(dissenting).
[¶ 61.] 1. A. The trial court erred in ruling that prior non-hearsay statements cannot be used as substantive proof of the matter asserted.
[¶ 62.] During the trial, the victim made several statements that were inconsistent with statements he had made either to the police or,at the preliminary hearing. Shaw maintained that the statements were either prior inconsistent testimony or statements of identification under SDCL 19-16-27 and not hearsay and admissible for the truth of the matter asserted. At trial, the defense proposed Criminal Pattern Jury Instruction 1-15-9, excluding the clause in parentheses. The instruction provides:
The credibility of a witness may be attacked by introducing evidence that on some former occasion the witness made a statement on a matter of fact or acted in a manner inconsistent with the witness’ testimony in this case on a matter material to the issues. Evidence of this kind may be considered by you in connection with all the other facts and circumstances in evidence in deciding the weight to be given to the testimony of that witness, (but you must not consider *636any such prior statement as establishing the truth of any fact contained in that statement.)
Criminal Pattern Jury Instruction 1-15-9. Because several of the statements were statements of identification and not hearsay under SDCL 19-16-2 and could be used as substantive evidence, the defense sought to exclude the last clause of the jury instruction. The trial court refused and used the full jury instruction. Shaw asserts that this was error and that the error prejudiced him in that it likely had some effect on the jury and was harmful to his substantial rights. I agree.
[¶ 63.] The victim testified at the preliminary hearing, while under oath and subject to cross-examination, that he did not know who was kicking him. However, at trial, the victim testified that both White Hat and Shaw kicked him.8 Also, in an interview with the police ten days after the attack, the victim stated that White Hat had held his head under the water. However, at trial, the victim testified that “they” held him under the water.9 The victim told the police that White Hat grabbed the back of his head and cut his throat, but at trial he testified that “they” grabbed him by the back of the neck and cut his throat.10 The victim also told po*637lice that after his throat was cut, he heard White Hat make a remark to the effect that because of their remote location no one was going to find him. At trial, he testified that it was Shaw who made that comment.11
[¶ 64.] This Court has noted that “[t]he authorities recognize that prior inconsistent testimony may be admitted as substantive evidence and that instructions limiting their use may be ineffective or inappropriate.” State v. Andrews, 393 N.W.2d 76, 82 (S.D.1986). Furthermore, the comment to Criminal Pattern Jury Instruction 1-15-9 provides: “[t]he portion of the instruction in parenthesis is a proper statement of the law only when the former statement is used solely for impeachment.” (emphasis added).
[¶ 65.] Here, the statement that the victim made at the preliminary hearing was testimony subject to SDCL 19-16-2(1) and the statements that the victim made to the police were statements of identification subject to SDCL 19-16-2(3). These statements are not hearsay and should have been admitted as substantive evidence. Therefore, the trial court erred in instructing the jury that the statements could not be used for the truth of the matter asserted.
[¶ 66.] B. The trial court’s ruling was prejudicial.
[¶ 67.] The law is clear that prior inconsistent testimony and statements of identification are not hearsay and therefore can be used to prove the truth of the matter asserted. SDCL 19-16-2; Andrews, 393 N.W.2d at 82. The failure to properly instruct on the use of prior statements that are not hearsay can mislead and confuse the jury. Any instruction that is misleading, conflicting, or confusing may create reversible error. State v. Moran, 2003 SD 14, ¶ 15, 657 N.W.2d 319, 324 (citing Schaffer v. Edward D. Jones & Co., 1996 SD 94, ¶ 19, 552 N.W.2d 801, 808). “Prejudice to the complaining party includes the possibility that the jury based its decision on incorrect law.” Dawson v. New York Life Insurance Co., 135 F.3d 1158, 1165 (7th Cir.1998).
[¶68.]. .By instructing the jury that they could not use J.W.H.’s statements substantively, the trial court erroneously informed the jury as to the appropriate use of statements that state law dictates are “not hearsay.” Even though Shaw’s attorney asserted during his closing argument that if J.W.H.’s prior statements are considered true it shows that Shaw did not try to kill him, the jury was specifically instructed that they “must not consider any such prior statement as establishing the truth of any fact contained in that statement.” (emphasis added). This instruction was erroneous and it prevented the jury from considering J.W.H.’s prior statements as exculpable evidence to Shaw.
*638[¶ 69.] Furthermore, “[although errors in instructing the jury do not always rise to a constitutional level ... if the error goes to the heart of a defendant’s theory of defense it can infringe upon the defendant’s rights to due process and jury trial.” Miller v. State, 338 N.W.2d 673, 676 (S.D.1983) (citing Zemina v. Solem, 438 F.Supp. 455 (D.S.D.1977) aff'd 573 F.2d 1027 (8th Cir.1978)). Here, the heart of Shaw’s defense is that he did not try to kill or help White Hat try to kill J.W.H. J.W.H.’s prior statements, if truthful, establish that White Hat was the one who tried to kill J.W.H., not Shaw. The truth of the matter asserted in these statements was central to the defense theory. Yet, the jury was instructed that the prior statements could not be used for the truth of the matter asserted. Therefore, the erroneous jury instruction was harmful to Shaw’s substantial rights of due process and fair trial.
