dissenting.
I respectfully disagree with the majority’s conclusion that the trial court’s tendered jury instructions as a whole covered the substance of O’Connell’s proposed instructions. The majority concludes that it was sufficient that the trial court instructed the jury that “[a] person commits an offense only if he voluntarily engages in conduct in violation of the statute defining the offense” and also instructed the jury regarding the mens rea requirement for each of O’Connell’s charged offenses. (Appellant’s App. p. 67). In support of this conclusion, the majority cites Sanders, a 1984 case in which our supreme court stated that Sanders’ proposed jury instruction on voluntary conduct was covered by the tendered instructions as a whole. Sanders v. State, 466 N.E.2d 424, 428 (Ind.1984). The supreme court reasoned that it was sufficient that the trial court’s final instructions included the robbery statute, which provided that the taking of another’s property had to be done “knowingly or intentionally,” and that the trial court also gave the jury instructions regarding the State’s burden of proof and the fact that the State had to prove all elements of the described crime. Id.
However, as dicta, this analysis was not binding on either the supreme court or our *176court, and I find that the supreme court’s analysis has expanded since Sanders. In Baird v. State, 604 N.E.2d 1170, 1176 (Ind. 1992), cert. denied, 510 U.S. 893, 114 S.Ct. 255, 126 L.Ed.2d 208 (1993), the supreme court held that “once evidence in the record raises the issue of voluntariness, the [Sjtate must prove the defendant acted voluntarily beyond a reasonable doubt.” The significance of this holding is apparent in the Indiana Judge’s Association’s decision to amend the Indiana Pattern Jury Instructions as a result of Baird to emphasize that, once the issue is raised, the State must prove voluntariness beyond a reasonable doubt. See Davidson v. State, 849 N.E.2d 591 (Ind.2006). While the supreme court has never officially approved the Indiana Pattern Jury Instructions, we have previously noted that the preferred practice is to use the pattern jury instructions and that the instructions have the “apparent approval of the Indiana Supreme Court as evidenced by the preferred treatment given such instructions in [Indiana Rule of Trial Procedure 51(E) ].” Gravens v. State, 836 N.E.2d 490, 493 (Ind.Ct.App.2005), trans. denied.
Baird’s effect on the pattern jury instructions is especially relevant to the instant case. A pre-Baird version of Pattern Jury Instruction § 9.01 regarding voluntary conduct stated that:
Voluntary conduct is defined by statute as follows:
A person commits an offense only if he voluntarily engages in violation of the statute defining the offense. However, a person who omits to perform an act commits an offense only if he has a statutory, common law or contractual duty to perform the act.
INDIANA PATTERN JURY INSTRUCTIONS § 9.01 (1980). Significantly, this instruction is similar to the one tendered by the trial court here because it merely reiterates the statutory provision that a person only commits an offense if his actions are voluntary. See I.C. § 35-41-2-1(a). It does not mention the State’s “beyond a reasonable doubt” burden of proof. In contrast, as a result of Baird, Pattern Jury Instruction § 9.01 currently provides that:
[When evidence raises an issue of vol-untariness, modify the instruction defining the offense by adding the italicized material shown in the example below:]
The crime of theft is defined by statute as follows:
A person who knowingly or intentionally [and voluntarily ] exerts unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use, commits theft, a Class D felony.
Before you may convict the Defendant, the State must have proved each of the following elements beyond a reasonable doubt:
1. The Defendant
2. knowingly or intentionally
3. [and voluntarily ]
4. exerted unauthorized control over property of [name ], another person
5. with intent to deprive [name the other person ] of any part of the property’s value or use.
If the State failed to prove each of these elements beyond a reasonable doubt, you must find the Defendant not guilty of theft, a Class D felony, charged in Count.
INDIANA PATTERN JURY INSTRUCTIONS § 9.01 (3rd ed. 11/2004). This version of § 9.01 explicitly emphasizes that the State must prove “voluntariness” beyond a reasonable doubt.
