Massa, J.
Lisa Kane appeals her conviction for receiving stolen property, arguing that the trial court improperly instructed the jury on the mental state required to convict her. We agree, reverse her conviction, and remand her case for retrial.
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The proposed instruction, as modified to mirror the instruction used in Harrison, was ultimately included in the trial court’s final instructions as No. 12: “Where two or more persons combine to commit a crime, each is criminally responsible for the acts of his or her confederates committed in furtherance of common design, the act of each being the act of all.” App. at 38; see also Harrison, 269 Ind. at 687, 382 N.E.2d at 926 (finding no fault with an abandonment instruction that read, in part: “When two or more persons combine to commit a crime, each is criminally responsible for the acts of his confederates committed in furtherance of the common design, the act of each being the act of all.”).
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Jury Instruction No. 12 Was an Incorrect Statement of the Law
Indiana’s accomplice liability statute states that “[a] person who knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense . . . .” Ind. Code § 35-41-2-4 (emphasis added). Accordingly, the pattern jury instruction on accomplice liability tracks the language of the statute and includes a prominent mention of the required mental state: “A person who, knowingly or intentionally [aids] [induces] [causes] another person to commit an offense commits that offense.” 1 Ind. Pattern Jury Instructions (Criminal) No. 2.11 (2011) (emphasis added; bracketed text in original). Final Instruction No. 12, in contrast, omits altogether the key phrase “knowingly or intentionally”—indeed, it says nothing about mens rea at all. Instead, it states that “each is criminally responsible for the acts of his or her confederates committed in furtherance of common design, the act of each being the act of all.”
In prior cases, we have weighed jury instructions that were unclear as to the relevant mental state and found them wanting. See Small, 531 N.E.2d at 499. Final Instruction No. 12 does not include a mental state at all; rather, it seems to impose strict liability on Kane for the unlawful acts of Sam, whether she knew about them or not. That is not the law in Indiana, and so we hold that the trial court erred by giving the jury Final Instruction No. 12.
The Error Was Not Harmless
Having found the challenged instruction to be erroneous, we presume the error affected the verdict, and we will reverse the defendant’s conviction “unless the verdict would have been the same under a proper instruction.” Rosales, 963 N.E.2d at 525; see also Dill v. State, 741 N.E.2d 1230, 1233 (Ind. 2001) (finding an instruction harmless error only when the conviction is “clearly sustained by the evidence and the jury could not properly have found otherwise.”); Ind. Appellate Rule 66(A) (stating that an error at trial may be reversed on appeal unless “its probable impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties.”).
Here, the State concedes there is no direct evidence that Kane knew the property was stolen when she pawned it, but argues the circumstantial evidence was sufficient for the jury to have found the knowledge element of the crime proven beyond a reasonable doubt. See Appellee’s Br. at 7 (“Because there are reasonable inferences from the evidence that permit the jury to find that Defendant had knowledge of the stolen nature of the property that she pawned, she is guilty of receiving stolen property.”). The State presented uncontroverted evidence at trial to show Kane and Sam were in an intimate relationship, they had financial difficulties, Kane relied upon Sam for transportation, they spent time together in the home from which the property was taken, and Sam had previously stolen property and pawned it.
We agree with Judge Barnes that this “evidence of Kane’s knowledge that she was helping Sam ‘fence’ stolen property is far from overwhelming.” Kane, slip op. at 11 (Barnes, J., dissenting). It may be enough to clear the lower bar of sufficiency, but we believe it is not enough to overcome the presumption of prejudice that applies here. Thus, we cannot say the verdict would have been the same if the jury had been properly instructed as to the knowledge requirement of the offense, and we find the error was not harmless. [Footnote omitted.]1
Conclusion
Accordingly, we reverse Kane’s conviction and remand this case for retrial.
Dickson, C.J., Rucker and David, J.J., concur.