dissenting.
The State opened its oral argument before this Court correctly stating as follows:
"Before I address what this appeal is all about, I wish to take a moment to address what this appeal is not all about. This appeal is not about reweighing the evidence as the defense would have you do. This appeal is not about reweighing or re-evaluating the eredibility of the witnesses as defense would have you do. This appeal is not about second-guessing *301the judgment of Judge Gifford or replacing her judgment with your judgment as the defense would have you do. Rather what this is, is simply a proceeding to determine whether or not Judge Gifford committed such errors of judgment as to warrant the reversing of the conviction of Rape and Deviate Sexual Conduct returned by a Marion County Superior Court jury against Michael Tyson and granting to him a new trial." (Argument by Mr. Reuben, Deputy Attorney General, as transcribed from audio cassette tape.)
It is therefore important to acknowledge and, in making our decision, to emphasize to all concerned parties that this appeal is not about whether Michael Tyson raped D.W. and/or perpetrated two sexual deviate acts upon her. As noted by the State, our decision in this appeal does not, and should not, depend upon whether the evidence was sufficient to permit the jury to reasonably conclude that Michael. Tyson committed the three criminal acts charged. Rather, the issues involve whether the prosecution and the defense were afforded a level playing field upon which to put forth their respective cases. This appeal is quite simply about whether Michael Tyson received a fair trial. He was entitled to nothing more. But most assuredly he was entitled to nothing less. My review of the entire record in the cause leads me to the inescapable conclusion that he did not receive the requisite fairness which is essential to our system of criminal justice.34 For this reason I dissent. I would reverse all three convictions and would remand for a new trial.
More particularly, I dissent with respect to two major issues: Issue I, dealing with the exclusion of testimony from Ms. Martin, Ms. Lawrence and Ms. Neal; and Issue VI, dealing with refusal of instructions concerning Tyson's belief with respect to whether D.W. consented to the sexual acts involved.35
In dealing with the exclusion of testimony, the trial court exercises considerable discretion. In reviewing the exercise of a trial court's discretion when the trial court has articulated specific reasons for the particular ruling, "we may not attribute to the trial court some other legitimate but unexpressed reason". Palacios v. Kline (1991) 3d Dist.Ind. App., 566 N.E.2d 573, 575. We must focus upon the discretion as it was exercised. We may not, after the fact, create appellate justification for the ruling. Discretionary trial court rulings must be reversed not only when the exercise of discretion is without reason, but also when it is based upon impermissible reasons or considerations. The question is whether the trial court, for the reasons given, properly denied defendant's request to call the three witnesses to testify. City of Elkhart v. Middleton (1976) 265 Ind. 514, 356 N.E.2d 207.
I discern no persuasive rationale which permits a reviewing court to give a criminal trial court much more latitude in making evidentiary rulings than is given to civil trial courts. I agree with the majority's position that deference should be afforded *302rulings of trial courts. That deference, however, has limits and boundaries. The majority begs the question in perceiving a difference between rulings made after the trial court properly applied applicable legal standards and rulings made after application of incorrect legal standards. It goes without saying that determinative deference is given to a ruling in the former category. Quite simply, a ruling made by correct application of applicable legal standards is a correct ruling and will be affirmed. It is not a matter of giving deference at all.
The trial court's ruling was based first upon the conclusion that, although not acting in bad faith, the defense nevertheless had substantially breached the discovery order by a delay in notification to the State as to the existence of the witnesses. The second reason given was that to permit the three witnesses to testify would result in prejudice to the State in that several State witnesses, including D.W., had concluded their testimony. The latter rationale was premised, in large measure, upon the State's contention that it would interrupt the flow of the State's presentation and would undoubtedly require recalling some witnesses and obtaining new witnesses, all of whom would testify in an allegedly less effective manner upon rebuttal.36
BREACH OF DISCOVERY AND DELAY
Although there was a time lapse between the receipt of information by Mr. Webb that certain witnesses with relevant information might exist and notification to the State, such "delay" did not and could not have violated the discovery order of the court. The discovery order of December 11, 1991 directed exchange, by December 18, 1991, of lists of all witnesses expected to be called. Clearly, and as noted by the majority, prospective witnesses whose existence was not discovered until January 80, 1992 could not have been listed and disclosed to the State prior to December 18, 1991. The perceived "discovery breach" could then only refer to the "delay" between Thursday evening, January 80, when Mr. Webb received a phone call concerning possible witnesses, and Sunday when the names of the three individuals and the general substance of their anticipated testimony were given to the State.
