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State v. Foster11/12/2004
om the outside of the vehicle, not from a passenger impacting the windshield. Although there were no witnesses who saw Foster driving the car, there was sufficient circumstantial evidence for a jury to conclude that Foster had been driving the vehicle.
Foster requested that the word "unless" be substituted for "until" in a PIK instruction, but the trial court denied this request. Foster now contends that the district court denied him a fair trial.
Since the trial court refused to give the requested instruction, this court views the evidence "in the light most favorable to the party requesting the instruction." State v. Williams, 277 Kan. 338, 356, 85 P.3d 697 (2004). When jury instructions are challenged, we consider all instructions given, not just one isolated instruction. Mays, 277 Kan. at 378-79. Even if an instruction is in some way erroneous, if it fairly and properly states the law and the jury could not reasonably have been misled, the error does not rise to the level of reversible error. 277 Kan. at 378-79.
Although not mandatory, the use of PIK instructions is strongly recommended. State v. Kleypas, 272 Kan. 894, 1035, 40 P.3d 139 (2001). A trial court may modify PIK instructions as the needs of the case require. 272 Kan. at 1035. "However, absent such need, PIK instructions and recommendations should be followed." 272 Kan. at 1035.
Even when viewing the evidence in the light most favorable to Foster, it is apparent that the information Foster wanted included was conveyed to the jury later in the same instructions. By requesting the word "unless" instead of "until," Foster is alleging that "until" implies that the jury is required to find him guilty. Even were we to assume that the wording could be read that way, when reviewing the complete instruction, it properly states that the burden of proof is on the State.
Following the disputed comment, the jury instruction stated that "if you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty." This makes it clear that the jury is not to assume that Foster was guilty. The jury instruction fairly and properly stated the law.
Affirmed.
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