delivered the opinion of the court:
Fоllowing a jury trial, defendant, Ricardo Nuno, was found guilty of attempted murder (Ill. Rev. Stat. 1985, ch. 38, pars. 8—4, 9—1) and aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12—2). He was sentenced to an extended term of 45 years in the Illinois Department of Corrections.
On appeal, the following issues are presented for review: (1) whether the trial court committed harmless error by giving the jury ambiguous instructions concerning the element of intent required for attempted murder; (2) whether the trial court correctly found that the State met its burden of proving beyond a reаsonable doubt that defendant intended to kill the victim, Eric Mendoza; (3) whether the trial court properly sentenced defendant to 45 years’ imprisonment pursuant to the extended-term provisions of the statute (Ill. Rev. Stat. 1985, ch. 38, par. 1005—5—3.2(b)(2)); and (4) whether the trial court proрerly considered a victim impact statement in sentencing defendant.
We reverse and remand.
Background
Evidence produced at trial established that on May 23, 1986, Eric Mendoza saw a white Cadillac automobile parked on the street. Mr. Mendoza walked to a house with one of the neighborhood children to inquire about who owned the car. After the inquiry, Mr. Mendoza approached the automobile and opened the hood to examine the engine.
Three men, including defendant, approached Mr. Mendoza while he was looking at the car. Defendant confronted Mr. Mendoza and accused him of trying to steal parts of the automobile.- Witnesses testified that Mr. Mendoza talked to the three men about purchasing the automobile. Shortly after the conversation commenced, defendant pushed Mr. Mendoza; he responded by saying that he did not want any trouble. Whenever Mr. Mendoza attempted to leave, defendant stopped him. Defendant gave Mr. Mendoza “the finger.” Then, the two men began to fight. Again, Mr. Mendoza tried to leave. Defendant continued to strike Mr. Mendoza while he was trying to escape. Then, a screwdriver fell out of Mr. Mendoza’s pocket.
Witnesses maintain that while Mr. Mendoza was pinned to the ground, defendant picked up the screwdriver and stabbed him in the head twice. After defendant stаbbed the victim once, defendant asked the victim whether he had “had enough.” Defendant stabbed the victim a second time and thereafter fled the scene. The stabbing took place at 5:30 p.m. on March 23, 1986. Later, witnesses identified defendant and the weapоn.
The victim was taken to the hospital by his cousin, Arlette Mendoza, and her husband, Teddy Diaz. He was treated at the hospital by Dr. Jafar J. Jafar, a board-certified neurosurgeon. Dr. Jafar testified that Mr. Mendoza’s skull was fractured on the left side, the saggital sinus area was punctured, and the front of his brain was lacerated. Dr. Jafar performed a craniotomy. During the surgery, Dr. Jafar removed a subdural hematoma on top of the brain and debrided (removal of unhealthy tissue) the area of the wound. Dr. Jafar testified that the victim was struck with а pointed instrument such as an ice pick or a screwdriver. He also testified that a neurosurgeon must use power tools to open the skull and that the assailant must have struck the victim with a great deal of force in order to have penetrated the skull. After the initial surgery, Dr. Jafar performed three additional operations on Mr. Mendoza.
As a result of the stabbing, Mr. Mendoza is unable to walk without the aid of a cane and leg braces. He cannot carry on a normal conversation or control his faciаl muscles. He can no longer feed himself or fasten his own clothes. Before the attack, he could do everything for himself. He was a healthy, able-bodied young man, and a student of automobile mechanics at the Allied Institute of Technology.
Opinion
The trial court instructed the jury that defendant could be found guilty of attempted murder if it found defendant intended to kill or cause great bodily harm. The specific instructions were as follows:
“THE COURT: A person commits the offense of murder when he kills an individual without lawful justification, if in performing the acts whiсh cause the death, he intends to kill or do great bodily harm to that individual, or he knows that such acts will cause death to that individual, or he knows that such acts create a strong probability of death or great bodily harm to that individual. *** A person commits the crime of attempt when he, with intent to commit the offense of murder, does any act which constitutes a substantial step toward the commission of murder.” (Emphasis added.)
Defendant contends that the trial court committed plain error by giving the jury incorrect instructions concerning the requisite element of intent. Defendant alleges that this error violated his rights under the due process clause and that this holding must be reversed even though defense counsel failed to object. The State maintains that defendant waived his right to challenge the jury instructiоns on appeal and that any error in the jury instructions was harmless error.