Defense counsel had a duty to make reasonable investigation before seeking to add witnesses. Furthermore, for defense counsel to prematurely and without investigation advise the prosecution of witnesses who might well provide evidence against the defendant would be a breach of the ethical duty to one's client. Defense counsel is not required to, and may not ethically, assist the prosecution in its collection of evidence, case preparation, and trial presentation. Not only was there no discovery order breach, there was no delay, substantial or otherwise.
Even if there were some degree of unexplained delay, given the absence of bad faith upon the part of the defense, the State at most would be entitled to a continuance. Boyd v. State (1985) Ind., 485 N.E.2d 126. Failure to request a continuance constitutes a waiver of an alleged discovery breach. Jester v. State (1990) Ind., 551 N.E.2d 840, 842.
The majority correctly observes that there was no necessity to seek a continuance when the trial court had already made its ruling excluding the testimony. The fact that the evidence was excluded, in part because of a discovery breach upon the part of the defendant, does, however, bring the protection of a continuance into play. The State's clear desire to avoid a continuance destroys the State's argument that exclusion was justified by a discovery breach upon the part of defendant. Such a breach, absent bad faith, calls for a continuance-not exelusion of the evidence. As *303held in Patel v. State (1989) Ind., 533 N.E.2d 580, 585: "[Elxclusion of the evidence is appropriate only when the [defense] has blatantly and deliberately refused to comply with the discovery order." Notwithstanding McCullough v. Archbold Ladder Co. (1993) Ind., 605 N.E.2d 175, cited by the majority, Patel has not been overruled.
Not only did the State not seek a continuance, it categorically stated that it did not want a continuance. The State did not want the "flow" of its case interrupted. It offered the view that certain of the witnesses who had concluded their testimony would have to be recalled and other new witnesses called as rebuttal witnesses and opined that rebuttal evidence is generically less effective and given less weight than testimony during the case in chief. I believe such speculative conclusion is wholly erroneous, particularly because the State could clearly explain to the jury the reason why the rebuttal was necessary. Furthermore, the fear of the prosecution was wholly unjustified in light of the remote and unlikely possibility that the jury, for reasons solely related to the order of presentation, would erroneously diminish the weight to be given the testimony. The jury was clearly instructed that they should seek to indulge the theory
"that every witness is telling the truth ... that [they] should not disregard the testimony of any witness without a reason and without careful consideration ... [that] the number of witnesses who testify to a particular fact, or the quantity of evidence on a particular point need not control [their] determination of the truth ... [and that they] should give the greatest weight to that evidence which convinces [them] most strongly of its truthfulness." Record at 1117.
In any event, the arguable inconvenience to the prosecution does not justify preventing the defense from presenting relevant evidence which might have tipped the balance in light of the reasonable doubt standard governing the jury.
The State's position with respect to the prejudice to its presentation of evidence becomes somewhat schizophrenic, and most certainly inconsistent. On the one hand, the State attempts to diminish the importance of the testimony of the three witnesses by asserting that it would have had minimal impact upon the issues and was meaningless as merely cumulative. On the other hand, the State has acknowledged that the excluded testimony might have grave implications for a successful prosecution. It so indicated by emphasizing the great lengths to which the State would have to go to combat this testimony. It is clear that the State did not think the evidence to be merely cumulative. The State was very concerned "given the impact of these witnesses on this case, given the notoriety of this case, given what this case is all about.... These witnesses clearly would have been telling a story wholly different than the story we had." (Argument by Mr. Reuben, Deputy Attorney General as transcribed from audio cassette tape.)
