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FIFTH DIVISION
June 27, 2003

JUSTICE QUINN delivered the opinion of the court:

Following a jury trial, the defendant was found guilty ofarmed robbery and possession of a controlled substance. He wassentenced to concurrent prison terms of 15 and 3 years,respectively defendant appeals his armed robbery conviction,arguing that he was denied a fair trial when the trial courtimproperly instructed the jury as to the law regardingidentification testimony. The defendant also contends that thetrial court abused its discretion in sentencing the defendant to 15years for armed robbery. For the reasons that follow, we affirmthe defendant's convictions and sentence.

BACKGROUND

The victim, Jin Rong Mei, testified that on the evening ofDecember 24, 1998, he was working as a delivery person for arestaurant named Jung Ho Cho. At approximately 9:20 p.m., he madea delivery to a house at 6824 South Throop Street. After makinghis delivery, he walked down the front steps to return to hisvehicle. As he walked down the steps, he observed two black malesbegin to approach him. He continued to walk to his vehicle, butthe two stopped him before he could enter his vehicle. Thedefendant stood facing the victim while the other offender stoodbehind the victim. The defendant then stated to the victim, "youknow what I want," and when the victim ignored him, defendantpulled out a handgun and struck the victim in the forehead. Afterbeing struck, the victim handed the defendant the money he had fromhis previous deliveries. Defendant then said that he should havemore and struck him on the left side of the face with the gun. Thevictim then handed him all the change he had in his pocket, anddefendant told him to drive away. The victim immediately radioedthe restaurant, where an employee called the police. The policearrived within two minutes to the location of the robbery, and thevictim met them there. The victim described the offender as beingabout 20 years old, black, male, around 5 feet 5 inches to 5 feet6 inches tall, weighing 170 to 200 pounds, and wearing a brownjacket with fur trim.

Among the police that responded to the call was OfficerAndeverde, who arrived on the scene and began walking toward thevictim, who was already with other officers. As he approached, henoticed a parked car that had foggy windows. Officer Andeverdeapproached the car and spoke with the defendant, who was seated inthe car. The defendant was wearing a brown leather coat with furtrim. Officer Andeverde was proceeding toward the group ofofficers when he heard the description of the offender. Afterhearing the description, he turned around and saw defendant exitthe car, place the jacket inside, and run to 6813 South ThroopStreet. Officer Andeverde, along with other officers, pursueddefendant into the house where they apprehended him. The policetook the defendant and four other black males from inside the houseand brought them outside and lined them up. The victim viewed thefive men and identified defendant as the one who robbed him. Thedefendant was 21 years old, was 5 feet 4 inches tall and weighed180 pounds. Both men were then placed under arrest. The officersthen returned to the car defendant had exited and looked inside. They found the brown leather jacket worn by defendant and lifted itup. They found two handguns underneath the jacket. At trial, thevictim identified one of these guns as looking like the gun used inthe armed robbery. Defendant had $100 in cash in his pants pocket. The police also recovered from the jacket a $20 bill along withabout $5 in loose change, and, hidden in the cuff, they recovered35 individual plastic bags of cocaine.

At trial, a jury instructions conference was held. IllinoisPattern Jury Instructions, Criminal, No. 3.15 (3d ed. 1992)(hereinafter IPI Criminal 3d No. 3.15), regarding witnessidentification testimony, was accepted without objection. IPICriminal 3d No. 3.15 in the form it was presented to the jury asPeople's instruction number 9 is as follows:

"When you weigh the identification testimony of a witness, you should consider all the facts and circumstances in evidence,including but not limited to, the following: The opportunity the witness had to view the Offender at the time of the offense. 

Or

The witness's degree of attention at the time of the offense. 

Or

The witness's earlier description of the offender

Or

The Level of certainty shown by the witness when confronting defendant 

Or

The length of time between the offense and the identification confrontation."

On appeal, defendant contends that this jury instructionmisstated the law and confused the jury, thereby preventingdefendant from receiving a fair trial. Defendant also contendsthat the trial court abused its discretion in sentencing him to 15years.

ANALYSIS

IPI Criminal 3d No. 3.15

Defendant first contends the trial court misstated the law byleaving the connector "or" in between the five factors listed inIPI Criminal 3d No. 3.15. Defendant's trial counsel did not objectto the instruction as given: (1) during the instructionsconference; (2) when it was read to the jury; (3) when it was sentto the jury room; or (4) in defendant's motion for new trial. Onappeal, defendant admits that under these circumstances, thealleged error was not properly preserved for review, but he asksthis court to review it under plain error.

