State v. Ogden

JOHNSON, J.,

specially concurring.

An appellate court’s responsibility in a case of first impression such as this is not merely to decide that the instruction to the jury was erroneous, but to explain our reasoning and in so explaining to provide some *99guidance to the trial court in this and future cases as to how to frame a proper instruction. The majority opinion does not explain our reasoning. Rather, it engages in an exercise of illustrating how the statutes and cases relied on by the state are irrelevant to the issues presented. It also cites, but does not discuss, cases from other…