[¶ 70.] “When jury instructions, taken as a whole, give the jury a misleading impression or inadequate understanding of the law, a new trial 'is warranted.” Carvel Corp. v. Diversified Management Group, Inc., 930 F.2d 228, 232 (2nd Cir.1991). See also Dawson, 135 F.3d at 1165 (stating that “[i]f the misleading instruction did prejudice the complaining party, the proper remedy is a new trial”); Cervelli v. Graves, 661 P.2d 1032, 1040 (Wyo.1983) (stating that the “appellant should have the benefit of having his case decided by a properly instructed jury rather than by the trial court through an incorrect jury instruction”).
[¶ 71.] Based on the above, the trial court erred in instructing the jury regarding the use of these non-hearsay prior statements. In all probability, the erroneous instruction likely produced some effect upon the verdict and was harmful to Shaw’s substantial rights and denied him a fair trial. See State v. Janklow, 2005 SD 25, ¶ 25, 693 N.W.2d 685, 695. We should reverse and remand for a new trial so that the jury can be properly instructed as to the use of prior non-hearsay statements.
[¶ 72.] Issues 2 and 3 need not be reached because we should reverse and remand on Issues 1A and IB.
. SDCL 19-16-2, which is similar to Federal Rule 801(d)(1), provides:
A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
(1)Inconsistent with his testimony and was given under oath and subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition; or
(2) Consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive; or
(3) One of identification of a person made after perceiving him.
. The following excerpt from the trial transcript reveals the victim’s inconsistent testimony:
Mr. Rensch: I will direct counsel's attention to the preliminary hearing transcript dated 7-22-1999. Page — it’s the second one from the end of [J.W.H.’s] testimony.
Q: (By Mr. Rensch) I would be referring to page 25 of the preliminary hearing transcript and I want to ask you if you were asked these questions and if you gave this answer about kicking. Question, "And then you said later on that people were kicking you, but you don't know for sure who was doing what?” Answer, "I did not know who was kicking me at that time.” Question, "And you couldn't identify who was doing what to you?” Answer, “No.” Sir, were you asked those questions and did you give those answers at the preliminary hearing of this matter on July 22, 1999?
A: Can I see it?
Q: Yes. Lines 18 through 25.
A: Yes.
. The relevant testimony is as follows:
Q: (By Mr. Rensch) All right. I want to ask you if you were asked this and if you gave this answer. Question by Deputy Baker, "What happened after they were kicking you?” Answer, "Urn they got done, I was laying there, I was too sore to move, I hurt, I just laid there, and Shaw and [White Hat] picked me up underneath each arm and drug me into the water and dropped me in the water and I am pretty sure it was [White Hat] that stepped on my head and pushed my head underneath the water.” Did you give that answer to that question, Sir?
A: Yes, I did.
Q: Okay. And I want to ask you if you were asked this question and gave this answer, same page. Mr. Vander Heide: What page is that? Mr. Rensch: 8 from the back.
Q: (By Mr. Rensch) "How long was your head under the water?” Answer, "20 to 25 seconds.” Question, "And this whole 20 to 25 seconds your head was being held under the water?” Answer, "Yes, it was.” Question, "Do you know by who?” Answer, “By [White Hat].” Did you give those answers to those questions, sir?
A: If that's what it says.
.J.W.H. testified as follows:
Q: (By Mr. Rensch) You just told us that you don't know who cut your throat and I want to ask if you were asked these questions and gave these answers. Question, by Deputy Baker, "Okay, so you know it was [White Hat] that cut your throat?” Answer, "Yes.” Question, "You’re absolutely positive?” Answer, "Yes.” Question, "And he did it on his own?” Answer, "Yes.” Did you give those answers to those questions?
A: If that’s what it says, yes.
Q: Do you want to look at it so we can make sure you know what it says?
A: No.
*637[[Image here]]
Q: (By Mr. Rensch) Were you asked these questions and did you give these answers? Question, "Nobody else grabbed you by the back of the head and pulled your head up while he cut your throat?” Answer, "No. It was just him.” Question, "And again, tell me how far was Shaw away when [White Hat] cut your throat?” Answer, "About 15 yards away.” Did you give those answers to those questions, sir?
A: If that's what is says, yes.
. J.W.H. testified as follows:
Q: (By Mr. Rensch) Question, by the deputy, "Do you remember what they said?” You said, "Um they said, well, they'll never find him. He's out here.” Question, "Do you remember who said that?” Answer, "[White Hat] did.”
A: (By [J.W.H.]) If that’s what it has, that's what I said.