State v. Benewiat

1

NOT DESIGNATED FOR PUBLICATION

No. 114,676

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MARK BENEWIAT,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed January 6, 2017.
Affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Andrew R. Davidson, assistant district attorney, for appellee.

Before BRUNS, P.J., GREEN, J., and WILLIAM S. WOOLLEY, District Judge, assigned.

Per Curiam: Mark Benewiat appeals from his convictions of auto burglary and
felony theft. On appeal, Benewiat argues that the trial court erred in instructing the jury in
two ways. First, Benewiat argues that the trial court erred in giving an instruction on theft
by receiving stolen property although he was charged with committing theft by obtaining
or exerting unauthorized control over property. Second, Benewiat argues that the trial
court erred in giving an instruction that he contends directed the jury against nullification.
Based on these alleged errors, Benewiat requests that this court reverse his convictions
and remand for a new trial. Nevertheless, as considered, Benewiat cannot establish
reversible error. As a result, we affirm.
2

Benewiat was arrested and charged with one count of auto burglary, a severity
level 9 nonperson felony, in violation of K.S.A. 2015 Supp. 21-5807(a)(3), and one count
of felony theft, a severity level 9 nonperson felony, in violation of K.S.A. 2015 Supp. 21-
5801(a)(1).

Benewiat had a jury trial. At trial, the State's theory was that Benewiat committed
auto burglary and felony theft by aiding and abetting Eduardo Benitez. The primary
witnesses who testified on behalf of the State were David Berner, the alleged victim, and
Detective Jamie Schoenhoff.

Berner testified that he is a Snap-on tools dealer. Berner testified that on the
evening of September 7, 2014, he was preparing his Snap-on tool truck for the upcoming
work week in front of his house, when he noticed a dark colored SUV driving around the
neighborhood. Berner testified that the SUV drove around the neighborhood, passing his
house many times over the span of 4 to 5 hours. Berner asserted that around 8:45 p.m.,
when he was speaking to his wife on the front porch of their house, he saw his security
lights come on. Berner explained that he ran to the back of his tool truck, and as he ran,
he saw a man jump into the front passenger seat of a dark colored SUV holding an armful
of his tools. Berner testified that someone else must have been driving the SUV as the
SUV immediately sped off.

Berner testified that he could not see the faces of either the person who took his
tools or the person who was driving the SUV. Berner also testified that he did not get the
license plate number of the SUV. Nevertheless, Berner explained that before the SUV
sped off, he punched the rear window of the SUV so hard that it shattered. Berner alleged
that the men stole a little over $6,000 worth of tools.

Detective Schoenhoff explained that Benewiat became a suspect because he
owned a black SUV with a broken rear window. Detective Schoenhoff contacted
3

Benewiat at Benewiat's house on September 9, 2014, at which point Benewiat told him
that his wife might have let Benitez borrow his SUV on September 7, 2014. Then
Detective Schoenhoff explained that on September 25, 2014, during a taped voluntary
interview at the police station, Benewiat changed his story. According to Detective
Schoenhoff, during that interview, Benewiat told him the following: (1) that Benitez had
asked him for a ride on September 7, 2014; (2) that while he was driving his SUV,
Benitez asked to be let out of the SUV; (3) that at this point, Benitez ran to a truck, took
tools out of the truck, and then returned to the SUV; (4) that he did not know that Benitez
had planned to steal the tools when he asked to be let out of the SUV; (5) that after he and
Benitez drove away from the truck, Benitez asked him to return to the truck; (6) that he
drove Benitez back to the truck even though he knew that Benitez planned on stealing
more tools; and (7) that when Benitez took more tools from the truck on this second trip,
the truck owner broke his SUV's rear window.

The taped interview was admitted into evidence and played before the jury. The
taped interview, however, was not included in the record on appeal. After playing the
interview, the State rested. Moreover, the defense rested without presenting any evidence.

Although the State submitted proposed jury instructions, it seems that the defense
did not submit any proposed jury instructions. Included in the State's proposed jury
instructions were the instructions that ultimately became Jury Instruction No. 6—"Burden
of Proof, Presumption of Innocence, Reasonable Doubt," which quotes Pattern
Instructions Kansas (PIK) Crim. 4th 51.010, and Jury Instruction No. 9––"Theft—
Knowledge Property Stolen," which quotes the PIK Crim. 4th 58.020. During the jury
instruction conference, the trial court adopted both instructions without objection.

