Opinion

PUGLIA, P. J.

— A jury convicted defendant of willful diversion of construction funds (Pen. Code, § 484b) and found the taking exceeded $25,000 (Pen. Code, § 12022.6, subd. (a)). Imposition of sentence was suspended and defendant was granted probation for five years.

*1181In the published part of this opinion we shall reject defendant’s contention that the trial court erred in instructing the jury that willful diversion of construction funds is a general intent crime.1 Finding no error, we shall affirm.

In 1989, Doctors Steven Johnson and Douglas Martin contracted with defendant, doing business as Stark Construction, to build a medical facility for approximately $350,000. The project was begun in October 1989, and as various phases of the project were completed, defendant received partial payment from a construction loan obtained by the doctors. With these payments defendant was to pay the subcontractors and materialmen who had either performed work or provided materials for the job.

By February 15, 1990, defendant had received three draws from the construction loan, totalling about $245,000. On March 1, the doctors received several calls from subcontractors and materialmen informing the doctors they had not been paid. The doctors discussed the matter with defendant and it was agreed the doctors would thereafter write the checks to the subcontractors and materialmen. The building was completed on March 1. On March 16 the doctors issued approximately $70,000 in checks to subcontractors and material suppliers from the fourth draw.

When the doctors continued to receive calls from people who were supposed to have been paid, but had not been paid, from the first three draws, they again confronted defendant. Defendant informed the doctors he had been experiencing financial difficulties on other jobs and some of the money from the medical building project had been spent to defray costs incurred for those jobs. Defendant promised to repay the money as the other jobs progressed.

Months later, when money owed subcontractors and material suppliers still had not been paid, the doctors contacted the Contractor’s State License Board and the district attorney. The doctors estimated defendant’s diversion of the funds cost them approximately $46,000.

Defendant testified, admitting he used the money from the medical building project to defray costs on some of his other jobs. However, he always intended to pay the money back.

I

Penal Code section 484b provides in pertinent part: “Any person who receives money for the purpose of obtaining or paying for services, labor, *1182materials or equipment and willfully fails to apply such money for such purpose by either willfully failing to complete the improvements for which funds were provided or willfully failing to pay for services, labor, materials or equipment provided incident to such construction, and wrongfully diverts the funds to a use other than that for which the funds were received, shall be guilty of a public offense . . . .”

Relying on People v. Dollar (1991) 228 Cal.App.3d 1335 [279 Cal.Rptr. 502], and arguing here as he did in the trial court, defendant contends Penal Code section 484b defines a specific intent crime. Therefore, he continues, the trial court prejudicially erred when it instructed the jury the offense was one requiring only general criminal intent. We conclude Penal Code section 484b defines a general intent crime and that Dollar is inapposite.

In People v. Whitfield (1994) 7 Cal.4th 437 [27 Cal.Rptr.2d 858, 868 P.2d 272], the court reiterated the general rule for differentiating between specific and general criminal intent offenses: “[As a] general rule ‘[w]hen the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendant’s intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.’ ” (At p. 449, quoting People v. Hood (1969) 1 Cal.3d 444, 456-457 [82 Cal.Rptr. 618, 462 P.2d 370].)

Defendant concedes there was a wrongful diversion of the construction funds and that this act requires only general criminal intent, i.e., merely the intent to do the act. He contends there must exist in the mind of the defendant the additional intent either to fail to complete the work or, as in this case, not to pay either material suppliers or subcontractors. Therefore, defendant argues, the offense is one of specific intent.

The only “act” described by Penal Code section 484b is the wrongful diversion, i.e., “a diversion to a use other than bona fide project costs” (People v. Butcher (1986) 185 Cal.App.3d 929, 938 [229 Cal.Rptr. 910]), of funds accepted for one or more of the specific purposes set forth in Penal Code section 484b. Nothing in section 484b suggests that when the defendant wrongfully diverts the funds that he intend to do a further act or to achieve a future consequence. The offense is complete if the wrongful diversion was the cause of failure either to complete the improvement or, as here, to pay for services, labor, materials or equipment. It is immaterial *1183whether defendant intended that there be a failure either to complete the project or to pay subcontractors or material suppliers. Consequently, the offense defined by section 484b is one of general criminal intent, and the trial court did not err in so instructing the jury.

People v. Dollar, supra, does not aid defendant. In that case the accused, who had previously been convicted of committing a lewd and lascivious act upon the victim, was thereafter convicted of threatening her (Pen. Code, § 139) after he had unsuccessfully attempted to grab her and, as she was running away, yelled, “I’ll get you soon, bitch.” (228 Cal.App.3d at p. 1338.) On appeal the accused contended the trial court erred in instructing the jury the offense was a general rather than specific intent crime.

In pertinent part, Penal Code section 139 reads: “(a) Except as provided in Sections 71 and 136.1, any person who has been convicted of any felony offense specified in Section 12021.1 who willfully and maliciously communicates to a witness to, or a victim of, the crime for which the person was convicted, a credible threat to use force or violence upon that person or that person’s immediate family, shall be punished by imprisonment in the county jail not exceeding one year or by imprisonment in the state prison . . . . [¶] . . . d] (c) As used in this section, ‘a credible threat’ is a threat made with the intent and the apparent ability to carry out the threat so as to cause the target of the threat to reasonably fear for Ms or her safety or the safety of Ms or her immediate family.”

In concluding the offense was one requiring a specific intent, the court stated: “A threat as defined in section 139 would be a general intent crime if it is merely the threat itself that is being proscribed by the statute. If section 139 falls witMn the category of general intent crimes, it cannot proscribe additional future goals or consequences beyond the act of making the threat itself. HD ... [¶] Section 139 draws a distinction between an idle threat, a joke or a threat that no one would believe, and a credible threat, wMch the section defines. For a threat to be credible, the criminal actor must have the apparent ability to carry out the threat and must have the additional criminal intent to cause the victim of the tMeat fear [tic] for Mm or herself or for Ms or her immediate family. The communication of the threat itself is the act. The intent to create a future or additional consequence is the intent to cause the victim to feel fear or intimidation.” (228 Cal.App.3d at p. 1341.)

As noted above, in cases arising under section 484b it is immaterial whether at the time of the wrongful diversion the defendant intends or desires that the improvement not be completed or the suppliers and subcontractors not be paid. To violate the statute all that it required is the wrongful *1184diversion of the funds, which means not applying the funds for the purpose for which they were disbursed, and that the diversion be the cause of at least one of the described failures. In contrast, a violation of Penal Code section 139 requires the making of the threat coupled with the intent to cause fear in the target of the threat, thus defining an additional mental state not required by Penal Code section 484b. We conclude Dollar is of no assistance to defendant.

II, in*

The judgment is affirmed.

Sparks, J., and Sims, J., concurred.

Opinion

BROWN, J.

In this case we determine the required mens rea for a conviction of felony child abuse based on direct infliction of unjustifiable physical pain and mental suffering. (Pen. Code,1 § 273a, former subd. (1), now § 273a, subd. (a) (section 273a(1)).)2 The Court of Appeal concluded criminal negligence is required. We disagree, and therefore reverse its judgment.

*1210I. Facts and Procedural Background

Michael Sargent, Jr. (Michael), defendant’s son, was bom on March 24, 1993, three months premature. He weighed two pounds, four ounces, and spent the first three months of his life in the hospital. By August 19, 1993, he was the equivalent of a four- to six-week-old infant in terms of neck muscle development. On that date, Marysville Fire Department personnel and a paramedic responding to a “911” call found Michael in a deep coma and close to death on defendant’s apartment floor. He was not breathing, had no heartbeat, no eye or motor movement, and no response to verbal stimuli. There was bright red blood coming from his nose and mouth.

Michael was ultimately airlifted to the University of California at Davis Medical Center. While Michael’s subsequent condition was not made clear at trial, it appears he survived and was released from the hospital on September 3, 1993.

Defendant’s explanation of Michael’s injuries varied. On August 19, 1993, defendant told a neighbor, paramedic, and hospital personnel Michael had rolled off the couch and fallen 18 to 20 inches to a carpeted floor. On August 24, 1993, defendant was interviewed by the police. He denied dropping Michael or losing his temper.

On August 25, 1993, defendant was again interviewed by the police. He stated he had dropped Michael while throwing him up in the air to stop him from crying, causing Michael to strike his head on the linoleum kitchen floor. The interviewing officers told defendant a consulting physician had concluded Michael was a victim of shaken baby syndrome. Defendant initially denied Michael was ever shaken. He then changed his story a third time. He said he and Michael’s mother had an argument, and she dropped defendant and Michael off at the house. Defendant carried Michael in his car seat into the house. The infant was crying inconsolably. Defendant started to try to make a bottle for Michael. When Michael continued crying, defendant shook him front to back as Michael sat in his car seat. Defendant then returned to making the bottle. When Michael continued to cry, and refused a pacifier, “that’s when I was shaking him more hard.” Defendant shook Michael four or five times, causing the infant’s head to lose contact with the car seat “a couple of times.” Michael stopped crying. He “had this weird look in his eyes . . . like [he] was going to sleep you know like he was falling or something.” When defendant picked him up, Michael’s back bowed. His eyes closed, and he appeared to have difficulty breathing.

Defendant was charged with felony child abuse (§ 273a(l)), alleged to be a serious felony because it involved the personal infliction of great bodily *1211injury. (§§ 667, subd. (a), 1192.7, subd. (c)(8).) It was further alleged that defendant had suffered a prior serious felony conviction for burglary (§§ 459, 667, subd. (a); 1192.7, subd. (c)(18)), and served two prior prison terms (§ 667.5, subd. (b)).

At trial, Dr. John McCann, a pediatrician and director of the Davis Medical Center’s child protection program, testified as a medical expert on child abuse for the prosecution. When Michael arrived at the Davis Medical Center he was sedated and consequently paralyzed because he appeared to be having seizures. No bruises or other external trauma, except for swelling around the eyes, were observed. A CAT (computerized axial tomography) scan revealed bilateral subdural hematomas, or blood over the surface of Michael’s brain on both sides behind his ears. In addition, his brain was swollen. During his examination of Michael, Dr. McCann observed flame-shaped retinal hemorrhages in both eyes.

Based on all of this information, Dr. McCann opined Michael was a victim of shaken baby syndrome. Seventy to seventy-five percent of the children injured by shaking suffer either severe long-term disabling injury, such as blindness, seizures, and difficulty walking or talking, or death. McCann stated that shaking Michael was a circumstance likely to result in great bodily injury or death. For a fall to have caused the injuries sustained, Michael would have to fall out a second story window, not off the couch or from his father’s arms.

Dr. Todd Brandtman testified as a defense medical expert. He was an emergency room physician who had neither treated nor examined Michael. He did not have expertise in child abuse. He testified Michael’s injuries could have resulted from being dropped, and that photographs of Michael taken two days after he left the hospital showed a swollen spot on the back of his head.

Tapes of defendant’s interviews with the police were played for the jury. Defendant testified his admission of shaking the infant was false and his prior account of dropping him was accurate. He confessed to shaking the infant because that was what the interviewing officers wanted to hear and because the officers and other government agents had told him they wanted to keep the family together and did not want him to get into trouble.

Michael’s mother testified she had seen defendant throwing Michael up in the air on other occasions and had gotten angry at him for doing so. On August 19, 1993, she heard a thump and saw the infant crying, but concluded he had not been injured by his fall and left the apartment. Several *1212other family members and friends testified they saw a bump on the back of Michael’s head at various times following his discharge from the hospital.

The jury was instructed that it could find defendant guilty of violating section 273a(l) based on general criminal intent if it found defendant willfully inflicted unjustifiable physical pain or mental suffering on Michael. In addition, the jury was required to find the infliction occurred under circumstances or conditions likely to produce great bodily harm or death. The jury was further instructed that permitting a child to suffer unjustifiable physical pain or mental suffering, or when having the care or custody of a child permitting the child to be injured, or permitting the child to be placed in a situation that endangers the child’s person or health in violation of section 273a(l) required criminal negligence. Both general criminal intent and criminal negligence were defined.3

The prosecutor argued that the jury could conclude defendant committed child abuse whether it found defendant had shaken Michael with general *1213criminal intent, or dropped Michael with criminal negligence, and that this crime was a felony if it was committed under circumstances or conditions likely to produce great bodily harm or death.

The jury found defendant guilty of a violation of section 273a(l). The verdict did not indicate which branch of section 273a(l) the jury found defendant had violated, that is, whether defendant had directly inflicted the abuse by shaking Michael, or had been criminally negligent in dropping him. In a bifurcated court trial, the enhancement allegations were found true. The court sentenced defendant to the upper term of six years for the felony child abuse count, with a consecutive five-year enhancement.4

The Court of Appeal, with one justice dissenting, concluded criminal negligence must be demonstrated to convict a defendant of infliction of unjustifiable physical pain or mental suffering, and the evidence did not support the inference that defendant was criminally negligent. The court relied on cases involving other branches of section 273a(1) that generally required criminal negligence. It disagreed with People v. Atkins (1975) 53 Cal.App.3d 348 [125 Cal.Rptr. 855] and People v. Wright (1976) 60 Cal.App.3d 6 [131 Cal.Rptr. 311], disapproved on other grounds in People v. Wells (1996) 12 Cal.4th 979, 988 [50 Cal.Rptr.2d 699, 911 P.2d 1374], concluding their interpretation of section 273a(1) “reads out of the statute *1214the element which embodies criminal negligence, the requirement that the culpable conduct occur in circumstances likely to produce great bodily harm or death.”

The court further concluded that “[t]here is nothing in the record from which it can be inferred that the defendant knew or should have known of the risk of great bodily harm or death from shaking the infant, e.g., attendance at a prenatal education session concerning this risk. . . . Nor can we take judicial notice that such a risk is generally known. . . . fl[] . . . The defendant denied knowledge of the syndrome and the record is devoid of evidence showing that he knew or should have known of the syndrome. Accordingly, there is no basis for a finding that he knew or should have known that great bodily injury or death is likely to result from shaking his baby.”

Finally, the court concluded that “defendant was convicted under the second branch of section [273a(l)], the ‘infliction of] . . . unjustifiable physical pain or mental suffering’ upon a child ‘under circumstances or conditions likely to produce great bodily harm or death . . . .’” The prosecution was not predicated on criminal negligence in dropping Michael. While defendant testified “he dropped the child and that is how the child was injured . . . there was no evidence of fracture or bruises which would support that theory and the prosecution introduced extensive evidence to refute the claim. Given that strong evidence supporting the prosecution’s theory of the mechanism of injury, it is entirely unlikely that the conviction was predicated upon dropping the baby.” Rather, “there is far more than a ‘reasonable probability’ that the jury in fact found the defendant guilty solely on the shaken baby syndrome theory. Accordingly, we conclude that the defendant’s felony conviction cannot be affirmed.” The court modified the judgment to a conviction of violation of section 273a, former subdivision (2), a misdemeanor-, and remanded to the trial court for resentencing. The judgment was otherwise affirmed. The Attorney General’s petition for rehearing was denied.

We granted the Attorney General’s petition for review.

II. Discussion

A. Background

1. General Intent and Criminal Negligence

Section 20 provides, “In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence.” *1215(See also § 26, subd. Five [persons incapable of committing crime include those “who committed the act or made the omission charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence”].) Intent can be either general or specific. “When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendant’s intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.” (People v. Hood (1969) 1 Cal.3d 444, 456-457 [82 Cal.Rptr. 618, 462 P.2d 370].) General criminal intent thus requires no further mental state beyond willing commission of the act proscribed by law.

Criminal negligence is “ ‘aggravated, culpable, gross, or reckless, that is, . . . such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life . . . .’ ” (People v. Penny (1955) 44 Cal.2d 861, 879 [285 P.2d 926].) “Under the criminal negligence standard, knowledge of the risk is determined by an objective test: ‘[I]f a reasonable person in defendant’s position would have been aware of the risk involved, then defendant is presumed to have had such an awareness.’ ” (Williams v. Garcetti (1993) 5 Cal.4th 561, 574 [20 Cal.Rptr.2d 341, 853 P.2d 507], italics omitted; Walker v. Superior Court (1988) 47 Cal.3d 112, 136 [253 Cal.Rptr. 1, 763 P.2d 852] [“criminal negligence must be evaluated objectively”].) Under section 20, criminal negligence “may be sufficient to make an act a criminal offense, without a criminal intent.” (1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Elements of Crime, § 113, p. 133.)

2. Section 273a( 1)

Section 273a(l) is an omnibus statute that proscribes essentially four branches of conduct. At the time of defendant’s crimes, and in substantively identical form currently, it provided: “Any person who, under circumstances or conditions likely to produce great bodily harm or death, [1] willfully causes or permits any child to suffer, or [2] inflicts thereon unjustifiable physical pain or mental suffering, or [3] having the care or custody of any child, willfully causes or permits the person or health of such child to be injured, or [4] willfully causes or permits such child to be placed in such situation that its person or health is endangered, is punishable by imprisonment in the county jail not exceeding one year, or in the state prison for 2, 4, or 6 years.” (Ibid.)

We have observed that violation of section 273a(l) “can occur in a wide variety of situations: the definition broadly includes both active and *1216passive conduct, i.e., child abuse by direct assault and child endangering by extreme neglect.” (People v. Smith (1984) 35 Cal.3d 798, 806 [201 Cal.Rptr. 311, 678 P.2d 886].) We have also observed, however, that “[t]wo threshold considerations . . . govern all types of conduct prohibited by this law: first, the conduct must be willful; second, it must be committed ‘under circumstances or conditions likely to produce great bodily harm or death.’ (§ 273a, subd. (1).) Absent either of these elements, there can be no violation of the statute.” (Ibid.) Section 273a(l) is “intended to protect a child from an abusive situation in which the probability of serious injury is great.” (People v. Jaramillo (1979) 98 Cal.App.3d 830, 835 [159 Cal.Rptr. 771].) “[T]here is no requirement that the actual result be great bodily injury.” (Ibid.)

We have not previously addressed the question of the appropriate mens rea for direct infliction of abuse cases under section 273a.5 In Walker v. Superior Court, supra, 47 Cal.3d at page 135, we did not dispute the defendant’s broad statement that section 273a requires criminal negligence. However, in Walker, a Christian Science parent declined to obtain medical treatment for her four-year-old child suffering from meningitis, who eventually died. (47 Cal.3d at pp. 118-119.) Hence, that case involved indirect abuse or child endangerment, not direct infliction of abuse. Indeed, in People v. Heitzman (1994) 9 Cal.4th 189 [37 Cal.Rptr.2d 236, 886 P.2d 1229], when interpreting section 368,6 which is virtually identical to section 273a(l), we twice made it clear that the case involved a failure to act, not active abuse. (9 Cal.4th at p. 197, fn. 6; id. at p. 205, fn. 14.)

In People v. Peabody (1975) 46 Cal.App.3d 43 [119 Cal.Rptr. 780], the defendant’s four-month-old infant suffered multiple nonaccidental fractures. (Id. at pp. 45-46.) There was no evidence that the defendant, as opposed to the baby’s father, had inflicted the injuries on her child. (Id. at p. 46.) Thus, “the conviction can stand only under that portion of the statute which *1217proscribes a person from wilfully causing or permitting a child to be placed in a health endangering situation under circumstances likely to produce great bodily harm or death.” {Ibid.., italics omitted.) The court held that under these circumstances, section 273a(1) “requires proof of criminal negligence.” (46 Cal.App.3d at p. 48.)

Prior to the Third District Court of Appeal’s decision in this case, two prior decisions of that court had rejected the argument that criminal negligence is an element of section 273a(1) when the defendant directly inflicts unjustifiable physical pain or mental suffering. In People v. Atkins, supra, 53 Cal.App.3d 348, a two-and-a-half-year-old child was beaten to death. (Id. at pp. 353-355.) The mother was charged with manslaughter, inflicting corporal punishment or injury on a child (§ 273d), and endangering the person and health of a child (§ 273a(1)). (53 Cal.App.3d at p. 352.) She was convicted of involuntary manslaughter, battery, which was a lesser included misdemeanor offense within the corporal punishment felony charge, and violation of section 273a(1). (53 Cal.App.3d at p. 352.)

On appeal, the mother contended the trial court erred in failing to instruct, sua sponte, that a conviction of endangering the person and health of a child under section 273a(1) “required a finding by the jury of ‘criminal negligence’ and ‘mere inattention or mistake in judgment [was] insufficient for such a conviction.’ ” (People v. Atkins, supra, 53 Cal.App.3d at p. 361.) The court concluded that no such instruction was required. It noted, “The statute requires, in subdivision (1), that for a person to be guilty of the offense, he wilfully cause or permit injury to a child.” (Ibid.) Unlike People v. Peabody, supra, 46 Cal.App.3d 43, on which the mother relied, the evidence here “pointed strongly to direct infliction of physical pain and mental suffering on the child by the defendant herself. An instruction on ‘criminal negligence’ with its attendant elements of foreseeability and the like, would be entirely inappropriate in such a case.” (People v. Atkins, supra, 53 Cal.App.3d at p. 361.)

Similarly, in People v. Wright, supra, 60 Cal.App.3d 6, the defendant was convicted of involuntary manslaughter in the beating death of his 29-month-old daughter. (Id. at p. 9.) On appeal, he asserted that the trial court erred in failing sua sponte to give an instruction regarding “involuntary manslaughter of the criminal negligence variety.” (Id. at p. 12.) The Court of Appeal rejected this contention, stating here, unlike Peabody, “the defendant was charged with personally injuring the child and not with willfully permitting its injury by another. The Peabody [requirement] for an instruction on criminal negligence is inappropriate where the evidence points to direct infliction of injury by the defendant.” (Id. at p. 14; see Iiams v. Superior *1218 Court (1965) 236 Cal.App.2d 80, 82-83 [45 Cal.Rptr. 627] [Proof of criminal agency “required evidence from which it might have been concluded that the injuries resulted from the intentional act of a human being. The offenses charged against [the defendant] are not directed toward an accidental or negligently caused condition.”]; 2 Witkin & Epstein, Cal. Criminal Law, supra, Crimes Against Decency and Morals, § 840(3), p. 957 [“If there is no evidence that a defendant himself inflicted the injuries on the child, P.C. 273a(1) requires proof of criminal negligence.” (Italics omitted.)].)

In other direct infliction of abuse cases, there is no discussion of mens rea, and, in particular, no indication that a criminal negligence standard was applied. (See, e.g., People v. Smith, supra, 35 Cal.3d at pp. 801-812, 809-810; People v. Jaramillo, supra, 98 Cal.App.3d at p. 835 [the defendant struck young daughters with stick]; People v. Ewing (1977) 72 Cal.App.3d 714, 716, 718 [140 Cal.Rptr. 299] [substantial evidence that the defendant deliberately inflicted severe injuries on child]; People v. Fuentes (1967) 253 Cal.App.2d 969, 973-974 [61 Cal.Rptr. 768] [child killed by concentrated blunt force].)

Moreover, other than the Court of Appeal opinion in this case, those cases which impose a criminal negligence requirement involve indirect abuse, such as failing to seek medical treatment, child endangerment, or willfully permitting situations that imperil children. (See, e.g., Walker v. Superior Court, supra, 47 Cal.3d at pp. 118, 135 [failure to obtain medical care resulting in 4-year-old’s death]; People v. Hansen (1997) 59 Cal.App.4th 473, 476-478 [68 Cal.Rptr.2d 897] [34-year-old man encouraged 14-year-old neighbor to play fatal game of Russian roulette]; People v. Deskin (1992) 10 Cal.App.4th 1397, 1399, 1402 [13 Cal.Rptr.2d 391] [unspecified misdemeanor child endangerment]; People v. Lee (1991) 234 Cal.App.3d 1214, 1217-1218, 1221 [286 Cal.Rptr. 117] [mother convicted of second degree murder and felony child endangerment for death of emaciated and dehydrated infant]; People v. Rippberger (1991) 231 Cal.App.3d 1667, 1673, 1682 [283 Cal.Rptr. 111] [failure to seek medical treatment for child suffering from meningitis]; People v. Odom (1991) 226 Cal.App.3d 1028, 1031, 1032 [277 Cal.Rptr. 265] [children living in squalor, and surrounded by highly dangerous drug lab and weapons]; People v. Pointer (1984) 151 Cal.App.3d 1128, 1131-1134 [199 Cal.Rptr. 357] [failure to provide proper nutrition and medical care]; Cline v. Superior Court (1982) 135 Cal.App.3d 943, 945-946, 948-949 [185 Cal.Rptr. 787] [father endangered toddler by throwing him into a car driven by another and then encouraging or knowingly permitting dangerous ride].)

However, a number of cases involving indirect abuse and child endangerment broadly state, as did Walker v. Superior Court, supra, 47 Cal.3d at page *1219135, that section 273a is a criminal negligence statute. In each case, the statement is supported by citation to other endangerment or indirect abuse cases. (See, e.g., People v. Deskin, supra, 10 Cal.App.4th at p. 1402 [relying on People v. Superior Court (Holvey) (1988) 205 Cal.App.3d 51 [252 Cal.Rptr. 335], disapproved in People v. Heitzman, supra, 9 Cal.4th at p. 209, fn. 17 (interpreting section 368)]; People v. Lee, supra, 234 Cal.App.3d at p. 1221 [relying on People v. Peabody, supra, 46 Cal.App.3d 43, and People v. Hernandez (1980) 111 Cal.App.3d 888, 895 [168 Cal.Rptr. 898]]; People v. Rippberger, supra, 231 Cal.App.3d at p. 1682 [relying on People v. Pointer, supra, 151 Cal.App.3d 1128, and People v. Peabody, supra, 46 Cal.App.3d 43]; People v. Odom, supra, 226 Cal.App.3d at p. 1032 [relying on Walker v. Superior Court, supra, 47 Cal.3d 112, and People v. Peabody, supra, 46 Cal.App.3d 43]; People v. Pointer, supra, 151 Cal.App.3d at p. 1134 [relying on People v. Peabody, supra, 46 Cal.App.3d 43].)

B. Appropriate Mens Rea When Child Abuse Directly Inflicted

We first consider whether a violation of section 273a(l) based on direct infliction of unjustifiable physical pain or mental suffering requires proof of general criminal intent or criminal negligence. As noted above, the Court of Appeal concluded that criminal negligence is required; defendant urges us to adopt this view. The Attorney General argues that only general criminal intent is required.

We begin with the language of the statute. The language “inflicts [on a child] unjustifiable physical pain or mental suffering” is most readily interpreted as requiring general criminal intent. That is, the statute describes “a particular act, without reference to intent to do a further act or achieve a future consequence.” (People v. Hood, supra, 1 Cal.3d at pp. 456-457.)

Moreover, the language of section 273a(1) is similar to that of section 273d, which proscribes corporal punishment or child beating.7 Indeed, sections 273a(1) and 273d have been described as “related statute[s].” (People v. Stewart (1961) 188 Cal.App.2d 88, 91 [10 Cal.Rptr. 217] [relying on section 273a case to interpret section 273d]; see also People v. Smith, supra, 35 Cal.3d at p. 801 [defendant convicted of both sections 273a(1) and 273d]; People v. Jackson (1971) 18 Cal.App.3d 504, 505 [95 Cal.Rptr. 919] [same]; People v. Mills (1991) 1 Cal.App.4th 898, 902 [2 Cal.Rptr.2d 614] [same].) Section 273d has been interpreted as a general intent statute. (People v. Atkins, supra, 53 Cal.App.3d at p. 358 [“[t]here need not be found a *1220deliberate intent to cause a traumatic condition, but only the more general intent to inflict upon a child any cruel or inhuman corporal punishment or injury”]; see People v. Mills, supra, 1 Cal.4th at p. 921 [corpus delicti of offense that child was injured and that injury was willful and intentional proven independent of the defendant’s admission]; People v. Lawrence (1956) 141 Cal.App.2d 630, 633 [297 P.2d 144] [When father struck and burned his daughter, “The corpus delicti was established when it was shown that the corporal injury was inflicted upon the child by the defendant and the circumstances and injuries to the child demonstrated that such injuries were deliberately and intentionally inflicted upon her.”]; People v. Gutierrez (1986) 180 Cal.App.3d 1076, 1079, 1080 [225 Cal.Rptr. 885] [defendant conceded section 273d general intent crime].) Furthermore, battery (§ 242), which requires general criminal intent, is a lesser included offense of section 273d. (People v. Atkins, supra, 53 Cal.App.3d at p. 352; People v. Stewart, supra, 188 Cal.App.2d at p. 90.) Given the similarities between section 273a(1) and section 273d, the mens rea element should be the same.