As earlier noted, we are restricted in validating the ruling of the trial court to the reasons she gave. The trial court did not base its exclusion of the testimony upon a determination that the proffered evidence would merely be cumulative. The majority here, however, utilizes a conclusion to that effect to affirm the ruling. In doing so it errs. It is appropriate to consider that issue, however, in terms of harmless error and I will do so. The question is whether the exclusion was harmless beyond a reasonable doubt.
The question as to whether evidence is merely cumulative is normally found in cases in which a new trial is sought for newly discovered evidence. Certainly, if, following judgment, evidence is newly discovered which is not merely cumulative and is of such character as to call for a new trial, evidence of the same character should even more readily be admitted if discovered during trial, When the newly discovered evidence is advanced in sufficient time to permit the opposing party an opportunity to prepare adequate cross-examination or produce contrary witnesses, it should not be excluded. The trial court's erroneous *304ruling here has given rise to the necessity for a new trial. That drastic but necessary step could have been averted by permitting the three witnesses to be called and to testify.
It is my view that the majority erroneously or inadvertently uses the term "cumulative" interchangeably with the term "eorroborative". Cumulative evidence is that which goes to prove what has already been established by other evidence. Davis v. State (1983) Ind., 456 N.E.2d 405; Newell v. Walker (1985) 2d Dist.Ind.App., 478 N.E.2d 1246. It is evidence "of the same kind, to the same point." Union Central Life Insurance Co. v. Loughmiller (1903) 33 Ind.App. 309, 314, 69 N.E. 264, 266. Corroborative evidence tends to corroborate or to confirm while cumulative evidence merely augments or tends to prove what has already been proved. State v. Kennedy (App.1979) 122 Ariz. 22, 592 P.2d 1288. The distinction has been synthesized as follows:
"Cumulative evidence is additional evidence to support the same point, and which is of the same character with evidence already produced.... Though on the same point it may yet not be cumulative, but, if of the same kind, it is cumulative. ... If it is of a different kind, though upon the same issue, or of the same kind upon a different issue, it is not cumulative.... Evidence which brings to life some new and independent truth of a different character, although it tends to prove the same proposition or ground of claim before insisted on, is not cumulative, within the true meaning of the rule.... The fact that newly discovered evidence may tend to prove the same issues upon which proof was offered at trial does not necessarily make it cumulative, and whether or not it is cumulative is to be determined from its kind and character, rather than from its effect." 10A Words and Phrases, Cumulative Evidence 406-07 (1968) (citations omitted).
The testimony sought to be admitted here was different in kind and character from other evidence adduced at trial It went to an issue or issues and to facts or observations not covered by other evidence. It was not cumulative. It may have been in the nature of corroboration with respect to the erucial facts surrounding and immediately preceding the sexual acts but that very aspect of corroboration is what made the exclusion of the evidence prejudicial to the defense.
One federal commentator, citing Gordon v. United States (1953) 344 U.S. 414, 73 S.Ct. 369, 97 L.Ed. 447, has stated that reversal will lie "[when the record appears to show that the excluded evidence would have been more persuasive than, or would have afforded needed corroboration to, evidence already in the record." 3 Orfleld's Criminal Procedure Under the Federal Rules § 26.842 (1986).
In Shepard v. State (1983) 1st Dist.Ind.App., 451 N.E.2d 1118, trans, denied, Judge Robertson, speaking for the court and joined by Judges Shields and Buchanan, reversed a conviction for excluding evidence of threats made to the defendant who was claiming self-defense. The court, apropos of the case before us, reversed because: "When a defendant claims that he acted in self-defense, evidence legitimately tending to support his theory is admissible ... [and because] these threats are relevant to Shepard's defense and his claim of having a good faith belief of great bodily harm." 451 N.E.2d at 1120.
