dissenting.
I would grant the appellee’s petition for rehearing and affirm Johnson’s conviction for the reasons set forth in my dissenting opinion in Johnson v. State (1981), Ind.App., 426 N.E.2d 91.
It is necessary also at this time to clarify my reference to the “majority opinion” in my dissenting opinion. The State is correct in that this reference was somewhat confusing since Judge Staton and Judge Garrard both wrote opinions. My reference to the “majority” was meant to relate to the “majority in result” rather than the “majority in reasoning.”
In his opinion denying the State’s petition for rehearing, Judge Staton attempts to distinguish this case from Smith v. State (1981), Ind., 422 N.E.2d 1179 and holds that, “[o]nly when words used in instructions have technical meanings that may confuse the jury should definitional instructions upon those words be tendered and given.... The instructions tendered by Johnson in the present case did not operate under such an infirmity.” (Citation omitted.)
Yet, the Indiana Supreme Court disagreed with this proposition of Judge Sta-ton’s in Smith when it specifically said,
“... the instruction uses the words ‘recklessly, knowingly or intentionally.’ Under our penal code, these are terms of art; that is, they have special legal definitions. Ind.Code § 35-41-2-2 (Burns 1979 Repl.). We have held that the use of a word of art in an instruction requires a further instruction on the definition of that word.... However, Smith tendered no additional instructions on the meaning of these terms. For these reasons, the tendered instruction was confusing and thus properly refused.” (Citations omitted.)
Smith, supra, at 1184.
Likewise, Johnson’s tendered instructions contain the terms of art of “recklessly, knowingly or intentionally,” yet he tendered no additional instructions on the definitions of those terms. Therefore, as in Smith, Johnson’s instructions were properly refused.