concurring in part/dissenting in part:
I agree with the majority that appellant’s conviction should be affirmed. However, I write separately because I disagree with much of the majority’s analysis of appellant’s second proposition of error.
For his second proposition, appellant contends that the trial court erred by refusing to give his requested theory of defense instruction. The majority is correct in stating that appellant failed to properly preserve this issue for review and such failure waives all but fundamental error. Because the instructions given fairly and accurately stated the applicable law, appellant’s second proposition is rendered meritless without requiring further elaboration. However, the majority concludes that appellant would not have been entitled to any instruction on his theory of defense, attempts to distinguish this case from Hutton, and promulgates a new rule of law.
It is true that the issue of the trial court’s failure to set forth and define the elements of the offense was discussed in Hutton. However, I disagree with the majority that such failure was the sole basis for reversal. This Court clearly and re*635peatedly stated in Hutton that a defendant, as a matter of law, is entitled to an instruction setting forth his theory of defense. On this basis, I believe that the majority’s analysis begins with an erroneous interpretation of Hutton.
Moreover, I cannot agree with the majority’s assertion that whenever a jury is instructed upon the elements of the offense charged, this Court may conclude, using a “totality of the instructions” standard, that the defendant is not entitled to an instruction on his theory of the defense. This redefinition of law is in conflict with long held, and virtually universal, law. See Rounds v. State, 679 P.2d 283, 288 (Okl.Cr.1984) (a defendant is entitled to an affirmative instruction embracing his theory of defense). See also State v. Settle, 111 Ariz. 394, 531 P.2d 151 (1975); People v. Worsham, 26 Ill.App.3d 767, 326 N.E.2d 134 (1975); Jones v. State, 427 S.W.2d 616 (Tex.Crim.App.1968); State v. Harris, 313 S.W.2d 664 (Mo.1958); People v. Sanchez, 35 Cal.2d 522, 219 P.2d 9 (1950); Duncan v. State, 30 Ala.App. 356, 6 So.2d 450 (1942), cert. denied 242 Ala. 329, 6 So.2d 454 (1942). The majority’s new rule is also contradictory to the widely accepted and long standing principle that necessity for instructions largely depends on the facts of each particular case. Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973); United States v. Pack, 773 F.2d 261 (10th Cir.1985); Root v. Commonwealth, 299 Ky. 624, 186 S.W.2d 639 (1945). Furthermore, the rule fails to take into account the necessity for instructions that may be vital to proper consideration of particular cases. See Root v. Commonwealth, supra; People v. Goldstein, 146 Cal.App.2d 268, 303 P.2d 892 (1956).
The goal sought by the Legislature in enacting the statute authorizing the Oklahoma Uniform Jury Instructions, 12 O.S. 1981, § 577.1, and reflected by case law, appears to have been directed toward fairness and justice. See also 25 O.S. 1981, § 29. In order to render a just verdict on the issues presented, a jury must be properly instructed. It is without question that at the heart of every criminal trial is whether the State has proven each and every element of the offense charged. However, the right of a defendant to an instruction on his theory of defense is not in competition with this requirement that is imposed upon the State. An appropriate defense instruction encourages the jury to focus on what may determine guilt or innocence, which is the desirable incident in a criminal trial.
It is not disputed that a defense instruction is required in cases where an affirmative defense is presented. However, similar instructions may be required by the facts of a particular case where a defense, if believed, would exonerate the defendant. This may arise in cases similar to the present case, where a defendant admits to all the elements of an offense, but denies one element such as knowledge. In such cases, a defendant should have a right to a properly phrased instruction on his theory, if the evidence supports it, regardless of whether the elements of the offense are also instructed upon. Contrary to the majority opinion, this is far different from a simple denial of the commission of the crime. It might be quite proper to deny instructions that simple disclaim any involvement in the crime charged, depending, of course, on the particular facts presented during trial.
On the basis of the foregoing, I respectfully dissent to that portion of the majority opinion which promulgates the new rule of law discussed above.