261 Kan. 460
(931 P2d 664)
No. 74,991
STATE OF KANSAS, Appellee, v. STEVEN A. CLARK, Appellant.
SYLLABUS BY THE COURT
1. The defendant in a criminal prosecution has a statutory right to have the court instruct the jury on all lesser included offenses established by substantial evidence. The question is not whether, in the mind of the court, the evidence as a whole excludes the idea that the defendant is guilty of a lesser degree of the offense charged, but whether there is any substantial evidence tending to prove a lesser degree of the offense. If there is, then the question of such degree should be submitted to the jury. The unsupported testimony of the defendant alone, if tending to establish such lesser degree, is sufficient to require the court to so instruct.
2. If a defendant is charged with first-degree murder, and if there is substantial evidence to support a charge of reckless second-degree, or depraved heart, murder, both statutory rules and case law support the conclusion that reckless second-degree murder is a lesser included crime of first-degree murder.
3. "Evidence" is the means from which inferences may be drawn as a basis of proof in duly constituted judicial or fact-finding tribunals, and includes testimony in the form of opinion, and hearsay. K.S.A. 60-401(a).
4. All relevant evidence shall be admitted which is admissible. K.S.A. 60-407(f). "Relevant evidence" is evidence having any tendency in reason to prove any material fact. K.S.A. 60-401(b).
5. An appellate court's review of the trial court's admission of evidence is a two-step process. First, it must determine whether the evidence was admissible or inadmissible. Then, if the evidence was improperly admitted, it must determine whether to apply the harmless error rule of review or the federal constitutional error rule to the erroneous admission of that evidence.
6. Admission of evidence of a discordant relationship between defendant and another person is admissible independent of K.S.A. 60-455 and is relevant to show the ongoing relationship between the parties, the existence of a continuing course of conduct, or to corroborate the testimony of witnesses as to the act charged.
7. Res gestae is a broader concept than an exception to the hearsay rule. The term "res gestae," a Latin term meaning "things done," includes circumstances, facts, and declarations incidental to the main fact or transaction. Those acts done or declarations made before, during, or after the happening of the principal occurrence may be admitted as part of the res gestae where those acts or declarations are so closely connected with the principal occurrence as to form in reality a part of the occurrence.
8. The admission of acts done or declarations made as part of the res gestae are not admitted without limitation but are governed by the procedural rules and rules of evidence set out in Article 4, chapter 60 of the Kansas Statutes Annotated.
9. Except as restricted in Article 4, chapter 60, of the Kansas Statutes Annotated, a judge may in his or her discretion exclude evidence if the judge finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered. K.S.A. 60-445.
10. All evidence that is derogatory to the defendant is by its nature prejudicial to the defendant's claim of not guilty. Evidence that actually or probably brings about a wrong result under the circumstances of the case is "unduly prejudicial."
11. Photographs are unduly prejudicial and are erroneously admitted when they are unduly repetitious, are particularly gruesome, add nothing to the State's case, and bring about a wrong result.
Appeal from Sedgwick district court; PAUL W. CLARK, judge. Opinion filed January 24, 1997. Affirmed.
Elizabeth Seale Cateforis, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with her on the brief for appellant.
Charles R. Reimer, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
LOCKETT, J.: Defendant Steven A. Clark appeals his convictions of murder in the first degree, K.S.A. 21-3401, and attempted murder in the first degree, K.S.A. 21-3301 and K.S.A. 21-3401. Defendant claims the trial court erred by (1) failing to instruct the jury on (a) reckless second-degree murder as a lesser included offense of first-degree murder and (b) attempted second-degree murder and attempted voluntary manslaughter as lesser included offenses of attempted first-degree murder; (2) admitting (a) evidence of the deceased's statements concerning her relationship with the defendant as res gestae of the crime and (b) evidence of the defendant's statements made after he was taken into custody; (3) instructing the jury on an improper burden of proof; (4) using the phrase "claims made by the State" in instructing the jury regarding the burden of proof; and (5) admitting gruesome photographs. Defendant also contends there was insufficient evidence to convict him of first-degree murder or attempted first-degree murder.
