dissenting: I respectfully dissent from that part of the *720majority opinion which holds that the trial court properly admitted evidence of an uncharged slapping incident between Steven Weis and his girlfriend, Alicia Napoleone, under K.S.A. 60-455. Moreover, I dissent from that part of the majority opinion which holds that the trial court’s self-defense instruction, which omitted the no-duty-to-retreat language from this instruction, did not deny Steven a fair trial.
Admitting Evidence Under K. S.A. 60-455
In instructing the jurors on how they could consider the evidence of the uncharged slapping incident, the trial judge stated, “Evidence has been admitted tending to prove that the defendant committed battery against Alicia Napoleone. This evidence maybe considered solely for the purpose of explaining the events leading up to the altercation on July 13, 2008.” Steven seeks a new trial contending that the evidence relating to the uncharged slapping incident was not relevant to the crimes charged.
A trial court’s analysis of whether evidence is admissible under K.S.A. 60-455 requires several steps. First, the court must determine whether the evidence is relevant to prove a material fact, e.g., whether the fact concerns intent, motive, knowledge, or identity. Appellate review for materiality is de novo and the list of material facts in K.S.A. 60-455 is exemplary rather than exclusive. See State v. Gunby, 282 Kan. 39, Syl. ¶¶ 1-3, 144 P.3d 647 (2006).
Second, the court must determine whether the material fact is in dispute. If it is in dispute, the trial court must then determine whether the evidence is relevant to prove the disputed material fact. Appellate courts review the trial court’s relevance determination for abuse of discretion. Third, the court must determine whether the probative value of the evidence outweighs the potential for creating undue prejudice. Appellate review of this determination is also for abuse of discretion. Finally, if the court decides to admit the evidence, the court must give a limiting instruction notifying the jury of the specific purpose for the admission of the K.S.A. 60-455 evidence. State v. Riojas, 288 Kan. 379, 383, 204 P.3d 578 (2009).
*721 Trial Court’s Ruling on State’s Motion to Admit K. S.A. 60-455 Evidence
Before trial, the trial court heard arguments on the State’s motion to admit K.S.A. 60-455 evidence. The State argued that the evidence was relevant to show motive and to show the reason why the altercation began. In determining that the evidence that Steven slapped Alicia was admissible under K.S.A. 60-455, the trial court stated the following:
‘Well, the incident that the State is wishing to present evidence on alleges immediately preceded the altercation in this case between the Defendant and the three alleged victims.
“The Court does believe that evidence is relevant, certainly to explain how the altercation began would be relevant to explain the course of conduct with the alleged victims approaching the Defendant and his girlfriend and so the Court is going to find that that evidence would be relevant to explain how the altercation began, the course of conduct between the parties, and it would also be relevant on the issues of motive, intent and identity and the Court does find that those material facts are in dispute.”
Also before trial, Steven moved the court to reconsider its decision to admit the K.S.A. 60-455 evidence. The trial court denied Steven’s motion. Steven further objected to the cautionary instruction that the trial court planned to read after the witnesses testified about the K.S.A. 60-455 evidence. Steven argued that the instruction should state that the evidence was relevant to show motive because the State argued in its motion that the slapping evidence was relevant to show motive. The trial judge disagreed and stated:
“It seems to me that that evidence would be relevant primarily to show the, you know, events leading up to the altercation or what happened immediately preceding the altercation.
‘Well, I think I’m just going to rule that the batteiy incident that immediately preceded this altercation is relevant for the purpose of proving or showing how the altercation began.
“And leave out the motive.”
During trial, multiple witnesses testified that they saw Steven slap Alicia on the night when the charged incidents occurred. Steven objected each time, arguing that the evidence was inad*722missible under K.S.A. 60-455. The trial court overruled Steven’s objections. After each witness testified that Steven slapped Alicia, the trial court instructed the jury as follows: “Evidence has been admitted tending to prove that the defendant committed battery against Alicia Napoleone. This evidence may be considered solely for the purpose of explaining the events leading up to the altercation on July 13, 2008.”
Later, at the instruction conference, Steven again objected to the form of the limiting instruction. Steven argued that originally the court admitted the evidence to show motive, but the court failed to include motive in its limiting instruction. The trial court determined that it was not going to change the limiting instruction because it had consistently given this limiting instruction throughout the trial.