During closing, the State reemphasized that Benewiat had aided and abetted
Benitez in committing theft. The State also asserted that Benewiat "formed the mental
culpability, the knowledge of what he was supposed to be doing" when he drove Benitez
4

back to the tool truck to take more tools. In Benewiat's closing, he countered that the jury
should find him not guilty because he had no idea what was happening when Benitez got
out of his SUV and took the tools from Berner's tool truck.

The jury found Benewiat guilty of both auto burglary and felony theft. For his
primary offense of auto burglary, the trial court sentenced Benewiat to 12 months'
probation, with an underlying 12-month prison term followed by 12 months' postrelease
supervision. For his secondary offense of felony theft, the trial court imposed a
concurrent 12-month probation sentence, with an underlying 6-month prison term
followed by 12 months' postrelease supervision.

Did the Trial Court Err in Instructing the Jury?

On appeal, Benewiat asserts that two of the jury instructions were legally
inappropriate. First, Benewiat argues that Jury Instruction No. 9, quoting PIK Crim. 4th
58.020—"Theft—Knowledge Property Stolen," was legally inappropriate because it
instructed the jury on a theory of theft for which he had not been charged. Specifically,
Benewiat argues that PIK Crim. 4th 58.020 applies only when a person has been charged
with theft by receiving stolen property in violation of K.S.A. 2015 Supp. 21-5801(a)(4);
thus, Instruction No. 9 was legally inappropriate because the State charged him only with
theft by obtaining or exerting unauthorized control over property in violation of K.S.A.
2015 Supp. 21-5801(a)(1). Second, Benewiat argues that Instruction No. 6, quoting PIK
Crim. 4th 51.010—"Burden of Proof, Presumption of Innocence, Reasonable Doubt,"
was legally inappropriate because it instructed the jury against jury nullification,
essentially directing a verdict for the State. Benewiat contends that both alleged errors
entitled him to reversal of his convictions and a new trial.

The State responds that neither instruction resulted in error. The State further
argues that even if there was error, it was not reversible error.
5

Standard of Review

This court's standard for reviewing jury instruction challenges is as follows:

"'"(1) First, the appellate court should consider the reviewability of the issue from
both jurisdiction and preservation viewpoints, exercising an unlimited standard of review;
(2) next, the court should use an unlimited review to determine whether the instruction
was legally appropriate; (3) then, the court should determine whether there was sufficient
evidence, viewed in the light most favorable to the defendant or the requesting party, that
would have supported the instruction; and (4) finally, if the district court erred, the
appellate court must determine whether the error was harmless, utilizing the test and
degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert.
denied 132 S. Ct. 1594 (2012).'" [Citation omitted.]" State v. Fisher, 304 Kan. 242, 256-
57, 373 P.3d 781 (2016).

Instruction No. 9, PIK Crim. 4th 52.020—"Theft—Knowledge Property Stolen"

Benewiat's first argument on appeal is that the trial court erred by giving
Instruction No. 9, quoting PIK Crim. 4th 58.020—"Theft—Knowledge Property Stolen."
To fully address this argument, this court must first review whether Benewiat has
preserved his argument for appeal. Then, this court must review the relevant theft statute
provisions and the applicable PIK instructions.

Preservation

K.S.A. 2015 Supp. 22-3414(3) states that "[n]o party may assign as error the
giving or failure to give an instruction . . . unless that party objects thereto before the jury
retires to consider its verdict stating distinctly the matter to which the party objects and
the grounds for the objection unless the instruction or failure to give an instruction is
clearly erroneous." Thus, "when an instruction issue is being raised for the first time on
6

appeal or has not been properly preserved with an appropriate objection in the trial
court," appellate courts must still review the argument. State v. Williams, 295 Kan. 506,
510, 286 P.3d 195 (2012). Yet, reversal is appropriate only when the instruction was
clearly erroneous. Williams, 295 Kan. at 510. A jury instruction will be deemed "clearly
erroneous only if the reviewing court is firmly convinced that the jury would have
reached a different verdict had the error not occurred." State v. Tully, 293 Kan. 176, 196,
262 P.3d 314 (2011). As with the second step of the jury instruction standard of review,
this court has unlimited review when determining if the giving or failure to give an
instruction resulted in clear error. Williams, 295 Kan. at 515-16.

