Concurring.
I join in the opinion of the Court and concur in the ruling. I take this opportunity to identify certain principles which should guide the practitioners and the Court on criminal appeals brought before the Court. I also write separately to show that the same conclusion can be reached in this case using Anglo-American law.
I. STANDARD OF REVIEW
The legisative history does not indicate the source for the Navajo Criminal Code, but many of its sections appear to be taken, word-for-word, from the American Law Institute’s Model Penal Code (Approved May 24, 1962). Where this Court identifies a foreign source for Navajo Nation statutes, it looks to inter*428pretations of the source, as long as they are in accord with the intent of the Navajo Nation Council and the Navajo common law.
A.STANDARD OF APPELLATE REVIEW OF CRIMINAL JUDGMENTS
An appellate court will not reverse a conviction unless the alleged error was prejudicial. There is prejudicial error if the defect complained of affects substantial rights. If the error is harmless, it will be disregarded. 4 Wharton’s Criminal Procedure § 643 (1976). An appellate court may also consider errors, whether or not they are raised by the defendant, if any of the following is present: (1) if they are plain and affect substantial rights; (2) if they affect jurisdictional or constitutional rights; (3) if there is lack of subject matter jurisdiction; and (4) if review is necessary to avoid grave injustice. Id. at § 640. Where constitutional or quasi-constitutional claims are not involved, the test is “whether, in light of all the admissible evidence (including any defense evidence improperly excluded), the jury’s finding of guilt is clearly correct.” 3 LaFave & Israel, Criminal Procedure pp. 261-62 (1984). These are general standards, but they direct this Court to scrutinize the record and the error complained of to ascertain whether it clearly harmed the defendant, and obviously affected the outcome. In our context, the examination of the record must include an assessment of the overall quality of representation in the prosecution and defense cases.
Here, the Supreme Court has examined the prosecution case on the basis of an assigned error, and on the basis of the statute the defendant was charged with violating - battery.
B.MOTIONS FOR ACQUITTAL OR DIRECTED VERDICT
The defendant argues that the trial court committed prejudicial error by refusing to grant a judgment of acquittal. The trial judge is responsible, at all phases of a trial, for resolving questions of law. If evidence of a defendant’s guilt, measured against the statute, is insufficient, the trial judge must enter a verdict of not guilty. That may be done on the motion of the defendant, or on the court’s own motion. 3 Wharton’s Criminal Procedure § 520 (1975). A motion for acquittal, or directed verdict, will be granted if there is insufficient evidence to support a conviction. Id. at p. 431. The test is “whether a reasonable jury, viewing the evidence and reasonable inferences there from in the light most favorable to the prosecution, could find the defendant guilty beyond a reasonable doubt.” Id. at p. 434; Navajo Nation v. Murphy, 6 Nav. R. 10, 15 (1988). This is a question of law, under the control of the judge.
C.NAVAJO NATION CRIMINAL CODE PRINCIPLES OF CONSTRUCTION
The Navajo Nation Criminal Code is complete in itself, and contains principles of construction for the reading of the offense statutes.
*4291. Purpose of the Navajo Nation Criminal Code.
The Code states a general purpose: “To proscribe conduct that unjustifiably and inexcusably threatens or inflicts substantial harm to individual or public interests.” 17 N.T.C. § 202(1) (1977). This statute comes from Model Penal Code § 1.02(l)(a). The statute means that courts must construe the plain language of the statute, and resolve any doubt as to the meaning of a penal statute in favor of the defendant. State v. Maguire, 176 N.J. Super. 164, 422 A.2d 466, 467-68 (1979). While the prosecution must prove each and every element of an offense, that does not include provisions, or matters which are unconnected with the conduct the statute seeks to prevent in its definition. Commonwealth v. Turner, 488 A.2d 319, 322 (Pa. Super. 1985).
The American Law Institute’s explanatory note to our statute indicates as follows:
Within the framework in which the dominant theme is the prevention of offenses, a number of specific factors are articulated which are believed to be the principal objectives of the definitional process. The major goal is to forbid and prevent conduct that threatens substantial harm to individual or public interests and that at the same time is both unjustifiable and inexcusable. Subsidiary themes are to subject those who are disposed to commit crimes to public control, to prevent the condemnation of conduct that is without fault, to give fair warning of the conduct declared to be criminal, and to differentiate between serious and minor offenses on reasonable grounds.
1 American Law Institute, Model Penal Code and Commentaries 14 (1985).
These principles require courts to examine the specific definitional elements of the offense within the framework of the evil the statute intends to prevent. As will be discussed in detail, the “unlawful” element of the offense of battery, had to be proved by the prosecution, beyond a reasonable doubt.
2. Proof.
Our statute at 17 N.T.C. § 206 (1977) (MPC § 1.12(1)) provides as follows: “No person may be convicted of an offense unless each element of such offense is proved beyond a reasonable doubt. The innocence of the defendant is presumed.” This statute means that while the state has the burden of proving every element of the offense beyond a reasonable doubt, it is not required to anticipate and rebut defenses, including any affirmative defense which does not negate an element of the offense. Commonwealth v. Shenkin, 487 A.2d 380, 394 (Pa. Super. 1985). Here, the prosecution had to prove, beyond a reasonable doubt, that the defendant’s conduct was “unlawful.” The transcript shows that the prosecution proceeded on that understanding.