Relevancy
The first question, then, is whether the evidence in question was relevant to prove a material fact. There are two elements of relevant evidence: a materiality element and a probative element. State v. Houston, 289 Kan. 252, 261-62, 213 P.3d 728 (2009). Even if the court determines that the evidence is both probative and material, the trial court must still determine whether the probative value of the evidence outweighs its prejudicial value. State v. Hart, 44 Kan. App. 2d 986, 1006, 242 P.3d 1230 (2010), rev. granted 292 Kan. 967 (2011) (pending).
K.S.A. 60-455 provides several examples of facts that are per se material. Those examples include the following: “motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” K.S.A. 60-455. As stated earlier, this list of material facts in K.S.A. 60-455 is exemplary rather than exclusive. Gunby, 282 Kan. at 56.
Res Gestae
Steven argues that the trial court erroneously admitted evidence that he allegedly slapped Alicia on the night of the altercation. The trial court implicitly admitted the evidence as res gestae, stating that it was relevant solely to explain the events leading up to the *723altercation. If the trial court admitted this evidence independent of K.S.A. 60-455(b), this would have been improper. Gunby, 282 Kan. 39, Syl. ¶ 5. Thus, the trial court was required to measure the admission of the slapping incident against any applicable exclusionary rules. Gunby, 282 Kan. at 59-63.
As stated earlier, there are three requirements that must be met for evidence to be admissible under K.S.A. 60-455. First, the evidence must be relevant for a legitimate purpose other than to show propensity. Second, the evidence must be relevant to a material issue which is disputed in the case. Third, the probative value of the evidence must outweigh its potential for unfair prejudice to the defendant. Gunby, 282 Kan. at 48.
Here, the evidence of Steven slapping Alicia was not inextricably intertwined with the charged offenses. Although the evidence that Steven slapped Alicia helped explain the reason for tire victims’ anger, tire slapping incident was unnecessary to the understanding about Steven’s altercation with the alleged victims. For example, there was a clear break between the alleged slapping incident and Steven’s confrontation with the alleged victims. The alleged victims testified that they followed Steven and Alicia for a few blocks after they saw Steven allegedly slap Alicia. This fact is very important because it means that the altercation did not immediately begin after the alleged slapping incident. These were separate incidents. It was possible to give a complete and intelligent account of the altercation between Steven and the alleged victims without delving into the details of the alleged slapping incident. For example, tire altercation involving the charged offenses could have been explained sufficiently by Anthony’s testimony that he did not like Steven dating his sister, Alicia. And on the night of the charged offenses, Anthony wanted Alicia to stop walking with Steven and return to her friends’ house. Thus, the evidence of Steven allegedly slapping Alicia was irrelevant to the charged crimes.
For the sake of argument, even if the evidence of Steven slapping Alicia was relevant, this evidence was not relevant to prove a material fact under K.S.A. 60-455. In this case, the trial court held that the evidence was admissible to explain the events leading up to the altercation. This is not one of the factors explicitly listed in *724K.S.A. 60-455; however, as stated earlier, the list of material facts in K.S.A. 60-455 is exemplary rather than exclusive. Gunby, 282 Kan. at 56.
Nevertheless, the State does not argue that “explaining the events leading up to the altercation” is a viable material fact under K.S.A. 60-455. In fact, I could find no decision where our Supreme Court has recognized the admission of other crimes evidence based on a material fact not explicitly listed in K.S.A. 60-455. Yet, I acknowledge that materiality could have been shown outside the eight statutoiy factors under certain circumstances: For example, if other evidence existed that Steven had threatened Alicia with a knife just before the altercation occurred between Steven and Alicia’s brothers and friend, Steven’s possession of a knife would have been relevant and material, since Steven denied possessing a knife during the altercation which was the basis for the charged offenses. But no such facts exist in our case. As a result, the res gestae evidence was inadmissible for a lack of materiality because it had no legitimate bearing on any material fact in dispute.
