# Flores v. State

> Court of Criminal Appeals of Oklahoma · June 27, 1995 · 66 O.B.A.J. 2161

URL: https://www.frixlaw.com/law-library/cases/9600736

## Case

- **Full name:** Jose Flores FLORES, Appellant, v. STATE of Oklahoma, Appellee
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** June 27, 1995
- **Citations:** 66 O.B.A.J. 2161; 899 P.2d 1162; 1995 OK CR 31; 1995 Okla. Crim. App. LEXIS 40; 1995 WL 500467
- **Precedential status:** Published
- **Opinion:** Dissent by Lumpkin
- **Judges:** Lane, Chapel, Strubhar, Johnson, Lumpkin
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9600736

## Opinion text

LUMPKIN, Judge,
dissenting:
I must strongly dissent to the Court’s decision to deny the Petition for Rehearing in this case. Without qualification, I have the greatest respect for the professional knowledge, experience and abilities of my colleagues on this Court. However, it now appears the plain language of the opinion is not being applied regarding the application of a harmless error analysis. The Court has now determined, in effect, the failure to give a presumption of innocence instruction is not subject to an application of harmless error because it violates a substantial statutory right. This decision is made without legal analysis or setting forth the criteria for determining when a statutory violation is “substantial”. Because that decision fails to apply the rule of law regarding the application of harmless error to cases pending before this Court, I urge the Court to withdraw its original opinion so that it may be redrafted *1171 to state what is the true decision of the Court in this matter. 1
Before I examine the Flores case itself and the issues presented by it, I feel compelled to review the principles which comprise both the law and the basis for this dissent. I begin with the law as dictated by the Legislature to this and every other appellate court in the state. It reads:
No judgment shall be set aside or new trial granted by any appellate court of this state in any ease, civil or criminal, on the ground of misdirection of the jury or for error in any matter of pleading or procedure, unless it is the opinion of the reviewing Court that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.
20 O.S.1991, § 3001.1. The legislative dictate has not only been in effect since statehood because the Legislature does not like to see convictions reversed without a valid basis; but, it also reflects a deliberate and principled philosophy that, so long as a defendant in a criminal trial receives a fair trial, he is not entitled to reversal on an error which could not possibly have affected the outcome of his trial. Or, as the United States Supreme Court phrased it:
The harmless-error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, United States v. Nobles, 422 U.S. 225, 230 [ 95 S.Ct. 2160, 2166 , 45 L.Ed.2d 141 ] (1975), and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error. Cf. R. Traynor, The Riddle of Harmless Error 50 (1970) (‘Reversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it’).
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Accordingly, if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis. The thrust of the many constitutional rules governing the conduct of criminal trials is to ensure that those trials lead to fair and correct judgments. Where a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed.
Rose v. Clark, 478 U.S. 570, 577, 578-79 , 106 S.Ct. 3101 , 92 L.Ed.2d 460 (1986) (citing Delaware v. Van Arsdall, 475 U.S. 673, 681 , 106 S.Ct. 1431, 1436 , 89 L.Ed.2d 674 (1986)).
To a large extent, a harmless error provision such as we have forces the courts to recognize the authority granted to a republic comes only through the consent of the people to be governed. That consent is given based upon respect for the system and faith in its appropriate and pragmatic application. That respect is earned based upon rational and reasonable applications of the rule of law.
Alexander Hamilton discussed the role of the judiciary department in the proposed republic in The Federalist No. 78. This is the writing most often quoted for the statement “the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them.” However, Hamilton also addressed the role of the Courts in the interpretation of legislative enactments when he wrote:
It can be of no weight to say, that the courts on the pretence of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the ease of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it proved any thing, would *1172 prove that there ought to be no judges distinct from that body.
It is especially incumbent upon appellate courts to maintain the appropriate perspective of the Court’s role in the application of constitutional legislative enactments. The concept of “a government of laws and not of men” must be applied equally to appellate courts and trial courts. Personal distaste for the action of a single individual in the course of a trial should not cause the bending of a rule of law.
Because the (apparent) holding of this Court, that reversal is necessitated in all instances by these improper instructions, not only does not follow the law, but also is fraught with the potential for ridiculous and abusive results, I must dissent.
As the Court recognized in Flores v. State, 896 P.2d 668 (Okl.Cr.1995), “[t]he presumption of innocence until proven guilty is a right guaranteed by statute,” citing to Miller v. State, 3 Okl.Cr. 374 , 106 P. 638 (1910); 22 O.S.1991, § 836. 2 The Court then recognized a presumption-of-innocence instruction is not required by either the United States Constitution or the Oklahoma Constitution.