Supreme Court Rule 451 (134 Ill. 2d R. 451) addresses juryinstructions in criminal cases. Rule 451(a) requires trial courtsto use the applicable pattern criminal instruction unless the courtdetermines that the instruction does not accurately state the law.134 Ill. 2d R. 451(a).

Rule 451(c) provides in pertinent part, "substantial defectsare not waived by failure to make timely objections thereto if theinterests of justice require." 134 Ill. 2d R. 451(c).

Similarly, Supreme Court Rule 615 (a) provides:

"Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. Plain errors or defectsaffecting substantial rights may be noticed although they were not brought to the attention of the trial court." 134 Ill. 2d R.615(a). Our supreme court has held that Rule 451(c) offers a remedy for "grave errors," which parallels Rule 651(a)'s remedyfor plain errors, and they are construed "identically."

People v. Keene, 169 Ill. 2d 1, 31-32 (1995).

While conceding that this issue may only be reviewed under aplain-error analysis, defendant relies on People v. Dennis, 181Ill. 2d 87 (1998), which directs that, in determining whether adefendant is entitled to a new trial due to a defective juryinstruction, a court of review is to engage in a two-part analysis.First, the court is to determine "whether any error occurred-inother words, whether the instruction was correct." People v.Dennis, 181 Ill. 2d at 95-96. If the court finds error, the courtmust then determine "whether, in spite of that error, evidence ofdefendant's guilt was so clear and convincing as to render theerror harmless beyond a reasonable doubt." People v. Dennis, 181Ill. 2d at 96. In Dennis, the defendant raised the issue of theerroneous jury instruction at trial. Consequently, the supremecourt properly considered the issue utilizing a harmless erroranalysis. In the instant case, the defendant did not raise theissue of whether the jury instruction was erroneous at trial. Consequently, the proper inquiry in this case is whether giving theinstruction constituted plain error.

In People v. Crespo, 203 Ill. 2d 335 (2001), our supreme courtrecently illuminated the significant differences between these twoanalyses: "in harmless-error analysis, the State must prove thatthe jury verdict would have been the same absent the error to avoidreversal, whereas under plain-error analysis, a defendant'sconvictions and sentence will stand unless the defendant shows theerror was prejudicial." People v. Crespo, 203 Ill. 2d at 347-48 citing United States v. Olano, 507 U.S. 725, 734, 123 L. Ed. 508,520, 113 S. Ct. 1770, 1778 (1993) and People v. Thurow, 203 Ill. 2d352, 363 (2003).

The court also considered the United States Supreme Court'sdecision in United States v. Cotton, 535 U.S. 625, 152 L. Ed. 2d860, 122 S. Ct. 1781 (2002), which addressed how to apply a plain-error test. In Crespo, our supreme court adopted the reasoning ofthe Supreme Court in Cotton, holding that an appellate court maycorrect an error not raised at trial only if there was (1) an"error," (2) that is "plain," and (3) the error affects"substantial rights." Crespo, 203 Ill. 2d at 348. We find that thefacts of the present case meet all three of these elements. However, we may exercise our discretion to notice the forfeitederror "'"only if (4) the error seriously affect[s] the fairness,integrity, or public reputation of judicial proceedings."'" Cotton, 535 U.S. at ____, 152 L. Ed. 2d at 868, 122 S. Ct. at 1785[Citation.] Crespo, 203 Ill. 2d at 348.

We will first address whether the instruction given in thiscase was erroneous.

The defendant relies upon People v. Gonzalez, 326 Ill. App. 3d629 (2001), which held that leaving the word "or" between the fivefactors listed in IPI Criminal 3d No. 3.15 "misstated the law, wasconfusing and denied defendant the right to a fair trial." Gonzalez, 326 Ill. App. 3d at 635. In reaching this conclusion,the Gonzalez court relied upon the "User's Guide" to the fourthedition of the pattern instructions:

"'IPI Fourth employs two conjunctive forms. The word "and" is used to indicate additional required language. The word "or" isused to separate possible alternatives. A bracketed  "or" ("[or]") is used when the user must choosebetween alternative paragraphs or propositions that may be given as part of the instructionwhen more than one alternative is applicable. (Emphasis added.) Illinois Pattern Jury Instructions, Criminal, User's Guide (4th ed. 2000)." Gonzalez, 326 Ill. App. 3d at 639.