United States v. Peak (1988) 7th Cir., 856 F.2d 825, cert. denied, 488 U.S. 969, 109 S.Ct. 499, 102 L.Ed.2d 535, is to the same effect and is also persuasive. There, the court reversed a conviction for exclusion of evidence which would have reflected the defendant's state of mind and which bore upon his intent, or lack thereof, to possess and distribute drugs. The court also, interestingly, instructed the trial court upon remand that it "should reevaluate its refusal to give the jury an instruction on [defendant's] theory of defense". 856 F.2d at 836.
The only other witnesses to the events upon which the proffered testimony focused were D.W. and Tyson. Those two witnesses could certainly not be classified *305as disinterested witnesses. The testimony of an objective witness is not of the same character as evidence from a prosecuting witness or the defendant himself, or from others with a direct personal stake in the outcome. In Newell v. Walker, supra, we ordered a new trial for newly discovered evidence which was comprised of testimony of "the only disinterested person to witness events crucial to the case...." 478 N.E.2d at 1251. See also Harris v. Jay (1930) 92 Ind.App. 543, 174 N.E. 107; State v. Evans (1920) Or., 192 P. 1062, 1065. Shumaker v. State (1988) Ind., 523 N.E.2d 1381, relied upon by the majority, is inapposite. In ' Shumaker, the defendant himself characterized the excluded evidence as having only a "slight tendency" to establish defendant's non-violent nature. Furthermore, the excluded witness was not wholly disinterested, having been a bowling partner of the defendant and the victim for some five years, and her testimony would have merely duplicated other testimony as to defendant's character.
One aspect of the majority opinion considers the excluded evidence as merely impeaching in nature and holds that it was merely cumulative of evidence which impeached D.W. "on other points". at 286-287. I strongly disagree. Even if the offered evidence were to be construed solely as impeaching, impeachment upon one issue is not cumulative of impeachment upon other issues. To so hold is to say that impeachment with regard to an essential issue of the litigation is merely cumulative to evidence which impeaches as to a minor collateral matter. Opinion.
The evidence of record, to which the excluded evidence is thought by the majority to be cumulative,. demonstrates that the jury was entitled to believe that there was consensual sexual contact in the hotel room. There was testimony to that effect from Reverend Katherine Newlin, who attended D.W. at the hospital. Record at 48398 (as quoted by majority in footnote 11). At a very minimum, such testimony gives rise to a strong and reasonable inference of consensual sexual contact in the hotel room. It is baffling indeed, therefore, that the majority proceeds to cavalierly discount the defendant's reasonable belief contention.
The manner in which Tyson and D.W. acted toward each other shortly before the acts complained of has great relevance to whether or not Tyson, at the time, might have reasonably believed, from all the surrounding ctreumstances and events, that . D.W. was consenting-even though as a factual matter she did not consent. The majority concedes that a reasonable jury might reasonably believe that Tyson had a reasonable belief that D.W. would consent. Under the circumstances, this conclusion permits a corollary conclusion that the belief continued during the sexual acts. The issue is not whether Tyson reasonably believed that D.W. would consent. It is whether he reasonably believed that she was consenting. In this sense, then, the exclusion of the testimony from Martin, Neal and Lawrence was particularly prejudicial and that prejudice was magnified by the failure to give instructions with respect to mistake of fact, reasonable belief or to instruct that the degree of culpability, Le., knowing, was applicable to the essential element of compelling force.
In holding that the evidence excluded was "only minimally corroborative of Tyson's testimony" with to D.W.'s receptiveness to Tyson's physical advances, the majority usurps the jury function. It is totally inappropriate for this court to convert speculation as to the credit and weight which a jury would give certain evidence or the impact of such evidence upon their consideration of other evidence into a holding as a matter of law.
Without question there was error in excluding the testimony of Ms. Martin, Ms. Neal and Ms. Lawrence. Without question that error was not harmless beyond a reasonable doubt.
