dissenting:
Respectfully, I dissent.
The majority, citing Brooks v. State, 103 Nev. 611, 747 P.2d 893 (1987), asserts that the failure of the trial court to instruct on the absence of an element of a crime is reversible error. My colleagues, however, misapprehend the holding of that case. In Brooks, the defense counsel proposed an instruction defining and limiting the theory of accomplice liability relied upon by the prosecution. The trial court denied the proffered instruction, and *621this court reversed on the grounds that the district judge’s instructions to the jury did not sufficiently cover the law applicable to the prosecution’s theory.1 No such flaw can be found in the instructions given at Margetts’ trial.
The jury instructions in this case were carefully crafted by the trial court so as to delineate and define the elements of the charged offenses and describe the State’s burden of proof for prosecuting these offenses. The instructions comprehensively cover the doctrine applicable to the prosecution’s legal theory.
In addition, embodied clearly in these instructions is the “theory of defense” instruction requested by the appellant. Though the language differs slightly, the message is the same: the State must prove beyond a reasonable doubt a concurrence of the forbidden act and the intent to do the act; otherwise, the accused is entitled to a verdict of not guilty. This court has never held that a defendant has the right to instruct the jury with language of his own choosing. To so hold would reduce jury instructions to nothing more than a paraphrase of the defense counsel’s closing argument.
It is well established in our state that a defendant in a criminal case is entitled to have the jury instructed on his theory of the case as disclosed by the evidence, no matter how weak or incredible the evidence appears to be. Brooks v. State, 103 Nev. 611, 613, 747 P.2d 893, 894 (1987); Adler v. State, 95 Nev. 339, 594 P.2d 725 (1979). It is equally clear, however, that the defendant is not entitled to misleading instructions, State v. Ferguson, 9 Nev. 106 (1874), instructions that have been covered substantially in other instructions already given by the court, State v. Logan, 59 Nev. 24, 83 P.2d 1035 (1938), or instructions that misstate the law, Sollars v. State, 73 Nev. 248, 316 P.2d 917 (1957). In the case before us, the appellant’s proposed instruction was covered substantially in the trial court’s instructions and, therefore, the trial court committed no error by denying it.
Now standing alone, the error assigned to the improper comments made by the prosecutor in closing argument is, as the majority suggests, harmless in view of the overwhelming evidence against Margetts.
I would affirm the judgment of conviction entered by the district court.
Brooks was charged with possession of a controlled substance with intent to sell, and the State sought to convict on an aiding and abetting theory. The trial court instructed the jury that it could convict Brooks if someone else was in possession with intent to sell, and Brooks aided and abetted the crime. The district judge failed, however, to instruct the jury that mere presence is insufficient to support a conviction on the aiding and abetting theory. The defense proffered an instruction containing this black letter principle, but it was denied.