concurring in result.
In its discussion of Issue V, the majority opinion may be viewed as requiring a full transcript of the trial court's reading of final instructions in order to preserve certain errors on appeal. I would disagree with this requirement as unnecessarily burdensome upon the process of expeditious appellate review.
As to both the State's Final Instructions No. 1 and 5, the record shows each marked "given over objection" and signed by the trial judge. The record further states that:
At the close of all arguments, Court instructs the jury (and alt.) with Court's written Final Instructions # 9-# 21 inclusive as fol. (H.I.) which includes State's written Final Instructions #1, #5, & #6 and deft's written Final Instructions # 1 as modified & # 3 as modified, as foll. (H.1I.) [sic]
(R. p. 136)
The substance of these instructions explained the concept of reasonable doubt, the need to consider all the evidence, and the role of jurors in determining the law and the facts under the Constitution of the State of Indiana. Referring generally to the jury's decision-making process, these instructions did not emphasize aspects of the case favorable to either party. While it *974would have been preferable to avoid duplication, I would find that under the circumstances of this case, there was no resulting prejudice to the defense.
The State's supplementary preliminary Instruction No. 6, which defendant also contends was duplicitous, enumerates the "elements of being an habitual offender." This instruction appears in the record marked "given" and signed by the judge, but the court's entry indicates that, while the court intended to give State's preliminary supplementary Instruction No. 6, it did not do so. In pertinent part, the entry states:
And Court indicates to parties it intends to instruct the jury with Court's Final Supplementary Instruction #9-# 12 inclusive, and will give State's Supplemental Preliminary Instructions #1, #5 & # 6 as fols (H.1.) * * * And at the close of all arguments Court instructs the jury with Court's Final Supplemental Instructions #9-# 12 inclusive as foll The Bailiff is sworn, and the jury retires to deliberate.
(R. p. 137-138) Thus, while the defendant claims error in giving State's Supplemental Preliminary Instruction No. 6, the record does not affirmatively show that this instruction was given. As to this instruction, therefore, no issue is presented.
SHEPARD, C.J., joins in this opinion.