Moreover, I have difficulty in concluding, as the majority does, that the slapping incident was material because of Steven’s claim of self-defense. The majority says that evidence that Steven slapped Alicia in the presence of her family members would have been material to whether Steven had initially provoked the use of force against himself. It seems disingenuous of the majority to argue on one hand that Steven’s claim of self-defense was material under K.S.A. 60-455 and argue on the other hand that Steven was not harmed by the trial court’s omission of the no-duty-to-retreat language from the self-defense instruction. Indeed, the majority says that the jury had no need to consider the self-defense instruction based on Steven’s crimes of conviction. Thus, it would seem that the majority wants to “have one’s cake and eat it too.”
Motive
The State also argues that the evidence was relevant to show motive. The trial court, however, did not instruct the jury to consider the evidence based on motive. Yet, it is still necessaiy to determine whether the evidence was admissible to show motive. *725See State v. Reid, 286 Kan. 494, 510, 186 P.3d 713 (2008) (while “knowledge” was not given as the reason for the trial court’s admission of the evidence, that court’s conclusion can be upheld on review if it was right even though the court’s given reason may have been wrong). But “ ‘[t]he erroneous admission of evidence of a crime under one exception in K.S.A. 60-455 is not máde harmless merely by the fact it would have been admissible under another exception not instructed on.’ ” Reid, 286 Kan. at 511 (quoting State v. McCorgary, 224 Kan. 677, 686, 585 P.2d 1024 [1978]).
Our Supreme Court explained that “ ‘motive is the moving power that impels one to action for a definite result.’ [Citations omitted.] Evidence of motive is an attempt to explain why a defendant did what he or she did. [Citations omitted.]” State v. Wells, 289 Kan. 1219, 1227, 221 P.3d 561 (2009).
In State v. Engelhardt, 280 Kan. 113, 128, 119 P.3d 1148 (2005), our Supreme Court- stated: “Motive supplies the jury with some degree of explanation, responding to a juror’s natural tendency to wonder why a defendant behaved in the manner described by the State. Often it is a prominent feature of the State’s theory of its case.”
In its brief, the State contends that the batteiy against Alicia shows why the victims were following Steven. The State further contends that the fact that the victims were following Steven is relevant to show Steven’s motive in stabbing them. The State’s argument is a non sequitur, which means it does not follow.
In arguing that the evidence was relevant to a material fact, the State, in its brief, resorted to reasoning in the deductive form: “The defendant struck Alicia, her brothers and friend confronted him and the defendant stabbed them. The evidence was relevant to show the defendant’s motive.” This syllogism maybe reconstructed to read as follows:
Major premise: A struck B;
Minor premise: B’s brother and friend confronted A;
Conclusion: Therefore, A stabbed B’s brothers and friend.
Thus, from these premises one would be forced to conclude from the evidence of A slapping B alone that A would more likely *726than not stab B’s brother and friend. This conclusion does not necessarily follow from the premises by which it is supposed to be supported. It might, at most, furnish a reason why Alicia’s brothers and friend would confront Steven. But the premises do not support an inference that men who strike their girlfriends are more likely than not to stab their girlfriends’ brothers and friend when confronted by them.
Although the evidence helped explain the motive for the victims’ actions, it did not help to explain Steven’s motive. Of course, there are times when a defendant’s motive is relevant. One example comes to mind from several scenes from a famous movie: “The Godfather.” In that movie, Sonny, Don Vito Corleone’s hot-headed son, played by James Caan, severely beats his brother-in-law, Carlo Rizzi, for brutalizing Michael, Fredo, and Sonny’s sister, Connie. Sonny also threatens to kill Carlo if he ever beats his sister again. An angiy Carlo plans his revenge against Sonny by aiding a rival crime family in Sonny’s murder.
As part of the plan, Carlo beats Connie to lure the hot-headed Sonny away from the heavily fortified and guarded Corleone compound. When Sonny learns that Carlo has battered Connie again, he, unaccompanied by his body guards, gets into a car and races away from the compound to make good on his earlier threat to kill Carlo. On the way, Sonny is ambushed at a toll booth and shot to death by several men carrying Thompson submachine guns. Connie’s beating by Carlo was relevant to show motive in Carlo’s plan to seek revenge against Sonny for his earlier beating by Sonny. And Connie’s beating by Carlo was the first link in luring Sonny away from the heavily guarded compound so Sonny could be ambushed and killed; it, also, was relevant to show that Carlo participated in the plan to kill Sonny.