The similarities between felony child abuse involving direct infliction of unjustifiable physical pain or mental suffering and assault (§ 240) and assault with a deadly weapon (§ 245) also support the application of general criminal intent to section 273a(1). (People v. Smith, supra, 35 Cal.3d at p. 807 [“The elements of section 245 and the offense here [violation of section 273a(1)] are strikingly similar; the principal difference is that the assault prohibited by section 273a is committed on a child.” (Fn. omitted.)].) Assault and assault with a deadly weapon are general intent crimes. (People v. Colantuono (1994) 7 Cal.4th 206, 214-215, 218, 219, 221 [26 Cal.Rptr.2d 908, 865 P.2d 704].)

In addition, section 273ab,8 which proscribes assault resulting in a child’s death, expressly refers to assault “by means of force that to a reasonable person would be likely to produce great bodily injury . . . .” (Italics added.) Thus, when the Legislature chooses to create a reasonable person standard, it knows how to do so.

Defendant asserts that section 273a(1) and section 273d differ significantly because section 273a(1), but not section 273d, requires that the culpable conduct occur “under circumstances or conditions likely to produce great bodily harm or death.” “Thus, while only general criminal intent may apply to the actual infliction element, criminal negligence applies to the *1221condition or circumstances element of the offense.” Defendant likewise asserts that the relevant scienter in this case is “the scienter required with respect to the ‘circumstances or conditions likely to produce great bodily harm or death,’ not the scienter required with respect to the actual conduct or omission.”

There appears to be, however, no basis for concluding that the appropriate mens rea for direct infliction of unjustifiable physical pain or mental suffering is contained in the language “under circumstances or conditions likely to produce great bodily harm or death.” Section 273a does not provide that a defendant must “know or reasonably should know that his or her actions occur under circumstances or conditions likely to produce great bodily harm or death.” Rather, the statute proscribes the infliction of unjustifiable physical pain or mental suffering on a child. Whether that infliction is “under circumstances or conditions likely to produce great bodily harm or death” is a question for the trier of fact. In this case for example, the jury reasonably would have considered Michael’s tender age and fragile physical development, the degree of force used by defendant in violently shaking him on two different occasions, and the likelihood of great bodily harm or death created by that force as evidenced by the medical testimony and the injuries sustained. By contrast, if Michael had been a 17-year-old varsity linebacker, those facts would also have been “circumstances or conditions” the jury would consider.

In this manner, section 273a(1) is similar to that portion of section 245, subdivision (a)(1), which proscribes “assault ... by any means of force likely to produce great bodily injury.” Numerous cases have held that whether the force used by the defendant was likely to produce great bodily injury is a question for the trier of fact to decide. (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066 [10 Cal.Rptr.2d 839] [“ ‘[T]he question of whether or not the force used was such as to have been likely to produce great bodily injury, is one of fact for the determination of the jury based on all the evidence, including but not limited to the injury inflicted.’ ”]; People v. Duke (1985) 174 Cal.App.3d 296, 303 [219 Cal.Rptr. 873] [reasonable jury could not find beyond a reasonable doubt that headlock on victim constituted force likely to produce great bodily injury]; People v. Kinman (1955) 134 Cal.App.2d 419, 422 [286 P.2d 28] [“ ‘Whether a fist would be likely to produce such injury is to be determined by the force of the impact, the manner in which it was used and the circumstances under which the force was applied.’ ”]; People v. Pullins (1950) 95 Cal.App.2d 902, 904 [214 P.2d 436] [“Whether the force applied and the means used were calculated to ‘produce great bodily injury,’ is a question for the trier of fact.”]; People v. Bumbaugh (1941) 48 Cal.App.2d 791, 797 [120 P.2d 703] [“In view of the *1222injuries sustained by the complainant, as well as the manner of the assault made upon her, the jury was authorized to conclude that the manner of as well as the means used to perpetrate the attack constituted” assault by means of force likely to produce great bodily injury.]; see 1 Witkin & Epstein, Cal. Criminal Law, supra, Crimes Against the Person, § 419, p. 481 [“where the blows are serious, but still leave a question of fact as to the character of the force used, the defendant is entitled to an instruction on the included offense of simple assault”]; see also People v. Martinez (1973) 31 Cal.App.3d 355, 359 [107 Cal.Rptr. 284] [“It is now settled that assault with force likely to produce great bodily injury, is a general intent crime rather than a specific intent crime.”].) Moreover, similar language in other penal statutes has not precluded them from being interpreted as general criminal intent statutes. (See People v. Carter (1998) 60 Cal.App.4th 752, 755-756 [70 Cal.Rptr.2d 569] [Section 12022.7, subdivision (d), which provides, “Any person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission or attempted commission of a felony,” is a general intent statute.]; People v. Gonzales (1994) 29 Cal.App.4th 1684, 1691, 1695, 1698 [35 Cal.Rptr.2d 450], called into doubt on other grounds in People v. Reed (1996) 13 Cal.4th 217, 229 [52 Cal.Rptr.2d 106, 914 P.2d 184] [Section 1192.7, subdivision (c)(8), which deems “serious” “any other felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice,” is a general intent statute.].)

The scienter for any crime is inextricably linked to the proscribed act or omission. (See § 20 [“In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence.”].) The actus reus for section 273a(1) is infliction of unjustifiable physical pain or mental suffering on a child. Hence, the scienter requirement applies to such an act. There is no separate scienter which attaches to the phrase “circumstances or conditions likely to produce great bodily harm or death.”

We note this inquiry, as a practical matter, will in most cases not differ significantly from the imposition of a criminal negligence mens rea element into the language “under circumstances or conditions likely to produce great bodily harm or death.” Thus in this case, while defendant denied any awareness that his actions were likely to harm Michael, any reasonable person would recognize that shaking a four-and-a-half-month-old infant, who had been bom three months prematurely and had the neck development of a four- to six-week-old, with the force equivalent to dropping him out of a second story window, was a circumstance or condition likely to result in great bodily harm or death.

As Presiding Justice Puglia observed in his dissent in the Court of Appeal, section 273a(1) is not unlike other criminal statutes that gauge the precise *1223measure of the defendant’s culpability for an intentional act by matters extrinsic to the intent element of the crime. The actor may neither anticipate nor have any particular intent or knowledge with respect to these extrinsic matters. For example, a thief unaware the property stolen is worth more than $400 has no defense against conviction of grand theft because of ignorance of the value of the property. (See §§ 487, 488.) Nor may a burglar, unaware the structure entered is inhabited, avoid conviction of first degree burglary on the basis of such ignorance. (§§ 459, 460.) Thus the scienter required for felony and misdemeanor theft is precisely the same. So also is the scienter required for first degree burglary and the lesser crime of second degree burglary.

Such is the case with felony child abuse under the second branch of section 273a(1). The scienter required for both section 273a(1) and section 273a, former subdivision (2) (now section 273a, subdivision (b)) violations is the same. The reference to the infliction of unjustifiable physical pain or mental suffering occurring “under circumstances or conditions likely to produce great bodily harm or death” in subdivision (1) simply states the context in which the subdivision applies. (See People v. Carter, supra, 60 Cal.App.4th at p. 755 [“reference to domestic violence in [section 12022.7,] subdivision (d) was designed to describe the context in which the subdivision applies, not the intent requirement needed under that provision”].) It is for the trier of fact to determine whether the act was done “under circumstances or conditions likely to produce great bodily harm or death,” i.e., under conditions “in which the probability of serious injury is great.” (§ 273a(1); People v. Jaramillo, supra, 98 Cal.App.3d at p. 835.) If so, the crime is punishable as a felony; if not, solely as a misdemeanor. {People v. Deskin, supra, 10 Cal.App.4th at p. 1401.)

Defendant recognizes that “In cases where a person brutally beats a child, it appears absurd to engage in[] an inquiry as to whether an ordinary prudent person would have been aware of the risk of serious bodily harm or death.” However, there is nothing intrinsically distinct about the act of violently shaking a vulnerable infant that separates it from other methods of direct child abuse.

Nor, contrary to defendant’s assertion, will section 273a(l) be tantamount to a strict liability crime if we do not conclude criminal negligence is a required element of the statute. Generally speaking, a strict liability offense is one which dispenses with a mens rea, scienter, or wrongful intent element. (See People v. Simon (1995) 9 Cal.4th 493, 519 [37 Cal.Rptr.2d 278, 886 P.2d 1271].) Felony child abuse requires a mens rea: the defendant must willfully inflict unjustifiable physical pain or mental suffering on a child.

*1224At oral argument, defendant’s counsel asserted that concluding the second branch of section 273a(l) has a general criminal intent mens rea would result in parents being prosecuted for shaking a child or slapping it on the back to save it from choking. However, shaking or slapping a choking child, whatever physical pain or mental suffering that may involve, is justified. Section 273a(l) sanctions only the infliction of unjustifiable physical pain or mental suffering.

In sum, we conclude that when the conduct at issue involves the direct infliction of unjustifiable physical pain or mental suffering on a child, criminal negligence is not an element of the offense. Rather, the defendant must have a mens rea of general criminal intent to commit the proscribed act. In addition, the trier of fact must determine whether the infliction of the unjustifiable physical pain or mental suffering on a child was under circumstances or conditions likely to produce great bodily harm or death. If so, the crime is punishable as a felony. If not, it is punishable solely as a misdemeanor.

In light of this conclusion, there is no need to address whether the Court of Appeal properly modified the judgment to reflect a conviction for misdemeanor child abuse without giving the prosecution an opportunity to retry defendant.

Disposition

The judgment of the Court of Appeal is reversed and the matter is remanded for further proceedings consistent with this opinion.

George, C. J., Baxter, J., Werdegar, J., and Chin, J., concurred.

MOSK, J.

I concur fully in the judgment, which reverses the judgment of the Court of Appeal insofar as it modified the judgment of the superior court convicting appellant, on a jury’s verdict, of felony child abuse to one convicting him of misdemeanor child abuse.

I also concur generally in the opinion of the court prepared by Justice Brown.

I write separately to present my own analysis. I do so in order to explicate felony child abuse—a task that is greatly needed in light of the divergent views expressed by the majority and by the dissenting justice in the Court of Appeal, which reflect similarly divergent views in reported decisions generally.

*1225Felony child abuse—which, strictly speaking, is an alternative felony/ misdemeanor offense—is defined by statute as presently set out in Penal Code section 273a, subdivision (a): “Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered,” is guilty, alternatively, of a felony or a misdemeanor.

Misdemeanor child abuse is defined by statute as presently set out in Penal Code section 273a, subdivision (b): “Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor.”

It is clear at first glance how felony child abuse differs from its misdemeanor counterpart. The felony requires that the “circumstances or conditions” (Pen. Code, § 273a, subd. (a)) establishing the “context” of the perpetrator’s conduct and mental state (People v. Carter (1998) 60 Cal.App.4th 752, 755 [70 Cal.Rptr.2d 569]) must be “likely to produce great bodily harm or death” (Pen. Code, § 273a, subd. (a)). The misdemeanor, contrariwise, requires that such circumstances or conditions must not be likely to do so. (Id., § 273a, subd. (b).)

It is not as clear, however, what felony child abuse requires concerning the perpetrator’s conduct and mental state in addition to context.

Cleaving to the syntax of the statutory language, we articulate its clauses thus: “Any person who, under circumstances or conditions likely to produce great bodily harm or death, [i] willfully [a] causes or permits any child to suffer, or [b] inflicts thereon[,] unjustifiable physical pain or mental suffering, or [ii] having the care or custody of any child, [a] willfully causes or permits the person or health of that child to be injured, or [b] willfully causes or permits that child to be placed in a situation where his or her person or health is endangered,” may be guilty of a felony. (Pen. Code, § 273a, subd. (a), brackets and bracketed material added.)

So articulating the clauses of the statutory language, we discern what have been referred to as four “branches,” which are separate but not necessarily independent:

*1226Under the first branch, a person may be guilty of felony child abuse if, “under circumstances or conditions likely to produce great bodily harm or death,” he “willfully causes or permits any child to suffer . . . unjustifiable physical pain or mental suffering . . . (Pen. Code, § 273a, subd. (a).)1 Crucial for present purposes is the adverb “willfully.” In the setting of the statutory language, he must, at least, intentionally commit an act or omission that happens to result in a child “suffer[ing] . . . unjustifiable physical pain or mental suffering.” He must do more as well. That is to say, he must “cause[] or permit[]” the child “to suffer . . . unjustifiable physical pain or mental suffering” for the purpose of bringing about, or allowing, such a result. The reason is this: The adverb “willfully” modifies the verbs “causes” and “permits”; the object of those verbs is not an act or omission that happens to result in the child “suffer[ing] . . . unjustifiable physical pain or mental suffering,” but rather that very result itself. (Cf. People v. Gorshen (1959) 51 Cal.2d 716, 730 [336 P.2d 492], disapproved on another point, People v. Wetmore (1978) 22 Cal.3d 318, 327, fn. 7 [149 Cal.Rptr. 265, 583 P.2d 1308] [holding that to kill “willfully” within the meaning of Pen. Code, § 189, means to act for the purpose of bringing about death].)2

Under the second branch—which is of particular concern here—a person may be guilty of felony child abuse if, “under circumstances or conditions likely to produce great bodily harm or death,” he “willfully . . . inflicts . . . unjustifiable physical pain or mental suffering” on “any child.” (Pen. Code, § 273a, subd. (a).)3 As explained above, he must, at least, intentionally commit an act that “inflicts” such “unjustifiable physical pain or mental *1227suffering”; in addition, he must do so for the purpose of bringing about such a result.

Under the third branch, a person may be guilty of felony child abuse if, “under circumstances or conditions likely to produce great bodily harm or death,” he “willfully causes or permits the person or health “of any child in his “care or custody” “to be injured . . . .” (Pen. Code, § 273a, subd. (a).) Again, he must, at least, intentionally commit an act or omission that “causes or permits the person or health” of such a child “to be injured”; in addition, he must do so for the purpose of bringing about, or allowing, such a result.

Under the fourth and final branch, a person may be guilty of felony child abuse if, “under circumstances or conditions likely to produce great bodily harm or death,” he “willfully causes or permits” any child in his “care or custody” “to be placed in a situation where” the child’s “person or health is endangered . . . .” (Pen. Code, § 273a, subd. (a).) Yet again, he must, at least, intentionally commit an act or omission that “causes or permits” such a child “to be placed in a situation where” the child’s “person or health is endangered”; in addition, he must do so for the purpose of bringing about, or allowing, such a result.

It follows that felony child abuse may be described as including three elements. The first goes to the perpetrator’s context, specifically, “circumstances or conditions likely to produce great bodily harm or death.” (Pen. Code, § 273a, subd. (a).) The second goes to the perpetrator’s conduct, specifically, an act or omission that “causes or permits” a child “to suffer . . . unjustifiable physical pain or mental suffering,” or “inflict[s]” on a child “unjustifiable physical pain or mental suffering,” or “causes or permits the person or health” of a child in his “care or custody” “to be injured,” or “causes or permits” such a child “to be placed in a situation where” the child’s “person or health is endangered.” (Ibid.) The third goes to the perpetrator’s mental state, specifically, an intent to commit one of the *1228proscribed acts or omissions, and a purpose to bring about, or allow, one of the proscribed results. (Ibid.) 4

Neither the majority nor the dissenting justice in the Court of Appeal explicates felony child abuse thus. Each sets forth extensive discussion. Such discussion, however, turns out to be nothing more, and nothing less, than an analytical tar baby, with which courts should decline to struggle.

In part, the dissenting justice in the Court of Appeal indulged himself, impliedly, in considerations of “general intent” and “specific intent.” Inappropriately. For such notions do not assist in performing the task at hand, which is to explicate felony child abuse. “General intent” and “specific intent” “evolved as labels to identify” particular offenses, with “specific intent” “admitting ... the defense of voluntary intoxication” and “general intent” not doing so. (People v. Cain (1995) 10 Cal.4th 1, 83 [40 Cal.Rptr.2d 481, 892 P.2d 1224] (conc. opn. of Mosk, J.); accord, People v. Hood (1969) 1 Cal.3d 444, 455-457 [82 Cal.Rptr. 618, 462 P.2d 370]; see People v. Whitfield (1994) 7 Cal.4th 437, 463 [27 Cal.Rptr.2d 858, 868 P.2d 272] (conc. and dis. opn. of Mosk, J.).) “General intent” has usually been affixed if the mental element of an offense entails only an intent to engage in certain proscribed conduct. (People v. Hood, supra, 1 Cal.3d at pp. 456-457.) In contrast, “specific intent” has usually been affixed if the mental element of an offense entails an intent to engage in certain proscribed conduct for the purpose of bringing about, or allowing, a certain proscribed result. (Id. at p. 457.) “General intent” and “specific intent” have shown themselves to be “notoriously difficult ... to define and apply.” (Id. at p. 456; accord, People v. Cain, supra, 10 Cal.4th at p. 84 (conc. opn. of Mosk, J.).) For this reason, “they have proved to be mischievous.” (People v. Cain, supra, 10 Cal.4th at p. 84 (conc. opn. of Mosk, J.).) Even if they were not so, they simply do not assist in explicating felony child abuse. Neither do they aid in describing its mental element. Indeed, were we to attempt to affix the label of “general intent” or “specific intent,” we would doubtless have to select both—“general intent,” insofar as its mental element entails an intent to commit one of the proscribed acts or omissions; and “specific intent,” insofar as it entails an intent to do so for the purpose of bringing about, or allowing, one of the proscribed results.

In other part, the dissenting justice in the Court of Appeal indulged himself, expressly, in considerations of “general intent” and “criminal negligence;.” Again, inappropriately. For such notions also do not assist in *1229performing the task at hand, which is to explicate felony child abuse. “Criminal negligence”—to quote People v. Peabody (1975) 46 Cal.App.3d 43 [119 Cal.Rptr. 780] (hereafter sometimes Peabody)—“must go beyond [ordinary negligence] required for civil liability and must amount to a ‘gross’ or ‘culpable’ departure from the required standard of care. [Citations.] [It] must be aggravated or reckless; that is, it must be such a departure from what would be the conduct of an ordinarily prudent person under the same circumstances as to be incompatible with a proper regard for human life. [It] must show an indifference to the consequences, and this has been said to require knowledge, actual or imputed, that the act tends to endanger another’s life.” (Id. at p. 47.)5 “General intent” and “specific intent” are, at least, complementary terms. “General intent” and “criminal negligence,” as is apparent, are not.

The dissenting justice in the Court of Appeal claimed to discern a mental element of “criminal negligence” in felony child abuse insofar as the perpetrator’s conduct involves a proscribed omission. He did so apparently on the assumption that such an omission implies such negligence.

The dissenting justice in the Court of Appeal was wrong: felony child abuse does not include a mental element of “criminal negligence” for the proscribed omission. To be sure, such negligence may accompany such an omission. But so may recklessness or knowledge or even purpose—as when one fails to act in order not to hinder a desired result.

For its part, the majority in the Court of Appeal claimed to discern a mental element of “criminal negligence” in felony child abuse generally, without regard to whether the perpetrator’s conduct involves either a proscribed act or a proscribed omission. It did so following Peabody and its progeny, which had done the same, albeit while looking to branches of the offense other than the second, which is of particular concern here, for the sake of assuring “consistency” in all its branches. It also did so in reliance on the offense’s context element, which covers “circumstances or conditions likely to produce great bodily harm or death” (Pen. Code, § 273a, subd. (a)), in the belief that, without “criminal negligence,” the offense would not include a mental element other than that indicated by “willfulness,” which it shared with its misdemeanor counterpart, and would thereby show itself to be “tantamount” to a “disfavored” offense of strict liability.

*1230The majority in the Court of Appeal was wrong as well: felony child abuse does not include a mental element of “criminal negligence” generally. It ought not to have followed Peabody and its progeny. These decisions did not read what the statutory language stated as much as state what they had read into such language. Neither ought it to have relied on the offense’s context element covering “circumstances or conditions likely to produce great bodily harm or death.” (Pen. Code, § 273a, subd. (a).) “Criminal negligence” is not referred to in the statutory language. Indeed, it is not even suggested. There is absolutely no “require[ment]” that the perpetrator possess either “actual or imputed” “knowledge” (People v. Peabody, supra, 46 Cal.App.3d at p. 47) that his conduct is “likely to produce great bodily harm or death” (Pen. Code, § 273a, subd. (a)). Moreover, even without “criminal negligence,” the offense cannot be deemed to be “tantamount” to one of strict liability. An offense is of this kind if it does not include any mental element whatsoever. (See People v. Simon (1995) 9 Cal.4th 493, 519-522 [37 Cal.Rptr.2d 278, 886 P.2d 1271].) This offense is not such. Neither can it be considered similar. For it obviously includes a mental element, which is indicated by “willfulness.” It does not stand in need of another. To be sure, the law requires that an offense must include a conduct element and a mental element in union. (Pen. Code, § 20.)6 But it does not prohibit it from including an element of a third kind, like a context element, not possessing aspects of either of the other two.7

The majority in the Court of Appeal evidently believed that felony child abuse could not, or at least should not, be distinguished from its misdemeanor counterpart solely by its context element. There is no basis for a belief of this sort. A felony may be distinguished from a corresponding misdemeanor solely on the basis of a context element. So is it with theft (Pen. Code, § 484), specifically, the felony (more precisely, the alternative felony/misdemeanor) of grand theft (id., §§ 487, subd. (a), 489, subd. (b)) and the misdemeanor of petty theft (id., §§ 488, 490), where the former may be distinguished from the latter solely on the basis of a context element indicating that the value of the item taken exceeds $400 (id., § 487, subd. (a); see id., § 488). Likewise with burglary (id., § 459), specifically, the felony of first degree burglary {id., §§ 460, subd. (a), 461, subd. 1) and the *1231misdemeanor (more precisely, the alternative felony/misdemeanor) of second degree burglary (id., §§ 460, subd. (b), 461, subd. 2), where the former may be distinguished from the latter solely on the basis of a context element indicating that the nature of the structure entered was that of an inhabited dwelling house (id., § 460, subd. (a); see id., § 460, subd. (b)). Unproblematically so. The context element of a felony may properly mark it as more serious than a corresponding misdemeanor because the consequences of the felony, either actual or potential, are deemed to be graver than those of the misdemeanor, as where the item taken in a theft has a value exceeding $400 or the structure entered in a burglary is an inhabited dwelling house. Thus is it here. The context element of felony child abuse covers “circumstances or conditions likely to produce great bodily harm or death.” (Id., § 273a, subd. (a).) That of its misdemeanor counterpart, in contrast, covers “circumstances or conditions other than those likely to produce great bodily harm or death.'” (Id., § 273a, subd. (b), italics added.)8

In conclusion, I join in reversing the judgment of the Court of Appeal insofar as it modified the judgment of the superior court convicting appellant of felony child abuse to one convicting him of its misdemeanor counterpart.

Kennard, J., concurred.

On March 9, 1999, the opinion was modified to read as printed above.

TERNUS, Justice.

The defendant, William Schminkey, entered Alford pleas to the offenses of homicide by vehicle, see Iowa Code § 707.6A(.1) (1997), and theft of a motor vehicle, see id. §§ 714.1, .2(2). See generally North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L.Ed.2d 162, 171 (1970) (holding that an accused may consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime). The court sentenced him to consecutive ten-year and five-year terms of imprisonment, respectively. Schminkey now claims that the record lacks a sufficient factual basis for a finding that he was guilty of the theft offense. He also claims his counsel rendered ineffective assistance in failing to object to the prosecutor’s breach of the plea agreement with respect to the State’s sentencing recommendations.

We agree that the record does not show a factual basis for Schminkey’s conviction of the crime of theft of a motor vehicle. This conclusion makes it unnecessary to consider Schminkey’s claim that the State breached the plea agreement. Accordingly, we vacate the sentence on the theft conviction and remand for further proceedings.

I. Factual and Procedural Back-grcmnd.

The underlying facts of the tragic episode culminating in Schminkey’s convictions are undisputed. Because the ultimate focus in this case is on the record before the district court at the time of the guilty plea proceedings, we recite the facts as they appeared to the court during that phase of the case.

Schminkey spent the evening of May 17, 1997 drinking, first at a party and then at a bar. Although Schminkey has no recollection of leaving the bar or of what happened after he left, witnesses established that he departed the bar and then drove a pickup owned by Dale Kimm, a man Schminkey did not know. Schminkey did not have Kimm’s permission to drive the pickup. Several witnesses observed the pickup being driven erratically and in excess of the speed limit. -They saw the vehicle heading north, approaching a controlled intersection in the town of Van Horne at an excessive rate of speed. The pickup went through the intersection without slowing down and struck two vehieleSi facing south, that were stopped at the intersection stop sign. The driver and only occupant of the first vehicle, nineteen-year-old Jason Kray, died en route to the hospital.

Notwithstanding the collision, the driver of the pickup appeared to be fleeing the scene, accelerating the engine and proceeding down the road for another block or so before crashing into a fence. Witnesses who assisted in extricating Schminkey from the pickup said he smelled strongly of alcohol. A later urine test showed his blood alcohol level to be .189, significantly over the legal limit of .10. See Iowa Code § 321J.2(1).

Schminkey was charged with homicide by vehicle in violation of Iowa Code section 707.6A(1), involuntary manslaughter in violation of Iowa Code section 707.5(1), and theft of a motor vehicle in violation of Iowa Code sections 714.1 and 714.2(2). Claiming he was unable to recall the events of the evening due to his intoxication, Schminkey entered into a plea agreement with the State, whereby, in exchange for his Alford plea to the theft and homicide charges, the State would dismiss the involuntary manslaughter charge and recom*788mend that Sehminkey’s sentences on the remaining charges run concurrently.

The State dismissed the manslaughter charge. At the plea hearing, the district court made a determination that a factual basis for the pleas appeared in the record and then accepted Schminkey’s guilty pleas. Schminkey was subsequently sentenced to consecutive ten-year and five-year terms of incarceration.

Schminkey appealed, claiming his counsel rendered ineffective assistance in two ways. First, he contends his counsel should not have allowed him to plead guilty to the theft charge because there was not a factual basis for a finding that he intended to permanently deprive the owner of his vehicle. He also claims that the prosecutor breached the plea agreement because the prosecutor did not expressly state the State’s recommendation for concurrent sentences at the sentencing hearing. Schminkey asserts his counsel rendered ineffective assistance in failing to object to this breach. The court of appeals affirmed, and we granted further review.

II. General Principles Governing Ineffective-Assistance-of-Counsel Claims.

The Sixth Amendment to the United States Constitution guarantees a defendant the right to the effective assistance of counsel. See U.S. Const. amend. VI; Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984). We review claims that this constitutional right has been violated de novo. See State v. Ray, 516 N.W.2d 863, 865 (Iowa 1994).

Claims of ineffective assistance of counsel are generally preserved for postconviction relief proceedings. See id. Where the record is adequate to address the issue, however, such claims will be considered on direct appeal. See id. As will become clear, this is such a case.

The standards required to prevail on a claim of ineffective assistance of counsel are well established. The defendant must prove by a preponderance of the evidence that his “counsel failed to perform an essential duty,” and that he “was prejudiced by counsel’s error.” State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996).

III. Did Trial Counsel Render Ineffective Assistance in Allowing Schminkey to Plead Guilty to the Offense of Theft of a Motor Vehicle?

