No. 2--99--1437

_________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS	

	SECOND DISTRICT

_________________________________________________________________

THE PEOPLE OF THE STATE OF    ) Appeal from the Circuit Court

ILLINOIS,                     ) of Winnebago County.

                              )

	Plaintiff-Appellee,      )

                              )      

v.                            ) No. 99--CF--1208         

                              ) 

ELSTON A. HENRY,              ) Honorable                  

                              ) K. Craig Peterson,

	Defendant-Appellant.     ) Judge, Presiding.

_________________________________________________________________

	JUSTICE McLAREN delivered the opinion of the court:

	The defendant, Elston A. Henry, appeals from his conviction of

a violation of section 407(b)(1) of the Illinois Controlled

Substances Act (720 ILCS 570/407(b)(1) (West 1998)).  We affirm.

	Defendant was charged with four counts of selling substances

containing cocaine.  Following a jury trial, defendant was

convicted of selling between 1 and 15 grams of cocaine to an

undercover police officer while in the parking lot of an elementary

school.  Defendant's posttrial motion was denied, and defendant was

sentenced to a term of 13 years and 3 months in prison.  This

appeal followed.

	Defendant raises two issues on appeal. First, defendant

contends that the State shifted the burden of proof and standard of

review in its closing argument.  Second, defendant contends that

the court erred in refusing to tender an instruction regarding a

lesser-included offense of possession with intent to deliver.  In neither instance did defendant object at trial.  In fact, defendant

never tendered an instruction regarding a lesser-included offense;

the issue was brought up only  after the State completed its

rebuttal closing argument.  In his posttrial motion, defendant

never mentioned improper argument by the State and only made the

following allegation regarding instructions not given to the jury:

		"4.  That the Court erred in refusing to give the

following instruction to the jury, submitted by the

defendant."

No instruction is then listed.  The motion concludes with "[s]uch

other grounds and each and every error as may appear from the

report of proceedings of the trial, which is not presently

available to defendant or his counsel."  No amended motion was ever

filed.  At the hearing on the motion, defense counsel, when asked

if he wished to argue, stated, "No, Your Honor.  I'll be standing

on the argument from the trial and the motion, of course."

	Both a trial objection and a written posttrial motion raising 

the complained-of issue are required to preserve alleged errors

that could have been raised at the trial.  People v. Enoch, 122 Ill. 2d 176, 186 (1988).  The failure to specifically raise an

alleged error in a written posttrial motion results in the waiver

of the issue, as general allegations of error do not alert the

trial court to alleged errors that can be corrected at the trial

court level.  See People v. Walensky, 286 Ill. App. 3d 82, 96 (1996).  However, where errors affect substantial rights, denying

the accused a fair and impartial trial, or where the evidence is

closely balanced, a reviewing court may choose to consider an otherwise waived issue.  People v. Rivera, 277 Ill. App. 3d 811, 818 (1996).

	Here, we conclude that defendant has waived the issue of the

State's closing argument.  Our review of defendant's argument

reveals statements by the prosecutor that do not shift the burden

of proof to the defendant as much as they fail to address fully the

issue of entrapment.  Defendant argues that the State's closing

argument did not "frame the legal issue" properly and that the

State presented "little if any evidence" that defendant was

predisposed to selling drugs on school property.  However,

prosecutors are afforded substantial latitude in closing argument

and, even when the argument may be improper, such arguments will

not warrant reversal unless they result in substantial prejudice to

the defendant.  People v. Nolan, 291 Ill. App. 3d 879, 886 (1997).  Here, according to defendant, the State had little evidence of

defendant's propensity to sell drugs on school property, and the

State did not argue regarding that propensity in closing argument. 

We believe that the State is to be given latitude to determine

which aspects of its case to accentuate in its closing argument. 

Furthermore, defendant argued the law of entrapment to the jury,

and there is no allegation that the jury was improperly instructed

by the court on the issue of entrapment.  We do not conclude that

defendant was denied a fair trial by the prosecutor's closing

argument and, therefore, will not address that issue as plain

error.

	However, this court has held that a defendant's right to

tender a lesser-included-offense instruction affects a substantial right.  See People v. De Paolo, No. 2--99-0387, slip op. at 14 (November 17, 2000).  Therefore, we will review defendant's second

contention of error.

	In general, a defendant may not be convicted of an offense for

which he has not been charged.  People v. Landwer, 166 Ill. 2d 475, 485 (1995).  However, a defendant may, where appropriate, be

entitled to have the jury instructed concerning less serious

offenses that are included in the charged offense.  Landwer, 166 Ill. 2d at 485-86.  Such a jury instruction is not appropriate

where an entrapment defense has been raised.  See Landwer, 166 Ill. 2d at 486-89.  The defense of entrapment requires a defendant to

admit to committing all the elements of the charged offense.  Landwer, 166 Ill. 2d at 4868.  There can be no dispute regarding mental state or the facts necessary to support any element of the

crime because they must be admitted as part of the entrapment

defense; the only remaining disputed factual inquiry is whether the defendant was entrapped.  Landwer, 166 Ill. 2d at 489.  The logic behind this is that it is both factually and legally inconsistent

for a defendant to deny committing the offense and then assert the

defense that he committed the offense, but only because of

incitement or inducement by the authorities.  People v. Gillespie, 136 Ill. 2d 496, 501 (1990).

	Here, defendant sought to instruct the jury on the offense of

possession with intent to deliver 1 to 15 grams of cocaine, with no

mention of the location of the delivery of the cocaine, which would

be punishable as a Class 1 felony instead of a Class X felony.  See

720 ILCS 570/401(c)(2), 407(b)(1) (West 1998).  He also raised the entrapment defense, arguing that "he was entrapped into delivering

drugs on school grounds."  Defendant cites no precedent, and we are

aware of none, in which a defendant is allowed to argue that he was

entrapped into committing only certain elements of an offense. 

Entrapment is an all-or-nothing proposition.  A defendant must

choose either to raise the entrapment defense and admit to

committing the charged offense or abandon the entrapment defense

and seek the lesser-included-offense instruction.  See Landwer, 166 Ill. 2d at 488-89.  That, too, is an all-or-nothing proposition. 

Defendant cannot have it both ways.  

	Defendant's reliance on Landwer is misplaced.  In Landwer, the evidence supported the defendant's claim that he solicited an

undercover officer to commit an aggravated battery in addition to

soliciting the officer to commit murder, the offense with which the

defendant was charged.  In this case, unlike Landwer, defendant is not arguing that there were facts indicating that he committed some

other, uncharged offense; he is not contending that he sold drugs

on other than school property.  Instead, he is arguing that he

merely did not have the intent to sell drugs on school property. 

Defendant here is attempting to distinguish between alleged states

of intent rather than different factual situations, as was the case

in Landwer.  Defendant chose to argue that he was entrapped into committing this offense.  He cannot also seek to be found guilty of

a lesser offense for which there is no evidentiary support in the

record.  Therefore, the court did not err in refusing defendant's

request for a lesser-included-offense instruction.

	For these reasons, the judgment of the circuit court of

Winnebago County is affirmed.

	Affirmed.

	COLWELL and RAPP, JJ., concur.