saw Saraceno come back "to see what was going on." One of the officers pulled Saraceno aside and shortly thereafter,Saraceno was placed under arrest.

The jury found Saraceno guilty of one count of residentialburglary and he was sentenced to serve 20 years' imprisonment. On February 4, 2000, Saraceno timely filed a notice of appeal.

ANALYSIS 

Saraceno contends the trial court submitted an erroneousjury instruction with respect to the evaluation of eyewitnesstestimony. Saraceno maintains the trial court misstated the lawwhen it submitted its version of IPI Criminal 4th No. 3.15 to thejury. Specifically, Saraceno argues that the trial court erredbecause when it submitted the instruction it erroneouslycontained the word "or" instead of the word "and" between thefactors to be considered by the jury. Saraceno asserts he wasdenied a fair trial because the jury instruction onidentification was contradictory, confusing and misstated thelaw. We agree.

The State initially argues that Saraceno has waived thisissue because he failed to raise it in his posttrial motions. Generally, a defendant waives any error contained in the juryinstructions if he does not object or proffer alternativeinstructions at trial and fails to raise the issue in a posttrialmotion. People v. Reddick, 123 Ill. 2d 184, 198 (1988), citingPeople v. Thurman, 104 Ill. 2d 326 (1984). Saraceno responds byarguing that this issue should be reviewed under the plain errorrule.

The plain error rule allows a reviewing court to consider issues waived for purposes of review where the evidence at trialwas closely balanced or the alleged error was so prejudicial thatit denied the defendant a fair trial. People v. Nieves, 192 Ill.2d 487, 502-03 (2000), citing People v. Vargas, 174 Ill. 2d 355,363 (1996). "'Plain error marked by "fundamental [un]fairness"occurs only in situations which "reveal breakdowns in theadversary system," as distinguished from "typical trialmistakes." [Citation.]'" People v. Gonzalez, 326 Ill. App. 3d629, 635 (2001), quoting People v. Keene, 169 Ill. 2d 1, 17(1995). "For this court to review an issue under the plain errordoctrine, 'the asserted error must be something "fundamental tothe integrity of the judicial process." [Citation.]'" Gonzalez,326 Ill. App. 3d at 635, quoting Keene, 169 Ill. 2d at 17.

Here, the plain error doctrine applies because the evidencewas closely balanced and the jury instruction at issue misstatedthe law. The State's case was based solely on the identificationtestimony of Verner. Verner, who was in a heightened emotionalstate when the break-in occurred, testified that the intruder waswearing a black baseball cap. However, when Saraceno wasarrested, he was not wearing a baseball cap and one was neverfound near the scene of the crime. Also, when Verner initiallyidentified the defendant as the intruder, she was not given anyalternative suspects from which to choose. Saraceno was standingalone in between two police officers.

Saraceno's foreman, McCord, provided the defendant with analibi. McCord testified that Saraceno was on the roof workingwhen the intrusion occurred (as opposed to Saraceno's brother,who was working on the ground). McCord also testified thatSaraceno left his tools on the roof when he finished working,which potentially negates the implication that the tools thatwere later found by Verner were the defendants.

We now address the merits of Saraceno's argument underSupreme Court Rule 615(a)(134 Ill. 2d R. 615(a)) which reads inpertinent part: "Plain errors or defects affecting substantialrights may be noticed although they were not brought to theattention of the trial court." "'It is well settled that adefendant's claim of improper jury instructions is reviewed undera harmless-error analysis.'" Gonzalez, 326 Ill. App. 3d at 636,quoting People v. Amaya, 321 Ill. App. 3d 923, 929 (2001). Errorarising from the tendering of jury instructions is deemedharmless only if the submission of proper instructions to thejury would not have yielded a different result. People v. Shaw,186 Ill. 2d 301, 323 (1999).

Our supreme court has outlined a two-part test for theapplication of the harmless error analysis. First, we are todetermine "whether any error occurred--in other words, whetherthe instruction was correct." People v. Dennis, 181 Ill. 2d 87,95-96 (1998). Second, if we find an error in the juryinstruction, then we must determine "whether, in spite of thaterror, evidence of defendant's guilt was so clear and convincingas to render the error harmless beyond a reasonable doubt."Dennis, 181 Ill. 2d at 96.