The Court has accurately recognized that regardless of the assumed mandate for the requirement of an instruction on the presumption-of-innoeence, the guarantee is not provided through a constitutional right but by statutory enactment in the state of Oklahoma. This fact does not take away the aura of the legal concept; it only places the concept in its appropriate perspective for purposes of appellate review of error which may arise by failure to instruct on the statutory presumption.
The historical analysis of the concept is set out in Coffin v. United States, 156 U.S. 432 , 15 S.Ct. 394 , 39 L.Ed. 481 (1895), where the United States Supreme Court recognized the presumption is not an articulated right under the Federal Constitution. Rather, it is inferred from the maxim from Roman law that “it was better to let the crime of a guilty person go unpunished than to condemn the innocent.” Id. 156 U.S. at 454 , 15 S.Ct. at 403 , 39 L.Ed. at 491 .
It is from this maxim that the Court in Coffin inferred the quote attributed to it in Flores that “[t]he principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Therefore, it is readily apparent the principle is not based upon a strict constitutional right, but is inferred from the folkways or mores 3 which have developed over time in our application of law.
Acknowledging its genesis does not detract from its importance as a concept within our legal system; it only points out we must view it only through the specific articulation of the Oklahoma Legislature.
A more contemporary analysis of the Coffin decision is set out in Culpepper v. State, 4 Okl.Cr. 103, 111 P. 679 (1910), where the Oklahoma Court of Criminal Appeals analyzed the issue relating to an incorrect presumption-of-innoeence jury instruction. The Court focused on what has since become an enunciation of a constitutional requirement, ie., that a jury must be correctly instructed regarding the burden of proof beyond a reasonable doubt. In applying the burden of proof analysis, the Court stated “we decline to follow the cases of Horn v. Territory, 8 Okl. 52 , 56 P. 846 , and Coffin v. United States, 156 U.S. 432 , 15 S.Ct. 394 , 39 L.Ed. 481 , in this respect, and we hold that there was no error in the instruction given.” Id. 111 P. at 686 . History has proven this view correct. See Sullivan v. Louisiana, 508 U.S.-, 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993).
*1173 Therefore, the failure to give a presumption-of-innocence instruction or giving an incorrect presumption-of-innocence instruction is still subject to harmless error analysis.
This view is strengthened by Justice White, who in his dissent to Part III of the majority holding in Arizona v. Fulminante, 499 U.S. 279, 290-91 , 111 S.Ct. 1246, 1264 , 113 L.Ed.2d 302, 319 (1991), wrote:
[W]e have held susceptible to harmless-error analysis the failure to instruct the jury on the presumption of innocence, Kentucky v. Whorton, (citation omitted) while finding it impossible to analyze in terms of harmless error the failure to instruct a jury on the reasonable doubt standard, Jackson v. Virginia, [ 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979)] (citations omitted). These eases cannot be reconciled by labeling the former ‘trial error’ and the latter not, for both concern the exact same stage in the trial proceedings. Rather, these cases can be reconciled only by considering the nature of the right at issue and the effect of an error upon the trial. A jury instruction on the presumption of innocence is not constitutionally required in every case to satisfy due process, because such an instruction merely offers an additional safeguard beyond that provided by the constitutionally required instruction on reasonable doubt. See Whorton, (citations omitted); Taylor v. Kentucky, (citations omitted). While it may be possible to analyze as harmless the omission of a presumption of innocence instruction when the required reasonable-doubt instruction has been given, it is impossible to assess the effect on the jury of the omission of the more fundamental instruction on reasonable doubt. In addition, omission of a reasonable doubt instruction, though a ‘trial error,’ distorts the very structure of the trial because it ere-ates the risk that the jury will convict the defendant even if the state has not met its required burden of proof.
Id. 499 U.S. at 291 , 111 S.Ct. at 1255 . 4
Therefore, even the dissenters in Arizona v. Fulminante acknowledged harmless error analysis was applicable to the failure to give a presumption-of-innocenee instruction. This is “because such an instruction merely offers an additional safeguard beyond that provided by the constitutionally required instruction on reasonable doubt.”