Benewiat did not object to any instructions before the trial court. Additionally,
Benewiat does not contest this fact in his brief. Nevertheless, Benewiat asserts that the
trial court violated his constitutional rights by giving Instruction No. 9. Therefore,
according to Benewiat, this court should apply the constitutional harmless error test. To
support his argument, Benewiat cites Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.
Ct. 2348, 147 L. Ed. 2d 435 (2000), and states that "[t]o the extent that the jury
instructions given permitted the jury to convict on a lower mental state than required by
the crime actually charged, it would violate [his] constitutional right to a jury trial"
because every element must be proven beyond a reasonable doubt under the Sixth and
Fourteenth Amendments to the United States Constitution.

Benewiat, however, cites no authority in support of his argument that the
constitutional harmless error test should apply despite his lack of contemporaneous
objection. When an appellant fails to support an argument with pertinent authority or
explain why that argument is sound in the face of contrary authority, that appellant fails
to properly brief that argument, which is akin to abandonment. See State v. Murray, 302
Kan. 478, 486, 353 P.3d 1158 (2015).

7

More importantly, in Williams, our Supreme Court held that the clear error test
applies, even when defendants allege that the instruction at issue violated their
constitutional rights, whenever defendants fail to object to an instruction below. 295 Kan.
at 517. The Williams court explained: "[C]haracterizing the issue as a constitutional claim
does not significantly advance [a defendant's] procedural posture. Even constitutional
grounds for reversal are not properly before the appellate court for review if they are
being asserted for the first time on appeal." Likewise, K.S.A. 2015 Supp. 22-3414(3)
states without exception that the clearly erroneous standard applies if the defendant failed
to object to the giving or failure to give an instruction below. See also State v. Johnston,
No. 113,091, 2016 WL 3570514, at *2 (Kan. App. 2016) (unpublished opinion); State v.
Limburg, No. 112,727, 2016 WL 3202546, at *7-8 (Kan. App. 2016) (unpublished
opinion); State v. Brown, No. 107,494, 2016 WL 1079444, at *5 (Kan. App. 2016)
(unpublished opinion); State v. Outhet, No. 112,010, 2016 WL 463401, at *8 (Kan. App.
2016) (unpublished opinion); and State v. Redburn, No. 112,411, 2016 WL 758308, at *5
(Kan. App. 2016) (unpublished opinion) (each holding that the constitutional harmless
error test did not apply in similar jury instruction challenges based on our Supreme
Court's decision in Williams as well as the plain language of K.S.A. 2015 Supp. 22-
1414[3] when the defendant did not object to the instruction below).

As a result, to succeed on appeal, Benewiat must establish that Instruction No. 9
was clearly erroneous.

Relevant Statutes and Instructions

Benewiat was charged with theft under K.S.A. 2015 Supp. 21-5801(a)(1). K.S.A.
2015 Supp. 21-5801(a)(1) states that this type of theft occurs when a person "[o]btain[s]
or exert[s] unauthorized control over property or services" with the "intent to
permanently deprive the owner of the possession, use or benefit of the owner's property
or services." Benewiat was not charged under any alternative theories of theft.
8

Accordingly, the trial court instructed the jury on the elements of K.S.A. 2015 Supp. 21-
5801(a)(1) as follows:

"In Count Two, Mark Benewiat is charged with the crime of theft. He pleads not
guilty.
"To establish this charge, each of the following claims must be proved:
"1. Daniel L. Berner was the owner of the property;
"2. Mark Benewiat obtained unauthorized control over the property;
"3. Mark Benewiat intended to deprive Daniel L. Berner permanently of the use
or benefit of the property;
"4. The value of the property was at least $1,000 but less than $25,000; and
"5. This act occurred on or about September 7, 2014, Reno County, Kansas.
"The [S]tate must prove that Mark Benewiat committed the crime of theft
intentionally.
"A defendant acts intentionally when it is the defendant's desire and conscious
objective to do the act complained about by the [S]tate."

This instruction complies with PIK Crim. 4th 58.010—"Theft," and PIK Crim. 4th
52.010—"Culpable Mental State."