On October 22, 1994, Clark and his girlfriend Lynette Odanga, the deceased, along with their friends Kenneth Shine and April Dotson, went to Acapulco Joe's bar in Wichita to celebrate Lynette's birthday. Lynette and Clark had been dating for several years and were living together in Lynette's apartment. April Dotson, Lynette's best friend, lived in the same apartment complex. Dotson was engaged to Shine. Lynette and Clark's relationship was troubled and the couple fought frequently.
The four friends planned to join a larger group to celebrate Lynette's birthday at the club. Witnesses described two incidents at the club. First, Clark attempted to prevent a man from joining the group's table at the invitation of one of the women. When Lynette attempted to defuse the situation by putting her hand on the man's shoulder, Clark told the man to take his hands off "his woman" and pushed the man.
The second incident involved Kenneth Shine. When Shine told a joke to April Dotson about another woman, Clark accused Shine of being disrespectful to Dotson. Shine walked away. Witnesses testified Clark followed and "got in [Shine's] face." Shine put his hands on Clark's neck and pushed Clark away.
After the club closed at 1:30 or 2 A.M., Clark started to leave in Jeff Peebler's car. Peebler, a friend of Clark's, hoped to calm Clark down. Peebler testified Clark said he had a gun and "could take care of it that way." As Peebler circled back to the parking lot, Clark saw Lynette talking to another man. Clark became angry and told Peebler to stop the car. Clark got out and accused Lynette of being disrespectful. When Shine told Clark to calm down, Clark accused him of "f'ing" Lynette. Shine told Clark he would knock his head off for saying that. Clark, Lynette, and Dotson got into Shine's car. Shine and Dotson dropped Lynette and Clark off at their apartment.
Later Clark called Dotson's apartment. Dotson could hear Lynette screaming, "[C]ome get me." Dotson told Clark that she, Shine, and Jeff Peebler would come get Lynette and have Lynette spend the night at Dotson's apartment. The group arrived at Lynette's apartment house. Dotson walked upstairs and knocked on the door of Lynette's apartment. Clark opened the door. Dotson heard Lynette screaming "[H]e hit me, he hit me," and observed Lynette holding the side of her face. Clark denied hitting Lynette.
Shine also observed Lynette holding her face and stating that Clark had hit her. Clark denied he had hit Lynette. Shine did not believe Clark. Shine entered the apartment, cursed Clark, and then pushed him. The two men fought. The scuffle ended with Shine on the couch and Clark in his lap. The phone rang, and April Dotson answered it. It was a 911 dispatcher returning an earlier call. Clark hung up the phone.
Clark went into the bedroom. Shine followed in an attempt to work things out. Dotson called 911. When Shine reached the bedroom, he heard metal clicking. Clark then aimed a revolver at Shine and stated, "This is what you get if you mess with me." Shine turned, yelling at everyone to get out because Clark had a gun. Shine, Jeff, and Lynette left the apartment. Dotson remained on the telephone with the police.
Shine observed that Clark was following him. He heard a shot and ducked around the corner of an apartment. He punched Clark as Clark ran by. Clark fell down. Shine told Clark, "[C]ome on, Steve, enough of this." Shine told Lynette to go back to her apartment.
Clark fired a total of two shots in Shine's direction. Before fleeing, Shine tried to convince Lynette to leave. Lynette stated to Shine that she could talk to Clark. Clark then walked over to Lynette, pointed the gun at her, and said, "I told you this would happen." Lynette reached towards Clark and said, "Steve, enough, enough of this, enough of this." As Clark got closer, Lynette bent down with her hands up toward her face. Clark fired the gun and Lynette fell. The autopsy revealed that Lynette had been shot in the left temple and that the muzzle of the gun was in contact with her skin when the trigger was pulled.
