dissenting.
The majority holds that the circuit court abused its discretion in giving a standard Arkansas Model Jury Instructions-Criminal instruction, even though that instruction is a correct statement of the law. In so holding, the majority indicates that a non-model jury instruction should have been given, even though that non-model instruction would not have cured the alleged error. Moreover, no error was committed by giving the model instruction. Thus, I respectfully dissent.
Fincham objected to the last two sentences of AMI Crim.2d 301, which state:
If you have reasonable doubt of the guilt of the defendant on the greater offense, you may find him guilty only of the lesser offense. If you have a reasonable doubt as to the defendant’s guilt of all the offenses, you must find him not guilty.
Fincham proffered a non-model jury instruction omitting these two sentences.
Non-model jury instructions are to be given only when the circuit court finds that the model instructions do not accurately state the law or do not contain a necessary instruction on the subject at hand. Strain v. State, 2012 Ark. 184, 5, 423 S.W.3d 1. The two omitted sentences, however, accurately state the law. Ark.Code Ann. § 16-89-126(e)(3) (Repl.2005) (“Where there is a reasonable doubt of the degree of the offense which the defendant has committed, he or she shall be convicted only of the lower degree.”); Ark.Code Ann. § 16-89-126(g) (“When there is a reasonable doubt of the defendant’s guilt upon the 1 ^testimony in the whole case, he or she is entitled to an acquittal.”).
Further, omission of the two sentences does not address the alleged error. The majority holds that, according to the instruction, the jury was “thus required to consider the greater offense first and move onto a lesser offense if the jury had a reasonable doubt as to the greater offense.” The majority’s interpretation is clearly wrong because these two sentences do not speak to the order of consideration of the offenses. The removal of the two sentences, as Fincham requested, would not have cured the defect Fincham alleges. Fincham might have made the point he now makes if he had challenged at trial and proffered an alternative to AMI Crim.2d 302. That transitional instruction provides: “If you have reasonable doubt of the defendant’s guilt on the charge of_, you will then consider the charge of_” The transitional instruction — not the two sentences omitted above — is the instruction that addresses the order of consideration of the offenses. However, Fincham failed to proffer an alternative instruction for AMI Crim. 2d 302, which was required for an appeal on this issue. Boldin v. State, 373 Ark. 295, 283 S.W.3d 565 (2008).
Finally, as to the merits of Fincham’s argument, despite Fincham’s argument that the jury was precluded from considering the offense of manslaughter, the jury was instructed in open court as to all of the offenses and specifically instructed to consider the instructions as a whole, not singling out one instruction to the exclusion of others. Jurors are presumed to comprehend and follow court instructions. Kelly v. State, 350 Ark. 238, 242, 85 S.W.3d 893, 895 (2002). The jury would have heard in open court the entirety of the instructions, including the instruction on extreme-emotional-disturbance manslaughter, and proceeded | ^accordingly. Further, instructions are to be read together to ascertain whether the whole law of the case is correctly declared, and are- to be reasonably interpreted. Peters v. State, 248 Ark. 134, 139, 450 S.W.2d 276, 279 (1970). Taken as a whole, the instructions in Fincham’s case accurately set out the whole law of the case, and presumably, the jury followed them.
Accordingly, I dissent.
DANIELSON, J., joins this dissent.