The district court may not accept a guilty plea without first determining that the plea has a factual basis. See Iowa R.Crim. P. 8(2)(b); State v. Burtlow, 299 N.W.2d 665, 668 (Iowa 1980). This requirement exists even where the plea is an Alford plea. See Alford, 400 U.S. at 38 n. 10, 91 S.Ct. at 168 n. 10, 27 L.Ed.2d at 171-72 n. 10. Where a factual basis for a charge does not exist, and trial counsel allows the defendant to plead guilty anyway, counsel has failed to perform an essential duty. See Brooks, 555 N.W.2d at 448. Prejudice in such a case is inherent. See State v. Hack, 545 N.W.2d 262, 263 (Iowa 1996) (holding that where there is no factual basis for a guilty plea, ineffective assistance of counsel is established). Therefore, our first and only inquiry is whether the record shows a factual basis for Schminkey’s guilty plea to the charge of theft of a motor vehicle. In deciding whether a factual basis exists, we consider the entire record before the district court at the guilty plea hearing, including any statements made by the defendant, facts related by the prosecutor, the minutes of testimony, and the presentence report. See Brooks, 555 N.W.2d at 448-49; State v. Fluhr, 287 N.W.2d 857, 867-68 (Iowa 1980), overruled in part on other grounds by State v. Kirchoff 452 N.W.2d 801, 805 (Iowa 1990).

The offense of theft is defined in section 714.1(1), which states that a person commits theft when he “[t]akes possession or control of the property of another, or property in the possession of another, with the *789 intent to deprive the other thereof.” (Emphasis added.) Sehminkey challenges the factual basis for the intent element of this crime.

The intent required for the commission of a theft is an intent to deprive the owner of his or her property. See Eggman v. Scurr, 311 N.W.2d 77, 79 (Iowa 1981). Sehminkey argues that this element of the crime requires proof that he intended to permanently deprive the owner of his vehicle. He contrasts the theft statute, section 714.1(1), with Iowa Code section 714.7, defining the crime of operating a vehicle without the owner’s consent. The latter statute prohibits the “possession or control of ... any self-propelled vehicle ... without the consent of the owner of such, but imthout the intent to permanently deprive the oumer thereof.” Iowa Code § 714.7 (emphasis added). This crime, operating a vehicle without the owner’s consent, is expressly made a lesser included offense of the crime of theft. See id.

Sehminkey correctly argues that an intent to permanently deprive the owner of his property is an essential element of theft under section 714.1(1). The legislature’s distinction of the crime of theft from the crime of operating a vehicle without the owner’s consent — the existence or absence of an intent to permanently deprive the owner — supports this conclusion. In addition, this interpretation of section 714.1(1) is consistent with the crime of larceny as it was defined prior to the revision of Iowa’s criminal laws in 1978. See generally Eggman, 311 N.W.2d at 80 (“Revised criminal code offenses are to be construed as altering prior law only if a legislative intent to change the prior law is clear.”); Emery v. Fenton, 266 N.W.2d 6, 8 (Iowa 1978) (stating that the criminal law revision “is primarily a restatement of [the prior] law”). Prior to the criminal code revisions, the crime of larceny, see Iowa Code § 709.1 (1977), and the separate crime of larceny of a motor vehicle, see id. § 321.82, required proof of an intent to permanently deprive the owner of the stolen property or vehicle. See Brainard v. State, 222 N.W.2d 711, 721 (Iowa 1974); State v. Boggs, 181 Iowa 358, 360, 164 N.W. 759, 760 (1917). In one of the few cases in which this court has addressed the issue of intent since the criminal code revisions, we held .that the record must demonstrate more than an intent to temporarily deprive the owner of the property in order to prove a theft. See Fluhr, 287 N.W.2d at 867.1

Because proof that the defendant acted with the specific purpose of depriving the owner of his property requires a determination of what the defendant was thinking when an act was done, it is seldom capable of being established with direct evidence. See State v. Fratzke, 446 N.W.2d 781, 783 (Iowa 1989). Therefore, the facts and circumstances surrounding the act, as well as any reasonable inferences to be drawn from those facts and circumstances, may be relied upon to ascertain the defendant’s intent. See State v. Nance, 533 N.W.2d 557, 562 (Iowa 1995). Accordingly, we examine the record for facts and circumstances that would support an inference that Sehminkey intended to permanently take possession of the truck.

*790The record upon which the trial court could draw to determine whether a factual basis existed for Schminkey’s plea of guilty to the theft charge was minimal. Because Schminkey entered an Alford, plea, he made no admissions with respect to his commission of this crime. The county attorney made no factual statements. The presentence report had not been completed. The court merely had before it the minutes of testimony. See generally State v. Townsend, 238 N.W.2d 351, 355 (Iowa 1976) (holding factual basis for an Alford plea may be determined from the minutes).

From the minutes of testimony, it can be established that at 7 p.m. on the day of the accident, Schminkey accompanied a friend to a party where he consumed several beers. He eventually left that party and went to a bar where he drank more alcohol. Later in the evening, at approximately 10:45 p.m., Schminkey was seen driving a pickup from Blairstown to Van Horne. Minutes later, he was involved in the accident described above, and then crashed the vehicle into a fence a block or two from the accident scene. The minutes also show that the owner of the pickup had parked the vehicle in Blairstown and had not given Schminkey permission to drive it.

We find no facts or circumstances in this recitation that would allow an inference that Schminkey intended to permanently deprive the owner of his vehicle. In a similar case that arose under Iowa’s old larceny statute, this court reversed a conviction based on a guilty plea in part on the ground that the trial court could not have found a factual basis for the defendant’s guilty plea because the record did not establish a factual basis for the intent element of the crime. Brainard, 222 N.W.2d at 721 (plurality opinion). In Brainard, the defendant admitted in the plea colloquy that he took another’s automobile without permission. Id. at 720. He denied that he intended to sell the car, but he admitted that he did not intend to bring it back. Id. This court stated that “[t]he essential question as to [the defendant’s] intent is whether he intended to deprive the owner permanently of his automobile.” Id. at 721. We concluded the record did not show a factual basis for finding that the defendant had that intent. Id. Without that intent, we noted, he would at most be guilty of the lesser offense of operating a motor vehicle without the owner’s consent. Id.

Under analogous circumstances, the court of appeals has also concluded the record lacked a factual basis for a finding of intent. State v. Henning, 299 N.W.2d 909, 911 (Iowa App.1980). In Henning, the defendant pled guilty to a charge of assault with intent to inflict serious injury. Id. at 909. During the plea colloquy, he acknowledged being involved in a fight, but stated that he did not otherwise remember the event. Id. at 911. The court of appeals found the record adequate to show a factual basis for the defendant’s acts, but not to show a factual basis for the requisite intent. Id.

Other states have, under similar facts, reached the same result as did our courts in Brainard and Henning. E.g., Pottinger v. State, 122 Fla. 405, 165 So. 276, 277 (1936) (holding the evidence was insufficient to support a finding that the defendant intended to permanently deprive another of his automobile, where the record showed the defendant, after an evening of drinking, took the ear of another, which he then drove to other bars); Gibson v. State, 8 Md.App. 1, 256 A.2d 890, 892 (1969) (reversing guilty verdict on theft charge because evidence did not support finding of intent to permanently deprive owner of vehicle, where defendant took car to drive himself home after escaping from police custody); Slay v. State, 241 So.2d 362, 364 (Miss.1970) (holding evidence that defendant took another’s car and drove it around town, eventually wrecking it while being pursued by the police, did not support a finding of intent to permanently deprive the owner of his car); cf. Fluhr, *791287 N.W.2d at 866-67 (holding, in challenge to a guilty plea, that the record did not show a factual basis for the intent element of theft where the defendant merely admitted to taking car parts belonging to another and the parts were later found in the defendant’s garage, there being no indication that the defendant intended to keep the property for any particular length of time).

We acknowledge the general statements made in some of our prior cases that possession of stolen property creates an inference supporting a conviction of larceny. See State v. Rosewall, 239 N.W.2d 171, 174 (Iowa 1976); State v. Everett, 157 N.W.2d 144, 146 (Iowa 1968), overruled on other grounds by State v. Hawkins, 203 N.W.2d 555, 556 (Iowa 1973); State v. Brightman, 252 Iowa 1278, 1284, 110 N.W.2d 315, 318 (1961); State v. Girdler, 251 Iowa 868, 873, 102 N.W.2d 877, 879 (1960). In none of these cases, however, was the defendant’s intent at issue. In Brightman, a suit stolen from a dry cleaning business was discovered in the defendant’s home six months after it had been taken. 252 Iowa at 1280-81, 110 N.W.2d at 316. The defendant claimed that he had purchased the suit from an over-the-road trucker. Id. at 1285, 110 N.W.2d at 319. The element of larceny at issue in this case was whether the defendant took the suit from the cleaners; there was no discussion of his intent. The same analysis is applicable to the Roseivall and Girdler cases; the defendant’s intent was not an issue in these cases either. See Rosewall, 239 N.W.2d at 174 (“Defendants here challenge only the ‘taking’ element of the larceny charge.”); Girdler, 251 Iowa at 872-73, 102 N.W.2d at 879 (discussing sufficiency of the evidence to prove the defendant, an escapee from prison, knew that another escapee had stolen the vehicle in which the defendant was apprehended; the defendant’s intent was not mentioned as being in dispute). Finally, we also think the Everett case is not helpful. In that case, the defendant was accused of taking a vehicle from a used car lot. Everett, 157 N.W.2d at 145. The defendant claimed he had borrowed the vehicle from a bartender with whom he was acquainted. Id. at 146. Although the court discusses the sufficiency of the evidence with respect to the defendant’s “intent to steal” the vehicle, id., it is apparent from the discussion of the evidence that the real dispute was whether he took the vehicle from the used car lot or legitimately borrowed it from a friend. Thus, the court did not really focus on the precise issue that confronts us in the present case, namely, where there is an admitted taking, is that sufficient, standing alone, to support an inference of an intent to permanently deprive the owner of his vehicle.

Because the Brainard and Henning cases are more on point factually and because the courts in those cases focused on the evidence necessary to support a finding of intent, we conclude the principles applied in Brainard and Henning should govern our analysis here. Accordingly, the mere fact that Schminkey took the pickup without the owner’s consent does not give rise to an inference that he intended to permanently deprive the owner of the vehicle.

In our search for other facts or circumstances that might reveal Schminkey’s intent in taking the pickup, we find none indicating that he intended to do anything more than temporarily use the vehicle to go home or to another bar. Because Schminkey wrecked the pickup before he could dispose of it, we do not have the typical inferences that can be drawn from a defendant’s actions subsequent to the taking. Compare Slay, 241 So.2d at 364 (holding the evidence was insufficient to prove that the defendant had an intent to permanently deprive the owner of his car, stating “the extent of damage to the car was of no probative value on the issue of specific intent, since its wrecking was not purposeful”), with People v. Graham, 27 Ill.App.3d 408, 327 N.E.2d 261, 264 (1975) (finding evidence of intent to permanently deprive owner of vehicle sufficient where *792defendant had changed the license plates on the car); State v. Keeler, 238 Kan. 356, 710 P.2d 1279, 1283 (1985) (holding evidence sufficient to prove intent to permanently deprive owner of car where defendant used the vehicle for several days and then abandoned it); State v. Winkelmann, 761 S.W.2d 702, 708 (Mo.Ct.App.1988) (finding sufficient evidence of an intent to permanently deprive owner of her car where the defendant intentionally drove the car into a brick wall, inflicting severe damage to the vehicle). Furthermore, the record contains no admissions by the defendant or statements from other witnesses that would indicate Schminkey’s purpose in taking the vehicle. Under these circumstances, we conclude the record does not show a factual basis for Schminkey’s guilty plea to the charge of theft of a motor vehicle.

IV. Disposition.

Where a guilty plea has no factual basis in the record, two possible remedies exist. Where the record establishes that the defendant was charged with the wrong crime, we have vacated the judgment of conviction and sentence and remanded for dismissal of the charge. See, e.g., Hack, 545 N.W.2d at 263; State v. Schoelerman, 315 N.W.2d 67, 75 (Iowa 1982). Where, however, it is possible that a factual basis could be shown, it is more appropriate merely to vacate the sentence and remand for further proceedings to give the State an opportunity to establish a factual basis. See Burtlow, 299 N.W.2d at 670; Ryan v. Iowa State Penitentiary, 218 N.W.2d 616, 620 (Iowa 1974).

We think this case falls within the latter category. There may be additional facts and circumstances that do not appear in the minutes of testimony that would support an inference that the defendant intended to permanently deprive the pickup’s owner of his vehicle. Therefore, we vacate the sentence entered on the theft charge and remand for further proceedings at which time the State may supplement the record to establish a factual basis for the crime of theft of a motor vehicle. If a factual basis is not shown, the defendant’s plea must be set aside.

Our vacation of the sentence entered on the theft conviction makes it unnecessary to address the defendant’s claim that the county attorney breached the plea agreement by failing to recommend concurrent sentences. If a factual basis for the theft charge is established on remand, we trust that the county attorney will comply with the plea agreement by expressly recommending concurrent sentences at any future sentencing hearing.

DECISION OF COURT OF APPEALS VACATED; SENTENCE ON THEFT CHARGE VACATED AND REMANDED FOR FURTHER PROCEEDINGS.

All justices concur except CARTER, J., and McGIVERIN, C.J., and HARRIS and LARSON, JJ., who dissent.

CARTER, Justice

(dissenting).

I dissent.

The record made before the district court during the guilty-plea proceeding adequately demonstrated a factual basis for the charge of theft of a motor vehicle. The minutes of testimony indicated that (1) the owner of a 1978 brown and tan Chevrolet pickup truck would testify that the vehicle was taken without permission on the evening of May 17, 1997; and (2) a Benton County deputy sheriff would testify that he was close enough to a fatal collision involving the stolen pickup to hear the sound of the impact and moments later arrived at the crash scene to find defendant sitting crossways, by himself, in the front seat of the missing pickup. Minutes of testimony are appropriate sources for establishing a factual basis under the decisions of this court. See State v. Fluhr, 287 N.W.2d 857, 868 (Iowa 1980), overruled on other issues by State v. Kirchoff, 452 N.W.2d 801, 804-05 (Iowa 1990); State v. Marsan, 221 N.W.2d 278, 280 (Iowa 1974).

*793When a defendant pleads guilty, strong evidence of actual guilt is not required even if the defendant protests his innocence. United States v. Tunning, 69 F.3d 107, 111-12 (6th Cir.1995). Several courts that have considered the standard that should be applied in determining the factual basis for a guilty plea have agreed that the standard should be enough evidence to withstand a directed verdict at trial. United States v. Webb, 433 F.2d 400, 403 (1st Cir.1970); In re Guilty Plea Cases, 395 Mich. 96, 235 N.W.2d 132, 145 (1975); State v. Genereux, 272 N.W.2d 33, 34 (Minn.1978).

I submit that indicia of a prima facie case is the only practical standard to be employed because to require a greater showing will inappropriately • involve the court in factual determinations based on the type of abbreviated factual record that can be made available at a guilty-plea proceeding. This is particularly true in this ease because the element under consideration is the defendant’s intent, which is seldom capable of direct proof. State v. Chang, 587 N.W.2d 459, 462 (Iowa 1998). To require a greater showing will also require the court to substitute its judgment for that of defendant and defendant’s counsel concerning whether defendant would in fact be convicted if a trial were held.

If the indicia of a prima facie case is utilized as the standard for establishing a factual basis, the minutes of testimony in the present case were sufficient indicia that the State had a prima facie case. As a general proposition in prosecutions charging theft, possession of property recently taken without permission establishes a prima facie case that a theft has been perpetrated by the possessor of the missing property. See State v. Brightman, 252 Iowa 1278, 1284, 110 N.W.2d 315, 316-18 (1961). This court has consistently applied this rule in cases involving prosecutions for theft of a motor vehicle. State v. Rosewall, 239 N.W.2d 171, 173-74 (Iowa 1976); State v. Everett, 157 N.W.2d 144, 146 (Iowa 1968), overruled on other issues by State v. Hawkins, 203 N.W.2d 555, 556-57 (Iowa 1973); State v. Girdler, 251 Iowa 868, 873, 102 N.W.2d 877, 879 (1960).

A helpful illustration of the application of this principle in a vehicle theft situation similar to the present case is found in Everett. There, the evidence showed that a motor vehicle had been left on the lot of a used car dealer at the close of business on October 18, 1965. On that evening, that vehicle was observed being driven on the streets of Cedar Rapids and later parked behind a tavern in Cedar Rapids. Still later in the evening, defendant was apprehended while driving the vehicle. Defendant was convicted at trial of larceny of a motor vehicle. On appeal the presumption of guilt to which I have referred was utilized as the basis for upholding the conviction notwithstanding defendant’s testimony that he had only borrowed the car.

The majority attempts to distinguish these cases on the basis that the intent to keep the property was not made an issue on those appeals. This overlooks the fact that the inference of guilt applied therein encompassed all elements of the offense of larceny of a motor vehicle. This was expressly .recognized in Rosewall in which this court states:

Under our holding in Everett the admitted possession by defendants of the recently stolen motorcycle creates an inference barring a motion for directed verdict. The inference is not limited to any particular element of larceny. When it arises guilt of the crime of larceny is inferred.

Rosewall, 239 N.W.2d at 174. The elements of the former statutory crime of larceny of a motor vehicle are sufficiently similar to the present statutory crime of theft that the principle established in the cases under discussion should be applied in the same manner.

In concluding that the showing of a factual basis in the present case was inadequate, the majority opinion misapplies our *794holding in Brainard v. State, 222 N.W.2d 711 (Iowa 1974). In Brainard the court set forth detailed standards for establishing a knowing and voluntary plea of guilty through direct colloquy between the court and the defendant. Although Brainard was a prosecution for larceny of a motor vehicle and there are statements in the opinion that the factual basis presented was inadequate, the court’s finding of inadequacy is with regard to the limited extent of the colloquy with the defendant to establish the intent with which he had acted. The case cannot be a holding that the factual basis presented was inadequate in toto because the specially concurring opinion necessary for the five-person majority expressly declined to find an inadequate factual basis and expressed the view that an adequate factual basis had been shown. The discussion of factual basis in Fluhr, 287 N.W.2d at 867, should also be viewed as a discussion of what was deemed an inadequate colloquy with the defendant in attempting to gain his admission concerning the intent element of the crime. This is borne out by the fact that the court ordered that defendant be permitted to plead anew (a remedy for an uninformed guilty plea) as contrasted to remanding the case to permit the State to further show a factual basis.

The court’s primary concern regarding factual basis in Fluhr was stated as follows:

Nor do the facts that the [written] plea form indicated that defendant had discussed the elements and facts of the crime with his attorney and that the attorney certified, on a separate form, that he was satisfied that the plea was factually justified overcome any of the plea’s deficiencies.... [R]eliance by a trial court upon an attorney’s declaration which fails to detail the facts upon which he bases his conclusion constitutes an impermissible delegation by the court of its duty to determine the existence of a factual basis.

Fluhr, 287 N.W.2d at 867. The Fluhr opinion does state that the minutes of testimony in that case were inadequate to show that defendant intended to keep the property that was the subject of the theft charge to which he had pleaded guilty. I submit that the court was only declaring that the minutes of testimony would not be considered a substitute for personal inquiry of the defendant concerning criminal intent when the defendant before the court had recollection of the circumstances of the crime and had not declared an intent to enter an Alford plea. The court makes no reference to departing from the general rule that indicia of a prima facie case satisfies the factual-basis element. If the court did find the minutes of testimony were inadequate to show factual basis on a record that contained indicia of a prima facie case, I submit that this was an incorrect statement of the law. It was also a comment that was not necessary to the opinion because of the court’s election to permit the defendant to plead anew as the result of not having been fully informed of the elements of the crime.

The present case differs substantially from Brainard and Fluhr because the colloquy between the court and the defendant concerning the intent element of the crime is not an issue here. The defendant disavowed any memory of the circumstances surrounding the alleged crime. In such circumstances, factual basis should be deemed to have been adequately shown through minutes of testimony that give indicia of a prima facie case.

The holding of the majority in the present case, which purports to be based on the best interests of the defendant, will instead deny this defendant and other defendants similarly situated an opportunity to make a plea bargain notwithstanding the fact that the State has made a prima facie showing of guilt on one of the charges to which the defendant has agreed to plead guilty. I would hold that the showing of factual basis in the present case was ade*795quate and proceed to consider the other issues raised on appeal.

McGIVERIN, C.J., and HARRIS, and LARSON, JJ. join this dissent.

PER CURIAM.

Defendant, Willis Elbert Morris, appeals from judgment and sentence convicting him of second-degree theft as a habitual offender in violation of Iowa Code sections 714.2(2), 902.8, and 902.9(3) (2001). The alleged theft involved a motor vehicle. He contends that the State failed to produce sufficient evidence that he intended to permanently deprive the owner of possession of the motor vehicle, an essential element of theft involving a motor vehicle. The court of appeals agreed with that contention and reversed defendant’s conviction for theft. After reviewing the record and considering the arguments presented, we affirm the decision of the court of appeals. The judgment of the district court is reversed and remanded.

On October 6, 2001, at 4:30 a.m., Brian Gonzales started the engine on his truck parked on the street in front of his home. He intended to let it warm up before driving to work. Gonzales reentered his home leaving the engine running. Shortly thereafter, he heard a “revving” of the truck’s *788engine, looked outside, and saw someone driving his truck away.

'Gonzales called Waterloo police and reported the taking of the vehicle. Officer Aaron McClelland arrived at the scene and took the necessary information from Gonzales, including a description of the truck. The officer then put out an “attempt to locate” call to Waterloo patrol officers for the location of a brown Ford Ranger pickup truck.

Approximately thirty minutes later, McClelland came upon the missing truck about five miles from Gonzales’s residence. The truck was being driven in the opposite direction from that of the officer’s vehicle. McClelland turned his police vehicle around and gave pursuit. The person driving Gonzales’s truck stopped the vehicle, got out, and fled on foot toward nearby houses. Officer McClelland radioed for backup and a K-9 unit responded. One of the dogs alerted police to the presence of a person hiding on a porch of a house. McClelland identified this person as the man who had fled from the truck. That person was ultimately determined to be defendant, Willis -Elbert Morris.

Defendant was arrested and charged with second-degree theft pursuant to Iowa Code section 714.2(2) (the motor vehicle version), a class “D” felony. He was also charged as a habitual offender, pursuant to Iówa Code section 902.8. The second-degree theft charge was submitted to the jury along with the lesser-ineluded offense of operating a motor vehicle without the owner’s consent in violation of Iowa Code section 714.7. The jury found defendant guilty of second-degree theft. He ultimately stipulated to the prior offenses on which the habitual-offender sentencing enhancement was based.

The court of appeals, relying on our decision in State v. Schminkey, 597 N.W.2d 785 (Iowa 1999), concluded that the mere fact that defendant took Gonzales’s pickup truck without consent of the owner did not give rise to an inference that he intended to permanently deprive the owner of the vehicle. The court further concluded that the evidence, viewed in its entirety, was insufficient to permit a finding of the requisite intent beyond a reasonable doubt. We agree with the court of appeals’ reading of Schminkey and its application to the present facts.

Although apprehension of the suspect within a short time of the taking of the vehicle does not defeat the possibility that there was an intent to permanently deprive the owner of the property at the time of the taking, it is a circumstance that severely limits the circumstantial evidence from which that intent can be inferred. The State urges that the circumstances under which the defendant abandoned the vehicle, i.e., stopping it and running away, are indicative of the requisite intent. We disagree. Abandoning the vehicle and fleeing upon observing the presence of police was an act that would ordinarily assure that the truck would be returned to its owner. We affirm the decision of the court of appeals holding that the evidence was insufficient to support a conviction for second-degree theft.

The court of appeals simply remanded the case for further proceedings not inconsistent with its opinion. We believe a more specific remand mandate is warranted. The offense of operating a motor vehicle without the owner’s consent in violation of Iowa Code section 714.7 was submitted to the jury as a lesser-ineluded offense. The jury did not reach a verdict on that offense because it found that the State had established all elements of the greater offense. In so doing, the jury necessarily found that the State had established all elements of the included offense. *789In such instances, we have approved entering an amended judgment of conviction with respect to the lesser-included offense. State v. Pace, 602 N.W.2d 764, 774 (Iowa 1999); see also State v. Lampman, 342 N.W.2d 77, 81 (Iowa Ct.App.1983); 5 Am. Jur.2d Appellate Revieiv §§ 836, 844 (1995). We order that this be done following remand in the present case. Defendant shall then be resentenced according to law.

DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT JUDGMENT REVERSED AND REMANDED.

All justices concur except CARTER, J., who concurs specially, and LARSON, CADY, and STREIT, JJ., who dissent.

CARTER, Justice

(concurring specially).

Although I am troubled with the decision of the court in State v. Schminkey, 597 N.W.2d 785 (Iowa 1999), for the reasons set forth in my dissent in that case I do not agree that that decision only applies to guilty pleas, as the dissent in the present case suggests.

Schminkey involved the taking of an Alford plea in which the defendant refused to admit guilt. When this occurs, the court, before accepting the plea, must determine whether the evidence available to the State would be sufficient to sustain a guilty verdict at trial. That is the same analysis that must be undertaken in ruling on a motion for judgment of acquittal. For this reason, Schminkey is valid authority for the issue presently before the court.

I believe Schminkey failed to recognize the strength of the inference that arises from taking an automobile without the owner’s consent. An individual’s intent is synonymous with what he wants to do. What he wants to do is usually motivated by and derived from the actor’s own best interests. It is in the best interests of one taking another’s automobile without permission that the vehicle not be returned to the owner because this may aid in the identification of the perpetrator.

Notwithstanding my conclusions in this regard, I concur in the result because I am unable to find that the totality of the evidence in the present case, including the presumption to which I refer, is sufficient to sustain a verdict of guilty on the greater charge. The defendant should be declared guilty of the lesser-included offense.

LARSON, Justice

(dissenting).

I dissent because the plurality fails to recognize and apply the well-established principle that a defendant’s possession of recently stolen property creates an inference that the defendant stole it. In concluding that proof of intent was not established in this case, the plurality expressly relies on State v. Schminkey, 597 N.W.2d 785 (Iowa 1999), stating, “fw]e agree with the court of appeals’ reading of Schminkey and its application to the present facts.”

Even if the holding in Schminkey, was correct, I disagree with the plurality’s reliance on it in this case. Both Schminkey and the present case involve the sufficiency of evidence on the element of intent to deprive the owner of possession of a vehicle. With that, however, the similarity ends. Schminkey was a guilty-plea case, while the present case was tried to a jury. In a guilty-plea case, the State may not rely on inferences to establish a factual basis. In contrast, a jury-tried case is one in which inferences are standard stock-in-trade. See County Court of Ulster County, New York v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979).

Inferences and presumptions are a staple of our adversary system of fact-*790finding. It is often necessary for the trier of fact to determine the existencé of an element of the crime — that is, an “ultimate” or “elemental” fact — from the existence of one or more “evidentiary” or “basic” facts.

Id. at 156, 99 S.Ct. at 2224, 60 L.Ed.2d at 791. The Supreme Court has further said that:

The most common evidentiary device is the entirely permissive inference or presumption, which allows — but does not require — the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and that places no burden of any kind on the defendant. In that situation the basic fact may constitute prima facie evidence of the elemental fact. When reviewing this type of device, the Court has required the party challenging it to demonstrate its invalidity as applied to him.

Id. at 157, 99 S.Ct. at 2224-25, 60 L.Ed.2d at 792 (emphasis added) (citations omitted).

In a guilty-plea case, it is not permissible for a judge to fill gaps in the factual-basis record by inferring elements, of the crime. The difference between guilty-plea cases and fact-tried cases vis-a-vis the function of inferences is significant. In one case, the court observed:

The government argues that this court can infer that [the defendant] had an intent to defraud when he obtained the American Express card using a false name and a false date of birth. Although we agree that a rational fact finder could infer an intent to. defraud from such evidence, in the context of a challenge to the factual basis supporting a guilty plea, we have previously rejected a request by the government to infer a “critical element” of the offense charged.

United States v. Tunning, 69 F.3d 107, 113 (6th Cir.1995) (emphasis added) (citation omitted); see also McCarthy v. United States, 394 U.S. 459, 467, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418, 426 (1969) (holding that a factual-basis record on a guilty plea cannot be supplemented by a district court’s “assumptions” of facts). In United States v. Goldberg, 862 F.2d 101 (6th Cir.1988), the court stated:

In our judgment, to permit the district court to infer a factual basis in the absence of a record demonstrating the existence of a factual basis would tend to negate the well-established safeguards inherent in the [federal guilty-plea-rule] mandate.

Goldberg, 862 F.2d at 106.