Further proof can be found in Kentucky v. Whorton, where the Court stated:
While this Court in Taylor reversed a conviction resulting from a trial in which the judge had refused to give a requested instruction on the presumption of innocence, the Court did not there fashion a new rule of constitutional law requiring that such an instruction be given in every criminal ease. Rather, the Court’s opinion focused on the failure to give the instruction as it related to the overall fairness of the trial considered in its entirety, (emphasis added)
The Court observed, for example, that the trial judge’s instructions were ‘Spartan’ (citations omitted), that the prosecutor improperly referred to the indictment and otherwise made remarks of dubious propriety, (citation omitted), and that the evidence against the defendant was weak, (citation omitted). ‘[T]he combination of the skeletal instructions, the possible harmful inferences from the references to the indictment, and the repeated suggestions that petitioner’s status as a defendant tended to establish his guilt created a genuine danger that the jury would convict petitioner on the basis of those extraneous considerations, rather than on the evidence introduced at trial.’ (citations omitted)
It was under these circumstances that the Court held that the failure of the trial court to instruct the jury on the presumption of innocence denied the defendant due process of law. Indeed, the Court’s holding was expressly limited to the facts: “We hold that on the facts of this case the trial court’s refusal to give petitioner’s requested instruction on the presumption of innocence resulted in a violation of his right to a fair trial as guaranteed by the Due Process Clause of the Fourteenth Amendment.’ (citations omitted) (emphasis added). This explicitly limited holding, and *1174 the Court’s detailed discussion of the circumstances of the defendant’s trial, belie any intention to create a rule that an instruction on the presumption of innocence is constitutionally required in every case. 441 U.S. at 788-789, 99 S.Ct. at 2089-90 , 60 L.Ed.2d at 643.
Thereafter, the Court set out the guidelines to be used in applying harmless error to the failure to give a presumption of innocence instruction.
This is contrasted with a more recent decision dealing with the failure to give a correct instruction defining “beyond a reasonable doubt.” In Sullivan v. Louisiana, 508 U.S.-, 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993), the Court determined the failure to give a correct “beyond a reasonable doubt” instruction allows an appellate court, rather than the jury, to reach the requisite finding of guilt. The failure to give a correct instruction in that case required reversal because there had not been a determination by the jury of the guilt; therefore “there is no object, so to speak, upon which harmless error scrutiny can operate.” 5 508 U.S. at -, 113 S.Ct. at 2082 , 124 L.Ed.2d at 190 . The opinion then states:
Insofar as the possibility of harmless-error review is concerned, the jury-instruction error in this case is quite different from the jury-instruction error of erecting a presumption regarding an element of the offense. A mandatory presumption — for example, the presumption that a person intends the ordinary consequences of his voluntary acts — violates the Fourteenth Amendment, because it may relieve the State of its burden of proving all elements of the offense, (citations omitted). But, ‘[w]hen a jury is instructed to presume malice from predicate facts, it still must find the existence of those facts beyond a reasonable doubt.’ (citations omitted) And when the latter facts ‘are so closely related to the ultimate fact to be presumed that no rational jury could find those facts without also finding that ultimate fact, making those findings is functionally equivalent to finding the element required to be presumed.’ (citations omitted). A reviewing court may thus be able to conclude that the presumption played no significant role in the finding of guilt beyond a reasonable doubt. Yates [v. Evatt, 500 U.S. 391 , 111 S.Ct. 1884 , 114 L.Ed.2d 432 (1991)] (citation omitted). But the essential connection to a ‘beyond-a-reasonable-doubt’ factual finding cannot be made where the instructional error consists of a misdescription of the burden of proof, which vitiates all the jury’s findings, (emphasis added) A reviewing court can only engage in pure speculation — its view of what a reasonable jury would have done. And when it does that, ‘the wrong entity judge[s] the defendant guilty.’ (citations omitted).
Chief Justice Rehnquist wrote a concurring opinion and added the analysis, based on Arizona v. Fulminante, and further stated:
there is a ‘strong presumption’ that any error will fall into the first of these categories. Rose v. Clark (citations omitted). Thus, it is the rare case in which a constitutional violation will not be subject to harmless-error analysis. See Fulminante (citations omitted).
The strong presumption that any error will fall into the first of these categories refers to the category of “trial errors”, which the Court, in Arizona v. Fulminante said “may ... be quantitatively assessed in the context *1175 of other evidence presented,” and are amenable to harmless-error analysis. This Court regularly applies federal caselaw in determining the scope, method and application of harmless error analysis. While the provisions of 20 O.S.1991, § 3001.1 express the legislative intent for courts to apply a harmless error analysis, it does not obviate the methodology we have adopted from the federal courts in conducting that analysis.