The trial court, however, also instructed the jury on PIK Crim. 4th 58.020—
"Theft—Knowledge Property Stolen" in Instruction No. 9. Instruction No. 9 states:
"Knowledge that property has been stolen by another must exist at the time control first
occurs and may be proven by a showing that [the defendant] either knew or had a
reasonable suspicion from all the circumstance known to [the defendant] that the property
was stolen." The notes to PIK 4th 58.020 state that "[t]he instruction should be used with
PIK Crim. 4th 58.010, Theft, in a prosecution for violation of K.S.A. 21-5801(a)(4),
receiving stolen property." (Emphasis added.) K.S.A. 2015 Supp. 21-5801(a)(4) states
that a person commits theft by "obtaining control over stolen property or services
knowing the property or services to have been stolen by another" with the "intent to
9

permanently deprive the owner of the possession, use or benefit of the owner's property
or services."

Instruction No. 9 Was Legally Inappropriate

Benewiat argues that Instruction No. 9 was legally inappropriate because he was
not charged with theft by receiving stolen property under K.S.A. 2015 Supp. 21-
5801(a)(4) but for theft by obtaining or exerting unauthorized control over property under
K.S.A. 2015 Supp. 21-5801(a)(1). Citing State v. McClelland, 301 Kan. 815, 828, 347
P.3d 211 (2015), Benewiat asserts that the State was bound by its decision to charge him
under K.S.A. 2015 Supp. 21-5801(a)(1) as opposed to (a)(4). Benewiat asserts that the
inclusion of Instruction No. 9 allowed the jury to consider whether he was guilty under
two different theories of theft as opposed to just one theory of theft.

The State responds that the instruction was appropriate because Benewiat's entire
defense was that he did not know that Benitez intended to steal the tools. Yet, the State's
assertion that Instruction No. 9 was somehow appropriate because Benewiat's defense
was about whether he had the requisite culpable mental state is incorrect because, as
noted, PIK Crim. 4th 58.020 is applicable only when a person has been charged under
K.S.A. 2015 Supp. 21-5801(a)(4). The instruction has no bearing on whether a person is
guilty of theft under K.S.A. 2015 Supp. 21-5801(a)(1). As a result, the State's assertion
that PIK Crim. 4th 58.020 was appropriate because "[t]he instruction cover[ed] the
knowledge of the defendant to show how the jury [was] to apply the law . . . " is wholly
incorrect.

Moreover, in McClelland, our Supreme Court held that "'[a] jury instruction on the
elements of a crime that is broader than the complaint charging the crime is erroneous.'"
301 Kan. at 828 (quoting State v. Trautloff, 289 Kan. 793, 802-03, 217 P.3d 15 [2009]).
The McClelland court further stated that "[g]enerally, if an instruction adds alternate
10

statutory elements of a crime that were not included in the complaint or information, the
instruction is overly broad and, thus, erroneous." 301 Kan. at 829. Here, through
Instruction No. 9, Benewiat's jury was instructed on an alternate statutory element of theft
for a theory of theft he had not been charged under. Therefore, this instruction was overly
broad and erroneous. As a result, the trial court erred by giving Instruction No. 9.

Benewiat Cannot Establish Clear Error

Nevertheless, because Benewiat did not object to the inclusion of Instruction No. 9
below, Benewiat is entitled to reversal only if he can establish clear error. Again, a jury
instruction is deemed "clearly erroneous only if the reviewing court is firmly convinced
that the jury would have reached a different verdict had the error not occurred." Tully,
293 Kan. at 196. In other words, this court must be able to hold that but for the
instruction error, the jury would have found Benewiat not guilty of felony theft. Thus,
this is a very high burden to overcome.

Moreover, given the evidence presented at trial, Benewiat cannot overcome this
high burden. The State's theory at trial was that Benewiat aided and abetted Benitez in
committing theft under K.S.A. 2015 Supp. 21-5801(a)(1), and the jury was instructed on
aiding and abetting. A person aides or abets another and is criminally responsible for
another's crime when that person "act[s] with the mental culpability required for the
commission thereof, advises, hires, counsels or procures the other to commit the crime or
intentionally aids the other in committing the conduct constituting the crime." K.S.A.
2015 Supp. 21-5210(a). To review, at trial, Detective Schoenhoff testified that during the
interview with Benewiat, Benewiat told him the following: (1) that he did not know that
Benitez intended to steal the tools when he offered him a ride; (2) that after the first trip
Benitez made to Berner's tool truck, Benitez asked him to drive back to Berner's tool
truck; (3) that he decided to drive back to Berner's tool truck even though he knew that
11

Benitez intended to steal more tools; and (4) that Benitez stole more tools from Berner's
tool truck on the second trip.