The problem for the state in motor-vehicle larceny cases is that it must prove the defendant knowingly took the vehicle, but it also must prove the defendant took it with the intent to deprive the owner of it. Establishing the first element does not establish the second. We have so held in guilty-plea cases involving theft, holding a factual basis on intent was not established. Schminkey, of course, was one of them. In addition, other cases support that proposition. See, e.g., State v. Auerbach, 283 N.W.2d 278, 280 (Iowa 1979); Brainard v. State, 222 N.W.2d 711, 721 (Iowa 1974). However, in cases that have gone to trial, we have accepted inferences arising from possession of recently stolen property as a means of proving theft. See, e.g., State v. Rosewall, 239 N.W.2d 171, 173 (Iowa 1976); State v. Morrison, 183 N.W.2d 696, 697 (Iowa 1971); State v. Everett, 157 N.W.2d 144, 146 (Iowa 1968). The reliance on use of inferences recognizes the difficulty of proving subjective intent by direct evidence.

In the past, it was customary for our courts to instruct specifically on the inferences to be drawn from possession of re*791cently stolen property. See, e.g., Morrison, 183 N.W.2d at 697. This practice, however, has been criticized:

The instruction on the inferences to be drawn from possession of recently stolen property should be condemned. It is nothing more nor less than a singling out of, and judicial comment on, a specific item of evidence.

Id. at 699 (Becker, J., dissenting). Now, juries are presumably instructed in a manner that does not emphasize the defendant’s possession of stolen property. Under our uniform instructions, that intent may be based on “circumstances” in the case, but the instructions do not refer to the defendant’s possession of recently stolen property as the basis for a presumption. This sanitized form of the instruction was given in the present case, as I will discuss later.

In this case, the court instructed the jury on the elements of both larceny and the lesser offense of operating a vehicle without the owner’s consent. The distinguishing feature of the theft charge is the element of intent to deprive the owner of the property. The jury was instructed that, to prove the higher offense of larceny, the State must prove the defendant acted “with the specific intent to deprive [the owner] of the automobile.” “Deprivation” was defined in a separate instruction:

To “deprive the [owner]” of the property, means to withhold permanently or to withhold for so long or under such circumstances the value or benefit of the property is lost to the owner. If a person disposes of property so that it is unlikely the owner will recover it, you may conclude, but are not required to conclude, that the person disposed of the property with the intent to permanently deprive the owner of its use.

The key element of larceny, the intent to deprive, was explained in this instruction:

Specific intent means not only being aware of doing an act and doing it voluntarily, but also doing it with a specific purpose in mind. Specific intent need not exist for any particular length of time before the act.

Determining a defendant’s specific intent requires you to decide what the defendant was thinking when the defendant did an act. It is seldom capable of direct proof. Consider the facts and circumstances surrounding the act to determine the defendant’s specific intent. You may conclude, but are not required to conclude, that people intend the natural results of their acts.

(Emphasis added.) This instruction, substantially the same as Uniform Criminal Instruction 200.2, incorporates the concept of inferences.

The facts presented at trial are briefly stated in the plurality opinion. It is undisputed that Morris took the truck, at about 4:30 a.m., without the owner’s consent. The owner immediately called the police who soon located the vehicle and began to give chase. When the police stopped the vehicle, Morris fled on foot. These facts are clearly sufficient to give rise to an inference of guilt, including the element of intent.

The Supreme Court has discussed the nature and limitations on inferences and their status under the Constitution:

[T]he entirely permissive inference or presumption ... allows — but does not require — the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and that places no burden of any kind on the defendant. ... Because this permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the “beyond a reason*792able doubt” standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference. For only in that situation is there any risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination.

Allen, 442 U.S. at 157, 99 S.Ct. at 2224-25, 60 L.Ed.2d at 792.

The plurality points to facts it contends militate against proof of an intent to deprive the owner of possession. These facts include the distance Morris traveled with the truck (approximately five miles) before he was apprehended and the time he had the truck (approximately thirty minutes). These facts are not necessarily helpful to Morris’s case, however; his relatively short time of possession might well have been viewed by the jury to be the result of speedy police work — not evidence that he lacked the intent to keep it. In any event, that was a question for the jury. While the facts relied on by Morris may affect the strength of the inference, they do not preclude, as a matter of law, an inference of intent. There is clearly a “rational way the [jury] could make the connection permitted by the inference” under the Allen test.

I believe the plurality erred in relying on Schminkey, in refusing to recognize the inference of intent, and in failing to conclude that sufficient evidence supports the conviction. I would vacate the decision of the court of appeals and affirm the judgment of the district court.

CADY and STREIT, JJ., join this dissent.

OPINION OF THE COURT

FOREMAN, Senior Judge:

A military judge sitting as a special court-martial convicted the appellant, in accordance with his plea of guilty, of altering a public record in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (1982) [hereinafter UCMJ], Contrary to his pleas, the military judge also convicted the appellant of signing a false official statement (two specifications), wrongful appropriation of a copy of a divorce decree, and bigamy, in violation of Articles 107, 121 and 134, UCMJ, 10 U.S.C. §§ 907, 921 and 934 (1982). His approved sentence provides for a bad-conduct discharge, confinement for three months, and reduction to Private E1.

The appellant married his first wife, Amparo, in December 1986, while stationed in Panama. In January 1987, the appellant was reassigned from Panama to Germany, but his wife remained in Panama. While in Germany, the appellant did not know Amparo’s address or telephone number, but sent letters to a friend, who passed them on to her. The appellant returned from Germany in March 1988 and was reassigned to Fort Sill, Oklahoma. In August 1988, the appellant sent his wife a money order with his telephone number written on it. The appellant filed for divorce in Oklahoma and sent a copy of the petition to a friend’s post office box in Panama for delivery to his wife. In September or October 1988, Amparo called the appellant from Panama and informed him that she had filed for divorce in Panama, that there was “nothing between the two of us” and that he “didn’t have to worry about her anymore.” The appellant testified that he thought he was divorced at that point. In November 1988, the Red Cross notified the appellant that Amparo had been hospitalized. The Red Cross referred to Amparo as his “ex-wife.” On 9 November 1988, the appellant requested that his basic allowance for quarters (BAQ) at the “with dependents” rate be terminated because he was divorced. The finance clerk told him that she could not stop the BAQ without a divorce decree. Since the appellant did not have a copy of a divorce decree, he took another sergeant’s divorce decree, made a copy of it, inserted his name and Amparo’s in the text (but neglected to change the caption) and attached it to his request to terminate his BAQ. In December 1988, the appellant married Jackeline, and requested that his BAQ at the “with dependents” rate be reinstated.

The appellant was charged with making two false official statements to officials of the Fort Sill finance office, first that he was divorced from Amparo (Specification 1 of Charge II) and second that he was married to Jackeline (Specification 2 of Charge II). He contends that the evidence was insufficient to prove both specifications because he honestly believed that he was divorced from Amparo.

This court specified the following issues: (1) whether creation of an altered copy of a public record without altering the original constitutes the offense of altering a public record, and (2) whether the appellant’s plea of guilty to altering a public record was provident to the offense charged or any lesser included offense.

I. False Official Statements

Making a false official statement in violation of UCMJ, Article 107, 10 U.S.C. *1071§ 907 (1982), is a specific intent crime. An honest mistake of fact regarding the truth of the statement made is a defense. United States v. Rowan, 16 C.M.R. 4 (C.M.A.1954); Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 916(j) [hereinafter M.C.M., 1984 and R.C.M.]; M.C.M., Part IV, para. 31c(5). The evidence establishes that Amparo told the appellant she had filed for divorce, that the appellant received correspondence from the Red Cross referring to Amparo as his “ex-wife,” and that he attempted to terminate his entitlement to BAQ, on the ground that he was divorced. He then participated in a marriage ceremony and received a marriage certificate indicating that he was married to Jackeline. Based upon the entire record, we find that the defense of an honest mistake of fact was raised and not overcome by the government’s evidence. R.C.M. 916(b). Accordingly, we find that the evidence is insufficient to prove appellant’s guilt of making false official statements (Charge II and its two specifications).

II. Bigamy

Bigamy is a general intent crime. To constitute a defense to bigamy, a mistake of fact must be both honest and reasonable. M.C.M., 1984, Part IV, para. 65c. While the appellant may have honestly believed that he was divorced from Amparo, we find that he did not take the steps which a reasonable man would have taken to determine the validity of his honest belief. United States v. McCluskey, 20 C.M.R. 261 (C.M.A.1955). He was not reasonable in assuming that he was divorced. See United States v. Bateman, 23 C.M.R. 312 (C.M.A.1957) (knowledge that wife intended to proceed with divorce proceedings insufficient); United States v. Avery, 9 C.M.R. 648 (A.F.B.R.1953) (reliance on attorney’s prediction that divorce would occur on a given date not reasonable). Accordingly, we find that the evidence is sufficient to prove bigamy.

III. Altering a Public Record

The offense of altering a public record in violation of UCMJ, Article 134, is based on 18 U.S.C. § 2071. The offense is committed by altering, concealing, removing, mutilating, obliterating, destroying, or taking a public record with the intent to do any of the foregoing. M.C.M., 1984, Part IV, para. 99b. A public record is defined as including “records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to which there was a duty to report.” M.C.M., 1984, Part IV, para. 99c. The offense of altering a public record in violation of Article 134 is “substantially identical” with the crime denounced by 18 U.S.C. § 2071. United States v. Spain, 38 C.M.R. 145 (C.M.A.1968). The purpose of 18 U.S.C. § 2071 is to “prevent any conduct which deprives the government of the use of its documents, be it by concealment, destruction, or removal.” United States v. Rosner, 352 F.Supp. 915, 919 (S.D.N.Y.1972), petition denied, 497 F.2d 919 (2d Cir.1974).

The government argues that the UCMJ, Article 134 offense is broader than 18 U.S.C. § 2071 and that it encompasses alteration of an unofficial copy of a public record because the Manual for Courts-Martial definition of a public record includes the words “in any form,” which are not found in 18 U.S.C. § 2071. We disagree. The UCMJ, Article 134 offense is broader than 18 U.S.C. § 2071 only in that it specifically proscribes “altering” public records. United States v. Maze, 42 C.M.R. 376, 379 (A.C.M.R.1970). The term “altering” does not appear in 18 U.S.C. § 2071. The words “in any form” are taken from Mil.R.Evid. 803. M.C.M., 1984, Article 134, Analysis, app. 21, at A21-103. This language also appears in Federal Rule of Evidence 803 [hereinafter Fed.R.Evid.], and is intended to include public records other than paper documents, e.g., microfiche, videotapes, computer tapes and disks. See e.g., Oriental Health Spa v. City of Fort Wayne, 864 F.2d 486, 490 (7th Cir.1988) (videotape admissible as an official public record under Fed.R.Evid. 803(8)); State ex rel. Harmon v. Bender, 25 Ohio St.3d 15, 494 N.E.2d *10721135, 1136 (1986) (videotapes of trial proceedings are public records). In the case before us the appellant created and altered an unofficial, unauthenticated photocopy of a public record, but did not disturb the integrity of the public record itself. We hold that the unofficial, unauthenticated' photocopy altered by the appellant was not a public record.

On the facts before us, we need not decide whether altering an authenticated copy of a public record would be a violation of UCMJ, Article 134. While intentional introduction of the altered unauthenticated photocopy into government channels may have violated another proscription, e.g., UCMJ, Article 132, 10 U.S.C. § 932 or 18 U.S.C. § 1001, it did not constitute the crime of altering a public record in violation of UCMJ, Article 134, or any lesser included offense. Accordingly, we hold that the appellant’s plea of guilty to altering a public record in violation of UCMJ, Article 134 was improvident.

The findings of guilty of Charge II and its two Specifications (false official statements), and Specification 2 of Charge IV (altering a public record) are set aside. Charge II and its two Specifications, and Specification 2 of Charge IV are dismissed. The remaining findings of guilty are affirmed. The sentence is set aside. A rehearing on the sentence may be ordered by the same or a different convening authority.

Judge SMITH and Judge VARO concur.

Judge SULLIVAN

delivered the opinion of the Court.

In March of 1997, appellant was tried by a general court-martial composed of officer members at Hanscom Ah’ Force Base in Massachusetts. Contrary to his pleas, he was found guilty of four specifications of stealing contact lenses which were military property of the United States, and one specification of conspiring to steal those contact lenses, in violation of Articles 121 and 81, Uniform Code of Military Justice, 10 USC §§ 921 and 881, respectively. On March 28, 1997, he was sentenced to a bad-conduct discharge, 3 months of hard labor without confinement, and forfeiture of $300 pay per month for 3 months. The convening authority approved this sentence on July 24, 1997, and the Court of Criminal Appeals affirmed on November 1,1999, in an unpublished opinion.

This Court granted review in this case on two issues on April 12, 2000. They ask:

I. WHETHER THE MILITARY JUDGE ERRED IN NOT ALLOWING DEFENSE COUNSEL TO ELICIT STATE OF MIND HEARSAY EVI*2DENCE OF APPELLANT FROM A WITNESS.

II. WHETHER THE MILITARY JUDGE ERRED IN PROVIDING THE COURT MEMBERS A MISTAKE OF FACT INSTRUCTION WHERE THE COURT MEMBERS HAD TO FIND THAT APPELLANT’S MISTAKE OF FACT WAS BOTH “HONEST AND REASONABLE” INSTEAD OF JUST “HONEST.”

We hold that Issue I need not be decided in this case because, relying on United States v. Turner, 27 MJ 217 (CMA 1988), we must reverse this case on Issue II. See United States v. Gillenwater, 43 MJ 10 (1995).

Evidence was admitted in this case that shows that in September 1995, appellant began work in the Medical Logistics Office at Hanseom Air Force Base, Massachusetts. One of his duties was to order contact lenses for servicemembers who brought a prescription from the base Optometry Clinic to the Medical Logistics Office. Personnel who needed contact lenses to perform their duties or for a medical condition were entitled to receive them free of charge. Other personnel had to obtain contact lenses off-base and pay for the lenses themselves. (R. 99)

It was also shown that Air Force regulations governed the process of ordering contact lenses at the Medical Logistics Office. (R. 165) The Optometry Clinic was required to produce a purchase letter for all prescriptions sent to the Medical Logistics Office. (R. 99-102) If the lenses were required “for the performance of duties,” the Logistics Office was to code the purchase order with a “fund cite” indicating the servicemember’s section. If, however, the lenses were required for a medical condition, the Optometry Clinic fund cite was used. (R. 113, 172-73) Once a month, the office generated reports of how many lenses had been billed to each account. (R. 103, 310-11)

Evidence was further admitted that appellant’s supervisors neglected to follow these procedures with any regularity. The Optometry Clinic rarely generated purchases letters, and Medical Logistics would order contact lenses without them. One of appellant’s supervisors, Senior Master Sergeant (SMSgt) Kremer, testified that he believed at one time that all clinic personnel were entitled to free contact lenses, even if not medically required. (R. 298, 302, & 320) In fact, SMSgt Kremer instructed appellant to sign a purchase order for him to get free lenses soon after appellant began work at Medical Logistics. (R. 293-94) SMSgt Kremer did not provide appellant with a purchase letter or prescription for his lenses, although he testified that he later discussed with appellant a clarified command policy requiring a medical reason for contact lenses with some exceptions. (R. 321)

Finally, evidence was admitted that appellant continued to order contact lenses, filing the appropriate purchase orders and keeping his paperwork in order.1 Appellant’s supervisors never reviewed the monthly reports to determine whether lenses were being billed to the proper accounts. Moreover, appellant’s supervisors failed to provide appellant with formal training or specific guidelines for any of these procedures. (R. 320) The next supervisor of the office, Staff Sergeant (SSgt) Smith, even authorized appellant to sign purchase orders for him between October 1995 to January 1996. (R. 149, 161) Appellant signed SSgt Smith’s name to over 90% of the purchase orders filed between September 1995 and March 1996. Neither SSgt Smith nor his predecessor, SMSgt Kremer, ever told appellant that he was doing his job improperly. Furthermore, appellant had public conversations concerning his conduct in ordering contact lenses with the servicemembers for whom he ordered those lenses.

The record of trial shows the following concerning the defense’s request for a mistake of fact instruction:

MJ: Now, concerning the proposed mistake-of-fact instruction, I’ll hear from you *3first, defense counsel, since it’s your request.

DC: Your Honor, the defense requests that a mistake-of-fact defense be given in this case. Defense believes the issue has been raised and defense believes the issue’s been raised due to the testimony of— basically every witness at this court-martial except for Airman Beasley, whose testimony was not — and Airman Danieli. But every other witness, we believe, had something to say ivhich would lead the court members and lead anyone to believe that there could have been a mistake in this case.

MJ: Let me stop you there, counsel. I agree that a mistake-of-facts instruction of some sort should be given. So would you like to append as Appellate Exhibit X your proposed instruction?

DC: Yes, sir. I have typed up — as far as the wording of the instruction. However, as far as the witnesses, I did not put them in there. I can type up a complete one, but — or else we can append this, Your Honor. I don’t know how you would like— those are the witnesses I’d like referred to in the instruction as to — to give them an idea of why it’s been raised.

MJ: All right, well, I can certainly mark this as Appellate Exhibit X. I note this relates to specific intent.

DC: Yes, Your Honor.

MJ: Is the government in agreement with what has been marked as Appellate Exhibit X, which is ignorance, or mistake with specific intent or actual knowledge is an issue.

TC: No, sir. The language we agreed on was only to the extent that we could characterize what the mistake was. And I believe that was a blank page with just a short paragraph on “you must determine whether the accused was mistaken,” et cetera. That was the language that we agreed on to be instructed as to what the mistake was. But the government’s position is that the mistake-of-fact defense should be raised as a general intent crime because it involves whether it ivas just wrongful, or in this case that would be required to be honest and reasonable. So—

MJ: Well, what you’re suggesting is that the mistake doesn’t necessarily go to the issue of specific intent to permanently deprive; is that the idea, trial counsel?

TC: That’s correct, sir, because we don’t believe it fits the specific intent element of the offense itself.

MJ: Defense counsel?

DC: Your Honor, defense requests that the instruction be given without the instruction regarding “it must be reasonable.” The offense is larceny, which is a specific intent crime. And the fact that Airman Binegar is charged with permanently depriving the Air Force of basically contact lenses, we believe that’s what he’s defending against. And I believe, in general, since this is a specific intent offense and since it’s the defense’s responsibility to defend against that offense, the fact that— I believe it’s relevant, Your Honor, that he’s defending against not only permanently deprive — with the intent to permanently deprive the Air Force of contact lenses. And I do not — the defense does not believe that that has to be a reasonable — the defense would have to be reasonable in this case. And we ask that the instruction be given without the limiting factor of, “would have to be reasonable,” Your Honor.

MJ: Okay. My analysis of the evidence and the offenses leads me to believe that a mistake-of-fact instruction that would be given would be general, rather than the one related to a specific intent.

I note that paragraph 5-11 of the Bench-book does give some guidance in that regard, and I note that it states as follows “... moreover, in some ‘specific intent’ crimes, the alleged ignorance or mistake may not go to the element requiring specific intent or knowledge, and thus may have to be both reasonable and honest

The court feels in this particular instance that the mistake — or mistaken belief, as it were — of the accused, goes generally to the offense of larceny itself, whether that larceny be a specific intent larceny or, quite frankly, even if it were a wrongful appro*4priation larceny. I believe that the mistake concerning whether or not he was authorized to order contact lenses at government expense relates generally to the offense and is not related to that element which requires a specific intent. Therefore, I’m not going to give the instruction as propounded by defense counsel, shown in Appellate Exhibit X, although this will be attached to the record of trial.

What I am going to give is some modified version of the general intent version of mistake-of-fact. I would ask, at the next recess, that counsel try and pull together the final draft of what that instruction would encompass based upon this ruling.

(R. 361-63) (emphasis added).

The military judge gave the following instructions in this case:

As to the various charges, the evidence has raised the issue of ignorance or mistake on the part of the accused concerning whether he was under the mistaken belief that he was authorized to order contact lenses at government expense with a purchase order from military members who provided him only a prescription from the Optometry Clinic. If the accused mistakenly believed that he was authorized to order contact lenses at government expense with a purchase order for military members who provided him only a prescription from the Optometry Clinic, he is not guilty of the offense of larceny or conspiracy to commit larceny if his ignorance or belief was reasonable. To be reasonable, the ignorance or belief must have been based upon information or lack of it which would indicate to a reasonable person that he was authorized to order contacts at government expense. Additionally, the ignorance or mistake cannot be based on a negligent failure to discover the true facts.

In resolving this issue, you should consider the accused’s age, education, and rank along with the testimony of Senior Master Sergeant Kremer, Staff Sergeant Smith, Captain Bleuel, Staff Sergeant Allen, Staff Sergeant Smith, Airman Basic Maurice, Special Agent Collazo, Staff Sergeant McGee, Senior Airman Antoine, Airman First Class Marsh, Senior Airman Yallee, and Mr. Yenger.

The burden is on the prosecution to establish the accused’s guilt. If you are convinced beyond a reasonable doubt that at the time of the charged offenses the accused was not ignorant of a fact or under the mistaken belief that he was authorized to order contact lenses at government expense with a purchase order for military members who provided him only a prescription from the Optometry Clinic, the defense of ignorance or mistake of fact does not exist. Even if you conclude that the accused was ignorant of the fact or the mistaken belief that he was authorized to order contact lenses at government expense or the purchase order for military members who provided him only a prescription from the Optometry Clinic, if you are convinced beyond a reasonable doubt that at the time of the charged offenses the accused’s ignorance or mistake was unreasonable, the defense of ignorance or mistake of fact does not exist.

(R. 381-82) (emphasis added).

Appellant contends that the military judge at his court-martial erred in refusing to give an “honest” mistake-of-fact instruction as requested by the defense. We note that the military judge made this ruling because he concluded appellant’s purported mistake of fact went to a matter unrelated to the specific intent required for conviction of larceny under Article 121, UCMJ, 10 USC § 921. Accordingly, citing Paragraph 5-11 of the Military Judges’ Benchbook (Dept. of the Army Pamphlet 27-9 (Sept. 30, 1996)), he concluded that an honest and reasonable mistake as to such a fact was required and so instructed the members. The Court of Criminal Appeals, 1999 WL 1085836, likewise concluded that this was a correct instruction because the purported mistake “concerned the wrongfulness of the appellant’s taking, whether he had permission to order the contacts [, and] this is a general intent element and appellant’s belief must have been reasonable under all the circumstances.” Unpub. op. at 5. We disagree. United States v. *5 Turner, 27 MJ at 220 (holding that honest mistake of fact as to a superior’s permission to dispose of government property is a defense to larceny).

The military judge’s instructional decision on the defense of mistake-of-fact was generally based on his reading of Paragraph 5-11 of the Military Judges’ Benchbook. It states in pertinent part:

5-11 IGNORANCE OR MISTAKE OF FACT OR LAW-GENERAL DISCUSSION

The standard for ignorance or mistake of fact varies with the nature of the elements of the offense involved. If the ignorance or mistake concerns an element of an offense involving specific intent (e.g., desertion, larceny), willfulness {e.g., willful disobedience of an order), knowledge {e.g., assault upon commissioned officer, failure to obey lawful order), or premeditation, the ignorance or mistake need only exist in the mind of the accused. Generally, for crimes not involving specific intent, willfulness, knowledge, or premeditation, {e.g., AWOL) ignorance or mistake must be both honest (actual) and reasonable. Extreme care must be exercised in using this test, however, as ignorance or mistake in some “general intent” crimes need only be honest to be a defense. {See e.g., Instruction 5-11-4, Ignorance or Mistake in Drug Offenses.) Moreover, in some “specific intent” crimes, the alleged ignorance or mistake may not go to the element requiring specific intent or knowledge, and thus may have to be both reasonable and honest. Consequently, the military judge must carefully examine the elements of the offense, affirmative defenses, and relevant case law, in order to determine what standard applies.

This Court has suggested a similar rule in United States v. Peterson, 47 MJ 231, 234-35 (1997), and United States v. Garcia, 44 MJ 496, 498 (1996); cf. United States v. Tucker, 14 USCMA 376, 380, 34 CMR 156, 160 (1964) (honest mistake of fact applies where mistake made is to facts essential to the existence of the necessary mens rea, i.e., specific intent).

Article 121, UCMJ, states:

(a) Any person subject to this chapter who wrongfully takes, obtains, or withholds, by any means, from the possession of the owner or of any other person any money, personal property, or article of value of any kind—

(1) with intent permanently to deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or the use of any person other than the owner, steals that property and is guilty of larceny;

(Emphasis added.) We have long recognized that this codal article requires the Government to prove beyond a reasonable doubt that an accused had a specific intent to steal. Moreover, it also has long been recognized that an honest mistake of fact as to a soldier’s entitlement or authorization to take property is a defense to a charge of larceny under this codal provision. See United States v. Sicley, 6 USCMA 402, 410-13, 20 CMR 118, 126-29 (1955); United States v. Rowan, 4 USCMA 430, 16 CMR 4 (1954). We have recently reiterated this holding. United States v. Gillenwater, 43 MJ 10 (1995); United States v. Turner, supra; United States v. Ward, 16 MJ 341, 346 (CMA 1983).

The military judge in appellant’s case did not acknowledge this case law in applying the Benchbook rule. See generally United States v. Tucker, supra (recognizing similar rule to Benchbook that mistake must be about essential facts related to specific intent in larceny case). Moreover, he did not explain why appellant’s averred mistake as to his authority to issue contact lenses did not undermine a specific intent on his part to permanently deprive the Government of this property. Contra United States v. Turner, supra. His exclusive reliance on the relevance of the mistaken fact to a so-called general “intent” element was misplaced. The pertinent inquiry is whether the purported mistake concerns a fact which would preclude the existence of the required specific intent. See generally 1 Wayne R. LaFave *6& Austin W. Scott, Substantive Criminal Law § 5.1(b) at 577 (1986).

This Court’s opinions in Peterson (mistake as to consent in housebreaking case) and Garcia (mistake as to sexual consent in indecent assault case) also do not support the trial judge’s ruling. They addressed mistakes as to facts which were completely unrelated to the specific intents at issue in those non-larceny cases. Moreover, those decisions do not suggest in any way that a military superior’s permission to his subordinate to dispose of government property to other servicemembers is that type of fact, ie., one unrelated to a specific intent of that subordinate to steal from the Government. See LaFave & Scott, supra; United States v. Sicley, supra at 413. Accordingly, we must find legal error.

Turning to the question of harmless error, we conclude that appellant was materially prejudiced by the “honest and reasonable” mistake-of-fact instruction actually given in this case. Article 59(a), UCMJ, 10 USC § 859(a). First of all, the prosecution-requested instruction placed a lesser burden on the Government to prove appellant’s guilt because it could now secure his conviction by disproving either the honesty or the reasonableness of appellant’s mistake. Moreover, trial counsel exploited the erroneous instruction by calling this government option to the attention of the members during deliberations. He said:

And that leads us to the defense of mistake of fact for all of these contacts. As the judge instructed you, there must be two different things here: One is, was this mistake honest; namely, did Airman Bine-gar really have this mistake? And, number two is: Was this mistake reasonable? Because regardless of whether Airman Binegar thought this, if it was not reasonable, the defense still does not exist. The government has disproven this mistake beyond a reasonable doubt.

(R. 391) (emphasis added). Finally, the Government presented a substantial case on the unreasonableness of appellant’s conduct in this case (R. 390-91), creating a reasonable possibility that the members resolved this case against appellant on this basis. See United States v. Ward, supra at 347.

The decision of the United States Air Force Court of Criminal Appeals is reversed.2 The findings of guilty and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Air Force. A rehearing may be ordered.

GIERKE, Judge (concurring in the result):

It has been said that “[n]o area of the substantive criminal law has traditionally been surrounded by more confusion than that of ignorance or mistake of fact or law.” 1 Wayne R. LaFave & Austin W. Scott, Substantive Criminal Law § 5.1(b) at 575 (1986). No doubt, this confusion arises in larceny cases because larceny has a specific intent element. See, e.g., United States v. Gillenwater, 43 MJ 10, 12 (1995) (judge erroneously failed to give mistake of fact instruction, believing that appellant’s mistake related only to a “ ‘lack of the element’ of intent”). Even the Supreme Court has recognized that the “venerable distinction” between general intent and specific intent “has been the source of a good deal of confusion.” United States v. Bailey, 444 U.S. 394, 403, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980).

