dissenting.
I respectfully dissent with respect to the majority's view that the trial court's final instruction using the terms "moral certainty" in defining reasonable doubt did not constitute fundamental error.
In Tobias v. State (1995), Ind.App. 659 N.E.2d 246, this court determined that such an instruction denies a defendant his right to due process and requires reversal. See also Winegeart v. State (1994), Ind.App., 644 N.E.2d 180. As in Tobias, the instruction here failed to present an objective standard by which the jurors were to judge Malone's guilt. In my view, the challenged instruction clearly joined the "moral certainty" to the matter of guilt.
I would reverse and remand for a new trial.