Consequently, regardless of whether Benewiat realized that it was Benitez
intention to commit theft when he offered him a ride, he expressly admitted in the
interview that he knew Benitez planned to steal more tools on the second trip back to
Berner's tool truck. Thus, Benewiat intentionally drove Benitez back to Berner's tool
truck so Benitez could steal more tools. Clearly, this action aided and abetted Benitez in
intentionally obtaining unauthorized control over Berner's tools. Moreover, Berner
testified that a dark colored SUV, like Benewiat's SUV, continuously drove past his
house, surveying his tool truck, in the hours before the theft. As a result, strong evidence
supports that Benewiat aided and abetted Benitez in committing theft by obtaining or
exerting unauthorized force over property as stated under K.S.A. 2015 Supp. 21-
5801(a)(1).

Nevertheless, Benewiat contends that he is entitled to reversal of his convictions
because his defense at trial was that he did not know that Benitez was planning to commit
the theft. Benewiat contends that the State's reliance on the Instruction No. 9 language
that the jury could find him guilty of theft simply by finding that he "knew or had
reasonable suspicion" that Benitez was committing theft undermined his defense.
According to Benewiat, it allowed the jury to convict him based on a finding that he knew
that the property was stolen as opposed to a finding that he aided Benitez, who
specifically intended to obtain or exert unauthorized control over the property.

In short, if Benewiat had objected below, his arguments on appeal might very well
have had merit. Nevertheless, because Benewiat did not object, it is readily apparent that
this court must affirm his theft conviction. Detective Schoenhoff 's testimony about
Benewiat's interview supports Benewiat's conviction of theft by obtaining or exerting
unauthorized control of property under K.S.A. 2015 Supp. 21-5801(a)(1) under a theory
12

of aiding and abetting Benitez. Benewiat's argument about the State using Instruction No.
9 to undermine his defense does not negate Detective Schoenhoff's testimony about the
interview. In turn, because evidence supports Benewiat's theft conviction, this court is not
firmly convinced that Benewiat would have been found not guilty of theft but for the
jury's consideration of Instruction No. 9. Consequently, while Instruction No. 9 was
legally inappropriate, Benewiat's argument that his theft conviction must be reversed
misses the mark because he has failed to establish that the instruction was clearly
erroneous.

Instruction No. 6, PIK Crim. 4th 51.010—"Burden of Proof, Presumption of Innocence,
Reasonable Doubt"

Next, Benewiat argues that the trial court erred by giving Instruction No. 6, which
quotes PIK Crim. 51.010—"Burden of Proof, Presumption of Innocence, Reasonable
Doubt." Instruction No. 6 states in relevant part:

"The test you must use in determining whether Mark Benewiat is guilty or not is guilty is
this: If you have reasonable doubt as to the truth of any of the claims required to be
proved by the State, you must find Mark Benewiat not guilty. If you have no reasonable
doubt as to the truth of each of the claims required to be proved by the State, you should
find Mark Benewiat guilty." (Emphasis added.)

Benewiat argues that the use of the word "should" in this reasonable doubt
instruction "conveyed a duty and an obligation to convict" him of auto burglary and
felony theft, instructing the jury against nullification. He argues that the reasonable doubt
jury instruction essentially directs a verdict for the State. In support of his argument,
Benewiat cites to our Supreme Court's decision in State v. Smith-Parker, 301 Kan. 132,
Syl. ¶ 6, 164, 340 P.3d 485 (2014).


13

Preservation

As with his argument regarding Instruction No. 9, Benewiat did not object to
Instruction No. 6 below. Benewiat, however, seems to argue that an analysis other than
the clearly erroneous test applies because he believes that the instruction resulted in
structural error that cannot be deemed harmless. Again, the fact that Benewiat alleges that
the instruction violated his constitutional rights does not mean that this court engages in
some different analysis; the clearly erroneous standard applies. See Williams, 295 Kan. at
510; K.S.A. 2015 Supp. 22-3414(3). As a result, Benewiat is entitled to relief only if he
can establish that the jury would have reached different verdict but for the giving of
Instruction No. 6.

Instruction No. 6 Was Legally Appropriate

As explained below, however, Benewiat fails to even establish that Instruction No.
6 was legally inappropriate, let alone clearly erroneous. Benewiat's argument regarding
Instruction No. 6 fails for three reasons.