For the reasons set out below, I agree with the majority’s conclusion that the military judge erred by instructing the members that appellant’s asserted mistake of fact was required to be both honest and reasonable. However, I reach that conclusion by a different route than the majority.

The statutory elements of larceny are (1) a wrongful taking, obtaining, or withholding; and (2) an intent permanently to do one of the following: (a) “deprive ... another person of the use and benefit of property”; (b) “defraud another person of the use and bene*7fit of property”; (c) “appropriate it [the property] to his own use”; or (d) “appropriate it to ... the use of any person other than the owner[.]” Art. 121, UCMJ, 10 USC § 921. Although the term does not appear in the statute, “[t]hese intents are collectively called an intent to steal.” Para. 46c(l)(f)(l)(i), Part IV, Manual for Courts-Martial, United States (2000 ed.).1 The first element of this offense requires only general intent. See Simmons v. United States, 554 A.2d 1167, 1170 (D.C.App.1989). The second element requires specific intent. See United States v. Turner, 27 MJ 217, 220 (CMA 1988).

This Court previously has recognized the distinction between general intent and specific intent elements in other offenses. See United States v. Peterson, 47 MJ 231, 234-35 (1997) (indecent assault includes both a general intent assault element and a specific intent element to satisfy the lust or sexual desires of the accused). RCM 916(j), Manual, supra, also recognizes this distinction. It provides:

If the ignorance or mistake goes to an element requiring premeditation, specific intent, willfulness, or knowledge of a particular fact, the ignorance or mistake need only have existed in the mind of the accused. If the ignorance or mistake goes to any other element requiring only general intent or knowledge, the ignorance or mistake must have existed in the mind of the accused and must have been reasonable under all the circumstances.

In order to avoid further confusion in this complex area of law, I believe that this Court must focus on the precise significance of an appellant’s claimed mistake of fact and ask two questions: (1) What is the specific fact about which the appellant claims to have been mistaken? and (2) To what element or elements does that specific fact relate? The majority resolves this case by focusing on the second element of larceny. Chief Judge Crawford’s dissent focuses on the first element.2 In my view, appellant’s asserted mistake of fact in this case relates to both elements: (1) the wrongfulness of his act of obtaining the contact lenses; and (2) his specific intent to defraud the United States by issuing the contact lenses to persons who were not entitled to them.

Appellant asserted a mistake as to his authority to order the contact lenses for applicants who had prescriptions from the Optometry Clinic, but who had no documentation that the contact lenses were required for performance of duty. Appellant denied having both the general intent to wrongfully order the contact lenses and the specific intent to defraud the United States by ordering them for persons who were not entitled to them.

The majority opinion correctly states the rule: If the mistake goes to an element requiring only general intent, the mistake must be both honest and reasonable. However, if the mistake goes to an element requiring specific intent, the mistake need only be honest, i.e., exist in the mind of the accused.

Applying this rule in the present case, I believe that the military judge should have instructed the panel members that appellant’s mistake need only have been honest. If this case involved only a question of appellant’s general authority to order contact lenses, then the military judge’s instruction would have been correct. However, appel*8lant’s asserted mistake of fact also raised the question of appellant’s specific intent to defraud the United States by issuing contact lenses to persons who were not entitled to them. If appellant honestly believed he was authorized to order the lenses for persons who had no documentation showing that the contact lenses were required for duty, then he had no specific intent to defraud the United States.

Of course, appellant’s mistake-of-fact defense did not require two separate instructions, with one pertaining to the general intent element and one pertaining to the specific intent element. Although the asserted mistake of fact went to both elements, an instruction pertaining to the specific intent element would have subsumed an instruction pertaining to the general intent element.

Because the members were not correctly instructed regarding the legal effect of appellant’s asserted honest mistake of fact on his specific intent to defraud the United States, I join the majority in reversing the decision below.

CRAWFORD, Chief Judge (dissenting):

I would hold that the military judge did not abuse his discretion by instructing the members that appellant’s mistake related to the general intent element of “wrongful taking” and that the mistake had to be both “honest and reasonable.” Giving tens of free contact lenses to individuals not entitled to government contact lenses was neither honest nor reasonable. If the judge did err, any error was harmless because the record does not support the conclusion that appellant ever made an honest mistake of fact.

Facts

In September 1995, appellant began working in the Medical Logistics Office at Hans-com AFB clinic. Through the Medical Logistics Office, entitled personnel could obtain free contact lenses. Air Force personnel are entitled to free lenses if the lenses are required to perform their duties or if needed for a medical reason. All other personnel must order their contact lenses off base and pay for them out of their own pocket.

Appellant ordered lenses for his friends, irrespective of their eligibility, if they had a valid prescription. He did not make them hand over the prescription. They merely had to tell him what it was. Conversations occurred in the open about this practice. Appellant alleged that nobody thought it was unusual to order contact lenses. However, appellant reversed the spelling of the names of certain individuals on the purchase orders that he prepared. Additionally, evidence shows that the clinic would generate a local purchase request letter in all cases in which the military member was authorized to obtain contact lenses at government expense. Yet, there were no local purchase request letters generated for the contact lenses ordered by appellant for his friends.

Analysis

While perhaps appearing simple on its face, this issue requires a bit more complex analysis. That analysis involves recognition that there may be both general and specific intent elements. Well-established case law supports the conclusion that appellant’s mistake had to be both “honest and reasonable” in order to constitute a valid defense, because it related only to the general intent “taking” element within the crime of larceny.1

This Court’s standard of review with respect to member instructions is abuse of discretion. See United States v. Damatta-Olivera, 37 MJ 474, 478 (CMA 1993)(citing United States v. Smith, 34 MJ 200 (CMA 1992)). The test to determine if denial of a requested instruction constitutes error is whether (1) the charge is correct; (2) “it is *9not substantially covered in the main charge”; and (3) “it is on such a vital point in the case that the failure to give it deprived defendant of a defense or seriously impaired its effective presentation.” Id. (quoting United States v. Winborn, 14 USCMA 277, 282, 34 CMR 57, 62 (1963)).

In order to arrive at the proper end in this case, a series of analytical steps must be taken. The starting point is the larceny statute itself. A textual analysis of the statute should be performed to break out every actus reus element and then assign it a particular mens rea — either general or specific intent. The next step is to determine what element of the crime the alleged mistake pertains to and appoint the appropriate mistake of fact test accordingly. For example, this case deals with larceny, which Article 121, Uniform Code of Military Justice, 10 USC § 921, defines as follows:

Any person subject to this chapter who wrongfully takes, obtains, or withholds, by any means, from the possession of the owner or of any other person any money, personal property, or article of value of any kind with intent permanently to deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or the use of any person other than the owner, steals that property and is guilty of larceny.

Larceny of military property can then be broken into these separate elements under a “textual” approach:

(a) That the accused wrongfully took, obtained, or withheld certain property from the possession of the owner or of any other person;

(b) That the property belonged to a certain person;

(c) That the property was of a certain value, or of some value;

(d) That the taking, obtaining, or withholding by the accused was with the intent permanently to deprive or defraud another person of the use and benefit of the property or permanently to appropriate the property for the use of the accused or for any person other than the owner; and

(e) That the property was military property.

Para. 46b(l), Part IV, Manual for Courts-Martial, United States (2000 ed.) (emphasis added).2

Appellant was mistaken as to the first element, i.e., the lawfulness of his taking the contacts in general. This actus reus element requires only a general intent. Because there is no specific intent requirement in this element, the military judge was correct in charging the members that appellant’s mistake had to be both “honest and reasonable” in order to constitute a mistake of fact defense. Therefore, the lower court should be affirmed.

1. Mistake of Fact

Appellant asserts that the military judge incorrectly gave instructions regarding his mistake of fact defense. Mistake of fact is a defense that does not deny the accused committed the objective acts constituting the offense charged, but- denies, wholly or partially, criminal responsibility for those acts. See RCM 916(a), Manual, supra. RCM 916(j)(l) provides that ignorance or mistake of fact may be a defense as follows:3

Except as otherwise provided in this subsection, it is a defense to an offense that the accused held, as a result of ignorance or mistake, an incorrect belief of the true circumstances such that, if the circumstances were as the accused believed them, the accused would not be guilty of the offense. If the ignorance or mistake goes to an element requiring ... specific intent, ... the ignorance or mistake need only have existed in the mind of the accused. If the ignorance or mistake goes to any other element requiring only general intent ... the ignorance or mistake must have existed in the mind of the accused *10 and must have been reasonable under all the circumstances.

(Emphasis added.)

This case involves the interpretation of ROM 916(j)(l). If, as in this case, appellant contends there was a lawful taking, the actus reus element, he does not get the benefit under the Manual rule of only requiring an honest rather than honest and reasonable mistake as to the taking. Under para. 46b(l)(a) & (d), supra, the mens rea term does not modify the actus reus term, the taking in this case. Thus, the taking element is a general intent element, and RCM 916(j)(l) requires a mistake as to that element to be both honest and reasonable.

In interpreting the Manual, I will not look at the consequences of the actus reus and tie that into the intent element, that is, if there is a lawful taking, then there cannot be an intent to defraud or to permanently deprive the owner of the property. This overlooks the division between the actus reus and the mens rea. The issue in this case centers on the actus reus. Thus, the taking must be both honest and reasonable.

The key to understanding this case is to recognize that one can make a mistake as to a general intent actus reus element within a crime requiring specific intent as to another element. When applying the mistake of fact defense in such an instance, a two-step analysis should be performed:

(1) Does the mistake show that the specific intent was not in fact entertained by the defendant? If it does, then the normal specific intent rule applies, and an honest mistake is a defense.

(2) If the mistake does not show that the specific intent is lacking, then the normal general intent rule applies, and only an honest and reasonable mistake is a defense.

Peter W. Law, Criminal Law 125-26 (Rev. 1st ed.1990). The following example from Law, id. at 126, nicely illustrates this hybrid category within the mistake of fact defense: Assume you have a crime defined as “receiving criminal law books known to have been stolen.” The defendant knows he received stolen books, but believes the books to cover English literature. Does his mistake negate specific intent? It depends on the interpretation of “known to have been stolen.” If it means that the defendant must know both that the books were stolen and that they were criminal law books, then the mistake is a defense under the normal approach for specific intent. However, if the specific intent is interpreted to mean only that the defendant must know that the books were stolen, the normal rule for general intent offenses will apply and mistake will be a defense only if it is both honest and reasonable. The defendant’s mistake in this instance will apply to the general intent portion of the offense — to the mental state required to commit the actus reus of receiving criminal law books.

The Military Judges’ Benchbook also acknowledges this hybrid category within mistake of fact. It states: “Moreover, in some ‘specific intent’ crimes, the alleged ignorance or mistake may not go to the element requiring specific intent or knowledge, and thus may have to be both reasonable and honest.” Para. 5-11 at 745, Dept. of the Army Pamphlet 27-9 (Sept. 30, 1996)(Ignorance or Mistake of fact or Law-General Discussion).

2. Assigning Mens Rea

The Benchbook indicates that a textual analysis should be used to determine the appropriate mens rea when the mistake of fact defense is raised. It says: “[T]he military judge must carefully examine the elements of the offense, affirmative defenses, and relevant case law, in order to determine what standard applies.” Id. (emphasis added). For example, indecent assault is a specific intent offense only with regard to the element of the accused’s intent to gratify his sexual desires, not to the offense in general. See United States v. Garcia, 44 MJ 496 (1996).

Most crimes today require a particular mental state. Unfortunately, ascertaining which terms or elements of the offense the mens rea modifies can be a complicated task. Some endeavor to resolve this problem by applying a “grammatical interpretation” after the crime has been subdivided into its elements. Joshua Dressier, Understanding *11 Criminal Law § 10.05 at 107 (1987). The grammatical interpretation says that the “placement of a mens rea term at the beginning of the definition of a crime may be interpreted to imply that the word modifies every actus reus element that follows it____ If the mental element is placed between some of the actus reus terms, however, this may mean that the mens rea does not apply to the actus reus terms that precede it.” Id. (citing United States v. Yermian, 468 U.S. 68, 104 S.Ct. 2936, 82 L.Ed.2d 53 (1984)).

For example, Dressier defines rape as “intentional sexual intercourse by a male with a female not his wife without her consent.” Id. at 106 (emphasis added). The critical issue is whether the word “intentional” modifies the attendant circumstance of the victim’s lack of consent because the word is placed at the beginning of the statute. Walking through the textual and grammatical approaches, this statute breaks down into the following:

(a) intentional sexual intercourse with a female other than your wife; and

(b) intentional intercourse without consent.

Because the mens rea word “intentional” is at the front of the statute, it can apply to the remaining elements of the crime. Therefore, any honest mistake will constitute a valid defense in this instance because both elements of the crime require specific intent.

On the other hand, Article 120, UCMJ, 10 USC § 920, states: “Any person subject to this chapter who commits an act of sexual intercourse by force and without consent, is guilty of rape.” Under a textual analysis, rape is broken down into the following elements:

(a) The accused committed an act of sexual intercourse; and

(b) The act of sexual intercourse was done by force and without consent.

Here, the statutory language of the crime does not assign a specific intent mens rea to any of the elements. Therefore, only an honest and reasonable mistake will suffice because the entire crime is one of general intent. This is markedly different from the Dressier example given above. These fine distinctions make it imperative for a judge to walk carefully through all of the necessary steps before deciding which mistake of fact test to instruct on or apply.

A second rule of thumb is that “a mens rea term ordinarily modifies the ‘result’ and ‘conduct’ elements in the actus reus — e.g., the ‘killing’ in murder, the ‘sexual intercourse’ in rape,” and the “taking” in larceny — but not the attendant circumstances. Dressier, supra at 107.

3. Relevant Case Law

Within the armed forces, there exists a line of indecent assault cases that are on point in this instance. In United States v. Garcia, 43 MJ 686, 687 (A.F.Ct.Crim.App. 1995), the appellant, on several occasions, made unwelcome and uninvited comments to and physical contact with a subordinate. The appellant argued that at the time of the incidents, he felt that the victim had given consent by coming over to his room and drinking beer with him. Id. at 688. The court held that mistake of fact as to the consent of the victim was a defense to indecent assault. Id. at 689. However, the court went on to say: “Indecent assault is a specific intent offense only with regard to the element of the accused’s intent to gratify his sexual desires, not to the offense in general.” Id. (emphasis added). Thus, to be a defense, the appellant’s mistake as to his victim’s consent must have been both “honest and reasonable.” In this instance, the military judge concluded that the appellant’s belief that the woman was consenting was not reasonable. Id.

In United States v. McFarlin, 19 MJ 790, 792 (ACMR), pet. denied, 20 MJ 314 (CMA 1985), the appellant was also charged with indecent assault. The court reasoned that although indecent assault is a specific intent crime, the applicable standard in this instance for the mistake of fact defense was “honest and reasonable.” Id. at 793. Here, the appellant inferred that his victim consented due to a lack of verbal or physical response in any way, but this particular’ mistake did not relate to the appellant’s intent. Rather it related to another element of the *12crime, namely, the presence or absence of the victim’s consent. Id.

United States v. Wooldridge, 49 MJ 513 (C.G.Ct.Crim.App.1998), again involves an indecent assault charge. In this case, the appellant entered the sleeping victim’s bedroom and sat on the floor staring at her. Id. at 514. After she awoke and was startled to find someone in her bedroom, she told the appellant to leave. He then asked if he could use her bathroom. She said yes, and he used the bathroom several times. In between each trip, he continued to ask the victim if he could sleep in her room. She said no every time. After his fifth trip to the bathroom, he removed his clothes, got in bed, and began to kiss and fondle the victim. Id. at 514. Mistake of fact was raised as an affirmative defense. The appéllant asserted that because the victim could have called for help each time he went to the bathroom, she was consenting to his acts. Id. at 515. The court held that although indecent assault entails one element requiring specific intent, the lack-of-consent element of the offense is a general intent element. Therefore, the mistake had to be both “honest and reasonable,” and the court held it was not. Id. at 514.

United States v. Peterson, 47 MJ 231 (1997), was decided by this Court. The Court held that where a person mistakes whether or not he has consent to enter another’s room and slips into bed and fondles the victim while she is sleeping, only an “honest and reasonable” mistake will constitute a valid defense. Id. at 234-35. This was so even though indecent assault entails one element requiring specific intent, because while the offensive touching was committed with the intent to satisfy the lust or sexual desires of the appellant, the consent element required only a general intent. Therefore, a mistake of fact defense on this element required both a subjective belief of consent and a belief that was reasonable under all of the circumstances. Id.

In Peterson, the Court noted that the first element of the offense of housebreaking, that the accused “unlawfully' entered a certain building or structure of a certain other person,” is a general intent element within the crime. Id. at 235. The Court also noted that the second element of housebreaking requires a specific intent to “enter with the intent to commit an offense.” Therefore, “[a]ny mistake-of-fact defense based upon [the] appellant’s belief of consent raised in respect to this element must have been both subjectively held and reasonable in light of all the circumstances.” Id.

4. Application to Appellant

Appellant argues that he honestly believed it was proper for any Air Force personnel with a valid prescription to receive contact lenses for free from the Air Force. He claims that nobody told him ordering contacts was allowed only in certain situations. He says he ordered the lenses openly and notoriously because he really did not think it was wrong. Appellant concedes, however, that his “mistake of fact defense did go directly to his knowledge — knowledge about whether or not Air Force personnel were entitled to free contact lenses with a valid prescription.” Final Brief at 13-14.

Similar to the Peterson and Garcia cases, the mistake in this case pertains to a general intent element within a specific intent crime — it relates to the wrongfulness of the taking. Thus, the military judge did not abuse his discretion by stating:

Okay. My analysis of the evidence and the offenses leads me to believe that a mistake-of-fact instruction that would be given would be general, rather than the one related to a specific intent.

I note that paragraph 5-11 of the Bench-book does give some guidance in that regard, and I note that it states as follows “... moreover, in some ‘specific intent’ crimes, the alleged ignorance or mistake may not go to the element requiring specific intent or knowledge, and thus may have to be both reasonable and hon-est____”

... I believe that the mistake concerning whether or not he was authorized to order contact lenses at government expense relates generally to the offense and is not related to that element which requires a specific intent. Therefore, I’m not going to give the instruction as propounded by *13defense counsel____ What I am going to give is some modified version of the general intent version of mistake-of-fact.

The relevant case law supports the conclusion that the military judge correctly interpreted appellant’s mistake as one relating to “wrongful taking” in general. “Wrongful taking” is a general intent element within the crime of larceny. Therefore, only an “honest and reasonable” mistake of fact will suffice as an affirmative defense.

A mistake as to the fourth element, “the intent to permanently deprive,” seems unlikely in this situation. Contact lenses are not an item that an individual uses for a time and then returns. Defense counsel cites cases dealing with property that could feasibly have been borrowed for a time and then returned.4 In the case at bar, however, such an analogy is rather far-fetched. Contact lenses are highly unique and individual; they are exposed to bodily fluids and generally are not returnable for health and hygiene reasons. Due to the sensitive nature of this product, it is highly unlikely that appellant did not intend to permanently deprive the Government of the lenses. Therefore, the only remaining element he could potentially have been mistaken about is the general wrongfulness of ordering the contacts in the first place.

Although defense counsel relies upon relevant case law, it is not on point. The underlying issue in some of the cases does involve a mistake of fact defense, but those decisions deal directly with an accused’s mistake relating to the specific intent “to permanently deprive.” The cases do not involve a “hybrid” case similar to the facts of Binegar. In other cases, the issue is a sua sponte concern, not an analysis of the appropriate mistake of fact test. For example, in United States v. Gillenwater, 43 MJ 10 (1995), the Court reversed the appellant’s conviction for wrongful appropriation of military property, holding that the lower court judge erred in refusing to give the court members any instruction on mistake of fact. Gillenwater, therefore, does not directly involve whether or not the mistake of fact test was correctly administered.

However, in Gillenwater, the Court examined the appropriate mistake of fact test, noting that the mistake applied to whether the appellant unlawfidly took or withheld the property “with the intent temporarily to deprive” the Government of the use of such property. Id. (emphasis added). We then determined that an “honest” mistake could negate the intent to steal. Id. There, the appellant’s supervisor allowed individuals to take tools home for personal use. The appellant thought that meant they could take them for as long as they wanted, provided they eventually returned them. Id. at 12. Therefore, the permission that the appellant thought he had did not pertain to the general intent to commit a wrongful act. Rather, it dealt with his specific intent to temporarily deprive. Id. at 13. This is noticeably a different factual situation than in the present case. Based on the record, it does not appear that appellant was ever mistaken as to the permanent deprivation. Contact lenses are generally not returnable or reusable. Additionally, in his brief, appellant does not rely on any part of the record to indicate that he intended to return the lenses in the future.

In United States v. Rowan, 4 USCMA 430, 16 CMR 4 (1954), the appellant was charged with larceny by check. The appellant was under the mistaken belief that he had money in the Kanawha Valley Bank to cover any checks he wrote. The Court concentrated on whether mistake of fact would be a defense at all. The main focus of the holding establishes that the test for mistake of fact with respect to larceny and larceny by false pretenses is the same, even though the language of the Manual for Courts-Martial appears to set up two different standards. Id. at 432-34, 16 CMR at 6-8. The Court held;

The requirement of a specific intent is found in military law as well as in the civilian sphere. A court-martial must find ... that the accused intended, at or after the time of the taking, permanently to *14deprive the owner of the property in question---- Because that intent is required to make out the offense of larceny, it is commonly held that there is no such thing as a negligent larceny. An honest ignorance or mistake of fact may be a defense even though either was due to carelessness.

Id. at 434, 16 CMR at 8. This holding merely indicates that the specific intent to “permanently deprive” can be negated by an honest mistake. It does not address the mistake that pertains to a general intent element within a specific intent crime.

Defense counsel also cites United States v. Sicley, 6 USCMA 402, 20 CMR 118 (1955), claiming that the appellant’s mistake did not go to the specific intent to permanently deprive, but rather, it went to his belief that he was authorized to receive reimbursement for his wife’s travel, even though she did not use her ticket. The Court determined that “it is thus reasonable to assume ... that the findings of guilty of larceny were based not on an unlawful taking effected on February 2, but rather on the view that the accused acquired the necessary intent subsequently, and thereafter wrongfully withheld funds which he had acquired lawfully.” Id. at 407, 20 CMR at 123. The appellant received the money honestly and in good faith but formed the intent to steal the money at a later date. The Court then held, “Thus, we address ourselves to the question of whether an honest mistake of law may — in this setting — negate the inference of an intent permanently to deprive the Government of property.” Id. at 411, 20 CMR at 127. Again, this is a situation where the appellant’s mistake pertained to the specific intent to permanently deprive. Therefore, an honest mistake should be the standard applied.

Finally, in United States v. Turner, 27 MJ 217 (CMA 1988), the appellant was charged with larceny of two automobile engines. The central issue of the case was whether the appellant was prejudiced by the trial judge’s failure to give the defense-requested instruction on mistake of fact. Therefore, this ease is not on point, and reliance on it is misplaced. The appellant in Turner contended that he honestly believed the engines were not government property, and that he could therefore lawfully receive them. Id. at 218-19. The Court held that the appellant’s honest belief that he was entitled to the engines negated any specific intent to steal. Id. at 220. In the present case, however, appellant’s mistake was determined by the judge to apply to the element of wrongful taking, a general intent element, within the crime of larceny. Therefore, an honest and reasonable mistake was the correct standard.

Assuming arguendo that the judge did err, any error was harmless. The record indicates that appellant did not hold an “honest” mistake regarding whether or not he could order contact lenses for all Air Force personnel. His claim of an honest mistake is refuted by his conduct in ordering contact lenses for his friends. Appellant wrote out his friends’ names in code on the order forms. He spelled the names backwards and left out a letter or added a letter in some instances. If he honestly believed his actions to be lawful, there would be no need to alter his friends’ names. Additionally, when a valid order for lenses was generated, a special form came back with the lenses. Not once did this form accompany appellant’s friends’ lenses. He worked there long enough to notice this difference. Therefore, even if the military judge did instruct the members incorrectly and appellant’s mistake need only have been “honest,” the guilty conviction would still stand because there is no evidence that appellant held an honest belief that his actions were lawful.

For all of the foregoing reasons, I respectfully dissent.

O’Connell, J.

The defendant was initially charged with larceny in the first degree in violation of General Statutes §§ 53a-122 (a) (2)1 and 53a-119,2 and criminal coercion in violation of General Statutes § 53a-49 (a) (2). Following a jury trial, he was convicted of the lesser included offense of larceny in the third degree in violation of General Statutes § 53a-1243 and acquitted of the coercion charge. The defendant appeals from his larceny conviction. The defendant claims that (1) there was insufficient evidence to support the larceny conviction and (2) the trial court’s jury instruction violated his constitutional rights to due process of law and a fair trial. We reverse.

The jury could have reasonably found the following facts. The defendant was the landlord of commercial *370property at 1372 Summer Street in Stamford. One of the defendant’s tenants was Executive Decisions Support, Inc., a computer software company headed by Catherine Topp. Topp, in her capacity as president of the company, personally signed the lease with the defendant. The lease contained a default clause authorizing the defendant to enter the tenant’s premises, seize the tenant’s personal property and sell it as a way of recovering unpaid rent or other charges.4 The defendant claimed Topp had failed to pay her rent for March, April and May, 1990.

On Saturday May 5, 1990, the defendant entered Topp’s office by picking the lock. He proceeded to remove two of Topp’s computers and attached printers. On Monday May 7, 1990, Topp arrived at work and noticed that the lock on her office door had been tampered with. Upon entering and noticing her computers were missing, Topp called the Stamford police. After the completion of an initial investigation at the scene by Officer Frank Pica, Topp telephoned the defendant, who admitted that he had taken her computers as a consequence of her failure to pay three months rent. Pica then took the phone from Topp and identified himself. The defendant advised Pica that he was Topp’s landlord and expressed his belief that his actions were *371proper and legal. Upon hearing this, Pica expressed doubt as to the lawfulness of the defendant’s conduct, at which point the defendant reiterated his belief that his actions were in accordance with his lease.

At this point, Pica called his supervisor, Sergeant Ralph Geter. Geter arrived shortly thereafter and telephoned the defendant, who again identified himself as Topp’s landlord and again admitted having taken the computers in question. Geter informed the defendant that he had no right under the law to confiscate Topp’s computer equipment and that he should make arrangements with Topp to return the goods. No such arrangements were made and the defendant sold the computers on May 23, 1990.

On May 25,1990, a detective contacted the defendant and inquired whether they could meet to discuss the matter as part of his investigation. As he had from the start, the defendant admitted during this telephone conversation that he had taken and retained the computers pursuant to his lease. On June 6, 1990, the defendant met with the detective at the Stamford police station and was asked for a formal statement. The defendant requested an attorney and the conversation ended. The defendant was subsequently arrested on June 28, 1990.

The defendant first claims that the state did not prove beyond a reasonable doubt that he was guilty of larceny. It is fundamental jurisprudence that the state bears the burden of proof beyond a reasonable doubt of each essential element of the crime charged. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Griffin, 175 Conn. 155, 162, 397 A.2d 89 (1978).

“When a claim on appeal challenges the sufficiency of the evidence, we undertake a two-part task. We first review the evidence presented at the trial, construing *372it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. King, 216 Conn. 585, 600, 583 A.2d 896 (1990); State v. Glenn, 30 Conn. App. 783, 791, 622 A.2d 1024 (1993).

Larceny is defined in General Statutes § 53a-119 as follows: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. ...” This crime has three elements and all three must be established beyond a reasonable doubt. It must be shown that (1) there was an intent to do the act complained of, (2) the act was done wrongfully, and (3) the act was committed against an owner. This appeal focuses on the elements of “intent” and “wrongfully.” Because larceny is a specific intent crime, the state must show that the defendant acted with the subjective desire or knowledge that his actions constituted stealing. A specific “intent to deprive another of property or to appropriate the same to himself ... is an essential element of larceny . . . and as such must be proved beyond a reasonable doubt by the state.” (Internal quotation marks omitted.) State v. Fernandez, 198 Conn. 1, 20, 501 A.2d 356 (1985).