MISTAKE OF FACT AND REASONABLE BELIEF INSTRUCTIONS
Instructions Nos. 5 and 6 tendered by the defense were erroneously and prejudicially refused by the trial court. Instruction No. *3065 concerned application of the culpability requirement of "knowingly" to the act of coercive force and whether Tyson could have reasonably believed that D.W. had consented. Instruction No. 6 dealt with mistake of fact as to whether D.W. had consented.
Consent or the lack thereof is a fact. D.W. either consented or she did not. If she consented, that is a fact. If she did not consent, that is a fact. Resolution of that fact question, however, does not end the inquiry. The law provides that if a person accused of rape is reasonably mistaken as to the fact of consent when the alleged victim, in fact, did not consent, such mistake negates the culpability required for the crime. The "reasonable belief" principle, though similar, is not synonymous with mistake of fact. The difference was explained in People v. Rhoades (1987) 193 Cal.App.3d 1362, 238 Cal.Rptr. 909, 913:
"'Where the defendant claims that the victim consented, the jury must weigh the evidence and decide which of the two witnesses is telling the truth' The defense of a reasonable belief in consent by contrast, 'permits the jury to conclude that both the victim and the accused are telling the truth. [Citation omitted.] The jury will first consider the victim's state of mind and decide whether she consented to the alleged acts. If she did not consent, the jury will view the events from the defendant's perspective to determine whether the manner in which the victim expressed her lack of consent was so equivocal as to cause the accused to assume that she consented where in fact she did not'" [Quoting People v. Romero (1985) 171 Cal.App.3d 1149, 1155-56, 215 Cal.Rptr. 634.]
However, in the context of the case before us, the concepts are so closely related as to be equated. See People v. Burnham (1986) 176 Cal.App.3d 1134, 222 Cal.Rptr. 630 (mistake of fact instruction equated with an instruction which directs the jury to acquit if the jury entertains reasonable doubt as to whether defendant reasonably and in good faith believed that the victim freely consented).
Whether a defendant's mistake or belief is reasonable depends upon the attendant circumstances. In the case before us, those relevant and crucial circumstances are not restricted to the occurrences in the hotel room beginning with the point at which Tyson "undress[ed]" D.W. Slip Opinion at 86. They include other cireum-stances of the day and night preceding the encounter and the activities of the early morning hours which led to the occurrences which transpired in Tyson's hotel room. In this regard, as earlier noted, the excluded testimony of Ms. Martin, Ms. Neal and Ms. Lawrence would have added to the factual mix before the jury and may have reasonably tipped the deliberative balance in favor of acquittal.
The evidence quoted and analyzed by the majority (see Opinion at 294, et seq.), when taken together with the surrounding circumstances, permit a reasonable belief as to the fact of consent. Stated conversely, if the jury believed that Tyson used only such "force" as would be involved in a consensual sexual act, they may well have concluded that Tyson reasonably believed that D.W. was consenting. Regardless of whether D.W.'s subjective mental state re- - flected actual consent, and even if as a fact she did not consent, Tyson may have reasonably believed that she was consenting. That question is peculiarly within the prerogative of the jury. They were not permitted to exercise this prerogative, not only because they were precluded from hearing three relevant witnesses, but because they were not advised of the appropriate legal principles which would constitute the essential framework within which to assess the evidence and to consider the relevant attendant circumstances. In short, by refusing to give defendant's tendered instructions, the trial court denied the jury the proper tools necessary for performance of their duty. They were effectively forced, in this regard, to make factual determinations in a vacuum.
It is improper to deny a reasonable belief instruction, as does the majority here, based upon an evaluation of the weight of the evidence or the credibility of the wit*307nesses. Refusal to give the instruction upon grounds that no reasonable person would have interpreted the evidence to indicate the victim's consent impermissibly invades the jury's province. As stated in People v. Burnham, supra, 222 Cal.Rptr. at 637:
"The ... contention that we should declare, as a matter of law, the appellant's assertions [as to reasonable belief] are unreasonable is, in reality, a request that we declare the appellant's assertions to be incredible as a matter of law. The fact that the evidence may be incredible, or is not of a character to inspire belief, does not authorize the refusal of an instruction based thereon, for that is a question within the exclusive province of the jury."