In 2006, the supreme court implicitly approved the current version of Instruction § 9.01 in Davidson. There, Davidson *177tendered a proposed jury instruction including “and voluntarily” as an element of his offense. Davidson, 849 N.E.2d at 593. Davidson argued that the inclusion of “and voluntarily” in the elements ensured that the jury knew that the State was required to prove that he acted voluntarily beyond a reasonable doubt. Id. In response, the supreme court concluded that “[t]he real problem with this contention is that the condition that underlay Davidson’s defense is covered by our Indiana Code section on intoxication and not by the section on vol-untariness.” Id. at 594. Thus, the supreme court did not dispute that it was proper to add voluntariness as an element in a jury instruction; it merely decided the case on other grounds. See id.
In light of the foregoing, I conclude that the supreme court’s analysis has evolved since Sanders with the effect that an adequate jury instruction must now directly instruct the jury that once the evidence raises the issue of voluntary conduct, the State must prove that the defendant’s actions were voluntary beyond a reasonable doubt. The trial court’s Jury Instruction No. 6 does not do so. Instead, its language mirrors the substance of the language of the pre-Baird version of Pattern Jury Instruction § 9.01. As the amendment to § 9.01 and the supreme court in Davidson implied, this language is no longer adequate; nor did any of the trial court’s other tendered jury instructions instruct the jury that the State had the burden of proving that O’Connell’s actions were voluntary beyond a reasonable doubt. Thus, I conclude that the trial court’s tendered jury instructions as a whole did not sufficiently cover the substance of O’Con-nell’s proposed jury instructions.
As the majority found that O’Connell’s proposed instructions were covered in substance by the tendered instructions, the majority did not address the remaining two factors that we must consider when determining whether the trial court has abused its discretion in instructing the jury: (1) whether the proposed instructions correctly stated the law and (2) were supported by the evidence in the record. Alfrey v. State, 960 N.E.2d 229, 232 (Ind.Ct.App.2012). Because I do not find that O’Connell’s proposed instructions were covered in substance by the trial court’s tendered instructions, I will address these remaining two factors.
With respect to the first factor, the State asserts that O’Connell misstated the law by inserting voluntariness as an element of his charged offenses. As I stated previously, Indiana Pattern Jury Instruction § 9.01 clearly included voluntariness as an element of theft, even though volun-tariness is not a statutory element of theft. See I.C. § 35-43-4-2. While this instruction used theft as an example, rather than disorderly conduct or escape, I conclude that its placement in the “voluntary conduct” chapter indicates that it is meant to be a guide for instructions on voluntary conduct with respect to all relevant offenses, not just theft. See INDIANA PATTERN JURY INSTRUCTIONS § 9.01 (3rd ed. 11/2004). In addition, as stated above, the supreme court indirectly implied in Davidson that it is proper to add voluntariness as an element in a jury instruction. Davidson, 849 N.E.2d at 593-94.
Further, I find that the evidence in the record raised the issue of whether O’Con-nell’s conduct was voluntary. Bonnie testified that during his seizure, O’Connell “was thrashing around on the floor and trying to talk and could [not] talk,” but was making noises like a whining or a growl. (Tr. p. 136). Officer Fritz and Deputy Ogle later used the term “growl” to describe O’Connell’s noises and also indicated that at points O’Connell made er-*178ratio movements and could not talk. (Tr. p. 90). Bonnie also testified that during seizures O’Connell tended to get “agitated and hateful” and had poor balance, which mirrors the behaviors that Officer Fritz and Deputy Ogle later described. When O’Connell testified, he told the court that he could not remember anything after his release from Ball Memorial Hospital in the morning. This evidence raises the issue of whether his actions were involuntary due to seizures.
In sum, I conclude that the trial court abused its discretion in denying O’Con-nell’s proposed instructions.