Contrary to the Gonzalez court's characterization of thiscomment, this comment does not instruct the trial courts to strikethe word "or" from IPI Criminal 3d No. 3.15. (While Gonzalez citedIPI Criminal 4th, the third edition of the IPI was at issue in thatcase and here. The pertinent language is identical.) Further, inPeople v. Mercado, 333 Ill. App. 3d 994, 999 (2002), a division ofthis court pointed out: "The Committee Note attached to IPICriminal 3d No. 3.15 instructs the user to only '[g]ive numberedparagraphs that are supported by the evidence,' and '[t]hebracketed numbers are present solely for the guidance of court andcounsel and should not be included in the instruction submitted tothe jury.' IPI Criminal 3d No. 3.15, Committee Note." If the IPICommittee wanted trial courts to leave out the word "or" in theinstruction given to the jury, they could have said so, as they didwith the bracketed numbers.

The instruction given in the instant case mirrored exactly IPI Criminal 3d No. 3.15. The instruction also complied with thecomments to IPI Criminal 3d No. 3.15, which required the court toleave out the bracketed number of the factors listed. Indeed, theonly section of the IPI that supports defendant's theory that it iserror to leave in the bracketed "[or]" between the factors in IPICriminal 3d No. 3.15 is sample set 27.02 (IPI Criminal 3d SampleSet 27.02, No. 3.15). Supreme Court Rule 451(a) requires trialcourts to use the applicable pattern criminal instruction unlessthe court determines that the instruction does not accurately statethe law. As the trial court gave the instruction as it was writtenin IPI Criminal 3d, this did not constitute error.

Even if we agreed that giving the instruction was plain errorthat affected substantial rights, we could only exercise ourdiscretion to notice this forfeited error if "'"the error seriouslyaffects the fairness, integrity, or public reputation of judicialproceedings."'" People v. Crespo, 203 Ill. 2d at 348, quoting

Cotton, 535 U.S. at ____, 152 L. Ed. 2d at 868, 122 S. Ct. at 1785,Johnson, 520 U.S. at 467, 137 L. Ed. 2d at 727, 117 S. Ct. at 1549. In Crespo, our supreme court considered whether the failure to havea jury decide whether a defendant's actions were brutal or heinous, as required by Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d435, 120 S. Ct. 2348 (2000), "seriously affected the fairness,integrity or public reputation of judicial proceedings." Thesupreme court held that the defendant failed to show that theerror was prejudicial. People v. Crespo, 203 Ill. 2d at 348-49. In the instant case, the defendant has utterly failed to showthat he was prejudiced by the jury being given IPI Criminal 3d No.3.15. The first sentence of the instruction clearly states thatall five factors listed are to be considered. See People v.Mercado, 333 Ill. App. 3d 994, 999 (2002). Defendant correctlypoints out that the State at one point in its closing argument didsay that any one of the factors in IPI Criminal 3d No. 3.15 wouldbe sufficient and the trial court immediately sustained defensecounsel's objection to this remark. The prosecutor then explainedhow all five factors had been met in this case. The identificationevidence in the instant case provided factual support for all fivefactors of IPI Criminal 3d No. 3.15. In addition, the defendantwas apprehended at the scene of the armed robbery within minutes ofits occurrence. He was wearing clothing as described by the victim,he fit the physical description, he possessed two guns, one ofwhich the victim identified, he had proceeds of the armed robberyon his person and he fled when the police arrived. In light ofthis evidence, it cannot seriously be argued that leaving the word"or" in the instruction in this case seriously affected the "'fairness, integrity or public reputation of judicial proceedings.'" People v. Crespo, 203 Ill. 2d at 348, quoting Cotton, 535 U.S.at ____, 152 L. Ed. 2d at 868, 122 S. Ct. at 1786.

The appellate court has considered the holding in People v.Gonzalez, 326 Ill. App. 3d 629 (2001), in four reported cases. All four of these cases held that giving IPI Criminal 3d No. 3.15in the form used here was not reversible error. In People v.Furdge, 332 Ill. App. 3d 1019, 1031-32 (2002), the court held thatthe issue of using disjunctive language in IPI Criminal 3d No. 3.15had been waived and that the case did not merit review under aplain- error analysis. The court further opined that even if theissue had not been waived, any error was harmless beyond areasonable doubt. In People v. Mercado, 333 Ill. App. 994, 1000(2002), the court held that the issue was waived, and irrespectiveof waiver, any error was harmless beyond a reasonable doubt. InPeople v. Brookins, 333 Ill. App. 3d 1076 (2002), the court heldthat giving IPI Criminal 3d No. 3.15, using disjunctive language,was harmless error. In People v. Smith, No. 1-01-2558 (April 28,2003), the court held that this issue could not be raised in asuccessive postconviction petition because the petitioner could notsatisfy the prejudice prong of the cause and prejudice test. Thecourt also held that the petitioner could not satisfy the causerequirement of the fundamental fairness test, citing People v.Davis, 156 Ill. 2d 149, 158-59 (1993) (a claim of the denial of aconstitutional right may not be raised for the first time onappeal).

