dissenting.
I respectfully dissent. Under the circumstances here, I believe it was error for the trial court to substitute another instruction for that originally given the jury setting forth the elements of felony murder. Thus, I would reverse and remand for a new trial.
Prior to closing arguments, the court read the following instruction to the juiy:
*766The elements of the crime of Felony Murder in the First Degree are:
1. That the defendant,
2. in the State of Colorado, at or about the date and place charged,
3. acting alone,
4. committed Sexual Assault in the First Degree, or Sexual Assault on a Child, and
5. in the course of or in furtherance of First Degree Sexual Assault or Sexual Assault on a Child, or in the immediate flight therefrom,
6. the death of a person, other than one of the participants, is caused by anyone.
Neither party objected to this instruction, and it was in accord with COLJI-Crim 9:02 (1993), which reflects that element three may, in the alternative, state that the defendant acted “alone” or that the defendant acted “with one or more persons.”
After closing arguments were given, the jury was directed to begin deliberations with this admonition:
For the 12 people who are in the jury box, I am going to ask that you go back into the jury room.... We have most of the evidence already in the jury room for you....
Please recall that once you get in there, the first thing that you do is select a foreperson amongst you. From that point on, how you handle your deliberations is up to you. You can do a voice vote, hand vote, written vote, whatever you feel comfortable .... [A]t 12:00 or so ... we are • going to be taking ... you people out to lunch.... [Wjhen you are at lunch you are not in deliberations so you must cease your deliberations during lunch.
The record reflects that the jury began “deliberating at the hour of 11:33 a.m.” (emphasis added) Thus, contrary to the trial court’s claim to the contrary, the jury deliberated, at minimum, from 11:33 a.m. until 12:00 noon, or 27 minutes, based on the evidence, the arguments of counsel, and the instructions of law given them by the court, including the initial felony murder instruction.
After the luncheon intermission, the court called counsel and the defendant into chambers and announced sua sponte that it was going to change the felony murder instruction because it was “troubled” by the third element of the instruction. After stating that the jury had not begun its deliberations, the trial court denied defense counsel’s motion for mistrial, withdrew the original instruction, upon which both the prosecutor and defense counsel had relied, and presented to the jury a new instruction on felony murder. The new instruction contained a third element that stated: “acting alone or with one or more persons.”
The accused in a criminal trial must be accorded the constitutional right to a fair trial by jury. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); People v. Boulies, 690 P.2d 1253 (Colo.1984). It is a question of fact whether an essential element of an offense charged has been proven beyond a reasonable doubt, and the presiding judge may not usurp the jury’s important function in this regard. Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). A criminal defendant is entitled to accurate and understandable jury instructions as to the offenses charged against him. People v. Cowden, 735 P.2d 199 (Colo.1987).
Here, I agree, conceptually, with the majority that the felony murder statute, § 18-3-102(l)(b), C.R.S. (1995 Cum.Supp.), must be read to state that guilt results whether one acts alone or with one or more others. And, I agree with the trial court that the original instruction led to a situation that misled the jury. However, as the case at issue was tried, and in light of the original felony murder instruction given and the arguments of both parties based thereon, the issue, nevertheless, arises whether the defendant was prejudiced by the replacement instruction given after counsel had planned and presented closing arguments based on the original instruction. I believe he was and that, therefore, reversible error occurred.
First, it is useful to note that the “acting alone” scenario was established here as a strategic choice on the part of the prosecution. The prosecution was aware of the two *767forms of instruction originally proposed by the court and affirmatively opted for the “acting alone” instruction. Undoubtedly, this was because that instruction was in concert with the evidence in the case which did not reveal any other actor but the defendant.
During both his initial and rebuttal closing arguments, the prosecutor referred extensively to the felony murder instruction, including the “acting alone” language. He also buttressed the actual use of that language with other arguments calculated to persuade the jurors that their reference to the instruction would not be in vain.
For instance, after actually reviewing the individual elements, he stated: “Jim Bastin [is] the participant. And [defendant] caused [the victim’s] death while he was ... raping her.” (emphasis added) He later argued that no evidence suggested “anyone was with [defendant] when he raped and strangled [the victim] to death.”
