dissenting.
Although the majority allude to the doctrine of law of the case, they ultimately conclude that the State was required to prove only proper elements of the crime beyond a reasonable doubt. Therefore, the majority reason, submission of the presumption-of-intent instruction cancelled the erroneous specific-intent instruction and amounted to harmless error. I find this reasoning contrary to the well-settled prin*24ciples of law of the ease and presumption of innocence.
This court has repeatedly held that an instruction, even though incorrect, becomes the law of the case in the absence of objection. Hopkinson v. State, Wyo., 632 P.2d 79, 170, n. 43, cert. denied 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1981); Matter of Estate of Mora, Wyo., 611 P.2d 842 (1980). Where the court erroneously instructs the jury concerning an essential element of the offense, the State acquires the burden of proving that element beyond a reasonable doubt. Apodaca v. State, Wyo., 627 P.2d 1023, 1026-1027, n. 6 (1981). Therefore, in the case at bar, the State had to prove every proper element of the offense of knowing and willful obstruction of a peace officer, including specific intent, which became a proper element by reason of the court’s instructions. Under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and Krucheck v. State, Wyo., 671 P.2d 1222 (1983), submission of the presumption-of-intent instruction impermissibly relieved the prosecution of its burden of proving intent, thereby invading appellant’s constitutional right to be presumed innocent of every element of the offense.1
A majority of the United States Supreme Court could not agree in Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983), as to whether a presumption-of-intent instruction may ever be considered harmless in a specific-intent case.2 A plurality of four justices reasoned that
“ * ⅝ * a conclusive presumption on the issue of intent is the functional equivalent of a directed verdict on that issue * * ⅜,” 103 S.Ct. at 976,
and may be considered harmless only in “rare situations,” such as where the defendant concedes intent or the jury acquits the defendant of the specific-intent crime. As long as the defendant’s intent is in issue, a presumption of intent would be impermissible, the plurality concluded, because the jury might have relied upon the presumption rather than upon the evidence. I find this reasoning compelling in the instant case where the appellant’s intent was an issue for jury determination.
“ * * * The conclusive presumption the jury was instructed to apply permitted the jury to convict respondent without ever examining the evidence concerning an element of the crimes charged. Such an error deprived respondent of ‘constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.’ Chapman v. California, 386 U.S. [18] at 23, 87 S.Ct. [824] at 827-828 [17 L.Ed.2d 705 (1967)].” 103 S.Ct. at 978.
The Supreme Court of Vermont in State v. Martell, 143 Vt. 275, 465 A.2d 1346, 1348 (1983), adopted the reasoning of the plurality in Connecticut v. Johnson, supra, and held that an instruction which allows the jury to presume an essential element of the crime constitutes reversible error per se:
“ ⅜ * * [G]iven our consistent position that ‘a judge’s lightest word or intimation is received by a jury with great deference, and may prove controlling,’ *25State v. Camley, 140 Vt. 483, 489, 438 A.2d 1131, 1134 (1981) (citing Quercia v. United States, 289 U.S. 466, 470, 53 S.Ct. 698, 699, 77 L.Ed. 1321 (1933)), we hold that the issuance of an instruction susceptible of interpretation by a reasonable juror as requiring a conclusive presumption on an essential element of the crime charged may never be deemed harmless error.”
See also People v. Burres, 101 Cal.App.3d 341, 161 Cal.Rptr. 593 (1980).
I would have reversed appellant’s conviction and required the prosecution to prove its case without the benefit of an improper presumption, since affirmance gives
“ * * * too much weight to society’s interest in punishing the guilty and too little weight to the method by which decisions of guilt are to be made.” Connecticut v. Johnson, supra, 103 S.Ct. at 977.
. The United States Supreme Court in In re Winship, 397 U.S. 358, 363-364, 90 S.Ct. 1068, 1072-1073, 25 L.Ed.2d 368 (1970), reaffirmed the constitutional basis of the presumption of innocence and the reasonable-doubt standard of proof:
" * * * The [reasonable-doubt] standard provides concrete substance for the presumption of innocence — that bedrock 'axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law.’ Coffin v. United States, 156 U.S. [432,] 453, 15 S.Ct. [394,] 483 [39 L.Ed. 481 (1895) ].
"Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”
. The majority in Connecticut v. Johnson, supra, upheld the decision of the Connecticut Supreme Court which reversed the appellant’s convictions for attempted murder and robbery on the basis of impermissible presumption-of-intent instructions.