Police arrived in response to the 911 calls. They observed Clark lie down and drape himself over Lynette's body. Incoherent and crying, Clark pointed the gun at his head, said he loved Lynette, and then cursed her because she had been with another man. Clark told the officers, "I killed her, I killed her, just shoot me." Clark stated the killing was an accident. He stated he did not mean to kill Lynette and he had killed the only woman he had loved.
After Clark surrendered the gun, he was taken into custody and transported to the police department. Police testified that while being transported in the van, Clark yelled, "Did I kill the bitch?" over and over. Clark was charged with and convicted by a jury of first-degree murder of Lynette Odanga and attempted first-degree murder of Kenneth Shine.
I. LESSER INCLUDED OFFENSE INSTRUCTIONS
The defendant in a criminal prosecution has a statutory right to have the court instruct the jury on all lesser included offenses established by substantial evidence. The question is not whether, in the mind of the court, the evidence as a whole excludes the idea that the defendant is guilty of a lesser degree of the offense charged, but whether there is any substantial evidence tending to prove a lesser degree of the offense. If there is, then the question of such degree should be submitted to the jury. The unsupported testimony of the defendant alone, if tending to establish such lesser degree, is sufficient to require the court to so instruct. State v. Deavers, 252 Kan. 149, Syl. ¶ 1, 843 P.2d 695 (1992), cert. denied 508 U.S. 978 (1993).
In addition to instructing on premeditated murder in the first degree and attempted premeditated murder in the first degree, the trial court instructed the jury on intentional second-degree murder, voluntary manslaughter, and involuntary manslaughter of Lynette Odanga and aggravated assault of Kenneth Shine. Clark now claims that the trial court erred in failing to instruct the jury on the additional lesser included offenses of reckless second-degree murder of Lynette and attempted second-degree murder and attempted voluntary manslaughter of Shine. Clark did not request the lesser included offense instructions.
A. Reckless Second-Degree Murder Of Lynette
Reckless second-degree murder, or "depraved heart murder" at common law, is defined in K.S.A. 21-3402, which provides in part:
"Murder in the second degree is the killing of a human being committed:
. . .
"(b) unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life."
Reckless conduct is conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger. The terms "gross negligence," "culpable negligence," "wanton negligence" and "wantonness" are included within the term "recklessness." K.S.A. 21-3201(c). Both the statutory rules and case law support the conclusion that if there is substantial evidence, reckless second-degree murder, or depraved heart murder, is a lesser included crime of first-degree murder. State v. Pierce, 260 Kan. 859, 865, 927 P.2d 929 (1996).
Reckless second-degree murder is distinguished from first-degree murder and intentional second-degree murder by the level of intent required. As one commentator has explained:
"Extremely negligent conduct, which creates what a reasonable [person] would realize to be not only an unjustifiable but also a very high degree of risk of death or serious bodily injury to another or to others--though unaccompanied by any intent to kill or do serious bodily injury--and which actually causes the death of another, may constitute [depraved heart] murder." 2 LaFave & Scott, Substantive Criminal Law § 7.4 (1986).
Clark did not testify at trial. In closing, defense counsel argued that the gun accidentally discharged as Lynette moved down just before she was shot. Clark now asserts that the evidence of his intent when he approached Lynette was "inconclusive" and that the jury could have inferred that the killing was unintentional from his demeanor and statements to police after the shooting.
The only evidence at trial of an accidental shooting was the statement Clark made after arrival of the law enforcement officers that he did not intend to kill Lynette. Clark's self-serving statement alone does not support a finding of recklessness, nor does the other evidence adduced at trial support an instruction on the lesser crime of reckless second-degree murder. In addition to the facts previously stated, there was uncontroverted testimony that the muzzle of the .357 caliber revolver was closely pressed against Lynette's left temple when Clark fired the gun. Clark had fired two shots at Shine. Because the gun was a double action pistol, Clark either cocked the pistol prior to shooting Lynette or cocked and fired the gun by pulling the trigger. The gun required six pounds of pressure on the trigger to fire when the hammer was manually cocked. If the hammer was not manually cocked, the trigger pressure required to discharge the gun was 13 pounds. Shine also testified that Lynette was already bent down to her right before Clark fired the shot. This testimony contradicts Clark's assertion that the gun accidentally contacted Lynette's left temple as she was bending down to her right.
