(dissenting).
[¶ 7.] I respectfully dissent.
[¶ 8.] Refusal to instruct at the close of the evidence is reversible only if it rises to prejudicial error. State v. Eagle Star, 1996 SD 143, ¶ 21, 558 N.W.2d 70,75. See also State v. Two Bulls, 1996 SD 53, ¶ 11, 547 N.W.2d 764, 766. The defendant has the burden of proving the trial court’s refusal constitutes prejudicial error. Id.
[¶ 9.] The majority reverses, relying on State v. Nelson, 1998 SD 124, 587 N.W.2d 439. However, Nelson is distinguishable from the present case. In Nelson, the prejudicial error resulted from the cumulative effect of failing to give instructions at the close of the evidence coupled with the error of the thirteenth juror who was allowed to deliberate. 1998 SD 124, ¶ 20, 587 N.W.2d at 447. Unlike Nelson, in the present case there exists no such cumulative effect resulting in prejudicial error.
[¶ 10.] The present case is similar to Eagle Star where the Court, considering the totality of the circumstances, concluded that fail*899ure to give jury instructions at the close of the evidence did not rise to prejudicial error. 1996 SD 143, ¶ 21, 558 N.W.2d at 75. As this Court has repeatedly stated: “Jury instructions are adequate when, considered as a whole, they correctly state the law and properly inform the jury.” Two Bulls, 1996 SD 53, ¶ 11, 547 N.W.2d at 766; State v. Schmiedt, 525 N.W.2d 253, 255 (S.D.1994); see also State v. Knoche, 515 N.W.2d 834, 838 (S.D.1994). “Juries are presumed to follow the instructions of the trial court.” Eagle Star, 1996 SD 143, ¶ 22, 558 N.W.2d at 75 (citing State v. Thomas, 381 N.W.2d 232, 237 (S.D.1986)).
[¶ 11.] A court considers the totality of the circumstances to determine prejudice. Eagle Star, 1996 SD 143, ¶ 21, 558 N.W.2d at 75. In Nelson, the cumulative effect of errors resulted in prejudice. However, in this case, defendant has failed to show prejudicial error. Instead, the preliminary and final instructions, when construed as a whole, correctly stated the law and informed the jury. Furthermore, as we stated in Eagle Star:
The evidence against Defendant ... was overwhelming. Under these circumstances, we are unwilling to conclude the jury was unaware of the law of the case, and we are convinced beyond a reasonable doubt the jury would have returned a verdict of guilty irrespective of Defendant’s claimed error.
1996 SD 143, ¶ 23, 558 N.W.2d at 75 (citations omitted). A review of this record discloses overwhelming evidence to convict. Therefore, I would affirm.