This Court has repeatedly held a defendant is entitled to a fair trial, not a perfect one. See Plotner v. State, 762 P.2d 936, 946 (Okl.Cr.1988); Lahey v. State, 742 P.2d 581, 585 (Old.Cr.1987); Jones v. State, 610 P.2d 818, 820 (OM.Cr.1980); and De Wolf v. State, 96 Okla.Crim. 382, 391 , 256 P.2d 191, 200-01 (1953). We must be ever vigilant to ensure the fairness of all proceedings wherein a person is prosecuted for the violation of penal provisions of our law. The factors which have been enunciated for the application of harmless error to errors which do occur during the course of a trial are founded upon the principle of fairness. The United States Supreme Court not only recognized this principle in Kentucky v. Whorton but also applied it in formulating the criteria to utilize in determining whether the error is harmless. I submit this Court should also review the error in this ease “in light of the totality of the circumstances — including all the instructions to the jury, the arguments of counsel, whether the weight of the evidence was overwhelming, and other relevant factors — to determine whether the defendant received a constitutionally fair trial.” Id. 441 U.S. at 789, 99 S.Ct. at 2090 .
The Petition for Rehearing correctly points out Instruction No. 3 in this case was a correct instruction on the burden of proof. This is a fact which was apparently overlooked by each of the members of the Court during the initial review of the case. As the original opinion stated:
The presumption of innocence commands the jury to start their deliberations from the premise there exists an absence of guilt while the presumption of not guilty conveys there exists an absence of sufficient proof of guilt. While the distinction is subtle, we find it amounts to an impermissible lessening of the burden of proof by expanding the degree of doubt that is permissible. Such error was not cured by any other instructions specifically, an appropriate burden of proof instruction. (emphasis added) 896 P.2d at 562
The problem has now been correctly brought to the attention of the Court that in Flores , the jury was properly instructed as to the burden of proof (beyond a reasonable doubt) the State must meet for a defendant to be found guilty of the crime of Murder in the First Degree. The Court’s original opinion failed to distinguish the general instructions contained in Instruction 1 and 2 with the specific elements of the crime instruction contained in Instruction No. 3. Those instructions read as follows:
INSTRUCTION NO. 1
You are instructed that the burden of proof in this case is upon the State to establish by evidence, beyond a reasonable doubt, all the material allegations contained in the Information and unless the State has met it’s duty in this respect, you cannot find the defendant guilty, but must acquit him.
INSTRUCTION NO. 2
You are instructed that the defendant is presumed to be not guilty of the crime charged against him in the Information unless his guilt is established by evidence beyond a reasonable doubt and that presumption of being not guilty continues with the defendant unless every material allegation of the Information is proven by evidence beyond a reasonable doubt.
INSTRUCTION NO. 3
You are instructed that no person may be convicted of Murder in the First Degree unless the State has proven beyond a reasonable doubt each element of the crime. These elements are:
1. The death of a human;
2. The death was unlawful;
3. The death was caused by the defendant;
4. The death was caused with malice aforethought.
I agree the use of the terms “material allegations contained in the Information” instead of *1176 the terms “each element of the crime” in Instructions 1 and 2 is error. A juror cannot determine what is legally material or not and if what he or she deems material is an element of the crime that must be proven beyond a reasonable doubt. However, Instruction No. 3 provided the correct burden of proof instruction for the crime in this case as required by OUJI-CR 427. The specific instruction controls over the general instructions.
The only instructional error which was not corrected had to do with giving the “presumed not guilty” versus the “presumed innocent” instruction. 6 While I continue to agree that the concept of “presumed innocent” is an inherent part of the fabric of our jurisprudence, in all honesty, the concept from the standpoint of burden of proof and impacting the trial is no more than a gnat’s hair difference to the average juror. 7 Therefore, under the Supreme Court decisions I have been able to review, it is almost a distinction without a difference as it applies to the ability of this Court, or any Court, to conduct a harmless error analysis. Based on the weight of the caselaw on this issue, I have been unable to discern a legal basis for the position that harmless error analysis cannot be applied to failure to give an instruction on presumption-of-innocence, or even the incorrect instruction of presumed not guilty. 8
In summary, then, the failure to give a presumption of innocence instruction, or even an incorrect statement of “presumed not guilty,” does not preclude a harmless error analysis if, as in this case, a correct instruction regarding the burden of proof of each element of the crime beyond a reasonable doubt was given. The instructional error of an incorrect instruction of presumed not guilty is no different from any other instructional or evidentiary error which may be committed at trial. Each error is a “trial error” which is subject to harmless error analysis. There is a “strong presumption” the error is subject to harmless error analysis. Appellant Flores presented nothing in his brief showing why this presumption should not be honored here. Since that is— or should be — the starting point for this analysis, the presumption, combined with the analysis made herein, convinces me a harmless error analysis should be conducted.