For all of the foregoing reasons, we hold that giving IPICriminal 3d No. 3.15 with disjunctive language was not error, andwe also hold that when the issue is waived, as here, it is onlyreviewable under a plain-error analysis, as explained in People v.Crespo, 203 Ill. 2d at 347.

SENTENCING

Defendant next argues that the trial court abused its discretion in sentencing him to 15 years for armed robbery, hisfirst violent felony. Defendant filed a motion to reduce sentencewhich was denied. Armed robbery (720 ILCS 5/18-2(West 1998)) is aClass X offense, for which a defendant may be sentenced from 6 to30 years in prison (730 ILCS 5/5-8-1(a)(3)(West 1998)). Defendant's sentence was within the statutory guidelines. Asentence within the statutory guidelines will not be deemedexcessive unless it is greatly at variance with the spirit andpurpose of the law or is manifestly disproportionate to the natureof the offense. People v. Fern, 189 Ill. 2d 48, 54 (1999).

In the present case, the trial judge recited for the recordall of the mitigating factors enumerated in section 5-5-3.1 of theUnified Code of Corrections (730 ILCS 5/5-5-3.1 (West 1998)) andhow they applied to the defendant. The court also noteddefendant's prior felony conviction, the fact that the defendantcaused serious harm when he pistol-whipped the victim, and thedefendant's sentence was necessary to deter others from committingthe same crime (in this case, robbing delivery people).

The trial court did not abuse its discretion in sentencing thedefendant to 15 years in prison for armed robbery.

Affirmed.

CAMPBELL, P.J., concurs.

REID, J., dissents.

JUSTICE REID, dissenting:

I dissent. I believe this matter should be remanded for a newtrial in order to protect the process, even though this defendantwould very likely be found guilty when the case is re-tried. WhileI understand that remanding the matter may seem to be a futile act,one that may only serve as instructive in terms of future caseswith other defendants, I believe it is necessary because of thefundamental nature of the rights at stake when a body politic takessteps to deprive a citizen of his liberty.

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). However, "[t]he plainerror doctrine (134 Ill. 2d R. 615(a)) may be applied where theevidence is closely balanced or where the error is of suchmagnitude that it denied the accused a fair trial." People v.Gonzalez, 326 Ill. App. 3d 629, 635 (2001), quoting People v.Tisdel, 316 Ill. App. 3d 1143, 1153 (2000). "Plain error marked byfundamental [un]fairness, occurs only in situations which 'revealbreakdowns in the adversary system,' as distinguished from 'typicaltrial mistakes. [Citation.]'" Gonzalez, 326 Ill. App. 3d at 635,quoting People v. Keene, 169 Ill. 2d 1, 17 (1995). In other words,even in a case where the relative closeness of the evidence is notnecessarily an issue, plain error review can still be proper wherethe asserted error is fundamental to the integrity to the judicialprocess. See Gonzalez, 326 Ill. App. 3d at 635, quoting Keene,169 Ill. 2d at 17.

Here no objection was made to the written form of the juryinstruction, merely how it was used by the State during closingarguments. When the error was made, Tisley raised an objectionthat was sustained with comment from the trial court that theevaluation of an identification is for the jury to make. There isno question that there was error in the form of the juryinstruction presented. The error was compounded when the Stateimproperly commented during closing argument, incorrectly informingthe jury that they needed to only find one of the identificationfactors. Case law clearly states that all five factors are to beconsidered and weighed in determining whether an identification isreliable. People v. Gonzalez, 326 Ill. App. 3d 629, 639 (2001),citing Manson v. Brathwaite, 432 U. S. 98, 114, 53 L. Ed. 2d 140,154, 97 S. Ct. 2243, 2253 (1997). The committee has chosen toinclude the word "or" between the factors to indicate to trialcourts that "only the particular * * * factors that are supportedby the evidence should be given." Gonzalez, 326 Ill. App. 3d at639, quoting People v. Lewis, 165 Ill. 2d 305, 354 (1995). "Thetrial court's 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, 326 Ill.App. 3d at 639. "The phrase preceding the five factors, statingthat 'all facts and circumstances in evidence' are to be considereddoes not obviate the erroneous wording of the jury instruction." Gonzalez, 326 Ill. App. 3d at 639, quoting Illinois Pattern JuryInstructions, Criminal, No. 3.15 (3d ed. 1992).

I believe this defendant must be given a new trial because thejury went into the jury room with an instruction containing alatent ambiguity that was incorrectly emphasized by the State inclosing arguments. Regardless of the fact that there issignificant evidence stacked against him, Tisley did not receive afair trial as a result of this error.