Thus it is not true that when a defendant gives an account evincing the alleged vice-tim's consent, and the victim gives a contrary version, that there is no evidence to support a reasonable belief instruction. .Such a view is to say that the fact of consent or non-consent is the be-all, end-all of the issue. It is to hold that mistake of fact or reasonable belief does not exist in Indiana law.
In Woods v. State (1992) 1st Dist.Ind.App., 587 N.E.2d 718, trams. denied, the court, speaking through Judge Robertson, upheld the giving of a mistake of fact-reasonable belief instruction which had been requested by the State. The instruction advised the jury:
"For the 'mistake of fact' to be a valid defense, the following three elements must be satisfied:
1. The mistake must be honest and reasonable;
2. The mistake must be about a matter of fact; and
3. The mistake serves to negate culpability.
Honesty is a subjective test dealing with what the defendant actually believed. Reasonableness is an objective test inquiring what a reasonable man situated in similar cireumstances would do."
587 N.E.2d at 723.
The instruction was approved because it "clarified the defense" of mistake of fact. Id. In the context of the facts of Woods, the mistake of fact defense could only have been offered with regard to the defendant's belief as to the victim's consent.
While the word "consent" does not appear in 1.0. 85-42-4-1, the word "compelled" is used. It is clear, therefore, that the force or threat of foree must have compelling effect upon the alleged victim. The fact of coercion is therefore an indispensable element of the crime. The majority here attempts to divorcee the word "foree" from the word "compelled" in order to avoid the application of the required degree of culpability. This attempt, in my view, borders upon sophistry. The act upon which the definitions of the crimes focus is sexual intercourse, or deviate conduct by compelling force.
The majority considers the matter of proof of culpability, upon which the prosecution bears the burden, as if it were a part of the "defense" of "mistake of fact" or "reasonable belief". As noted, the coercive aspect of the force used requires proof of culpability. The majority erroneously turns the matter away from proof of culpability, a prosecutorial requirement, and toward establishment of a defense by the defendant.
The majority seeks to draw a significant distinction between our culpability statute and that of the Model Penal Code. Model Code § 2.02(4) does not use the word "conduct" in referring to material elements of the offense. This is not, however, particularly meaningful. Again, the prohibited conduct is force which coerces. The fact of coercion is without question a "material element" of the act of "foree". Without coercion, there has been no crime of rape or deviate conduct committed. Our statute and our law is wholly consistent with the Model Penal Code.
The fact of coercion is not merely an "attendant cireumstance" as was the case in Rose v. State (1982) 2d Dist. 431 N.E.2d 521. It is an essential element of the act itself. In Rose, defendant shot and killed the victim and was convicted of *308battery. The "attendant circumstance" involved the victim's conduct, i.e., whether the victim was committing a forcible felony justifying intervention by the defendant. That cireumstance is not part of the definition of battery as set forth in the statute. It was therefore not an element of the offense and application of the degree of culpability to it would have been inappropriate.
Similarly, Markley v. State (1981) 2d Dist.Ind. App., 421 N.E.2d 20, involved battery as a Class C felony which requires serious bodily injury as an element. In that setting, the element is a clear result of the prohibited conduct. In essence, the statute prohibits the act of touching in a rude, insolent or angry manner and, as the holding in Markley points out, the result, although an element of the crime, merely "increases the penalty for the offense committed without proof of any culpability separate from the culpability required for the conduct elements of the offense." 421 N.E.2d at 21.
The rape and deviate conduct statutes clearly differ from the battery statute in this respect. Again, in the former stat utes, the "result" element is an integral part of the prohibited conduct element. It is not mere force which is prohibited. It is coercive force.