Similarly, if there were other evidence that Steven had threatened to harm Alicia’s brothers and friend and that Steven had slapped Alicia to provoke an altercation between him and Alicia’s brothers and friend so he could harm them, this evidence would be relevant to show motive for harming Alicia’s brothers and friend. Moreover, this evidence would be relevant to rebut Steven’s self-*727defense claim that he was an innocent bystander in the altercation. But no such motive evidence exists in this case.
A review of the record in this case fails to show how the lone evidence of Steven slapping Alicia could be used to show Steven’s motive in committing the alleged crimes, other than showing Steven’s propensity to commit the alleged crimes of battery. As stated earlier, prior bad acts evidence is not admissible to show the defendant’s propensity to commit the charged crimes. K.S.A. 60-455(a).
Because the evidence fails to show Steven’s motive, the prior bad acts evidence was inadmissible to show motive under K.S.A. 60-455(b).
Probative versus Prejudicial
Even if the alleged slapping evidence was relevant, this does not mean it should automatically be admitted. Indeed, relevant evidence of prior crimes is inadmissible if tire prejudicial impact of the evidence outweighs its probative value. State v. Davis, 213 Kan. 54, 58, 515 P.2d 802 (1973). In Davis, our Supreme Court explained the types of prejudice that can occur with admitting prior bad acts evidence:
“ ‘First, a jury might well exaggerate the value of other crimes as evidence proving that, because the defendant has committed a similar crime before, it might properly be inferred that he committed this one. Secondly, the jury might conclude that the defendant deserves punishment because he is a general wrongdoer even if the prosecution has not established guilt beyond a reasonable doubt in the prosecution at hand. Thirdly, the jury might conclude that because the defendant is a criminal, the evidence put in on his behalf should not be believed.’ ” Davis, 213 Kan. at 58.
There is no question that the evidence that Steven slapped Alicia was prejudicial to Steven. The other crimes evidence established that not only is Steven a violent person but also a person who would batter a defenseless woman. A trial court should be conscious of the possibility of prejudicing the jury and should avoid doing so. Davis, 213 Kan. at 58. Here, the prejudicial effect of the evidence outweighed any probative value.
*728On the other hand, to the extent that the State argues that the evidence was relevant to show why the altercation began, in this case the relevant altercation was between Steven and the alleged victims, not Steven and Alicia. The State also contends that this evidence was relevant because the slap occurred just before the altercation. Although this is true, the slapping evidence was not so inextricably intertwined with Steven’s altercation with the victims because there was a clear break between the alleged slap and Steven’s altercation with the alleged victims. The alleged victims testified drat they followed Steven and Alicia for several blocks after they saw Steven allegedly slap Alicia. This means that the altercation did not immediately start after the victims allegedly saw Steven slap Alicia. Based on these facts, it was clearly possible to give a complete and intelligent account of the altercation between Steven and the victims without mentioning the alleged slap. See Burgos v. State, 865 So. 2d 622, 624 (Fla. Dist. App. 2004) (domestic battery evidence was not inextricably intertwined because there was a “ ‘clear break’ ” between that incident and defendant’s confrontation with the officers). This evidence should not have been admitted.
Moreover, the trial court, which granted the State’s motion to admit evidence of the alleged slapping incident, paved the way for the State to elicit detailed testimony from the State’s witnesses that Steven had slapped Alicia. For example, the evidence was first mentioned in the State’s opening statement. Then, multiple witnesses testified that they saw Steven slap Alicia. And finally, the evidence was again mentioned in the State’s closing arguments. Moreover, after each witness testified about the slap, the trial court gave the following limiting instruction: “Evidence has been admitted tending to prove that the defendant committed battery against Alicia Napoleone. This evidence may be considered solely for the purpose of explaining the events leading up to the altercation on July 13, 2008.”
Yet, when the trial court instructed the jury on how it was to use this evidence, it neglected to tell the jury that it was not to use the evidence about Steven allegedly slapping Alicia as proof of Steven’s character or as propensity evidence. With no such limiting instruc*729tion, the jury could infer that if Steven slapped Alicia, he also provoked and illegally battered the alleged victims, an inference which K.S.A. 60-455 specifically intends to prohibit. Although we do not know how this evidence was considered by the jury, the danger was that the jury might believe that Steven’s character was such that he had a propensity to engage in conduct of the sort charged. Thus, the jury might believe that Steven had acted in conformity with that character on the occasion at issue in the charged offenses. See State v. Gunby, 282 Kan. 39, 48-49, 144 P.3d 647 (2006) (quoting Davis, 213 Kan. at 58).