IPI Criminal 4th No. 3.15 reads as follows:

"3.15 Circumstances of Identification

When you weigh the identificationtestimony of a witness, you should considerall the facts and circumstances in evidence,including, but not limited to, the following:

[1] The opportunity the witness had to viewthe offender at the time of the offense.

[or]

[2] The witness's degree of attention atthe time of the offense.

[or]

[3] The witness's earlier description of theoffender.

[or]

[4] The level of certainty shown by thewitness when confronting the defendant.

[or]

[5] The length of time between theoffense and the identificationconfrontation." Illinois Pattern JuryInstructions, Criminal, No. 3.15 (4th ed.2000).

The actual instruction that the trial court gave the juryfollows:

"When you weigh the identificationtestimony of [the] witness, you shouldconsider all the facts and circumstances inevidence, including, but not limited to thefollowing:

The opportunity the witness had to viewthe offender at the time of the offense; or,the witness's degree of attention at the timeof the offense; or, the witness's earlierdescription of the offender; or, the level ofcertainty shown by the witness whenconfronting the defendant; or, the length oftime between the offense and theidentification confrontation."

The State argues that there was sufficient evidence in therecord to support each of the five factors in the instruction andthat the principles espoused in People v. Slim, 127 Ill. 2d 302(1989) (which adopted the factors set forth in Neil v. Biggers,409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972))were notviolated in the least by the instruction given in the instantcase. However, Slim was a bench trial and, therefore, did notinvolve the issue before this court regarding IPI Criminal 4thNo. 3.15.

In Gonzalez, the defendant argued that he was entitled to anew trial because the trial court inserted the word "or" betweenthe Neil v. Biggers factors of the same jury instruction at issuehere regarding eyewitness testimony. The Gonzalez court heldthat the use of the word "or" between each factor was erroneousbecause the incorporation of the term "or" between each factorimplies, as a matter of law, that the identification testimony ofan eyewitness may be deemed reliable if just one of the fivefactors listed weighs in favor of reliability. Gonzalez, 326Ill. App. 3d at 640.

In People v. Furge, 332 Ill. App. 3d 1019 (2002), thedefendant also maintained that he was entitled a new trialbecause the trial court inserted the word "or" between thefactors to be considered when IPI Criminal 3d No. 3.15 wassubmitted to the jury. However, the defendant failed to raisethe issue in his posttrial motions.

The Furge court held that the strength of the evidence didnot merit the application of the plain error rule. Furge, 332Ill. App. 3d at 1031. Waiver aside, the Furge court found thatits case was distinguishable from Gonzalez because the evidencewas not closely balanced. Furge, 332 Ill. App. 3d at 1031.

The Furge court also found that the error which occurred asa result of the trial court including the word "or" in theinstruction was harmless. In Furge, the eyewitness had known thedefendant for many years and identified the defendant by name tothe police. Furge, 332 Ill. App. 3d at 1032.⁽¹⁾

In contrast, as previously stated, the evidence in thismatter was closely balanced. As such, it cannot be said thatSaraceno's guilt was so clear and convincing as to render thetrial court's error harmless beyond a reasonable doubt.

Defendant raises four additional points of error on appeal. As we are reversing this matter for a new trial, we will onlyaddress the one issue that is likely to recur during the newtrial, the scope of the defense witnesses' testimony. We holdthat Saraceno was deprived of the opportunity to fully develophis defense of misidentification by the trial court's exclusionof relevant testimony. The trial court abused its discretion byexcluding certain testimony of both McCord and Zolecke that wasrelevant to show that Saraceno was misidentified.

Albert Saraceno (Albert), the defendant's brother, was alsoworking at the house next door to Verner's on the day of theoffense. The defense attempted to elicit testimony from McCordabout Albert's age and his resemblance to the defendant in aneffort to undermine Verner's identification of the defendant. The trial court sustained the State's objections. This waserror. Albert was at the jobsite working on the ground. If helooked like the defendant, this would clearly be relevant to thedefendant's theory of innocence. A defendant has the right toshow that someone else committed the crime. People v. Wilson,149 Ill. App. 3d 293, 297 (1986).