Under these circumstances, when viewed in the light most favorable to the defendant, the evidence would not have justified a jury verdict for reckless second-degree murder. Accordingly, the trial court was under no duty to instruct on this lesser included offense.
B. Attempted Second-Degree Murder and Attempted Voluntary Manslaughter of Shine
Clark first argues that the evidence supported a jury instruction on attempted second-degree murder of Shine. K.S.A. 21-3301(a) defines attempt as "any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime." K.S.A. 21-3402(a) provides that second-degree murder is the malicious killing of a human intentionally without deliberation or premeditation. Second-degree murder is a lesser included offense of first-degree murder. State v. Seelke, 221 Kan. 672, 675, 561 P.2d 869 (1977). In closing, defense counsel argued that Clark's actions were not premeditated.
The key element of second-degree murder is the lack of premeditation. Here, the uncontroverted evidence showed that Clark was angry at Shine after the incident at Acapulco Joe's and told Jeff Peebler he had a gun and "could take care of things that way." Later, at the apartment, Clark obtained a pistol and stated, "This is what you get if you mess with me," as he pointed the gun at Shine in the bedroom. Clark also chased Shine with the gun, yelling, "[Y]ou are a dead black motherfucker." Based on Clark's actions and these statements, the evidence at trial was not sufficient to support an instruction on attempted second-degree murder.
Clark also argues that the evidence required a jury instruction on the attempted voluntary manslaughter of Shine or the attempted intentional killing of a human being upon a sudden quarrel or in the heat of passion. K.S.A. 21-3403(a). Voluntary manslaughter is a lesser included offense of first-degree murder. State v. Arteaga, 257 Kan. 874, 890, 896 P.2d 1035 (1995). In closing, defense counsel argued that Clark's acts were the result of physical provocation by Shine.
The key elements of voluntary manslaughter are whether the killing was intentional and whether there was legally sufficient provocation. State v. McClanahan, 254 Kan. 104, 113, 865 P.2d 1021 (1993). Whether a provocation is legally sufficient is an objective, rather than a subjective, determination. To be legally sufficient to intentionally kill an individual, a provocation must consist of more than mere words or gestures, and if assault or battery is involved the defendant must have a reasonable belief that he or she is in danger of great bodily harm or at risk of death. McClanahan, 254 Kan. at 114. A provocation is legally sufficient if it is calculated to deprive a reasonable person of self-control and to cause the person to act out of passion rather than reason. State v. Guebara, 236 Kan. 791, 796, 696 P.2d 381 (1985).
Here, although there was evidence that Shine physically confronted Clark both in Lynette's apartment and on the apartment grounds, there was no evidence these confrontations were sufficient to cause Clark to believe he was in danger of great bodily harm or to deprive him of self-control. Earlier that evening, Clark had exhibited and expressed an intent to use the gun. The altercation at the apartment ended with Shine and Clark sitting on the couch and letting go of each other. It was after this fracas ended that Shine heard Clark loading the gun. As Shine fled the apartment, Clark followed and fired a shot. After the second confrontation on the apartment grounds, Clark fired another shot. Clark's acts against Shine were deliberate and previously expressed. Under these facts, the court did not err in failing to instruct on attempted second-degree murder and attempted voluntary manslaughter.
II. ADMISSIBILITY OF EVIDENCE
"Evidence" is the means from which inferences may be drawn as a basis of proof in duly constituted judicial or fact-finding tribunals, and includes testimony in the form of opinion, and hearsay. K.S.A. 60-401(a). All relevant evidence shall be admitted which is admissible. K.S.A. 60-407(f). "Relevant evidence" is evidence having any tendency in reason to prove any material fact. K.S.A. 60-401(b). A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection. K.S.A. 60-404.