As many times as this evidence was presented to the jury, it is readily apparent that it was unfairly prejudicial to Steven. The record in this case clearly demonstrates that undue prejudice would have resulted from the admission of the other crimes evidence. Therefore, even if this evidence would have rendered the probable existence of a fact in issue, it would still be inadmissible because tire probative value of the evidence was substantially outweighed by the prejudicial effect of the evidence.
Harmless Error
Because I have determined that tire prior bad acts evidence should not have been admitted under K.S.A. 60-455, the next step is to determine whether the error was harmless.
The erroneous admission of K.S.A. 60-455 evidence does not automatically require reversal. “[T]he admission of K.S.A. 60-455 evidence without the explicit relevance inquiries, particularized weighing of probative value and prejudicial effect, or prophylactic limiting instruction is not inevitably so prejudicial as to require automatic reversal. On the contrary it may be harmless.” Gunby, 282 Kan. at 57. As a result, we must now determine whether the admission of the evidence that Steven slapped Alicia was harmless under K.S.A. 60-261, which states that error in the admission of evidence is not “ground for granting a new trial or for setting aside a verdict. . . unless refusal to take such action appears to the court inconsistent with substantial justice.” See State v. Boggs, 287 Kan. 298, 318, 197 P.3d 441 (2008).
*730Here, as stated earlier, the evidence that Steven slapped Alicia was continuously brought up throughout the trial. Because the charges in this case involved aggravated battery, other acts of battery were highly prejudicial to Steven. Therefore, this propensity evidence prejudiced Steven and likely affected the outcome of the trial.
The admission of evidence that Steven slapped Alicia had a real likelihood of changing the result of the trial. Thus, the trial court’s error in admitting the evidence was not harmless.
The Trial Court Erred in Instructing the Jury on the Use of Force in Defense of a Person
The majority holds that the trial court’s self-defense instruction, which omitted the no-duty-to-retreat language from this instruction, did not deny Steven a fair trial. I disagree.
During the trial, Steven requested a self-defense instruction. The proposed instruction, based on PIK Crim. 3d 54-17, reads as follows:
“Defendant claims his use of force was permitted as self-defense.
“Defendant is permitted to use force against another person when and to the extent that it appears to him and he reasonably believes such force is necessary to defend himself against the other person’s imminent use of unlawful force. Reasonable belief requires both a belief by defendant and the existence of facts that would persuade a reasonable person to that belief.
“When use of force is permitted as self-defense, there is no requirement to retreat.” (Emphasis added.)
The trial court agreed to give the instruction; however, the instruction the trial court gave the juiy omitted the last paragraph of the PIK instruction. The instruction the jury received failed to include the paragraph that told the jury that if it determined that Steven had acted in self-defense, Steven did not have a duty to retreat.
“An appellate court reviewing a district court’s giving or failure to give a particular instruction applies a clearly erroneous standard where a party neither suggested an instruction nor objected to its omission.” State v. Martinez, 288 Kan. 443, 451, 204 P.3d 601 (2009); see K.S.A. 22-3414(3).
*731“An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” Martinez, 288 Kan. at 451-52.
Trial courts are not required to use PIK instructions, but it is strongly recommended. Modifications or additions to the PIK instructions should only be made if the particular facts of a case require it; however, absent such need, PIK instructions should be followed. State v. Dixon, 289 Kan. 46, Syl. ¶ 10, 209 P.3d 675 (2009).
Steven made no objection to the trial court’s self-defense instruction. Therefore, the clearly erroneous standard applies.
Steven points out that the State argued to the jury that he did not tiy to walk away or try to avoid a physical confrontation with the victims, which Steven contends makes the missing language mandatoiy. Steven contends that without this last sentence of the instruction, the jury could have believed that Steven was required to retreat. The State responds by noting that the statement in closing was made in reference to Instruction 13.