The trial court also prevented McCord from testifying thathe knew that Saraceno's car had mechanical problems. This toowas error because it explained why McCord was watching Saracenoso closely as he left the jobsite. With that information, itwould appear more reasonable to the jury that McCord would beconcerned enough about Saraceno to watch him depart. Evidencehaving the tendency to make the existence of any fact that is ofconsequence to the determination of the case more probable thanit would be without the evidence is both relevant and admissible. People v. Monroe, 66 Ill. 2d 317, 322 (1977).

In addition, Zolecke testified that he had prepared a policereport on the day of the offense in which he noted that when hefirst saw Saraceno, he was getting into a car. The trial courtsustained the State's objections to the defense questions toZolecke asking him to describe the car, whether he searched it,and whether he found any pry tools in the car. Zolecke'stestimony that he saw Saraceno getting into a car contradictedthe testimony of his partner Ehle, who testified that he saw thedefendant walking toward a car, but he did not get in. Had thedefense been allowed to develop this line of questioning, itmight have yielded more inconsistencies in their version ofevents. Thus, the rulings by the court were erroneous.

CONCLUSION

For the foregoing reasons, the decision of the trial courtis reversed and remanded for a new trial.

Reversed and remanded.

BUCKLEY, J.,⁽²⁾ concurs.

QUINN, J., dissents.

JUSTICE QUINN, dissenting:

I respectfully dissent. The majority rely upon People v.Gonzalez, 326 Ill. App. 3d 629 (2001), which held that leaving theword "or" between the five factors listed in No. 3.15 of theIllinois Pattern Jury Instructions, Criminal (3d ed. 1992),"misstated the law, was confusing and denied defendant the right toa fair trial." Gonzalez, 326 Ill. App. 3d at 635. In reachingthis conclusion, the Gonzalez court relied upon the "User's Guideto the Fourth Edition of the Illinois Pattern Jury Instructions,Criminal (2000)":

"IPI Fourth employs two conjunctiveforms. The word 'and' is used to indicateadditional required language. The word 'or'is used to separate possible alternatives. Abracketed 'or' ('[or]') is used when the usermust choose between alternative paragraphs orpropositions that may be given as part of theinstruction when more than one alternative isapplicable."  Gonzalez, 326 Ill. App. 3d at 639.

I would note that, contrary to the Gonzalez court'scharacterization of this comment, this comment does not instructthe trial courts to strike the word "or" from IPI Criminal 4Tth No.3.15.

The Gonzalez court continued:

"The phrase preceding the five factors,stating that 'all facts and circumstances inevidence' are to be considered, does notobviate the erroneous wording of the juryinstruction. While an attorney may be able toresolve the court's instruction to 'considerall the facts and circumstances in evidence'with its use of the term 'or' between eachfactor, we doubt that an ordinary personacting as a juror could do the same." Gonzalez, 326 Ill. App. 3d at 640.

Finally, the Gonzalez court pointed out that the prosecutor inthat case highlighted the word "or" when reading the instructionduring his closing argument. This was not done in this case.

The First District of the Appellate Court has recentlyaddressed Gonzalez in three cases. None of these cases have foundthat leaving the word "or" between the factors listed in IPICriminal 4th No. 3.15 required reversal. The majority distinguishthe first of these cases, People v. Furdge, 332 Ill. App. 3d 1019(2002).

In People v. Mercado, 333 Ill. App. 3d 994 (2002), decided theday after oral argument in this case, the court considered theidentical issue before us and before Gonzalez. The court foundthat any error in the jury instructions was harmless beyond areasonable doubt. In doing so, the court pointed out "the firstsentence of the instruction as well as all of the applicable casesclearly state that all five factors are to be considered and arenot mutually exclusive." (Emphasis in original.) Mercado, 333Ill. App. 3d at 999. (emphasis in the original.)