3. Culpability.
The statute at 17 N.T.C. § 211 (1977) (MPC § 2.02(1)) provides as follows: “A person shall not be guilty of an offense unless he acted intentionally, knowingly, recklessly, or negligently as the law may require with respect to each material element of the offense.” Where the mental state required for the crime is *430absent, conviction is precluded (although an individual may be convicted of a lesser included offense). Commonwealth v. Stewart, 336 A.2d 282, 285 (Pa. 1975). That mental state may be proved by circumstantial evidence. Commonwealth v. McConnell, 436 A.2d 1201, 1202 (Pa. Super. 1981). Some offenses require an awareness of certain facts or circumstances. For example, in a prosecution arising out of an assault and battery conviction resulting from a false arrest, the state was required to prove that the arresting officer actually knew the arrest warrant was defective. See Commonwealth v. Smythe, 369 A.2d 300, 304 (Pa. Super. 1976); See also, State v. Moll, 206 N.J. Super. 257, 502 A.2d 87, 88 (1986).
Here too, the Court must examine the particular statute to see what mental state is required for each element of the offense.
II. PRINCIPLES APPLIED TO THE OFFENSE OF BATTERY
The offense of battery is set forth in the Navajo Nation Criminal Code as follows: “A person commits battery if he or she unlawfully and intentionally strikes or applies force to the person of another.” 17 N.T.C. § 316(a) (1977). The elements of the offense, each of which must be proved beyond a reasonable doubt, are that the defendant must have (1) unlawfully, and (2) intentionally, (3) struck or applied force, (4) to the person of another.
Our battery statute is different from the Model Penal Code section (MPC § 211.1) on assault. The Navajo Nation Council, for reasons not in the legislative history of the Criminal Code, decided to insert an additional element - unlawfully - in its definition of the offense. The Council may have intended to protect law enforcement officers, and others in authority, by requiring that the prosecution prove that any striking or application of force was unlawful. The Criminal Code definition of unlawful is as follows: “‘Unlawful’ means contrary to law or, where the context so requires, not permitted by law; it does not mean immoral.” 17 N.T.C. § 208(25) (1977).
The general rule for police assault and battery cases is, “[a] police officer may use such force as is reasonably necessary in the discharge of his official duties and is not liable for an assault or battery in so doing.... But no greater force can be used than is reasonably necessary for the performance of his duties.” 2 Wharton’s Criminal Law § 186 (1979). Where a police officer acts with reasonable cause, or uses sound discretion under the circumstances, without force which is unreasonably dangerous, there is no assault or battery. Commonwealth v. Johnson, 297 F. Supp. 877, 878 (D. Pa. 1969). Where an officer has no motive other than to discharge his duty, and has an honest and reasonable belief that his conduct is necessary in the performance of his duty, a criminal action cannot be maintained against him. Id. Also, there is no liability where a public official obeys the lawful command of the government or if an official carries out the *431imperative duty of obeying an order of a superior in good faith. 63A Am. Jur. 2d. Public Officers and Employees §§ 378-79 (1984).
At this point, discussion of 17 N.T.C. § 215(c) (1977) is appropriate. It states as follows: “Conduct is justified and an affirmative defense when it is required or authorized by law.” Normally, the burden would have been on Platero to show that his conduct was required or authorized by law. However, the Navajo Nation Council made “contrary to law” or “not permitted by law” a part of the offense. But for the Council’s action in doing so, the burden would have been placed upon Platero. Even if that was done here, the trial court refused to instruct on the affir • mative defenses offered by Platero. We cannot ignore the Council’s plain instruction, which was probably intended to protect police officers, school teachers, and other persons in authority.
Was Platero a police officer at the time he arrested Major George John? A police officer is a “peace officer,” and that “means any person who is a law enforcement officer vested by law with a duty to maintain public order or make arrests, whether that duty extends to all offenses or is limited to specific classes of offenses or offenders.” 17 N.T.C. § 208(16) (1977).
Applying the rules of statutory construction to this case, the prosecution had to show that Platero’s conduct fell within the statute as the kind of act the law prohibits, and that he was not a law enforcement officer. The gist of the required proof was that the prosecution had to show that Platero was in fact informed he was no longer a peace officer. It had to show that he acted unlawfully as a civilian, and that he then used improper force on Major John. The prosecution failed in its proof. It did not prove actual service of a notice of termination of employment upon Platero; thus, it failed to prove an essential element of the offense beyond a reasonable doubt. The reasonable doubt was there, as a matter of law, because Lt. Daniel Hawkins, the official responsible for service, did not know whether Platero was served. In addition, while the prosecution could have produced the person who made service, to show actual notice, it did not do so.
The record also shows that Platero was following the order of a superior officer, whom several witnesses agreed was in apparent, if not actual, authority. If the arrest was not a lawful one, that was the responsibility of the superior officer. Platero, no doubt, acted in good faith on the order of a superior.
I agree with the Court that the prosecution failed to prove its case beyond a reasonable doubt.