Initially, the People maintain that defendant waived the right to raise the issue of improper jury instructions on appeal because defendant failed to object to the jury instructions during thе trial or the instruction conference. In general, a party who fails to object to instructional error, or fails to raise the issue in a post-trial motion, waives the right to contest the error on appeal. (People v. Reddick (1988),
The controlling case on this issue is People v. Gentry (1987),
• 2 The State also maintains that аny error in the jury instructions constituted harmless error because the jury could not have found defendant not guilty of attempted murder even if it had been properly instructed. We disagree. We hold that the jury instructions constituted reversible error because they failed tо include the required element of specific intent.
Section 9 — 1 of the Criminal Code of 1961 defines murder as follows:
“(a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
(1) He either intends to kill or do great bodily harm to thаt individual or another, or knows that such acts will cause death to that individual or another; or
(2) He knows that such acts create a strong probability of death or great bodily harm to that individual ***.” Ill. Rev. Stat. 1985, ch. 38, pars. 9—1(a)(1), (a)(2).
A person commits “attempt when, with intent to cоmmit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 38, par. 8—4(a).
The Illinois Supreme Court has held that the specific intent to kill is a requisite element of attemрted murder. “Attempted murder requires a specific intent to commit murder ***.” People v. Trinkle (1977),
Furthermore, this court has previously held that “a discrepancy exists between the culpable mental state for attempt, which requires an intent to commit the offense, and the alternative culpable mental states for murder, which include not only intent to kill another, but also intent to do great bodily harm [citation], or knowledge that one’s acts create a strong probability of death or great bodily harm [citation].” (People v. Kraft (1985),
It has long been established that “an instruction to a jury that it may find a defendant guilty of attempted murder upon its finding that the defendant intended to do great bodily harm is erroneous reversible error.” (People v. Okundaye (1989),
In the case at bar the instructions given to the jury for attempted murder were erroneous. The jury was instructed that it could find defendant guilty of attempted murdеr if defendant intended to kill or cause great bodily harm. These instructions enabled the jury to convict defendant of attempted murder if it was merely convinced that defendant intended to cause great bodily harm. Intent to cause great bodily harm is not an elemеnt of attempted murder. Therefore, the instructions enabled the jury to convict defendant of attempted murder without finding that he specifically intended to kill Mr. Mendoza.
Initially, the jury was confused by the court’s instructions. The jury’s confusion was manifested in a question it addressed to the court during its deliberation. The jury’s question read as follows:
“We would like a clarification if possible, of a statement in the attempted murder propositions. In attempt, the second proposition states ‘defendant did so with intent to commit the offense оf murder.’ Does ‘commit the offense of murder’ refer to the propositions in the ‘murder’ definition[?]” (Does the intention to cause great bodily harm also mean the intention to commit murder?)
The jury was confused by the error raised in this appeal, and it went on to find defendant guilty of attempted murder.
In previous appeals of attempted murder cases involving jury instructions similar to the instructions given in the case at bar, we reversed defendants’ convictions and remanded the causes for a new trial. For example, in Peoplе v. Kraft (1985),
We find that the еrroneous ■ instructions given in the case at bar encroached upon defendant’s right to a fair trial. For the aforementioned reasons, we must reverse defendant’s conviction and remand the cause for a new trial.
Defendant next contends that the evidence failed to establish' his guilt beyond a reasonable doubt. When an appellate court reverses a criminal conviction and remands the cause for a new trial, the appellate court should address defendant’s contention that the evidence at trial was insufficient in order to avoid the risk of subjecting the defendant.to double jeopardy. (People v. Taylor (1979),
.Finally, defendant alleges that the trial court improperly imposed an extended-term sentence and that the trial court improperly considered victim impact evidence in sentencing him. We will not address these issues because defendant’s guilt depends upon the People proving that defendant had the requisite intent for thе crime of attempted murder, which was erroneously defined in the trial court’s instruction to the jury. Therefore, because we find this instruction to be reversible error, it is not necessary for us to continue any further.
For the foregoing reasons, we reverse defendant’s conviction and remand this cause for a new trial before a properly instructed jury
Reversed and remanded.
JIGANTI and LINN, JJ, concur.