Defendant-appellant, Robert M. Burgess, was originally charged with the murder, Ind.Code § 35-42-1-1(1) (Burns 1979 Repl.) of Mary L. Beck. He was convicted, after a trial by jury, of the lesser included offense of voluntary manslaughter, Ind.Code § 35-42-1-3 (Burns 1979 Repl.), a class B felony, and was sentenced to a term of twenty years. Fifteen years of his sentence are to be executed and the remaining five are to be suspended to probation. Defendant raises three issues in this appeal:
(1) Whether the trial judge committed error by incorrectly defining the concept of reasonable doubt in his instructions to the jury.
(2) Whether the trial judge committed error by informing the jury that the death penalty was not involved in this case.
(3) Whether the trial judge committed error in sentencing the defendant by incorrectly assessing his need for rehabilitation.
I.
Defendant first argues that the trial judge erred by giving an inaccurate definition of the concept of reasonable doubt in his instruction to the jury and by refusing defendant’s correct instruction. The instruction read to the jury stated in part:
“If, after considering all of the evidence, you have reached a firm belief in the guilt of the defendant that you would feel safe to act upon that belief, without hesitation, in a matter of the highest concern and importance to you, then you will have reached that degree of certainty *1195 which excludes reasonable doubt and authorizes conviction.”
Defendant’s tendered instruction, which was refused, was almost identical and read in part:
“If, after considering all of the evidence, you have reached such a firm belief in the guilt of the defendant that you would feel safe to act upon that conviction, without hesitation, in a matter of the highest concern and importance to you, when you are not required to act at all, then you will have reached that degree of certainty which excludes reasonable doubt and authorizes conviction.”
Defendant contends that the phrase “when you are not required to act at all” is an essential element of the definition of reasonable doubt and that its omission renders the instruction given incorrect. He argues that the absence of this phrase created a danger that defendant’s conviction by the jury rested upon a belief in his guilt by a mere preponderance of the evidence and that he was therefore deprived of the benefit of the standard of proof beyond a reasonable doubt.
Defendant’s challenge, however, has been rejected by this Court several times. In
Brown v. State,
(1977)
“A reasonable doubt is not a fanciful doubt. It is a doubt which arises from the evidence, the lack of evidence or a conflict in the evidence.
It is a doubt which would disturb the conscience of a resolute and decent person who is sincerely devoted to justice for everyone, without regard to his or her status in life or society.”
We held there that while this language was not the best, it was nevertheless adequate to instruct the jury on the concept of reasonable doubt.
Id.
at 91,
II.
Defendant next urges that it was error for the trial judge to inform the jury that the death penalty was not involved in this case during his voir dire examination of the panel. After reading the information charging the defendant with murder to the jury during voir dire, the trial judge remarked, “I must tell you right away some people do not wish to serve on a murder case because they do not wish to be involved in any kind of a death penalty. The death penalty is not involved in this case.” Defendant’s objection to this statement was overruled and his motion for a mistrial denied. He contends that it was unfair to inform the jury that the State was not seeking the death penalty, especially when the defendant was not allowed to inform the jury of the possible penalties he actually faced.
The penalty prescribed by the Legislature is irrelevant to the jurors in the performance of their “guilt assessing” duty, and they should be oblivious to the Legislature’s punishment scheme since judges rather than juries now fix sentences.
Debose v. State,
(1979)
In
Feggins v. State,
(1977)
III.
Defendant finally contends that the trial court erred in finding that he needed rehabilitation. He argues that there was insufficient evidence to support this finding and that the defendant’s sentence of fifteen years in prison and five years on probation was erroneous. The basic sentence for a class B felony is ten years with up to ten years added for aggravating circumstances or four years subtracted for mitigating circumstances. Ind.Code § 35-50-2-5 (Burns 1979 Repl.). When the basic sentence is increased or decreased, the record should disclose what factors were considered by the judge to be mitigating or aggravating circumstances.
Gardner v. State,
(1979) Ind.,
The facts of this case show that defendant killed the woman he lived with by cutting her throat with a knife. He previously had experienced several problems as a result of his abuse of alcohol, including a conviction for drunk driving, and had been drinking alcohol on the day of the murder. After killing Beck, defendant started several small fires in her apartment in an apparent attempt to cover up the crime. These fires posed a danger to persons occupying other apartments in the same building.
In imposing the sentence, the trial judge complied fully with the statutory requirements and with our previous directives to consider and record all of the relevant mitigating as well as aggravating circumstances. See
Page v. State,
(1981) Ind.,
The trial judge is authorized to determine whether the presumptive sentence for a crime will be increased or decreased because of aggravating or mitigat
*1197
ing circumstances.
Logsdon v. State,
(1980) Ind.,
The conviction and sentence are affirmed.