In making this analysis, we in no way denigrate the significance of the concept of *1177 presumption-of-innoeence within our jurisprudence. We merely ensure it is not elevated beyond that position which it actually occupies within the jurisprudential framework. In this particular ease, the presumed not guilty instruction violated the dictates of a state statute. That error, when coupled with the prosecutorial misconduct in closing argument, dictates a reversal and remand for new trial in this case. However, in a case which does not have other error and where the factors enunciated in Kentucky v. Wharton can be applied to determine if the error was harmless, this Court should apply the rule of law and exercise only its appropriate scope of appellate review.
As I read Flores , it unequivocally states (1) failure to give a presumption-of-innoeence instruction and the giving of the presumed not guilty instruction is not a constitutional error, (2) the violation is one of state statute and not of state or federal constitutional magnitude, and (3) that the error is subject to harmless error analysis. 9 If the majority of this Court is now going to hold the giving of a presumed not guilty instruction is not subject to harmless error analysis due to the determination it violates a substantial statutory right under 20 O.S.1991, § 3001.1, I submit the appropriate action to take is to withdraw the original Flores opinion and rewrite it to state that position clearly. Merely to utilize the rubric of “it violates a substantial statutory right” without defining the legal criteria to be applied in determining when the violation of a state statute is “substantial” or not disregards our role and responsibility as an appellate court. In effect, the Court determines it will ascribe to the view Justice Stewart set out in his concurring opinion in Jacobellis v. Ohio, 378 U.S. 184, 197 , 84 S.Ct. 1676, 1683 , 12 L.Ed.2d 793 (1964) (Stewart, J., concurring) where, after stating he viewed the United States Supreme Court decisions in Roth and Alberts, which sought to define obscenity, as being constitutionally limited to hard-core pornography, said “I shall not today attempt further to define the kinds of material I understand to be embraced with that shorthand description [obscenity]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.” (emphasis added) Today this Court seems to adopt the “I know it when I see it” methodology in determining what is a “substantial violation of a _ statutory right.” We should not utilize this type of jurisprudence to address such an important fiber in the fabric of Oklahoma statutory law. Without perimeters of legal construction being established to guide practitioners and future members of this Court it leaves the issue to forever waive in the wind like Oklahoma wheat prior to harvest. We do not fulfill our responsibility as the court with “exclusive appellate jurisdiction in criminal cases” for the State of Oklahoma when we do not provide the analysis required to create a body of law to which stare decisis can be applied in the future. It is impossible for future judges to know what we saw if we do not tell them.
We are doing a disservice to the practitioners and members of the judiciary of this state if we do not withdraw the opinion and allow the majority to state, with supporting authority, that the error is not subject to harmless error analysis to ensure the bench, bar and public fully understand the nature and basis of the Court’s decision.
. The number of separate writings to a very general Order Denying Petition for Rehearing, coupled with the extremes of broad labeling, in an effort to provide a different interpretation to the plain words in the original opinion, conclusively proves the need to reissue the opinion.
. It does not matter how much one attempts to wrap a statute in the flag and Constitution, it is still only a statutory right subject to the rules applicable to harmless error review. We are bound by our oaths and role as appellate judges to interpret it as it is, and not how we wish it were. This is consistent with my original vote to the Flores opinion where I sought to provide the objective criteria for the application of harmless error analysis which had been omitted from the Court’s opinion.
. Websters Third New International Dictionary (unabridged) defines "folkway” as "a mode of thinking, feeling, or acting common to a people or to a social group”; and "mores” as "the fixed customs or folkways of a particular group that are morally binding upon all members of the group and necessary to its welfare and preservation”. In other words, the unarticulated moral fabric which secures the future for a civilized society.
. My further discussion of the reasonable doubt instruction, later examined by the Court in Sullivan v. Louisiana, 508 U.S.-, 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993) follows infra. In that case, the Court found an incorrect instruction defining beyond a reasonable doubt cannot be subject to harmless error analysis.
