concurring.
I cannot agree with the opinion of Judge Staton that the trial court’s Final Instruction No. 7 was proper under the holding of our supreme court in Van Orden v. State (1984), Ind., 469 N.E.2d 1153, cert. denied 471 U.S. 1104, 105 S.Ct. 2335, 85 L.Ed.2d 851. In Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39, the court struck down an instruction that “the law presumes that a person intends the ordinary consequences of his voluntary acts.” That holding was reaffirmed in Francis v. Franklin (1985), 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 wherein the court also held that adding to such an instruction that the presumption could be rebutted did not cure the error.
The challenged instruction here appears to be based upon an instruction in Van Orden which our supreme court found not to be violative of the decision in Sand-strom. However, the instruction here, in my view, is suspect for it contains the language “You may infer that a person is presumed to intent [sic] the natural and probable consequences of his voluntary act, unless the circumstances are such to indicate the absences of such intent.” In my view, to say “you may infer that a person is presumed to intend,” is tantamount to saying “you may presume,” and that is proscribed by Sandstrom. Neither is this particular sentence saved by the statement “unless the circumstances are such to indicate the absences of such intent”, for that clause merely states the presumption may be rebutted, which, according to Francis, is no cure.
However, although the instruction is suspect, if not erroneous, and is inartfully worded and confusing, it does not constitute reversible error.
In order to preserve for appellate review an alleged error in instructing the jury, the appellant must make a specific objection to the instruction in the trial court. Failure to do so waives the issue on appeal. Spindler v. State (1990), Ind.App., 555 N.E.2d 1319. Neither may an appellant argue as error on appeal an issue different from the one raised in his objection at trial. Ralston v. State (1980), Ind.App., 412 N.E.2d 239, trans. denied.
*1131Elswick’s objection in the trial court to the instruction was as follows:
“Your Honor, we object to the instruction tendered by the state, Van Orden instruction which is instruction number [seven] in the Court’s packet.
“The part of the instruction objected to is the last paragraph of the instruction which reads when an unlawful act, however, is proved to be knowingly done, no further proof is needed on the part of the state in the absence of justifying or excusing facts since you may presume the criminal intent from an unlawful act knowingly done.
“My objection is the stressing of the word “knowingly" when in this case we have the need and necessity to prove intentional act with respect to attempted murder, the intent to kill.”
Record at 509-510. (Emphasis added).
The objection stated by defense counsel clearly did not specifically raise the Sand-strom issue. In fact, it is clear the only issue raised in the objection was the stressing of the word “knowingly”. Therefore, Elswick may not argue on appeal that the instruction violated the Sandstrom decision.
Neither was the giving of Instruction No. 7 fundamental error. Fundamental error is error so blatant it deprives the defendant of a fair trial. Spindler; Johnson v. State (1990), Ind.App., 555 N.E.2d 1362. However, just because an alleged error has a constitutional basis does not necessarily make it a fundamental error. Id.
Given the clear proof of guilt in this case, Elswick was not denied a fair trial by the giving of the challenged instruction. Therefore, it was not fundamental error to give such instruction, and Elswick’s failure to make a sufficiently specific objection at trial waives any error. Further, even if there were error, the clear proof of guilt renders such error harmless.
Therefore, I concur.