Prior to trial, Clark filed a motion in limine to exclude all evidence that Lynette intended to end her relationship with him and to exclude his statement, "Did I kill the bitch?" repeatedly made while he was being transported in the police van. Clark argued that the evidence was irrelevant, hearsay, and unduly prejudicial. As to Lynette's prior statements, the State asserted that evidence of the nature of the relationship between Lynette and Clark was relevant to Clark's motive and intent. The State's theory for admission of that evidence was that Clark killed Lynette because he was angry that she wanted him to move out and was jealous of her contacts with other men. The trial court excluded two other instances of prior abuse which the State sought to introduce, but admitted the victim's prior statements as part of the res gestae of their relationship and the crime.
An appellate court's review of the trial court's admission of evidence is a two-step process. First, it must determine whether the evidence was admissible or inadmissible. Then, if the evidence was improperly admitted, it must determine whether to apply the harmless error rule of review or the federal constitutional error rule to the erroneous admission of that evidence.
Review of the admission or the exclusion of evidence is usually governed by the harmless error rule. K.S.A. 60-261 provides that no error in either the admission or the exclusion of evidence by the court is a ground for granting a new trial or for setting aside a verdict unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. State v. Morris, 255 Kan. 964, Syl. ¶ 6, 880 P.2d 1244 (1994).
Under the federal constitutional error rule, an error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that it was harmless beyond a reasonable doubt. Before we may declare the error harmless, we must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. State v. McClanahan, 259 Kan. 86, Syl. ¶ 4, 910 P.2d 193 (1996).
A. Clark's Discordant Relationship with Lynette
At trial, Lynette's friends testified she wanted to end the relationship and ask Clark to move out. April Dotson testified Lynette told April she still cared for Clark and intended to give him time to find a job before making him leave. Lynette also told April she was afraid Clark would kill himself if she asked him to move out. In ruling on Clark's motion in limine regarding these statements, the trial judge ruled the statements were admissible as part of the res gestae of the crime.
Clark abandoned his hearsay objection on appeal and now contends Lynette's statements were irrelevant and too remote and unconnected to the issues the State sought to prove. Clark acknowledges that this court has allowed evidence of discord in a marital relationship as bearing upon motive and intent in State v. Taylor, 234 Kan. 401, 673 P.2d 1140 (1983), and extended this rule to include persons living together in State v. Young, 253 Kan. 28, 852 P.2d 510 (1993). Clark attempts to distinguish these cases on the grounds that here there is no evidence that Lynette feared Clark or that Clark had a history of physically abusing Lynette.
We have addressed the issue of relevance of evidence of a discordant relationship between a defendant and a victim in numerous cases and have held that admission of evidence of a discordant relationship is admissible independent of K.S.A. 60-455 and relevant to show the ongoing relationship between the parties, the existence of a continuing course of conduct, or to corroborate the testimony of witnesses as to the act charged. See State v. Hedger, 248 Kan. 815, 820, 811 P.2d 1170 (1991); State v. Taylor, 234 Kan. at 407; State v. Green, 232 Kan. 116, Syl. ¶ 4, 652 P.2d 697 (1982). In Hedger, we also discussed the remoteness of such evidence and held that any lapse of time between the acts described in the trial testimony and the acts alleged does not preclude the admission of evidence relevant to motive and intent, but only goes to the weight to be given the evidence. 248 Kan. at 820 (citing State v. Green, 232 Kan. 116, Syl. ¶ 5).
Contrary to Clark's assertion, this court has never required fear or physical abuse as a condition of admissibility of evidence of a discordant relationship as long as the evidence of the nature of the relationship bears upon motive and intent. For example, in State v. Phipps, 224 Kan. 158, 578 P.2d 709 (1978), Phipps was convicted of killing his father-in-law. The victim's sister was allowed to testify that the deceased had stated the defendant was running his family life. The Phipps court noted that the statements were not hearsay because they were not offered to prove the truth of the statements but were introduced "solely to show the deceased's state of mind before his death and to demonstrate to the jury the rift between defendant and the deceased." 224 Kan. at 160.