“The ‘animus furandi,’ or intent to steal, is an essential element of the crime of larceny at common law.” 50 Am. Jur. 2d, Larceny § 35 (1970). Hornbook law articulates the same premise. “Since the taking must be with felonious intent . . . taking under a bona fide claim of right, however unfounded, is not larceny. . . . [Although ignorance of the law is, as a rule, no excuse, it is an excuse if it negatives the existence of a specific *373intent. Therefore, even if the taker’s claim of right is based upon ignorance or mistake of law, it is sufficient to negative a felonious intent. A fortiori, a mistake of fact, if it is the basis of a bona fide claim of right, is sufficient.” J. Miller, Handbook of Criminal Law (1934) § 114 (a), p. 367; see also 2 W. LaFave & A. Scott, Substantive Criminal Law (1986) § 8.5 (a), p. 358.

“One who takes property in good faith, under fair color of claim or title, honestly believing that ... he has a right to take it, is not guilty of larceny even though he is mistaken in such belief, since in such case the felonious intent is lacking. . . . The general rule applies . . . to one who takes it with the honest belief that he has the right to do so under a contract . . . .” 50 Am. Jur. 2d 203, Larceny § 41 (1970).

Particularly apposite to the present case is the comment in American Jurisprudence that, “[i]t is generally held that because of lack of a felonious intent, one is not guilty of larceny who, in the honest belief that he has the right to do so, openly and avowedly takes the property of another without the latter’s consent, as security for a debt bona fide claimed to be due him by the owner, or even to apply or credit it to the payment thereof.” Id., 205-206.

“A defendant who acts under the subjective belief that he or she has a lawful claim on property lacks the required felonious intent to steal. Such a defendant need not show his mistaken claim of right was reasonable, since an unreasonable belief that he had a right to take another’s property will suffice so long as he can establish his claim was made in good faith.” 50 Am. Jur. 2d, Larceny § 41 (1993 Sup.), relying on People v. Romo, 220 Cal. App. 3d 514, 269 Cal. Rptr. 440 (1990).

Connecticut case law is consistent with other jurisdictions and the text writers quoted herein. As far back as 1902, our Supreme Court recognized that the mere *374taking of another’s property was not sufficient to prove larceny. The taking must be accompanied by a felonious intent to deprive the owner of its use. If a person takes property in the honest, though mistaken belief, that he has a right to do so, he has not committed larceny. State v. Main, 75 Conn. 55, 57, 52 A. 257 (1902).

Our Supreme Court has also considered the scenario of a landlord who, like the defendant in the present case, seizes his tenant’s property as security for a debt. State v. Sawyer, 95 Conn. 34, 35-36, 110 A. 461 (1920). In Sawyer, a landlady took possession of a tenant’s handbag on the ground that the tenant was liable to her for damage done to the demised premises. The court held that the defendant had not committed a larceny because she believed that her claim justified refusal to return the handbag unless the tenant paid for the damage. Id., 38. The court based its decision on the absence of felonious intent and the presence of a color of right. The court held that “[o]ne is not guilty of theft without consciousness of the wholly unlawful and inexcusable nature of his act. The grave character of the necessary intent makes that clear. His belief in his right to take the thing involved, even though a mistaken belief, or one entertained upon insufficient grounds, is essentially inconsistent with the presence of an intent to steal, and the terms ‘colour of right or excuse’ obviously demand a construction consonant with that point of view.” (Emphasis added.) Id. The Sawyer court supported its decision with a citation from 2 Bishop’s New Crim. Law (8th Ed.) § 849, p. 496. “ ‘[0]ne who takes another’s goods to compel him, though in an irregular way, to do what the law requires him to do with them — namely, pay his debt — is on no legal principle a felon, though doubtless he is a trespasser. ... In reason, one has no more privilege to steal the effects of his debtor than those of any other person. But a trespass is not theft, except when done *375with felonious intent. And he who carries away a thing openly, and not clandestinely, to enforce a just claim, not for fraud, not to injure the owner, but to compel him to do what the law requires, is not a thief, whatever the extent of the wrong viewed otherwise.’ ” State v. Sawyer, supra, 39.

In the present case, the defendant claims that he did not possess the specific felonious intent to commit larceny but rather acted in good faith pursuant to a lease that gave him, as the landlord, authority to enter the premises, impound the lessee’s property, sell it and apply the proceeds to the unpaid rent or other charges. The state claims that it introduced evidence from which the jury could reasonably have inferred that the defendant intended to steal the computer equipment.

We hold that there was insufficient evidence introduced at trial to prove that the defendant knew that he had no right to take the lessee’s computers. During the initial phone conversation with Topp, the defendant made no attempt to conceal either his identity or that he had in fact taken the computers. The defendant emphatically stated during this conversation that the default clause in the lease provided him with the authority to impound her property based on her failure to pay the three months rent due. Moreover, the officers testifying at trial each stated that the defendant never wavered from his contention that his actions were lawful, even when faced with the threat of criminal prosecution. The defendant’s unfaltering and consistent statements to all parties involved that he acted in good faith in seizing Topp’s computers were not contradicted by the testimony of any witness.

The state cites State v. Banet, 140 Conn. 118, 98 A.2d 530 (1953), in support of its claim that the defendant possessed the requisite criminal intent. In Banet, the defendant, a used car dealer, signed over to a finance *376company to whom he was indebted all of his interest in a number of retail sales installment contracts. Id., 120-21. After two purchasers defaulted, the defendant was found guilty of wrongfully repossessing their vehicles in violation of the assignment agreement. In rejecting the defendant’s claim that he believed in good faith that he had a right to retake the automobiles, the court held that the state had introduced evidence showing the defendant knew that his actions were unlawful. This knowledge was evidenced by the assignment agreement itself, which explicitly transferred title to the automobiles to the finance company. Furthermore, the court viewed the finance company’s refusal to sign a postassignment agreement whereby the defendant attempted to retain the right to repossess the vehicles as strong proof that the defendant knew that his actions were illegal. Id., 122-23.

Unlike Banet, the defendant’s claim that he acted in good faith was not countered by any evidence, direct or circumstantial, that he intended to steal the computers. The state contends, however, that the defendant’s weekend entry into Topp’s office by picking the lock and his subsequent impounding of the computers without leaving a note was enough evidence from which the jury could have reasonably found the requisite intent. Significantly, none of the foregoing evidence contradicted the defendant’s claim that he acted in good faith in taking the computers based on the default clause in the lease. In fact, the defendant testified that he entered the office on the weekend so as to avoid an awkward confrontation. When asked by Topp where the computers were on the following Monday, the defendant concealed nothing. Notwithstanding the state’s claim to the contrary, the record is devoid of any evidence that the jury could have reasonably relied upon in finding the defendant acted with the requisite culpability. The state's bald and conclusory assertion *377that the jury simply rejected the defendant’s consistent claim that the rental agreement served as justification for his action is not enough to prove beyond a reasonable doubt the specific intent requirement for larceny.

Moreover, the state contends that even if the defendant believed in good faith that he had the right to take his tenant’s personal property to secure overdue rent payments, once he was told by three members of the police force that he was acting illegally, he could no longer reasonably maintain an honest though mistaken belief that he was acting lawfully. We do not agree. Police officers are not imbued with the authority or prerogative to declare provisions of civil contracts void, thereby converting good faith to a felonious intent.

In its brief, the state argues that the passage of time since the Sawyer case has dimmed its effect and suggests that we disregard it as a precedent. Even if we agreed that in some instances time may diminish a precedent, the present case would not be an appropriate situation in which to apply such theory. The felonious taking requirement has not given way to more modern legal concepts. “Although the present statute has broadened the scope of larceny, the element of intent has been retained from the prior statute and case law. Larceny continues to require ‘the existence of a felonious intent in the taker . . . .’ ” State v. Marra, 174 Conn. 338, 342, 387 A.2d 550 (1978). Furthermore, in drafting General Statutes § 53a-119, the penal code commission expressly referred to Sawyer. “The question of wrongfulness is meant to incorporate and to be read in the light of the common law standards enunciated in such cases as . . . State v. Sawyer, [supra].” Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes (1969), p. 39.

*378We agree with the defendant that there was insufficient evidence to support his conviction of larceny in the third degree. Because our decision on the defendant’s first claim is dispositive of the appeal, we do not reach the defendant’s second claim.

The judgment is reversed and the case is remanded with direction to render judgment of not guilty of larceny in the third degree.

In this opinion the other judges concurred.

CURETON, Judge:

A jury convicted Gregory R. Blurton of two counts of armed robbery, kidnapping, grand larceny of a motor vehicle, and *505failure to stop for a blue light. The trial court sentenced Blurton to three life sentences for the kidnapping and armed robbery convictions, ten years for grand larceny, and three years for failing to stop for a blue light, with all sentences running concurrently. Blurton appeals. We reverse and remand for a new trial.

FACTS

On April 6, 1997, Blurton entered the Orangeburg WalMart between 11:30 p.m. and 12:00 midnight. After asking for Roger, an assistant manager who was not working that night, Blurton told assistant manager Brandon Beckman he needed access to the electrical room to do some work.1 Beckman tried to open the room but did not have a key to the lock.

As Blurton and Beckman walked away, Blurton pulled out a gun and demanded that Beckman take him to the cash office and give him the money inside. Brenda Arant, the cash office clerk, was still inside the office. Blurton ordered Beckman to get on the floor and demanded Arant fill a shopping bag with money. Blurton screamed his orders and threatened to shoot Beckman and Arant if they did not cooperate. Blurton told Beckman he needed Beckman to drive him down the-road. After Beckman responded that he did not have a car at the store, Blurton demanded Arant’s keys. When Arant informed Blurton her car keys were in her locker, Blurton bit off the end of the phone cord, told Arant not to call anybody for at least five minutes, and pushed Beckman out of the office. Although there was in excess of $200,000 in the cash office, Blurton left with only $8,500.

After leaving the cash office, Blurton put the gun in his pocket and forced Beckman to walk outside the store with him. Once outside, Blurton chose the car of a female customer who had just arrived in the parking lot. As the men approached the woman, Blurton pulled the gun out again. The woman threw down her purse, screamed, and started to run away. While pointing the gun at her, Blurton demanded her keys. The woman threw them at him, whereupon Blurton climbed into her car and drove away.

*506A short time after leaving the parking lot, Blurton ran a red light, attracting the attention of a police officer. When the officer attempted to stop Blurton, Blurton led the police on a high speed chase which ended after he wrecked the customer’s car.

At trial, Blurton did not deny committing the acts of which he was accused, but argued a lack of criminal intent. During his testimony, he explained that James Mayfield, another assistant manager of the Orangeburg Wal-Mart, was a former Navy SEAL who also worked for the Central Intelligence Agency (CIA). He further explained that Mayfield recruited him to assist the CIA in its effort to infiltrate a drug cartel. In exchange for his assistance, Blurton was promised a new identity and a presidential pardon for several bank robberies he committed in the 1970s. Blurton claimed Mayfield gave him surveillance and firearms training and loaned him hand to hand combat videos developed by a Navy SEAL instructor. Additionally, Blurton testified he had completed several assignments in relation to the CIA’s infiltration plan, codenamed “Operation Double White.”

The “staged” robbery of the Wal-Mart was Phase Three of the operation, an attempt to convince the drug cartel that Blurton was a wanted and dangerous man, thereby facilitating his infiltration of the group. He explained the robbery was fake and, according to Mayfield, both Beckman and Roger were aware of the plan. Mayfield furnished the gun for Blurton to use during the staged crimes. While in the cash office, Blurton claims he decided to have Arant fill the bag with one dollar bills, rather than with the sizeable completed deposits, as Mayfield had instructed, because he did not want to be responsible for a large sum of money. Blurton was supposed to leave the money at a specific drop location at the back of a hotel, where Mayfield would retrieve it and promptly return it to Wal-Mart on behalf of the CIA. According to Blurton, he had to pretend the robbery was real to put on a “show” for the security cameras and members of the local sheriffs department who, according to Mayfield, were involved with the drug cartel.

Blurton stated that when he saw the customer’s car in the parking lot, he assumed it was his “ride.” He thought the *507customer was cooperating with the CIA and that her show of fear and panic was an act. He testified that he evaded police officers because he was waiting for the CIA to intercede on his behalf, so he would not get caught.

Although Blurton consistently maintained that he was working for the CIA when he committed the acts involved in each of the charged offenses, his trial counsel simply attempted to prove Blurton genuinely believed he was a CIA operative at the time of the alleged crimes and thus lacked criminal intent.

LAW/ANALYSIS

I. Evidentiary Issues

Blurton’s trial counsel attempted to present evidence which would corroborate his explanation of events and support his defense of lack of criminal intent. The evidence included (1) taped telephone conversations between Blurton and Mayfield; (2) testimony that the investigating officer thought Blurton actually believed he was part of a CIA operation; (3) testimony that others heard and believed Mayfield’s claim that he was a former Navy SEAL; and (4) two newspaper articles which showed Mayfield convinced the local newspaper he was a Navy SEAL. The trial court excluded this evidence. Blurton argues this was error.

Decisions regarding the admissibility of evidence are within the trial court’s sound discretion and will not be reversed on appeal absent a prejudicial abuse of that discretion. State v. Smith, 337 S.C. 27, 522 S.E.2d 598 (1999) (citing State v. Nance, 320 S.C. 501, 466 S.E.2d 349 (1996)); State v. Fulton, 333 S.C. 359, 509 S.E.2d 819 (Ct.App.1998).

A. Taped Conversations

Blurton’s counsel sought to admit taped telephone conversations between Blurton and Mayfield which were made without Mayfield’s knowledge. Blurton made the tapes after the police investigator concluded Mayfield was also a suspect based on interviews with Blurton. During the conversations, Mayfield repeatedly affirmed or failed to deny Blurton’s statements that Mayfield had involved him in the CIA operation and that the robbery was staged. The trial court excluded the *508tape recordings as inadmissible hearsay, but allowed the defense to proffer the tapes and transcripts prepared from them into evidence.2 We agree that this evidence should have been admitted.

Hearsay is generally inadmissible. Rule 802, SCRE. “Hearsay is an out-of-court statement offered in court to prove the truth of the matter asserted.” Jackson v. Speed, 326 S.C. 289, 304, 486 S.E.2d 750, 758 (1997); see also Rule 801(c), SCRE (“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”). A statement that is not offered to prove the truth of the matter asserted should not be excluded as hearsay. See State v. Blackburn, 271 S.C. 324, 247 S.E.2d 334 (1978) (statement implicating defendant in alleged prior crimes, which was not offered to prove the truth of the matter asserted, that is, that defendant in fact committed the prior crimes, but to establish motive, was not “hearsay” and its admission was not error); Hawkins v. Pathology Assocs. of Greenville, P.A., 330 S.C. 92, 498 S.E.2d 395 (Ct.App.1998) (allowing admission of letters, an anniversary card, and video to show close familial bond between the decedent, her husband, and her children in a malpractice action).

In this case, the tapes were not offered to prove the veracity of any statements made during the conversations between Blurton and Mayfield. Rather, they were offered to show that Blurton had been led to believe the robbery was staged and that his actions were sanctioned by the CIA. Because these conversations would have added credence to Blurton’s defense that he lacked criminal intent and were not hearsay, the trial court erred in excluding them. See State v. Harris, 311 S.C. 162, 167, 427 S.E.2d 909, 912 (Ct.App.1993) (“Due process requires that a criminal defendant be given a reasonable opportunity to present a complete defense.”).

B. Investigator’s Opinion on Blurton’s State of Mind

In a preliminary hearing, Detective Jack Coleman, the investigator in this case, said he was convinced Blurton be*509lieved he was involved in a CIA operation when he robbed the Wal-mart. The court excluded the testimony, determining it was the province of the jury to determine whether Blurton believed he was working for the CIA when he committed the charged crimes.3 We find no abuse of discretion.

“The general rule is' that opinion testimony which is determinative of the ultimate fact in issue should be excluded as an invasion of the province of the factfinder. This rule, however, is not inflexible.” Richmond v. Tecklenberg, 302 S.C. 331, 334, 396 S.E.2d 111, 113 (Ct.App.1990) (citing State v. Moorer, 241 S.C. 487, 129 S.E.2d 330 (1963), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991)); see also State v. Koon, 278 S.C. 528, 298 S.E.2d 769 (1982), overruling on other grounds recognized by State v. Matthews, 291 S.C. 339, 353 S.E.2d 444 (1986) (holding trial court properly excluded testimony concerning whether a mitigating factor was present as such determination was the province of the jury). Lay witnesses are permitted to offer opinion testimony when such testimony is rationally related to the witness’s perception, does not require special knowledge, and may assist the jury’s understanding of the witness’s testimony. See Rule 701, SCRE.

While we believe the trial court could have properly admitted the detective’s prior testimony into evidence, the court’s refusal to do so does not constitute an abuse of discretion. Blurton did not attempt to offer the detective as an expert in the beliefs of others. The detective’s opinion was not necessary for the jury to understand other portions of his testimony. Furthermore, the testimony was the investigator’s opinion on the ultimate factual issue in the case — whether Blurton believed he was working for the CIA and lacked criminal intent. Therefore, we hold the trial court’s refusal to admit the prior testimony was not reversible error.

*510On appeal, Blurton argues the detective’s opinion was admissible as an admission under Rule 801(d)(2)(A), SCRE.4 This rule provides an exception to the hearsay rule. Thus, it would allow the admission of evidence which would otherwise be excluded as hearsay. The detective’s opinion in this case was not excluded as hearsay, but because the trial court determined it was the jury’s province to determine whether Blurton believed he was working for the CIA when he committed the charged crimes. Therefore, whether the detective’s opinion was admissible under Rule 801(d)(2)(A) is not relevant to the trial court’s ruling concerning the testimony’s admissibility.

C. Whether Others Believed Mayfield to be a Navy SEAL

Blurton also attempted to introduce testimony that other people at Wal-Mart heard and believed Mayfield’s statements that he was a former Navy SEAL. The trial court excluded the evidence, concluding it was both hearsay and irrelevant. Blurton asserts the court abused its discretion in excluding the evidence. We agree.

The testimony did not constitute hearsay because it was not offered to prove the truth of any out of court statements and should not have been excluded on those grounds. See Rule 801(c), SCRE. Blurton’s counsel did not offer evidence that Mayfield represented himself to be a former Navy SEAL to prove Mayfield actually was one. In fact, it is undisputed that Mayfield was never a Navy SEAL. The evidence was offered, in part, to corroborate Blurton’s testimony that Mayfield told him and he believed Mayfield was a former SEAL. Therefore, the evidence should not have been excluded as hearsay.

Nor was the testimony irrelevant. Essentially, the excluded testimony would have shown that it was common belief among Wal-Mart employees, fueled by Mayfield’s own statements, that he was a former Navy SEAL. The fact that Mayfield told this falsehood about his past to others, and that they believed him, tended to corroborate Blurton’s claimed *511belief in the same falsehood. This would help explain why Blurton would believe Mayfield’s claim that he worked for the CIA. Furthermore, the fact that it was common knowledge that Mayfield was a former SEAL lends credibility to Blur-ton’s alleged belief that other members of management were aware of his purported CIA status and were cooperating with him in the “staged” robbery. Thus, the evidence shows Blurton’s state of mind at the time he committed the crimes. The evidence was relevant to Blurton’s argument that he lacked criminal intent, a necessary element of the charged crimes. See State v. Ferguson, 302 S.C. 269, 395 S.E.2d 182 (1990) (statutory crimes ordinarily include some elements of intent); State v. Thrailkill, 73 S.C. 314, 53 S.E. 482 (1906) (criminal intent is an essential element in every common law crime).

D. Newspaper Articles

Blurton also offered two newspaper articles printed by Orangeburg’s newspaper, The Times and Democrat.5 In the first article, entitled “Never Give Up,” the newspaper recounted Mayfield’s fictional history as a Navy SEAL. Mayfield was quoted in the article describing the rigorous training and lessons he gained from his experience as a SEAL. The second article, printed after Mayfield’s arrest, discussed the Wal-Mart robbery and, in retracting the prior article, stated that Mayfield had never been a Navy SEAL. The trial court held both articles inadmissible hearsay. We agree with Blur-ton that the articles should have been admitted.

The newspaper articles did not constitute hearsay because they were not offered for the truth of the statements contained in them, but to show Mayfield’s ability to persuade and trick others. Because of the purpose for which they were offered, the articles clearly were not hearsay and were improperly excluded. See Jackson, 326 S.C. 289, 486 S.E.2d 750; Rule 801(c), SCRE.

*512II. State’s Closing Argument

Blurton also asserts the trial court erred in overruling his objection, denying his. motion to strike and his motion for a mistrial when the assistant solicitor accused him of lying in his testimony.

During closing arguments, the assistant solicitor accused Blurton twice of lying based on a defense psychiatrist’s admission that she “diagnosed him as suffering from malingering, which is the deliberate production of false symptoms for the purpose of secondary gain.” Blurton objected and moved to strike, arguing it is improper to call the defendant a liar in closing arguments. The trial court responded by instructing the prosecutor to “Go ahead.” At the close of the State’s argument, Blurton moved for a mistrial, which the court denied.

Our supreme court has previously held it is improper to call a party a liar in closing argument. See Major v. Alverson, 183 S.C. 123, 190 S.E. 449 (1937). However, not all improper closing arguments require reversal. In criminal cases, “[a] new trial will not be granted unless the prosecutor’s comments so infected the trial with unfairness as to make the resulting conviction a denial of due process.” State v. Huggins, 325 S.C. 103, 107 481 S.E.2d 114, 116 (1997). The propriety of the state’s closing argument will be examined in light of the entire record. State v. Nathari, 303 S.C. 188, 399 S.E.2d 597 (Ct.App.1990).

While we agree that the assistant solicitor’s comments were improper, they do not mandate reversal alone. However, the cumulative effect of this error, when coupled with the exclusion of the previously discussed evidence, warrants reversal. Cf. State v. Johnson, 334 S.C. 78, 93, 512 S.E.2d 795, 803 (1999) (citations omitted) (“cumulative error doctrine provides relief to a party when a combination of errors that are insignificant by themselves have the effect of preventing a party from receiving a fair trial and it requires the cumulative effect of the errors to affect the outcome of the trial”). The prosecutor accused Blurton of a recent fabrication, an accusation which could not have been seriously made if the trial court had properly admitted the taped telephone conversations between Blurton and Mayfield. In that regard, the closing *513arguments served to exacerbate the error in excluding evidence critical to Blurton’s defense.

III. Jury Instructions

Blurton also argues the trial court erred in denying his request for a specific jury instruction and in issuing an improper instruction. We find no error.

The law to be charged is determined by the evidence presented at trial. State v. Gourdine, 322 S.C. 396, 472 S.E.2d 241 (1996). If the evidence supports a particular requested charge, the trial court commits reversible error by refusing to issue it. State v. Burriss, 334 S.C. 256, 513 S.E.2d 104 (1999).

In discussing jury instructions, Blurton requested an instruction on actual and apparent authority. The trial court declined the request and noted that it would, contrary to the request, instruct the jury that acting on the instructions of another is no defense. In its charge, the court stated:

Now, I tell you, the law is, if one committed a criminal act it is no defense to show that it was done under the instructions or orders from another. Likewise, it is no defense to a criminal act if it be shown that it was done in partnership or cooperation with another person.

Blurton objected to the instruction. On appeal, Blurton argues the trial court erred in refusing the requested charge and in charging the jury as it did.

The trial court correctly refused the requested instruction. Actual and apparent authority are principles of agency law rather than criminal law. However, even if these concepts could be used as a defense to criminal charges, Blurton did not establish sufficient evidence to require the requested charge. There is no evidence Mayfield had actual authority, as a Wal-Mart assistant manager or as a governmental official, to authorize Blurton to commit any of the alleged crimes.

“Apparent authority to do an act is created as to a third person by written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe the principal consents to have the act done on his behalf by the person purporting to act for him.” *514Genovese v. Bergeron, 327 S.C. 567, 575, 490 S.E.2d 608, 612 (Ct.App.1997). Blurton presented no evidence of Mayfield’s apparent authority to permit these crimes. There was no evidence that either Wal-Mart or the CIA, acting as a principal, did any act which would have caused Blurton to believe Mayfield could authorize a real or “staged” robbery of the Wal-Mart store. Because the evidence did not require the requested charge, the court properly refused to issue it. See Dalon v. Golden Lanes, Inc., 320 S.C. 534, 540, 466 S.E.2d 368, 372 (Ct.App.1996) (citations omitted) (“It is the trial court’s function to charge the jury on the applicable law as raised by the pleadings and supported by the evidence. In order to warrant reversal for failure to give a requested charge, the refusal must be both erroneous and prejudicial.”).

Furthermore, the court’s charge that it is no defense that a person acted upon the instructions of, or in cooperation with, another person was proper. The instruction is a correct statement of the law and was triggered by Blurton’s testimony that he took money from Wal-Mart with Mayfield’s assistance and permission. See State v. Hurt, 212 S.C. 461, 48 S.E.2d 313 (1948) (it is no defense to a crime that others who are not on trial participated in the crime); 22 C.J.S. Criminal Law § 88 (1989) (Generally, the fact that one commits a crime on the advice or direction of another person is no defense to his commission of the crime.).

IV. Directed Verdict

Finally, Blurton argues the trial court erred in denying his directed verdict motion on the grand larceny charge. Specifically, he argues that double jeopardy prevents his conviction for both armed robbery, for taking the customer’s car keys, and grand larceny, for taking her car. Although Blurton moved for a directed verdict on the ground of insufficiency of the evidence after the State rested, he never argued to the trial court, as he does now, that he could not be convicted of both crimes. Because he failed to assert his double jeopardy argument at trial, the issue' is not preserved for direct appeal. See State v. Byram, 326 S.C. 107, 485 S.E.2d 360 (1997) (party may not argue one ground at trial and another on appeal); Medlock v. One 1985 Jeep Cherokee VIN 1JCWB7828FT129001, 322 S.C. 127, 470 S.E.2d 373 *515(1996) (double jeopardy issue must be raised to the trial court to be preserved for appellate review).

CONCLUSION

For the reasons discussed, Blurton’s appealed convictions are reversed and his case is remanded for a new trial.

REVERSED AND REMANDED.

GOOLSBY and SHULER, JJ., concur.

JUSTICE CERDA

delivered the opinion of the court:

The defendant, William J. Conley, was charged with two counts of aggravated battery based on permanent disability and great bodily harm. (Ill. Rev. Stat. 1983, ch. 38, par. 12 — 4(a).) He was found guilty after a jury trial of aggravated battery based solely on permanent disability on July 17, 1986. The defendant’s motions for judgment notwithstanding the verdict or a new trial were denied, and the defendant was sentenced to 30 months’ probation including 40 days of periodic imprisonment. On appeal, it is contended that: (1) the State failed to prove beyond a reasonable doubt that the victim incurred a permanent disability and that the defendant intended to inflict a permanent disability; (2) the trial court erred in prohibiting the defense from asking a State identification witness to describe the offender during defendant’s case in chief; (3) the trial court erred in allowing the admission of evidence elicited during State cross-examination that defense witnesses failed to tell police that the offender was another individual; (4) the State’s use during cross-examination and in closing argument of defendant’s pretrial silence deprived the defendant of a fair trial; and (5) the trial court erred in prohibiting defense counsel from arguing to the jury that the victim had a financial motive in securing a verdict and in telling the jury that financial motive was not in issue. For the following reasons, we affirm.

The defendant was charged with aggravated battery in connection with a fight which occurred at a party on September 28, 1985, in unincorporated Orland Township. Approximately 200 high school students attended the party and paid admission to drink unlimited beer. One of those students, Sean O’Connell, attended the party with several friends. At some point during the party, Sean’s group was approached by a group of 20 boys who apparently thought that someone in Sean’s group had said something derogatory. Sean’s group denied making a statement and said they did not want any trouble. Shortly thereafter, Sean and his friends decided to leave and began walking toward their car which was parked a half block south of the party.