First, Benewiat's reliance on Smith-Parker is misplaced. The Smith-Parker court
held that a reasonable doubt instruction that stated "[i]f you do not have a reasonable
doubt from all the evidence that the State has proven murder in the first degree on either
or both theories, then you will enter a verdict of guilty" was inappropriate because it
essentially directed the verdict for the State. (Emphasis added.) 301 Kan. at 163-64. The
Smith-Parker court held that the word "will" went too far because "[a] judge cannot
compel a jury to convict, even if it finds all elements proved beyond a reasonable doubt."
301 Kan. at 164. The Smith-Parker court further held that the word "must" went too far
because this term was too close to directing a verdict. Thus, the Smith-Parker court held
that "must" was closer in meaning to the term "will" than the term "should." Yet, the
14

Smith-Parker court did not comment on the use of the word "should" in place of the word
"will" or "must" in a reasonable doubt instruction. 301 Kan. at 164.

In his brief, Benewiat emphasizes that in State v. Lovelace, 227 Kan. 348, 354,
607 P.2d 49, 55 (1980), overruled in part by Smith-Parker, 301 Kan. 132, our Supreme
Court held that the words "must" and "should" were interchangeable within a reasonable
doubt jury instruction. Benewiat argues that because the Lovelace court held that the
words were interchangeable, then when the Smith-Parker court held the word "must" was
inappropriate it should have also held that the word "should" was inappropriate.
Nevertheless, the Smith-Parker court only held that the use of the word "must" in a
reasonable doubt jury instruction essentially directed a verdict. 301 Kan. at 163-64. If the
Smith-Parker court wanted to comment on the legal appropriateness of using the word
"should" it could have done so. This court is duty bound to follow Kansas Supreme Court
precedent absent some indication that our Supreme Court is departing from its previous
position. State v. Meyer, 51 Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). No
indication that our Supreme Court is departing from its position exists. Accordingly, the
Smith-Parker holding actually supports that the use of the word "should" in a reasonable
doubt jury instruction is appropriate.

Moreover, as the State correctly points out in its brief, this court has rejected
identical arguments in a few recent unpublished opinions. Specifically, this court rejected
identical arguments regarding the use of the word "should" in a reasonable doubt jury
instruction based on our Supreme Court's decision in Smith-Parker in the following
cases: State v. Limburg, No. 112,727, 2016 WL 3202546, at *7-8 (Kan. App. 2016)
(unpublished opinion); State v. Ford, No. 112,877, 2016 WL 2610259, at 8-9 (2016);
State v. Hastings, No. 112,222, 2016 WL 852857, at *4-5; State v. Singleton, No.
112,997, 2016 WL 368083, at *4-6 (Kan. App. 2016) (unpublished opinion); State v.
Jones, No. 111,386, 2015 WL 4716235, at *5-6 (Kan. App. 2015) (unpublished opinion),
rev. denied 303 Kan. ___ (2016). Although these cases are merely persuasive authority,
15

Benewiat has provided no argument why his case requires a different analysis or result.
Accordingly, these cases further show that Instruction No. 6 was legally appropriate.

Finally, the words "should," "must," and "will" have different meanings. In
Singleton, this court persuasively explained the difference, stating:

"But as every teacher instructing a class knows, and as every parent admonishing
a child knows, should is less of an imperative than must or will. [Citation omitted.]
Nutritionists urge that we all should eat our vegetables. But that does not constitute a
directive to have recalcitrant diners force-fed their vegetables if they do not comply. A
parent admonishing a child that he should eat his lima beans is clearly less of an
imperative than the phrase every child has heard at one time or another, 'You will eat
your lima beans!' Should as used in this instruction is not the equivalent of 'must' or 'will'
used in the instructions discussed in Lovelace and Smith-Parker. Should is advisory. It is
not an imperative. The district court did not err in giving this instruction." 2016 WL
368083, at *6.

Thus, there is a fundamental difference between the words "should," "must," and "will."
Must and will are mandatory while should is advisory. Therefore, in addition to the
preceding analysis, the plain meaning of the words "should," "must," and "will" support
that the use of the word "should" in a reasonable doubt jury instruction does not mandate
a directed verdict.

In conclusion, Benewiat's argument that the trial court erred by giving Instruction
No. 6 because it instructed the jury against jury nullification fails. His reliance on Smith-
Parker is misplaced. Moreover, this court has rejected identical arguments. Finally, a
fundamental difference between the words "should" and "must" and "will" exists.
Consequently, no error resulted. Accordingly, we affirm.

Affirmed.