Though often confused with the hearsay rules, res gestae is a broader concept than an exception to the hearsay rule. The term "res gestae," a Latin term meaning "things done," includes circumstances, facts, and declarations incidental to the main fact or transaction. 29A Am. Jur. 2d, Evidence § 860. Those acts done or declarations made before, during, or after the happening of the principal occurrence may be admitted as part of the res gestae where those acts or declarations are so closely connected with the principal occurrence as to form in reality a part of the occurrence. State v. Gadelkarim, 256 Kan. 671, 688, 887 P.2d 88 (1994) (citing State v. Sherry, 233 Kan. 920, 667 P.2d 367 [1983]). The acts done or declarations made as part of the res gestae are not admitted into evidence without limitation but are governed by the procedural rules and rules of evidence set out in Article 4, chapter 60 of the Kansas Statutes Annotated.
Res gestae includes those circumstances which are automatic and undesigned incidents of the particular litigated act, which may be separated from the act by lapse of time but are illustrative of such act. It is the whole of the transaction under investigation or being litigated and every part of it. Acts done or declarations made before, during, or after the principal occurrence may be admissible as part of the res gestae to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. State v. Peterson, 236 Kan. 821, 829, 696 P.2d 387 (1985). An example of admissible res gestae evidence is found in State v. Redford, 242 Kan. 658, 750 P.2d 1013 (1988), where evidence of the defendant's drug dealing and his belief that the victim had stolen from him was admitted as part of the res gestae because it was logically connected to the crimes of aggravated kidnapping and sexual assault. 242 Kan. at 666.
Res gestae evidence is also analogous to the admission of K.S.A. 60-455 evidence of other crimes and civil wrongs. Under K.S.A. 60-455, evidence that a person committed a crime or civil wrong on a specified occasion is inadmissible to prove a defendant's disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and K.S.A. 60-448, such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Here, the statements concerning the nature of the parties' relationship are relevant because of their connection to the discordant relationship of Clark and Lynette and not because they are statements illustrative of the crime. The statements were relevant to the State's allegations that prior to shooting Lynette, Clark was angry because Lynette wanted to end the relationship. Under such circumstances, the prior statements concerning the relationship of Clark and Lynette were relevant to motive, intent, and absence of mistake and are admissible.
B. Statement in Police Van
Except as restricted in Article 4, chapter 60, of the Kansas Statutes Annotated, a judge may in his or her discretion exclude evidence if the judge finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered. K.S.A. 60-445.
Clark argues the trial court erred in admitting testimony from the police van driver that while being transported to the police station, Clark repeatedly yelled out, "Did I kill the bitch?" Clark asserted that admission of these statements was unduly prejudicial and that his referral to Lynette as "bitch" prejudiced the jury. He also asserts that the statements had no logical connection to the overall events and were not relevant to demonstrate his intent at time of shooting because they were made after the shooting. The State argued to the trial judge that Clark's statements were relevant as to his state of mind, motive, and intent and as part of the res gestae of the crime. The State contended that Clark's statement and conduct after the killing were relevant as to whether the shooting of Lynette was an accident or an intentional premeditated murder.
At trial, defense counsel stated in closing argument that the killing was accidental. This defense was based upon Clark's statement that the shooting was accidental, which he made to police right after the shooting and before he was taken into custody. His contradictory statements, "Did I kill the bitch?" were made a few minutes after he was taken into custody and were relevant to illustrate Clark's attitude towards Lynette and to contrast with his earlier actions and statements that he was distraught over an accidental shooting. The trial court did not err in admitting these statements.
III. INSTRUCTIONS
The law is well settled that upon review of a challenged jury instruction, the instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error, although they may be in some small way erroneous. State v. Johnson, 255 Kan. 252, Syl. ¶ 4, 874 P.2d 623 (1994).
Clark first challenges jury instruction No. 4, which stated:
"The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty until you are convinced from the evidence that he is guilty.
"The test you must use in determi