The record reflects that the prosecution actually referred to the “acting alone” scenario as many times as the defense did, ie., approximately seven times, respectively. Under these circumstances, the jury, and the defense, were entitled to believe that that element'needed to be a central focus of the defense.
Secondly, in light of the prosecution strategy and the instruction actually given, defense counsel had a duty to his client to argue the evidence and the law as given in the instructions. I disagree with the majority that such arguments were incompetent and reject the inference that they represent ethical or legal bad faith on the part of defense counsel or that the arguments were frivolous. Indeed, to have approached the arguments in any other way would have been a violation of counsel’s duty to his client.
C.R.C.P. 30 requires that the instructions be read to the jury before closing arguments so that counsel may effectively plan and present their arguments. The rule also prohibits the court from commenting on the evidence. See United States v. Gaskins, 849 F.2d 454 (9th Cir.1988); United States v. Oliver, 766 F.2d 252 (6th Cir.1985)(commenting on Fed.R.Crim.P. 30).
I believe that, here, both counsel did no more than fairly argue the law presented to the jury in the instructions.
The trial court’s decision to change the instruction during deliberations resulted in prejudice to the defendant that amounts to reversible error. When the court changed its instruction, after closing arguments and during deliberations, it was presenting law that rejected both the prosecution’s and the defense’s theories of the ease. Those theories had been presented in closing arguments after the original instruction had been given and based, in strong part, on that instruction. See United States v. Smith, 629 F.2d 650 (10th Cir.1980); Commonwealth v. Hendricks, 546 A.2d 79, 376 Pa.Super. 381 (1988). By its actions, the court misled counsel, rendered closing arguments useless, and undoubtedly confused the jury. See United States v. Gaskins, supra.
I further believe that the trial court’s offer to counsel of ten minutes additional argument during deliberations did not cure the prejudice to defendant. In my view, such a procedure, initially, amounted to the court commenting on the evidence and directing the jury on how to rule on the facts. Secondly, I believe the procedure was fraught with the potential to confuse the jury. Such confusion could not, in all probability, have been eliminated by ten more minutes of argument. Additionally, since the new instruction essentially vitiated defendant’s defense premised on the original instruction, it placed defense counsel in an untenable position vis-a-vis further argument.
Thus, additional argument would not have eliminated the prejudice to defendant occasioned by the court’s procedure here. Cf. United States v. Gaskins, supra.
An effective remedy, if the trial court truly deemed the original instruction erroneous, would have been to grant a mistrial. That would have enabled counsel to change their theories in reliance on the new instruction and would have eliminated the probability that the jury was confused by the procedure the court followed here.
The court’s failure to grant a mistrial, based on its perception of having instructed *768erroneously initially, left in place the probability that the court’s procedure had so undermined the fundamental fairness of the trial as to cast doubt on the judgment of conviction.
Nor does the majority opinion’s rebanee on People v. Chastain, 733 P.2d 1206 (Colo.1987), persuade to the contrary. In Chas-tain, the supreme court held that the trial court did not abuse its discretion in denying the defendant a mistrial because the grounds stated for mistrial were not “substantial and real.” There, the trial court had held that the voluntary absence of a subpoenaed defense witness was not grounds for mistrial because the anticipated testimony of the witness was not material or essential to the defense. People v. Chastain, supra.
Here, the substantial difference in the law stated in the respective instructions is so conceptually apparent, based on how counsel had planned and presented their cases, that prejudice was most assuredly introduced by the change. The focus of the evidence was so completely changed by introduction of the second instruction that substantial and real grounds for mistrial were presented. These grounds were not addressed in any way by the trial court. Thus, I cannot conclude that “the effectiveness of counsel’s argument and hence of appellant’s defense was not impaired ...” by the trial court’s substantial change by way of the new instruction. United States v. Gaskin, supra, 849 F.2d at 460.
For these reasons, I would reverse the judgments of conviction and remand for a new trial.