. It is here the analysis must focus on the difference between the object, or goal, of a trial — here, the finding of guilt beyond a reasonable doubt— and the starting point from which that trial begins — here, whether a defendant is "presumed innocent” or "presumed not guilty.” The gist of the Sullivan opinion is that, by giving an incorrect instruction on what "reasonable doubt” is, the jury did not know where the "goal” was; and when a reviewing court declares where the goal should have been, it takes from the jury the very constitutional guarantee provided by the constitution: to let the jury decide whether the prosecution reached its "goal” of beyond a reasonable doubt. This is not what occurred here. Here, the Court incorrectly told the jury where the starting place was. This is an error that can be corrected by a reviewing court: so long as the jury knew where the "goal" was, the constitutional guarantee of being found guilty beyond a reasonable doubt has been preserved; and a reviewing court can review the evidence presented using the appropriate starting point to determine whether enough evidence was present to reach the goal. While not identical to it, this is substantially equivalent to conducting a review of the sufficiency of the evidence, something this Court does virtually every day. Therefore, Sullivan firmly supports the application of harmless error review and application in cases in which the presumed not guilty instruction was given.
. The "material allegations” instruction is indeed error, but an appellate court can easily determine whether this instruction was harmless. If the jury had a question as to which allegations in the information were "material” and which were not; but the prosecution proved all allegations in the information, whether "material” or not, there can be no question such an error must be harmless, as any error (requiring the proof of additional allegations) enured to the benefit of the defendant. However, as noted, this instructional error was corrected in Instruction No. 3.
. For example, Black's Law Dictionary (6th Ed.1990) defines "innocent” as "Free from guilt; acting in good faith and without knowledge of incriminatory circumstances, or of defects or objections. See Not Guilty.” The dictionary defines "Not Guilty” as Also, the form of verdict in criminal cases where the jury acquits the defendant; i.e., finds him 'not guilty.'"
. Cf., e.g., Pope v. Illinois, 481 U.S. 497 , 503 n. 7, 107 S.Ct. 1918, 1922 , 95 L.Ed.2d 439 (1987) (unconstitutional instruction concerning obscenity) ("By leaving open the possibility that petitioners' convictions can be preserved despite the instructional error, we do no more than we did in Rose [v. Clark, 478 U.S. 570, 577 , 106 S.Ct. 3101, 3105-06 , 92 L.Ed.2d 460 (1986)]. To the extent that cases prior to Rose may indicate that a conviction can never stand if the instructions provided the jury do not require it to find each element of the crime under the proper standard of proof, ... after Rose , they are no longer good authority”); Rose v. Clark, 478 U.S. 570, 577 , 106 S.Ct. 3101, 3105-06 , 92 L.Ed.2d 460 (1986) (instruction on unconstitutional presumption dealing with intent subject to harmless error analysis); Connecticut v. Johnson, 460 U.S. 73, 83-84 , 103 S.Ct. 969, 975-76 , 74 L.Ed.2d 823 (1983) (plurality) (“We agree with the State that, in light of Chapman, these cases cannot be read for the broad proposition that instructional error of constitutional dimensions may never be harmless. This is not to say, however, that any form of instructional error should be analyzed for harmlessness. The question here is whether a charge that might reasonably have been interpreted to require a conclusive presumption on the issue of intent may be considered harmless.”); Hopper v. Evans, 456 U.S. 605, 613-614 , 102 S.Ct. 2049, 2054 , 72 L.Ed.2d 367 (1982) (citing Chapman [v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 ] [(1967)] and finding no prejudice from trial court’s failure to give lesser included offense instruction); Hamling v. United States, 418 U.S. 87, 107-08 , 94 S.Ct. 2887, 2902-03 , 41 L.Ed.2d 590 (1974) (obscenity prosecution; in dealing with intervening law change between conviction and appellate decision, Court held reversal required only where there is a probability that instructions, now in *1177 correct, "would have materially affected the deliberations of the jury.”)
. See Flores, 896 P.2d 558 at 560 , where this Court said:
Because OUJI-CR-903 correctly sets forth the presumption of innocence and 12 O.S.1991, § 577.2 requires trial courts to administer the uniform instructions, we find it was error to deviate from OUJI-CR-903. We must now determine whether the error is harmless beyond a reasonable doubt or goes to the foundation of the case constituting a substantial violation of a constitutional or statutory right, [citations].
This would seem to indicate a harmless error analysis is to be applied. See also Id. ("The actual impact of the instruction in the instant case on the judgment of the jurors is difficult to determine."); Id. at 563 (Lumpkin, P.J., concurring in result) (discussing whether harmless error standard in the case should be “harmless beyond a reasonable doubt” or whether the reviewing court has "grave doubts” the error did not have a “substantial influence" on the trial).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9600736. Public record. Not legal advice.