The court then looked at the committee note attached to IPICriminal 3d No. 3.15, which was in effect at the time of trial. Itinstructed the user that "[t]he bracketed numbers are presentsolely for the guidance of court and counsel and should not beincluded in the instruction submitted to the jury." IPI Criminal3d No. 3.15, Committee Note. The court continued, "we agree withdefendant that the word 'or' placed in brackets was also designedsolely for the guidance of the court and counsel and not to beincluded in the instruction to the jury." Mercado, 333 Ill. App.3d at 999. I would point out that no authority is cited for theproposition that the bracketed "or" should not have been includedin the instruction. Indeed, if the IPI Committee wished to do so,they could have said so, as they did with the "bracketed numbers." In the instant case, the trial court followed the comments to theletter and left out the "bracketed numbers." In rejectingdefendant's argument, the Mercado court found it significant thatthe prosecutor in that case did not highlight the use of the word"or" in the instruction. The Mercado court held: "Defendant'sfailure to object to this instruction at trial or raise the issuein a posttrial motion amounts to a waiver of the issue." Mercado,333 Ill. App. 3d at 999-1000.

In People v. Brookins, 333 Ill. App. 3d 1076 (2002), the courtalso considered this identical issue. In Brookins, a singleeyewitness observed the defendant enter a backyard and then a homeacross the alley from the eyewitness' third-floor apartment. Itwas late at night but there was an alley light nearby. The witnesstestified that she observed the defendant walking through thevictim's home. She said there was sufficient light coming from thestreet through the front windows of the home. The police took thedefendant into custody in the alley and the witness identified thedefendant in a showup at that time. The jury was instructed in theexact manner as the jury in this case. Unlike here, the prosecutorcommented during closing argument, "'Now, they (the five factors)are all separated, you can consider them as separate.'" Brookins,333 Ill. App. 3d at 1082. The appellate court relied upon theholding in Gonzalez and held that "the trial court here erred ingiving a version of IPI Criminal 3d No. 3.15 using the word 'or'between each of the five factors." Brookins, 33 Ill. App. 3d at1083. The court found that the evidence of the defendant's guiltwas not closely balanced. The court then said "we find that evenif the trial court had given the proper instruction, and expresslyinstructed the jury to consider all five factors, the outcome ofthe trial would have been the same." Brookins, 333 Ill. App. 3d at1084.

I believe that the holdings in Furdge, Mercado and Brookinssupport affirming defendant's conviction. Verner saw the defendantin broad daylight when he was three feet from her when he enteredher bedroom. She testified that she focused on his face and yelledat him. She called 911 and gave the dispatcher a description ofthe burglar. Within three minutes of this call, Verner identifieddefendant as the burglar in a showup. Defendant presented an alibidefense that he was next door to the victim's home at the time ofthe burglary. While defendant worked next door, he was using a prybar and was wearing gloves similar to those found at the point ofthe forced entry into Verner's home. Based on the evidence in thiscase, it is clear that submitting the proper instructions to thejury would not have yielded a different result. People v. Shaw,186 Ill. 2d 301, 323 (1998). People v. Kirchner, 194 Ill. 2d 502,557 (2000). Consequently, I would affirm defendant's conviction onthis basis.

I would also affirm defendant's conviction because theinstruction given was correct. The instruction given in theinstant case mirrored exactly No. 3.15 as found in IPI Criminal 3d. The instruction also complied with the comments to IPI Criminal 4thNo. 3.15, which required the court to leave out the bracketednumber of the factors listed. As pointed out previously in thisdissent, the "User's Guide" to the IPI Criminal does not say thatthe bracketed "[or]" should be deleted from the instruction givento the jury, nor do the comments to IPI Criminal 4th No. 3.15. Indeed, the only section of the IPI which supports defendant'stheory that it is error to leave in the bracketed "[or]" betweenthe factors in IPI Criminal 4th No. 3.15, is the sample set ofinstructions No. 27.02 of the IPI Criminal 3d.