Instruction 13 reads as follows:
“A person who initially provokes the use of force against himself is not permitted to use force to defend himself unless the person reasonably believes that he is in present danger of death or great bodily harm, and he has used every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the other person or the person has in good faith withdrawn from physical contact with the other person and indicates clearly to the other person that he desires to withdraw and stop the use of force, but the other person continues or resumes the use of force.” (Emphasis added.)
Instruction 13 makes the missing no-duty-to-retreat language crucial because the prosecutor strongly argued that Steven had a duty to retreat before the altercation started. During cross-examination, the prosecutor asked Steven if he had run for help or had called 911:
“Q. And did you run up and knock on somebody’s door?
“A. No; I did not.
“Q. And did you run to your grandma’s house?
“A. No; I did not.
“Q. She lived right in that area, didn’t she?
*732“A. We didn’t get that far.
“Q. Did you pick up your cell phone and call 9-1-1 and say I’m in fear for my life?
“A. No; I did not.”
The prosecutor continued to argue that Steven had a duty to retreat in closing argument. In stressing that Steven did not retreat, the prosecutor asked the jury:
“Did the defendant use other — -use every reasonable means to escape such danger? The State contends that he did not. The defendant did not run. He did not call 9-1-1. He didn’t run to the neighbor’s house. He didn’t pound on the door. He didn’t get to his grandma’s house. He didn’t call his brother and say, come back for me, I’m — these guys are following me, I think I’m about to be killed or in danger of great.bodily harm. ... In this case the defendant did not use every reasonable means to escape.”
This type of language just quoted by the State is problematic with our Supreme Court pronouncement in State v. Scobee, 242 Kan. 421, 748 P.2d 862 (1988). In Scobee, the court held that a no-duty-to-retreat instruction should have been given in Scobee’s trial because “[t]he prosecution . . . built its case around the failure of [Scobee] to retreat” when two assailants set upon him in the driveway of his home. 242 Kan. at 428. Here, the State also built its case around Steven’s failure to retreat. Thus, the State argued that Steven could not rely on his self-defense theoiy because he should have retreated before using force.
To argue, as the majority does, that because self-defense did not apply to any of Steven’s crimes of conviction, there is not a real possibility the jury would have rendered a different verdict even if the jury had been instructed that Steven had no duty to retreat under the self-defense instruction is to set up a “straw man” argument. The majority seems to use this argument as a ploy to respond to an argument of its choosing and not one that is actually presented. The majority’s assertion ignores that the State had charged Steven with one count of intentional aggravated battery with great bodily harm and two counts of aggravated battery intentionally causing bodily harm with a deadly weapon. Moreover, the juiy was required to determine if Steven was guilty of any of *733the intentional aggravated battery charges before moving on to the lesser charges of reckless aggravated battery.
Thus, the question is not whether the jury had a need to consider self-defense with regard to Steven’s two crimes of conviction. The question is whether there is a real possibility that the jury would have ruled differently had it been instructed that Steven had no duty to retreat under the self-defense instruction when it deliberated the three intentional aggravated battery charges.
Because the evidence was disputed as to who was the initial aggressor, the no-duty-to-retreat language was key to Steven’s self-defense theory. There is a reasonable possibility the jury would have acquitted Steven entirely of one or more of the charges had the trial court given a no-duty-to-retreat instruction. Thus, the majority’s conclusion is flawed when it says that “there was not a real possibility the jury would have rendered a different verdict if it was instructed as Steven suggests.” 47 Kan. App. 2d at 715.
On the contrary, the omitted no-duty-to-retreat language from the self-defense instruction gutted Steven’s self-defense theory. The only instruction that the jurors heard on the issue of retreat told them that Steven had a duty to retreat if he provoked the use of force against himself. The trial court, however, failed to tell the jury that Steven had no duty to retreat under the self-defense instruction. As tire majority correctly states, jurors are presumed to follow their instructions. Therefore, this omission in the self-defense instruction might have led the jury to believe that Steven first had to retreat before he was entitled to defend himself. Even if some of the jurors believed that Steven had acted in self-defense, they might have believed that they were precluded from finding him not guilty entirely of the charges because he had failed to retreat from the altercation. Consequently, Steven did not receive a fair trial when the no-duty-to-retreat language was omitted from the self-defense instruction; this omitted language was central to his self-defense theory.
There is a real possibility that the jury would have ruled a different way had it been properly instructed. I would reverse the convictions and remand for a new trial.