A group of people were walking toward the party from across the street when someone from that group shouted “There’s those guys from the party.” Someone emerged from that group and approached Sean, who had been walking with his friend Marty Carroll *23810 to 15 steps behind two other friends, Glen Mazurowski and Dan Scurio. That individual demanded that Marty give him a can of beer from his six-pack. Marty refused, and the individual struck Sean in the face with a wine bottle, causing Sean to fall to the ground. The offender attempted to hit Marty, but missed as Marty was able to duck. Sean sustained broken upper and lower jaws and four broken bones in the area between the bridge of his nose and the lower left cheek. Sean lost one tooth and had root canal surgery to reposition 10 teeth that had been damaged. Expert testimony revealed that Sean has a permanent condition called mucosal mouth and permanent partial numbness in one lip. The expert also testified that the life expectancy of the damaged teeth might be diminished by a third or a half.

At trial, the State presented Officer Houlihan, Doctor Arnold S. Morof, and five occurrence witnesses. Of the five occurrence witnesses, only Marty Carroll identified Conley as the offender. The only other witness connecting Conley to the crime was another student, Demetrius Kereakas, who testified that he saw Conley throw a bottle at Dan Scurio’s car as the four boys left after the incident. The defense recalled State witness Marty Carroll and presented seven witnesses in addition to the defendant. Four of the defense witnesses testified that the defendant was not the offender, but rather that Sean was hit by a Robert Frazer, who is known in school as “Crazy Bob” or “Terminator.” The party was held at a residence surrounded by open fields. There were no streetlights and most of the witnesses had been drinking before the incident.

At the end of the trial, the jury was furnished with four verdict forms for the two counts of aggravated battery. The jury returned a guilty verdict for aggravated battery based on permanent disability, failing to sign the remaining verdict forms. The State’s Attorney advised the trial judge that the jury had returned only one verdict but that he had no objections. The trial court accepted the verdict and discharged the jury. It must be noted here that when a verdict on less than all the counts is accepted by the trial court and the jury is discharged, the jury’s silence as to other counts is treated as an acquittal on those counts for purposes of double jeopardy. (People v. Thurman (1983), 120 Ill. App. 3d 975, 979, 458 N.E.2d 1038, aff’d in part and rev’d in part on other grounds (1984), 104 Ill. 2d 326, 472 N.E.2d 414; People v. Rollins (1982), 108 Ill. App. 3d 480, 485, 438 N.E.2d 1322.) Therefore, had this court found it necessary to reverse and remand for a new trial, the defendant could not have been retried for aggravated battery based on great bodily harm.

*239 The defendant initially contends on appeal that the State failed to prove beyond a reasonable doubt that Sean O’Connell incurred a permanent disability. Section 12 — 4(a) of the Criminal Code of 1961 provides that: “[a] person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery.” (Ill. Rev. Stat. 1983, ch. 38, par. 12 — 4(a).) The defendant contends there must be some disabling effect for an aggravated battery conviction based on permanent disability. The defendant does not dispute that Sean lost a tooth or that surgery was required to repair damaged teeth. The defendant also does not dispute that Sean will have permanent partial numbness in one lip or suffer from a condition called mucosal mouth. The defendant maintains, however, that there is no evidence as to how these injuries are disabling because there was no testimony of any tasks that can no longer be performed as a result of these injuries.

The parties cite no Illinois decisions, nor have we found any, defining permanent disability in the context of aggravated, battery. The State relies on People v. Post (1982), 109 Ill. App. 3d 482, 440 N.E.2d 631, and People v. Hicks (1984), 101 Ill. 2d 366, 462 N.E.2d 473, for the proposition that loss of function is not required for a finding of permanent disability. In Post, the victim had been stabbed once in the back and three times in the leg, but incurred only permanent scarring. The court affirmed the defendant’s conviction for aggravated battery based on permanent disability. However, Post is not dispositive of the issue as the defendant was also convicted of aggravated battery based on great bodily harm and disfigurement, and the defendant never raised the issue of sufficiency of the evidence regarding permanent disability. In Hicks, a young girl received severe burns on her chest caused by boiling water. Hicks is also not dispositive of the issue as the defendant was convicted of heinous battery. Thus, as the defendant points out in his reply brief, this appears to be a question of first impression.

The function of the courts in construing statutes is to ascertain and give effect to the intent of the legislature. (People v. Steppan (1985), 105 Ill. 2d 310, 316, 473 N.E.2d 1300.) The starting point for this task is the language itself (People v. Boykin (1983), 94 Ill. 2d 138, 141, 455 N.E.2d 1174), and the language should be given its plain and ordinary meaning. (Steppan, 105 Ill. 2d at 317; People v. Pettit (1984), 101 Ill. 2d 309, 313, 461 N.E.2d 991.) The defendant urges the court to adopt the definition found in Webster’s Third New International Dictionary which defines disability as an “inability to do *240something.” The State refers to additional language from the same source that a disability is a “physical or mental illness, injury, or condition that incapacitates in any way.” (Webster’s Third New International Dictionary 642 (1986).) There is some support for defendant’s proposed definition in an old Illinois decision. In Dahlberg v. People (1907), 225 Ill. 485, 80 N.E. 310, a woman was convicted of assault with intent to commit mayhem (aggravated battery incorporates the earlier offense of mayhem) after she threw red pepper at someone’s eyes and missed, hitting an innocent bystander in the eyes instead. Her conviction was reversed because the crime of attempt requires that the offender employ adequate means to accomplish the attempted result, and the evidence revealed that blindness could not have resulted had she succeeded. (Dahlberg, 225 Ill. at 490.) Thus, by necessary implication, anything short of blindness would not have supported a conviction for mayhem.

In arriving at a definition, however, it is also proper to consider the statute’s purpose and the evils sought to be remedied. (Steppan, 105 Ill. 2d at 316.) The Committee Comment explains that section 12 — 4(a) incorporates the old offense of mayhem. (Ill. Ann. Stat., ch. 38, par. 12 — 4(a), Committee Comment at 465 (Smith-Hurd 1979).) At common law the offense of mayhem required the dismemberment or disablement of some bodily part. Initially, the law sought to protect the King’s right to the military services of his subjects. However, modern criminal codes have expanded their protection against a wider range of injuries. As one court explained:

“What, then, originated as the narrow common law offense of mayhem is generally today a statutory offense of considerably larger dimensions. The transition has been accompanied, if not induced, by a shift in emphasis from the military and combative effects of the injury to' the preservation of the human body in normal functioning. The statutory counterparts of non-statutory mayhem doubtless include all that the common law proscribed. But what is important now is not the victim’s capacity for attack or defense, but the integrity of his person.” (Emphasis added.) (United States v. Cook (D.C. Cir. 1972), 462 F.2d 301, 303.)

Under this view, it seems apparent that for an injury to be deemed disabling, all that must be shown is that the victim is no longer whole such that the injured bodily portion or part no longer serves the body in the same manner as it did before the injury. Applying this standard to the case at hand, the injuries Sean O’Connell suffered are sufficient to constitute a permanent disability. Sean will en*241dure permanent partial numbness in one lip and mucosal mouth.1 He lost one tooth and there is also a chance he may lose some teeth before attaining the age of seventy.

The defendant further argues that the State failed to prove beyond a reasonable doubt that he intended to inflict any permanent disability. The thrust of defendant’s argument is that under section 12 — 4(a), a person must intend to bring about the particular harm defined in the statute. The defendant asserts that while it may be inferred from his conduct that he intended to cause harm, it does not follow that he intended to cause permanent disability. The State contends it is not necessary that the defendant intended to bring about the particular injuries that resulted. The State maintains it met its burden by showing that the defendant intentionally struck Sean.

The law on this question is unclear. The defendant relies upon People v. Crosser (1983), 117 Ill. App. 3d 24, 27, 452 N.E.2d 857, and Bay State Insurance Co. v. Wilson (1982), 108 Ill. App. 3d 1096, 440 N.E.2d 131, which both hold that aggravated battery is a specific intent crime. The State, however, relies upon People v. Allen (1969), 117 Ill. App. 2d 20, 254 N.E.2d 103. In Allen, the court wrote that in committing the offense of aggravated battery, “the only mental state required is that the accused knowingly and intentionally cause the social harm defined in the statute, no premeditation or malice being necessary.” (Allen, 117 Ill. App. 2d at 27-28.) The court then went on to state that it is not necessary that the defendant intended to cause the particular injury which resulted. (Allen, 117 Ill. App. 2d at 28.) Resolution of this issue is made difficult as there exist inconsistent decisions within the first district. Allen is cited with approval by the third division in People v. Perry (1974), 19 Ill. App. 3d 254, 259, 311 N.E.2d 341; however, specific intent analysis is applied in another decision by the third division in People v. Farrell (1980), 89 Ill. App. 3d 262, 264-65, 411 N.E.2d 927. The fifth division has also produced inconsistent decisions. In People v. Gomez (1986), 141 Ill. App. 3d 935, 939, 491 N.E.2d 68, it was stated that aggravated battery is a specific intent crime. However, just the opposite was written in People v. Gvojic (1987), 160 Ill. App. 3d 1065, 1069, 513 N.E.2d 1083.

For proper resolution of this issue, it is best to return to the statutory language. Section 12 — 4(a) employs the terms “inten*242tionally or knowingly” to describe the required mental state. The relevant statutes state:

“4 — 4. Intent. A person intends, or acts intentionally or with intent, to accomplish a result or engage in conduct described by the statute defining the offense, when his conscious objective or purpose is to accomplish that result or engage in that conduct.” (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 4.)

“4 — 5. Knowledge. A person knows or acts knowingly or with knowledge of:

(b) The result of his conduct, described by the statute defining the offense, when he is consciously aware that such result is practically certain to be caused by his conduct.” (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 5.)

Section 12 — 4(a) defines aggravated battery as the commission of a battery where the offender intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement. Because the offense is defined in terms of result, the State has the burden of proving beyond a reasonable doubt that the defendant either had a “conscious objective” to achieve the harm defined, or that the defendant was “consciously aware” that the harm defined was “practically certain to be caused by his conduct.” (See People v. Herr (1980), 87 Ill. App. 3d 819, 821, 409 N.E.2d 442.) This is the identical construction found in People v. Farrell (1980), 89 Ill. App. 3d 262, 264-65, 411 N.E.2d 927, which we conclude is the correct statement of the law.

Although the State must establish the specific intent to bring about great bodily harm, or permanent disability or disfigurement under section 12 — 4(a), problems of proof are alleviated to the extent that the ordinary presumption that one intends the natural and probable consequences of his actions shifts the burden of production, though not persuasion, to the defendant. (Farrell, 89 Ill. App. 3d at 265.) If the defendant presents evidence contrary to the presumption, then the presumption ceases to have effect, and the trier of fact considers all the evidence and the natural inferences drawn therefrom. (Farrell, 89 Ill. App. 3d at 265.) Intent can be inferred from the surrounding circumstances, the offender’s words, the weapon used, and the force of the blow. (See, e.g., Macklin v. Commonwealth Life & Accident Co. (1970), 121 Ill. App. 2d 119, 126-27, 257 N.E.2d 256.) As the defendant’s theory of the case was mistaken identity, there was no evidence introduced negating the presumption of intent. However, even if Conley had denied any intention to inflict permanent disability, the surrounding circumstances, the use of a bot-*243tie, the absence of warning and the force of the blow are facts from which the jury could reasonably infer the intent to cause permanent disability. Therefore, we find the evidence sufficient to support a finding of intent to cause permanent disability beyond a reasonable doubt.

The defendant next contends that the trial court improperly restricted the scope of his examination of State witness Marty Carroll during his case in chief. During the evening following the close of the prosecution’s case, Conley remembered having a conversation with Carroll at another party where Carroll allegedly made a statement inconsistent with his testimony. Advised of this development, the trial judge permitted the defendant to recall Carroll so that a foundation could be established for later impeachment when Conley testified. After a foundation had been laid, the trial court prohibited the defendant from pursuing an additional line of questioning when the State objected to questions asking Carroll to describe the offender.

The defendant’s argument assumes that People v. Aughinbaugh (1967), 36 Ill. 2d 320, 223 N.E.2d 117, and People v. Morris (1964), 30 Ill. 2d 406, 197 N.E.2d 433, are controlling. These decisions hold that where identification is a principal issue at trial, the defendant is entitled to wide latitude in conducting cross-examination of identification witnesses. These decisions, however, are limited to cross-examination during the State’s case in chief. It is well established in Illinois that the decision to recall a witness for further cross-examination after the close of the adversary’s case is within the sound discretion of the trial court. (People v. Smith (1986), 149 Ill. App. 3d 145, 152, 500 N.E.2d 605.) The trial court’s decision on this matter will not be reversed absent a clear abuse of discretion. (Smith, 149 Ill. App. 3d at 152.) In People v. Dorsey (1982), 109 Ill. App. 3d 218, 440 N.E.2d 394, the defendant argued that his right to due process was violated when the trial court denied his request to recall three witnesses for additional cross-examination in his case in chief. The court held that there was no abuse of discretion where the defendant had an opportunity to cross-examine the witnesses, the questions the defendant wished to ask could have been presented at defendant’s previous cross-examination during the State’s case, and the evidence the defendant hoped to introduce had little probative value. (Dorsey, 109 Ill. App. 3d at 229. See also People v. Lewis (1980), 89 Ill. App. 3d 840, 845, 412 N.E.2d 565.) Here, the defendant had an opportunity to cross-examine Marty Carroll during the State’s case and his questions regarding the offender’s description *244should have been presented at that time. Therefore, there was no abuse of discretion in prohibiting the defendant from pursuing this line of questioning.

Next, the defendant argues that the trial court erred in permitting improper impeachment of four defense witnesses. Matt Tanzer, Kevin McGinley, and Joseph Longhini testified they were present when Sean was hit and that Bob Frazer, and not the defendant, was the culprit. Scott Bucich testified that he observed the defendant in a different altercation not involving Sean. On cross-examination, the witnesses admitted they failed to volunteer this information to the police which may have exonerated the defendant. The defendant maintains that the trial court erroneously overruled his objections for lack of foundation because there was no showing that the police or other authority ever questioned these witnesses. The defendant relies on People v. Fabian (1976), 42 Ill. App. 3d 934, 356 N.E.2d 982, construing that decision to hold that a witness’ failure to volunteer knowledge of a murderer’s identity to police during earlier conversations was not impeaching because the police never inquired as to his ability to identify the offender. Defendant’s reliance on Fabian is misplaced, however, as the issue in Fabian was the weight, and not the admissibility, of the evidence in determining whether the defendant was proved guilty beyond a reasonable doubt. Fabian, 42 Ill. App. 3d at 938.

The rule for impeachment by omission is that it is permissible to use prior silence to discredit a witness’ testimony if: (1) it is shown that the witness had an opportunity to make a statement, and (2) under the circumstances, a person would normally have made the statement. (People v. McMath (1968), 104 Ill. App. 2d 302, 315, 244 N.E.2d 330, affd (1970), 45 Ill. 2d 33, 256 N.E.2d 835, cert. denied (1970), 400 U.S. 846, 27 L. Ed. 83, 91 S. Ct. 92.) At issue here is whether the State properly established the required evidentiary foundation for this impeachment. In People v. Taylor (1986), 141 Ill. App. 3d 839, 491 N.E.2d 3, two defense witnesses testified that the victim of a shooting had been shot by his own brother, and not by the defendant, when the brother fired a gun into a crowd during a street altercation. The witnesses admitted on cross-examination that they failed to go to the police with this information which may have exonerated the defendant. The court held this impeachment was proper because the witnesses, who were friends of the defendant, knew of the defendant’s arrest eight months before trial. (Taylor, 141 Ill. App. 3d at 845-46.) And in People v. Martinez (1979), 76 Ill. App. 3d 280, 284-85, 395 N.E.2d 86, this court ruled that a prosecu*245tor’s questions regarding a witness' failure to go to the police were permissible where the witness who was a friend of the accused waited eight months to tell his story supporting the defendant’s claim of self-defense. On the other hand, in People v. Watson (1981), 94 Ill. App. 3d 550, 557-58, 418 N.E.2d 1015, similar impeachment of an alibi witness was held improper for lack of foundation where the witness did not learn of the defendant’s alleged crime until five months after his arrest, and the State did not attempt to interview the witness despite receiving notice of defendant’s alibi defense. Read together, these decisions indicate that where a witness is a friend of the accused, and has had knowledge of the friend’s arrest before trial, evidence of the witness’ failure to give exculpatory information to the authorities is admissible to impeach an exculpatory story offered for the first time at trial. However, where the witness has not had sufficient notice, there must be evidence of other circumstances under which a reasonable person would have given exculpatory information to the authorities. For the case before us, resolution of this issue requires an examination of the pertinent testimony of each witness.

Matt Tanzer testified that he was a close friend of the defendant. Tanzer also testified that he had discussed the case with the defendant and other friends before trial. Although there was no testimony elicited on cross-examination as to how much time had elapsed before trial during which Tanzer knew of the defendant’s arrest, we do not believe this less than perfect examination to be reversible error. Thus, a sufficient foundation was established for impeaching Tanzer.

Joseph Longhini testified he had only known the defendant for less than a year and was not a close friend. However, Longhini also testified that he discussed the case with the defendant before trial and told him he would be available if the defendant needed him. Thus, a sufficient foundation was established.

Kevin McGinley testified that he was a close friend of the defendant. However, in addition to the absence of testimony indicating when he first learned of the defendant’s arrest, there was also no testimony that he had discussed the case with anyone. Moreover, no investigators for the police or the State ever questioned McGinley as to what he knew. Therefore, use of his prior silence was improper for lack of foundation.

Scott Bucich testified that he had known the defendant for a number of years. Bucich also testified that he discussed the case with the defendant before trial when the defendant called him to learn what Bucich knew of the incident. However, Bucich was a witness *246only to the defendant’s altercation with another individual named John O’Brien. Under these circumstances, a friend of the accused would not normally go to the police to volunteer information pertaining to a separate fight. Thus, the use of Bucich’s prior inaction was improper.

• 14, 15 Nonetheless, this court finds these errors to be harmless. Error is harmless where a reviewing court can safely conclude, after consideration of the totality of the evidence, that a trial without the error would not produce a different result. (People v. Warmack (1980), 83 Ill. 2d 112, 128-29, 413 N.E.2d 1254.) To say that the failure of McGinley and Bucich to volunteer information to the police affected the outcome of the case is speculative, especially in view of the fact that Tanzer and Longhini were properly impeached.

The fourth issue raised by the defendant is whether the State improperly used the defendant’s pretrial silence to impeach his mistaken identity theory in violation of the due process clause of the fourteenth amendment and Illinois evidentiary law. The State sought to discredit the mistaken identity theory as a recent fabrication since the defendant failed to inform the police about Bob Frazer, who the defendant claimed at trial to be the true offender. Examination of this issue must be in two parts as reference was made at trial to two separate occasions where the defendant did not inform the police of the identity of the individual claimed to be the true offender. We first address the State’s use of the defendant’s pre-arrest silence.

On October 7, Officer Houlihan visited Andrew High School and obtained permission to interview the defendant. Houlihan read the Miranda warnings to the defendant before proceeding with the interview. There was conflicting testimony as to what exactly the defendant had said during his interrogation at Andrew High School. Investigator Houlihan testified that Conley admitted to striking an individual he didn’t know with his fist and that the individual fell to the ground. The defendant, however, testified that he had told Houlihan that he fought an individual by the name of John O’Brien and that he gave a description of O’Brien to Houlihan. The defendant further testified that Houlihan stated he had a report of only one fight involving Sean O’Connell and asked him why his fight had not been reported. Conley responded that he didn’t know but that it probably was not reported because no one was hurt. Nevertheless, it is clear that Conley never mentioned the name of Bob Frazer to Houlihan when questioned about his activities at the party and that this fact was elicited during his cross-examination. The record reveals the following colloquy:

*247“Q. And so you saw Marty Carroll at the second Sandora party that you made?

A. Yes, I did.

Q. And he was pointing a finger at you?

A. He sure did.

Q. He said, ‘That’s the guy who hit Shawn with the bottle.’

A. Yes.

Q. You said to him, ‘It wasn’t me. I know who did it.’ Didn’t you say that?

A. Yes, I did.

Q. And you told Officer Houlihan who that was, didn’t you?

A. No, I did not tell him.

Q. I have nothing further.”

The defendant did not object to the State’s question because he felt that his silence could be adequately explained. On redirect, the defendant testified that he had not learned of Bob Frazer until two to three weeks after his interview with Houlihan. The defendant now argues that the State’s use of this silence was improper under Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240. In Doyle v. Ohio, the United States Supreme Court held that use of a defendant’s post-arrest silence to impeach his exculpatory testimony offered for the first time at trial is a deprivation of due process of law. (Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240.) The court reasoned that silence following recitation of the Miranda warnings may be nothing more than the arrestee’s exercise of those rights and, therefore, post-arrest silence is always “insolubly ambiguous.” (Doyle, 426 U.S. at 617, 49 L. Ed. 2d at 97, 96 S. Ct. at 2244.) The Court further reasoned that implicit in the Miranda warnings is the promise that silence will carry no penalty should the accused invoke that right. (Doyle, 426 U.S. at 618, 49 L. Ed. 2d at 98, 96 S. Ct. at 2245.) Therefore, the Court concluded that it would be fundamentally unfair to permit use of such silence against the accused after inducing him to remain silent. (Doyle, 426 U.S. at 618, 49 L. Ed. 2d at 98, 96 S. Ct. at 2245.) Because Conley was successfully rehabilitated on redirect (cf. United States v. Wilkins (7th Cir. 1981), 659 F.2d 769, 776), we conclude that if the State’s use of Conley’s pre-arrest silence violated Doyle, such error was harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.

• 17 Following redirect, however, the State again sought to impeach the defendant’s mistaken identity theory on recross, using the defendant’s post-arrest silence. On October 16, nine days after his in*248terview with Houlihan, the defendant participated in a lineup. At the conclusion of the lineup, the defendant was placed under arrest at which time no statements were made. The record does not reveal whether the defendant was advised of his Miranda rights, but it appears that Conley was not so advised immediately upon his arrest. Following the defendant’s rehabilitation on redirect, the State countered on recross with a reference to the defendant’s silence following his arrest. The record reveals the following colloquy:

“Q. You saw Houlihan on October the 16th, didn’t you?

A. I believe that was the date for the line-up. I’m not sure.

Q. And after the lineup, that’s when Officer Houlihan told you you’re under arrest, isn’t that right?

A. I believe so.

Q. And at that time you didn’t tell officer — .

DEFENSE COUNSEL: I’m objecting now.

THE COURT: Sustained.

PROSECUTOR: I have nothing further, Judge.”

The State contends, first, that its reference to Conley’s post-arrest silence did not deprive him of due process because he had not been advised of his Miranda rights upon arrest. The State relies upon Fletcher v. Weir (1982), 455 U.S. 603, 71 L. Ed. 2d 490, 102 S. Ct. 1309, which held that cross-examination as to post-arrest silence is permissible where such silence has not been induced by the governmental assurances embodied in the Miranda warnings. (Fletcher, 455 U.S. at 607, 71 L. Ed. 2d at 494, 102 S. Ct. at 1312.) The State also contends there was no “use” of silence because the State was prevented from completing the question when the trial court sustained the defendant’s objection, and the jury was instructed to disregard questions to which objections were sustained. (See Greer v. Miller (1987), 483 U.S. 756, 97 L. Ed. 2d 618, 107 S. Ct. 3102.) The defendant argues, however, that Fletcher is inapplicable because he had been advised of his Miranda rights nine days before his arrest at the October 7 interview. The defendant further contends that Greer v. Miller is inapposite because, unlike Greer, the trial court failed to immediately admonish the jury after sustaining his objection, and the prosecutor defied the trial court by mentioning the defendant’s silence in rebuttal argument. On the other hand, the defendant contends that the State’s inquiry into his post-arrest silence is in violation of Illinois evidentiary law even if he has not been deprived of due process. (See People v. McMullin (1985), 138 Ill. App. 3d 872, 486 N.E.2d 412.) Because Doyle establishes only a minimum constitutional threshold for fairness under the due process clause, each juris*249diction is free to define for itself when silence is more probative than prejudicial under its rules of evidence. (See Jenkins v. Anderson (1980), 447 U.S. 231, 240, 65 L. Ed. 2d 86, 96, 100 S. Ct. 2124, 2130.) The defendant’s silence was not admitted into evidence, however, as the trial court sustained the defendant’s objection. Thus, the defendant’s argument on this point is without merit.

We decline to hold that the Miranda warnings Conley received at the October 7 interrogation induced him to remain silent upon his arrest nine days later. Initially, we note that had Conley made incriminating statements during a second interrogation following arrest without being advised of his Miranda rights, Conley would be taking a position contrary to the one he advocates here— that is, Conley would be arguing that the Miranda warnings given nine days earlier are insufficient. (See People v. Rosario (1972), 4 Ill. App. 3d 642, 645-46, 281 N.E.2d 714.) Moreover, Conley agreed to talk with Officer Houlihan on October 7. If the Miranda warnings did not induce him to remain silent on October 7, then we cannot say those same warnings induced him to remain silent nine days later. Therefore, on the facts presented here, we do not believe Doyle applies.

Nonetheless, we further find that there was no “use” of the defendant’s post-arrest silence. In Greer v. Miller, the Supreme Court stated it was significant that in each of the cases in which it applied Doyle, the trial court had “permitted specific inquiry or argument respecting the defendant’s post-Miranda silence.” (Greer v. Miller, 483 U.S. at 764, 97 L. Ed. 2d at 629, 107 S. Ct. at 3108.) The Court concluded there was no Doyle violation because the trial court sustained the defendant’s objection, no further comments were made during the remainder of the trial, and the trial court instructed the jury to disregard questions to which objections were sustained. (Greer, 483 U.S. at 764, 97 L. Ed. 2d at 629, 107 S. Ct. at 3108.) Here, the trial court did not permit specific inquiry or argument. As in Greer, Conley’s objection was sustained. The jury was also instructed to disregard questions to which objections were sustained, and unlike Greer, the question posited to Conley was never completed. As to the prosecutor’s comment during rebuttal argument, the trial court sustained Conley’s objection and, thus, argument respecting Conley’s silence was not permitted.

The defendant distinguishes Greer on the ground that the trial court here did not admonish the jury after sustaining his objection. A careful reading of Greer reveals, however, that the admonishment referred to by the defendant was only a direction to “ignore [the] ques*250tion for the time being.” (Greer, 483 U.S. at 759, 97 L. Ed. 2d at 626, 107 S. Ct. at 3105.) No specific instruction was given. Further, as in Greer, Conley failed to request the trial court to give a specific instruction. (Greer, 483 U.S. at 764 n.5, 97 L. Ed. 2d at 629 n.5, 107 S. Ct. at 3108 n.5.) Therefore, we hold there was no specific inquiry or argument respecting Conley’s silence.

The defendant’s fifth and final contention is that he was improperly precluded from arguing to the jury that Sean’s family had a financial motive in securing a verdict due to the extensive dental work that had been performed. The defendant was attempting to discredit the credibility of State witness Demetrius Kereakas, who had testified that he identified Conley from a picture in an Andrew High School yearbook. The testimony revealed that Mr. O’Connell had visited Demetrius at Richards High School where Mr. O’Connell had given Demetrius the yearbook. The defendant argues that Kereakas’ credibility is suspect because no one besides Mr. O’Connell was present when Kereakas made the identification, and Mr. O’Connell may have pressured Kereakas into picking Conley.

Closing argument must be based on the evidence or on the reasonable inferences drawn therefrom. (People v. Bullock (1987), 154 Ill. App. 3d 266, 273, 507 N.E.2d 44.) The defendant correctly states that financial bias is a legitimate method of impeaching the credibility of a witness. (People v. Thompson (1979), 75 Ill. App. 3d 901, 903, 394 N.E.2d 422, 425.) Here, however, the individual with the alleged financial bias is Mr. O’Connell, who did not testify. Demetrius Kereakas has no financial interest, and Mr. O’Connell’s bias cannot be transferred to Kereakas. There was no evidence that Mr. O’Connell pressured Kereakas or engaged in suggestive conduct which could have led Kereakas to Conley’s photograph. Therefore, the trial court properly sustained the State’s objection to the defendant’s remarks.

The judgment of the circuit court is affirmed.

Judgment affirmed.

FREEMAN, P.J., and WHITE, J., concur.