Supreme Court Rule 451(a) requires trial courts to use theapplicable IPI Criminal instruction unless the court determinesthat the instruction does not accurately state the law. Oursupreme court has recognized that the committee notes for the IPImay not always be clear and may even be wrong. In People v. Shaw,186 Ill. 2d 301 (1998), the trial court tendered IPI Criminal No.5.03A (Supp. 1995). On appeal, defendant asserted that this wasreversible error as the committee notes to IPI Criminal 3d No.5.03A (supp. 1995) directed that it should only be given in thecontext of a felony murder case involving an alleged accomplice. The supreme court disagreed.

"[T]he committee's directive limiting use ofthe instruction to a articular fact patternconflicts with a fundamental rule of law. Asstated in Ramey, '[a]n individual instructionshould not be judged in artificial isolation;rather, the instruction should be examined inlight of the overall charge.' People v.Ramey, 151 Ill. 2d [498] 537 [(1992)]. If allof the instructions, read together, completelyand fairly state the law governing dispositionof the case, no error occurs in instructingthe jury. This is true even when theinstruction complained of is, alone,superfluous or misleading. People v. Weaver,18 Ill. 2d 108, 116 (1959); People v. Marsh,403 Ill. 81, 94 (1949)." People v. Shaw, 186Ill. 2d at 328-29.

Finally, if it is not erroneous for a trial court to disregarda committee note that does not accurately state the law, it shouldnot be erroneous for a trial court to follow a committee note thatdoes accurately state the law (as in this case). I would affirmthis case based on the principle of waiver. Supreme Court Rule451(c) provides, in pertinent part, "substantial defects are notwaived by failure to make timely objections thereto if theinterests of justice require." 134 Ill. 2d R. 451(c). Instructionson the burden of proof and the elements of the offense fall withinthe category of instructions to which the concept of waiver willnot be employed to bar reversal. People v. Gengler, 251 Ill. App.3d 213, 219 (1993), citing People v. Pasch, 152 Ill. 2d 133, 171(1992).

In People v. Britz, 123 Ill. 2d 446 (1988), our supreme courtrejected defendant's claim on appeal that his death sentence shouldbe reversed where the jury signed verdict forms based on improperinstructions that the defendant's conduct encompassed threeseparate statutory factors where in fact only one statutoryaggravating factor existed.

"This court finds, however, that defendant haswaived the issue on appeal because he did notmake any objection to the improperinstructions and the verdict forms at theinstruction conference or in his post-trialmotions. (People v. Kubat (1983), 94 Ill. 2d437, 492 [, 447 N.E.2d 247]; People v. Foster(1979), 76 Ill. 2d 365, 380 [, 392 N.E.2d 6].) This court will only notice those errors whichdeprive defendant of his constitutional rightsand will only correct 'grave' errors wherethere is a factually close case andfundamental fairness requires that the jury beproperly instructed. (Kubat, 94 Ill. 2d at492 [, 447 N.E.2d 247].) Furthermore, thecircuit court is under no obligation to giveinstructions not requested by counsel. It istrial counsel's burden of preparing andpresenting jury instructions. (94 Ill. 2d at486 [, 447 N.E.2d 247].) In this case, thiscourt does not find in the record that itshould refuse to apply the waiver rule. Thiscourt does not find any error in the juryinstructions in which the interests of justicerequire otherwise. 107 Ill. 2d R. 451(c)." Britz, 123 Ill. 2d at 475.

IPI Criminal 4th No. 3.15 does not address the burden of proofor the elements of the charged offense; consequently, waiver may beapplied. People v. Pasch, 152 Ill. 2d at 171. In light of theholding in Britz, it cannot seriously be argued that leaving theword "or" in the instruction in this case is a "grave" errorrequiring reversal in the "interests of justice."

For the above reasons, I believe that People v. Gonzalez, 326Ill. App. 3d 629, was wrongly decided and I would not follow it. Even if I believed Gonzalez to be correctly decided, I would followthe holdings in Furdge, Mercado and Brookins and I would find anyerror to be harmless beyond a reasonable doubt.

1. People v. Gonzalez and People v. Furge both concerned IPICriminal 3d No. 3.15, not IPI Criminal 4th as this case does. However, the instruction is the same in both editions.

2. Justice Buckley sat during oral arguments and concurred inthe result, but has since retired.