The concept of victim impact as an element of the prohibited conduct is very much a part of Indiana criminal law. A person commits theft under I.C. 35-48-4-1(4) if he exercises unauthorized control over the property of another by creating a false impression in the other person or under subsection (5) by failing to correct a false impression that the defendant knows is influencing the other person. Thus under subsection (4) we look to the victim's state of mind as to whether the false impression did in fact exist and whether the impression was otherwise than what the true facts disclosed. Under subsection (5) the culpability of the defendant is tied directly to the effect of the defendant's conduct and its subjective impact and influence upon the victim.
More closely related to the case before us is the crime of child molesting. I.C. 85-42-4-8(e) makes it a defense if the defendant reasonably believed that the child was over the age of sixteen. Thus, although as a fact the child is under the age of sixteen, if the defendant reasonably believes otherwise he has not committed the crime. Neblett v. State (1979) 2d Dist.Ind.App., 396 N.E.2d 930. A similar situation exists with respect to the crime of rape as it relates to a mentally disabled victim. I.C. 35-42-4-1.
In Garcia v. State (1983) Tex.Cr.App., 661 S.W.2d 96, 97, the court spoke to the matter as follows: "The female's condition, coupled with the male's knowledge of the mental defect or disease, substitutes for lack of consent by the female...." (Emphasis in original.) The court in examining the record stated that the victim "had all the outward appearances of a normal appearing twenty-six year old female" and that defendant had no reason to know of her mild retardation. Clearly then, the defendant's perception of the situation in many areas of the criminal law is important, particularly with regard to sex crimes such as here involved.
It is argued, and the majority opinion adopts the argument, that the jury's determination that D.W. did not consent carries with it a corollary-that the same evidence could not support an instruction that a person could reasonably believe that she did consent. This in turn leads to the majority's conclusion that Instructions 5 and 6 were not supported by the evidence and their refusal was not error at all, or that error, if any, was harmless. The reasoning is faulted.
It cannot be emphasized too strongly that the question is not sufficiency of the evidence to convict of rape and deviate conduct. The question in regard to the instructions is, rather, whether Michael Tyson was entitled to have the jury assess that evidence in the light of applicable law.
The assessment of the evidence and the import given to certain portions of the evidence might differ depending upon the instructions given. This is the very purpose of jury instructions. The question then *309becomes: Would the verdict arguably have been different if the instructions had been given? The answer is: We simply do not know. We cannot say that the failure to give the instructions, particularly in the light of the exclusion of relevant evidence, was harmless beyond a reasonable doubt.
The instructions, if given, might have resulted in the same verdict. But they might not have. The jury, in light of the instructions might have reasonably concluded that while D.W. did not consent, Tyson did have an honest and reasonable belief that she did so. The jury was entitled to make that determination, not the trial court and certainly not this court.
The erroneous rulings herein considered dictate reversal and remand for a new trial.
. In this regard I wish to make it clear that I fully concur in the majority opinion with respect to Issue VIII. That issue involves the process by which the judge was selected. We necessarily condemn that process. However, there is absolutely no evidence or permissible inference that Judge Gifford acted in any manner other than with total lack of bias or prejudice. That I believe several of the judge's rulings were erroneous, requiring reversal, in no way dispels my belief that Judge Gifford acted with complete and unswerving judicial integrity and impartiality.
. Because upon a retrial at least one of the other issues involved could recur, I consider it not inappropriate to state my disagreement with a pronouncement by the majority.
With respect to Issue V which concerns the reading of a portion of Justice White's dissent in United States v. Wade (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, I agree that the defendant waived the matter because his objection was inadequate. I do not agree, however, that a jury admonition could cure the prejudicial impact of the language read. Reading of the passage in the future by prosecutors, whether during voir dire or opening or closing argument should be condemned in the strongest possible terms. See Bardonner v. State (1992) 4th Dist.Ind.App., 587 N.E.2d 1353, trans. denied.
. The trial court added that it did "not appreciate being put in this position in the middle of a trial that's taken a great deal of effort, if there is any possibility that it was done with the idea of causing some kind of a reversible error." Record at 4206. Clearly, however, the trial court would not have refused an otherwise valid request to present newly discovered evidence merely because it might affect, in some adverse manner, the substantial effort already put forth by the court.