SATZ, Judge.

Defendant, Sandra Nations, owns and operates the Main Street Disco, in which police officers found a scantily clad sixteen year old girl “dancing” for “tips”. Consequently, defendant was charged with endangering the welfare of a child “less than seventeen years old,” § 568.050 RSMo 1978.1 Defendant was convicted and fined $1,000.00. Defendant appeals. We reverse.

Defendant contends the state failed to make a submissible case. Defendant failed to preserve this issue for review on appeal.2 We must, however, consider the issue of submissibility under the doctrine of plain error. It is manifest injustice for a trial court to submit a case to the fact finder on evidence insufficient to make a submissible case. E.g., State v. Russell, 581 S.W.2d 61, 63 (Mo.App.1979).

Specifically, defendant argues the state failed to show she knew the child was under seventeen and, therefore, failed to show she had the requisite intent to endanger the welfare of a child “less than seventeen years old.” We agree.

The pertinent part of § 568.050 provides:

“1. A person commits the crime of endangering the welfare of a child if:

(2) He knowingly encourages, aids or causes a child less than seventeen years old to engage in any conduct which causes or tends to cause the child to come within the provisions of subdivision (l)(c) .. of section 211.031, RSMo ....”

The reference to “subdivision (l)(c)” is to § 211.031.l(l)(c) RSMo (Supp. 1976), which was in effect when § 568.050 was enacted. This “subdivision” vested in the juvenile court exclusive original jurisdiction of any proceeding in which a child is alleged to be in need of care and treatment because “[t]he behavior, environment or associations of the child are injurious to his welfare or to the welfare of others”.3 *284Thus, § 568.050 requires the state to prove the defendant “knowingly” encouraged a child “less than seventeen years old” to engage in conduct tending to injure the child’s welfare, and “knowing” the child to be less than seventeen is a material element of the crime. See § 562.021.

“Knowingly” is a term of art, whose meaning is limited to the definition given to it by our present Criminal Code. Literally read, the Code defines “knowingly” as actual knowledge — “A person ‘acts knowingly’, or with knowledge, (1) with respect ... to attendant circumstances when he is aware ... that those circumstances exist _” (Emphasis original). § 562.016.3.4 So read, this definition of “knowingly” or “knowledge” excludes those cases in which “the fact [in issue] would have been known had not the person wilfully ‘shut his eyes’ in order to avoid knowing.” Perkins, Criminal Law 942 (2d ed. 1969). The Model Penal Code, the source of our Criminal Code, does not ex-elude these cases from its definition of “knowingly”. Instead, the Model Penal Code proposes that “[w]hen knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence_” (Emphasis added). Model Penal Code § 2.02(7) (Proposed Official Draft 1962). This definition sounds more like a restatement of the definition of “recklessly” than “knowingly”.5 The similarity is intentional. The Model Penal Code simply proposes that wilful blindness to a fact “be viewed as one of acting knowingly when what is involved is a matter of existing fact, but not when what is involved is the result of the defendant’s conduct, necessarily a matter of the future at the time of acting.” 6 Thus, as noted, the Model Penal Code proposes that “[w]hen knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence *285Model Penal Code § 2.02(7) (Proposed Official Draft 1962).

Our legislature, however, did not enact this proposed definition of “knowingly”. Although the definitions of “knowingly” and “recklessly” in our Criminal Code are almost identical to the primary definitions of these terms as proposed in the Model Penal Code, see Model Penal Code § 2.02(2)(b)-(c) (Proposed Official Draft 1962), the Model Penal Code’s proposed expanded definition of “knowingly”, encompassing wilful blindness of a fact, is absent from our Criminal Code. The sensible, if not compelling, inference is that our legislature rejected the expansion of the definition of “knowingly” to include wilful blindness of a fact and chose to limit the definition of “knowingly” to actual knowledge of the fact.7 Thus, in the instant case, the state’s burden was to show defendant actually was aware the child was under seventeen, a heavier burden than showing there was a “high probability” that defendant was aware the child was under seventeen. In short, the state’s burden was to prove defendant acted “knowingly”, not just “recklessly”. The state proved, however, that defendant acted “recklessly”, not “knowingly”. This we conclude from our review of the record.

In our review of the record, we do not weigh the evidence; rather, we simply determine whether there was sufficient proof for the fact finder to find the defendant guilty beyond a reasonable doubt. E.g., State v. Turner, 623 S.W.2d 4, 6 (Mo. banc 1981), cert. denied, 456 U.S. 931, 102 S.Ct. 1982, 72 L.Ed.2d 448 (1982). In so doing, we consider only those facts and reasonable inferences favorable to the state. E.g., State v. Franco, 544 S.W.2d 533, 534 (Mo. banc 1976), cert. denied, 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977).

The record shows that, at the time of the incident, the child was sixteen years old. When the police arrived, the child was “dancing” on stage for “tips” with another female. The police watched her dance for some five to seven minutes before approaching defendant in the service area of the bar. Believing that one of the girls appeared to be “young,” the police questioned defendant about the child’s age. Defendant told them that both girls were of legal age and that she had checked the girls’ identification when she hired them. When the police questioned the child, she initially stated that she was eighteen but later admitted that she was only sixteen. She had no identification.

Aside from the child’s age, these facts were established by the testimony of a police officer. The state also called the child as a witness. Her testimony was no help to the state. She testified the defendant asked her for identification just prior to the police arriving, and she was merely crossing the stage to get her identification when the police took her into custody.8 Nor can the state secure help from the defendant’s testimony. She simply corroborated the child’s testimony; i.e., she asked the child for her identification; the child replied she would “show it to [her] in a minute”; the police then took the child into custody.

These facts simply show defendant was untruthful. Defendant could not have checked the child’s identification, because the child had no identification with her that day, the first day defendant “hired” the child. This does not prove that defendant knew the child was less than seventeen years old. At best, it proves defendant did not know or refused to learn'the child’s age. The latter is the best case for the state. But defendant’s refusal to learn the age of this “young” child who was “dancing” “scantily clad” in her disco bar simply proves that defendant was “aware of a *286high probability” that the child was under seventeen, or, stated otherwise, in the definitional language of our Criminal Code, proves that defendant was conscious of “a substantial and unjustifiable risk” that the child was under seventeen and that defendant’s disregard of the risk was a “gross deviation” from the norm. See § 562.016.-4. This, however, is not “knowledge” under our Criminal Code. It is “recklessness”, nothing more. Having failed to prove defendant knew the child’s age was less than seventeen, the state failed to make a submissible case.9

Judgment reversed.

SIMON, P.J., and KAROHL, J., concur.

WOODWARD, J.

The eagle suffers little birds to sing,

And is not careful what they mean thereby,

Knowing that with the shadow of his wings

He can at pleasure stint their melodyf.]

—Tamora, Titus Andronicus, Act 4, Scene 4 (W. Shakespeare)

In the instant case, we are called upon to decipher the meaning of the word “suffer,” and its analogs, “permit” and “allow.” Specifically, we must decide whether these terms, when used in rules governing the conduct of holders of a liquor license in Baltimore City, require proof of knowledge on the part of such licensees.

Appellant, Steven Kougl, owns Club Harem, a Baltimore tavern and adult entertainment business, and holds a liquor license for that location issued by appellee, the Board of Liquor License Commissioners for Baltimore City (“the Liquor Board”). On July 2, 2014, the Liquor Board charged Kougl with violating three Liquor Board Rules related to solicitation of prostitution, indecent exposure, and violation of public morals, all occurring on April 25, 2013, at Club Harem, when an employee exposed herself to an undercover police officer and then solicited sexual intercourse from the same officer. The Liquor Board found Kougl guilty of all three violations and ordered that his liquor license be suspended for one month. Kougl filed for judicial review in the Circuit Court for Baltimore City, which affirmed the decision of the Liquor Board.

On appeal to this Court, Kougl raises four questions for our review, which we have condensed and rephrased as two ques*317tions:1

1. Did the Liquor Board make sufficient findings of fact in support of the three charged violations of the Liquor Board Rules?

2. Did the Liquor Board err in concluding that Kougl was guilty of the three violations even though there was no evidence that Kougl had knowledge of his employee’s behavior?

For reasons set forth herein, we answer both questions in the affirmative, and thus reverse the judgment of the circuit court and remand the case to that court for entry of a judgment reversing the decision of the Liquor Board.

BACKGROUND

On April 25, 2013, Detective Fletcher Jackson, a Baltimore City police officer assigned to the Special Enforcement Section, entered Club Harem in plain clothes to conduct a prostitution investigation. Jamaica Brickhouse, a woman who worked at Club Harem, approached Det. Jackson at the bar and asked if she could join him. Det. Jackson said “sure,” and bought Brickhouse a drink. After some initial conversation, Brickhouse exposed her breasts to Det. Jackson. Brickhouse invited Det. Jackson to touch her breasts, which he did. Brickhouse then suggested a lap dance or a trip to “the VIP,” where they could “do whatever up there.” Det. Jackson asked how much it would cost him to have sex with Brickhouse; Brickhouse replied that it would cost $170 “for the room,” plus a tip for her services. Det. Jackson said that he could tip $100, and Brickhouse agreed. Brickhouse returned to the *318stage to perform, and Det. Jackson notified other officers. Brickhouse, however, was not issued a criminal summons until December 10, 2013, almost eight months later.2

Fifteen months after the incident, on July 2, 2014, the Liquor Board charged Kougl with violating three Liquor Board Rules related to solicitation of prostitution in violation of Rule 4.17(a), indecent exposure in violation of Rule 4.17(b), and violation of public morals in violation of Rule 4.18. On July 17, 2014, the Liquor Board held a hearing on the charges against Kougl. Det. Jackson was the only witness for the prosecution; Kougl testified in his own defense. The Liquor Board voted 2-1 that Kougl was guilty of the three violations3 and suspended his liquor license for one month.

On July 18, 2014, Kougl filed a Petition for Judicial Review in the circuit court. On March 2, 2015, Kougl filed his Memorandum, in which he argued that (1) the Liquor Board’s decision was not based on substantial evidence, because “[t]here [wa]s nothing in [Det. Jackson’s] testimony to indicate that the [licensee knew, allowed or permitted this type of activity, which is needed to sustain the violations”; (2) its decision was unreasonable and arbitrary, because the Chairman of the Liquor Board stated that a licensee “would be responsible for actions of an employee” regardless of “whether the [licensee knew or did not know or allowed or did not allow or permitted or did not permit” the prohibited activity; and (3) the Liquor Board failed to make specific findings of fact and conclusions of law as required. On April 15, 2015, the Liquor Board filed its Response to Kougl’s Memorandum, in which it contended that (1) its decision was based on substantial evidence; (2) its decision was reasonable; and (3) the Liquor Board made sufficient findings of fact and conclusions of law.

*319On May 22, 2015, the circuit court held oral argument and issued an oral ruling affirming the decision of the Liquor Board. On May 28, 2015, the court entered its order affirming the Liquor Board’s decision. On June 22, 2015, Kougl filed a timely notice of appeal.

STANDARD OF REVIEW

Maryland law provides by statute that the action of a local liquor board is presumed to be proper and places the burden of proof upon the licensee to show that the decision complained of was arbitrary, fraudulent, unsupported by substantial evidence, illegal, or against the public interest. Md.Code (1957, 2011 Repl. Vol), Art. 2B, § 16 — 101(e)(l)(i). This Court has explained appellate review of a Liquor Board’s decision as follows:

While the last sentence of § 16-101(e)(l)(i) expressly permits the trial court, under certain circumstances, to hear additional evidence, the court may hear such evidence only to ascertain the veracity of findings of fact and conclusions of law reached by the Board. As the section does not authorize appeals de novo, the trial court may not hear additional evidence on matters not addressed by the Board. This Court has consistently explained that judicial review of a decision by the Board is similar to review of decisions by most other administrative agencies. It is a cardinal rule of administrative appeals that a reviewing court ... shall apply the substantial evidence test to final decisions of an administrative agency such as the Board, but it must not itself make independent findings of fact or substitute its judgment for that of the agency.

Judicial review of administrative action differs from appellate review of a trial court judgment. In the latter context the appellate court will search the record for evidence to support the judgment and will sustain the judgment for a reason plainly appearing on the record whether or not the reason was expressly relied upon by the trial court. However, in judicial review of agency action the court may not uphold the agency order unless it is sustaina*320ble on the agency’s findings and for the reason stated by the agency.

Blackburn v. Bd. of Liquor License Comm’rs for Balt. City, 130 Md.App. 614, 623-24, 747 A.2d 725 (2000) (emphasis added) (citations and internal quotation marks omitted).

“Of course, the reviewing court may substitute its judgment for that of the [Liquor] Board on questions of law.” Id. at 624, 747 A.2d 725. In deciding whether to substitute its judgment on a question of law, a court should accord a degree of deference to the position of the administrative agency. Md. Aviation Admin. v. Noland, 386 Md. 556, 572, 873 A.2d 1145 (2005). “Thus, an administrative agency’s interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts.” Id. “An agency conclusion will not be upheld upon review, however, if based upon an error of law.” Hoyle v. Bd. of Liquor License Comm’rs for Balt. City, 115 Md.App. 124, 129, 692 A.2d 1 (1997).

DISCUSSION

I.

Sufficient Findings of Fact

“There is no express requirement that the Board set forth specific findings of fact and conclusions of law. In order for any meaningful review to be conducted, however, the Board must do so, at least informally.” Blackburn, 130 Md.App. at 624, 747 A.2d 725 (citation omitted).

Kougl argues that the Liquor Board did not make sufficient findings of fact to allow for meaningful judicial review. Specifically, Kougl contends that the Liquor Board’s decision consists of the following two statements, neither of which contain any findings of fact:

All right. The verdict is responsible for all three charges. The police department is not on trial here. Mr. Kougl is. And bar owners or licensees are responsible for the conduct *321of their employees, as I have said before, in all cases, in all bars, in the city of Baltimore.

All right, my finding is responsible to all three charges and close him for one month, effective immediately.

According to Kougl, the above statements were insufficient to support a legal conclusion that Kougl violated the Rules at issue.

The Liquor Board responds that there is no requirement that it set forth specific findings of fact so long as its informal findings are sufficient to allow for “meaningful appellate review.” Furthermore, the Liquor Board argues that it made informal findings of fact that were “sufficient for this Court to determine whether substantial evidence supports the Board’s conclusion that Kougl violated the three Liquor Board Rules as charged.” We agree with the Liquor Board and shall explain.

As previously indicated, Kougl, as the licensee, was charged ■with violating Rules 4.17(a), 4.17(b), and 4.18. Rule 4.17 provides:

Sexual Practices and Obscenity

(a) No licensee shall permit or suffer his premises to be used for the purpose of any sexual activity, nor shall any licensee permit or suffer any employee, patron or frequenter to solicit any person for prostitution or other immoral purposes.

(b) No licensee shall permit or suffer any person to appear in any act or other performance with breasts or the lower torso uncovered; nor shall any licensee knowingly permit or suffer his premises to be used for the conduct, exhibition or performance of an obscene act or other performance.

(Emphasis added).

Rule 4.18 provides:

Illegal Conduct

*322No licensee shall commit or allow the commission on his premises of any act which shall be contrary to any federal, state or local statute, law or ordinance or against the public peace, safety, health, welfare, quiet or morals.[4]

At the conclusion of the hearing on the charges against Kougl, the following occurred:

CHAIRMAN WARD: All right. The verdict is responsible for all three charges. The police department is not on trial here. Mr. Kougl is. And bar owners or licensees are responsible for the conduct of their employees, as I have said before, in all cases, in all bars, in the city of Baltimore.

The only question now is punishment----

All right, my finding is responsible to all three charges and close him for one month, effective immediately. And I’d be glad to hear from the other commissioners.

*323COMMISSIONER JONES: I agree. I agree that there’s a guilty for all charges. It’s clear to me that this thing took place. I have confidence in the police department. If I didn’t, the system would have a great defect in it, so I agree to the one month close order.

CHAIRMAN WARD: Commissioner?

COMMISSIONER MOORE: I disagree. I don’t think that the evidence substantiates the charges. And I’m concerned that there was a lapse of eight months. And I think that is extraordinary. It is unusual and it is not acceptable practice. And I think that that argues against a finding of guilt. So I say no.

CHAIRMAN WARD: Two to one. You heard the thing, you heard the penalty, sir. Good luck to you.

(Emphasis added).

The excerpt above makes clear that Commissioner Jones expressly relied on Det. Jackson’s testimony, and Chairman Ward implicitly relied on such testimony. Moreover, Kougl, in his testimony, did not dispute any of the evidence presented in Det. Jackson’s testimony, so a finding of guilty necessarily meant that Chairman Ward and Commissioner Jones credited Det. Jackson’s testimony as true.5

Furthermore, a “Board Summary” was issued after the hearing, which set forth the factual basis for each violation:

Violation of Rule 4.17(a) “No licensee shall permit or suffer his premises to be used for the purpose of any sexual activity, nor shall any licensee permit or suffer any employee, patron or frequenter to solicit any person for prostitution or other immoral purposes.” (Re: April 25, 2013, *324dancer solicited undercover police officer for sexual intercourse ) GUILTY 2-1

Violation of Rule 4.17(b) “No licensee shall permit or suffer any person to appear in any act or other performance with breasts or the lower torso uncovered; no[r] shall any licensee knowingly permit or suffer his premises to be used for the conduct, exhibition or performance of an obscene act or other performance” (Re: April 25, 2013, dancer exposed herself to undercover police officer) GUILTY 2-1

Violation of Rule 4.18 “No licensee shall commit or allow the commission on his premises of any act which shall be contrary to any federal, state or local statue [sic], law or ordinance or against the public peace, safety, health, welfare, quiet or morals.” (Re: April 25, 2013, dancer solicited undercover police officer for sexual intercourse; dancer exposed herself to undercover police officer) GUILTY 2-1

(Italics added) (bold in original). The facts supporting each violation, as emphasized in italics above, tracks Det. Jackson’s testimony, and provides a sufficient factual basis to allow for meaningful judicial review.

II.

Strict Liability

Kougl argues that Rules 4.17 and 4.18 require some evidence or inference therefrom that Kougl suffered, permitted, or allowed solicitation and nudity to occur, and there was no evidence to support such a finding. According to Kougl, there was insufficient evidence for the Liquor Board to infer that Kougl permitted such conduct to occur “merely by reason that the dancer solicited the detective.”

The Liquor Board responds that the three violations “are, as a matter of law, strict liability offenses,” none of which require “a licensee’s knowledge of the impermissible conduct.” The Liquor Board analogizes Rules 4.17(a) and (b) to Rule 4.01(a), which prohibits sales of alcohol to minors, to argue that both Rules “contain[] both a strict liability prohibition and a second provision with a knowledge requirement.” As *325for Rule 4.18, the Liquor Board argues that it “contains no knowledge or mens rea language. Therefore, it describes a strict liability offense.” According to the Liquor Board, Kougl was found guilty of violating the strict liability portion of the Rules.

By virtue of its argument that the charged violations are strict liability offenses, the Liquor Board concedes that the evidence adduced at the hearing was insufficient to find that Kougl had actual or constructive knowledge of the violations. Upon review of the record, we agree that there was simply no evidence of Kougl’s actual or constructive knowledge of the violations.

Whether Rules 4.17 and 4.18 impose a strict liability standard on a licensee depends on the meaning of the words “suffer,” “permit,” and “allow” as used in the Rules. In determining the meaning of such words, “we apply well-settled rules of statutory construction, the cardinal rule of [which] is to ascertain and effectuate the intent of the Legislature.” Assateague Coastkeeper v. Md. Dep’t of Env’t, 200 Md.App. 665, 708-09, 28 A.3d 178 (2011) (citations and internal quotation marks omitted).

In so doing, we look first to the normal, plain meaning of the language of the statute, read as a whole so that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory. If the language of a statute is clear and unambiguous, we need not look beyond the statute’s provisions and our analysis ends. Where the language of the statute is ambiguous and may be subject to more than one interpretation, however, we look to the statute’s legislative history, case law, purpose, structure, and overarching statutory scheme in aid of searching for the intention of the Legislature.

Whitley v. Md. State Bd. of Elections, 429 Md. 132, 149, 55 A.3d 37 (2012) (citations and internal quotation marks omitted).

*326In accord with the above standard, we turn to the plain meaning of the subject terms in the Rules. Black’s Law Dictionary defines “suffer” as:

To allow, to admit, or to permit. It includes knowledge of what is to be done under sufferance. To suffer an act to be done or a condition to exist is to permit or consent to it; to approve of it, and not to hinder it. It implies knowledge, a willingness of the mind and responsible control or ability to prevent.

Black’s Law Dictionary 1432 (6th ed.1990) (emphasis added) (citations omitted). “Permit” is defined as: “To suffer, allow, consent, let; to give leave or license; to acquiesce, by failure to prevent, or to expressly assent or agree to the doing of an act.” Id. at 1140. Finally, Black’s Law Dictionary defines “allow” as:

The word has no rigid or precise meaning, its import varying according to circumstances or context in connection with which it is used. It may mean to bestow or assign to any one as his right or due. To approve of, accept as true, admit, concede, adopt, or fix. To grant something as a deduction or an addition; to abate or deduct; as, to allow a sum for leakage. To sanction, either directly or indirectly, as opposed to merely suffering a thing to be done; to acquiesce in; to suffer; to tolerate.

Id. at 76 (emphasis added) (citations omitted).

No Maryland appellate opinion exists regarding the meaning of these words in the context of the Liquor Board Rules. Other jurisdictions that use “suffer,” “permit,” or “allow,” in their liquor board rules are divided on whether such terms impose a strict liability standard, or whether knowledge on the part of the licensee must be proven.

Wisconsin, Oregon, and New Jersey courts have held that their states’ liquor board rules, all of which use the words “suffer,” “permit,” or “allow,” impose strict liability on the part of the licensee. In City of West Allis v. Megna, the Supreme Court of Wisconsin held that an ordinance that stated that no licensee shall “either directly or indirectly *327suffer or permit any person of either sex under the age of 21 years ... to enter or be on such licensed premises for any purpose,” imposed a strict liability standard. 26 Wis.2d 545, 133 N.W.2d 252, 253 (1965). The Court determined that “[p]roof of knowledge on the part of the tavern keeper that the patron is actually under age is not required by the statute in order to obtain a conviction,” and that such standard “is a price that the operator pays for the privilege of becoming licensed.” Id. at 254.

Similarly, the Court of Appeals of Oregon held in DK Entertainment, LLC v. Oregon Liquor Control Commission that, when interpreting an ordinance stating that “ ‘[n]o licensee or permittee will permit any unlawful activity on the licensed premises or in areas the licensee controls that are adjacent to or outside the premises,’ ” the Oregon Liquor Control Commission “may impute to the licensee the knowledge of the licensees employees.” 249 Or.App. 659, 278 P.3d 112, 113 n. 2, 114 (2012). Finally, in Division of Alcoholic Beverage Control v. Maynards Inc., the Supreme Court of New Jersey held an ordinance providing that “[n]o licensee shall allow, permit or suffer in or upon the licensed premises any unlawful possession of or any unlawful activity pertaining to” narcotics and other controlled dangerous substances imposed a strict liability standard. 192 N.J. 158, 927 A.2d 525, 536 (2007). The Court noted that “[i]t has long been the law in New Jersey that, in the context of the regulation of alcoholic beverages, ‘the word suffer ... imposes responsibility on a licensee, regardless of knowledge, where there is a failure to prevent the prohibited conduct by those occupying the premises with his authority.’ ” Id. at 538 (ellipses and italics in original).

Conversely, other courts, such as those in Colorado, California, New York, and Washington, have held that the terms “suffer,” “permit,” or “allow” require actual or constructive knowledge. In Full Moon Saloon, Inc. v. City of Loveland, the Colorado Court of Appeals held that a statute making it unlawful to, among other things, “permit the sale, serving, giving, or procuring of any alcohol beverage to or for a person *328under the age of twenty-one years” required that “some level of knowledge by the licensee must be established by the evidence.” Ill P.3d 568, 569-70 (Colo.App.2005). The Court explained:

The word “permit” connotes affirmative or knowing conduct. Thus, licensees and their employees and agents “permit” such conduct if they have actual knowledge of the violation or have constructive knowledge that it is occurring.

Our conclusion that constructive knowledge of liquor code violations is sufficient to hold a licensee responsible for permitting the violation is consistent with cases from other jurisdictions. See Spitz v. Mun. Court, 127 Ariz. 405, 621 P.2d 911 (1980) (licensee is deemed to have constructive knowledge of the age of underage buyer if licensee provides alcohol to the minor and fails to follow certain procedures); Laube v. Stroh, 2 Cal.App.4th 364, 3 Cal.Rptr.2d 779 (1992) (to suspend liquor license, evidence must be presented that licensee had either actual or constructive knowledge of activity); Pinacoteca Corp. v. Dep’t of Bus. Regulation, 580 So.2d 881 (Fla.Dist.Ct.App.[4th DCA]1991) (where activity is persistent and recurring, licensee’s knowledge of the activity may be inferred); State v. Engberg, 109 Idaho 530, 708 P.2d 935 (Ct.App.1985) (violation may be found if licensee had constructive knowledge of the prohibited activity); Town & Country Lanes, Inc. v. Liquor Control Comm’n, 179 Mich.App. 649, 446 N.W.2d 335 (1989) (licensee violated liquor license rule by failing to exercise reasonable diligence to ascertain the age of underage customer); Leake v. Sarafan, 35 N.Y.2d 83, 358 N.Y.S.2d 749, 315 N.E.2d 796 (1974) (to sustain a violation, licensee must have knowledge of the activity or the opportunity through reasonable diligence to acquire knowledge of the alleged acts); Smith v. Bd. of Liquor Control, 96 Ohio App. 396, 121 N.E.2d 920 (1954) (licensee must have actual or constructive knowledge of prohibited activity) Tex. Alcoholic Beverage Comm’n v. Sanchez, 96 S.W.3d 483 (Tex.App.2002) (to suspend liquor *329license, evidence must be presented that licensee had either actual or constructive knowledge of activity); Reeb, Inc. v. Wash. State Liquor Control Bd., 24 Wash.App. 349, 600 P.2d 578 (1979) (to “permit” a violation, licensee must have actual or constructive knowledge of the activity).

Id. at 570-71 (emphasis added).

Similarly, in Laube v. Stroh, the Court of Appeal of California “h[e]ld that a licensee must have knowledge, either actual or constructive, before he or she can be found to have ‘permitted’ unacceptable conduct on a licensed premises.” 2 Cal.App.4th 364, 3 Cal.Rptr.2d 779, 788 (1992). The Court continued: “It defies logic to charge someone with permitting conduct of which they are not aware.” Id. Finally, the Court noted that “[failure to prevent the problem from recurring, once the licensee knows of it, is to ‘permit’ by a failure to take preventive action.” Id. at 789.

Likewise, in Leake, the Court of Appeals of New York noted the following regarding the statutory words “suffer” or “permit”:

There is no particular mystery or magic in the language of the statute. This court in Matter of Migliaccio v. O’Connell [307 N.Y. 566, 122 N.E.2d 914 (1955)] defined the intent of the statute when it stated that in considering what is implied by the phrase suffer or permit as employed in the statute quoted above, we are guided by what was written for this court (per Cardozo, J.) in People ex rel Price v. Sheffield Farms [225 N.Y. 25, 121 N.E. 474 (1918) ]: Sufferance as here prohibited implies knowledge or the opportunity through reasonable diligence to acquire knowledge. This presupposes in most cases a fair measure at least of continuity and permanence.

358 N.Y.S.2d 749, 315 N.E.2d at 797 (emphasis added) (citations and internal quotation marks omitted).

Finally, in Reeb, the Court of Appeals of Washington held: The word “permit” as used in the regulation does not imply that the licensee must have permanently sanctioned the prohibited act; it refers to the licensee’s actual or con*330structive knowledge of the circumstances which would foreseeably lead to the prohibited activity. Reeb was aware of the propensity of its dancers to engage in questionable conduct and chose nevertheless to maintain topless dancing on its licensed premises. Under these circumstances, the Board could find that Reeb permitted the conduct in violation of [the Liquor Board Rules]. This violation is sufficient to support the 7-day license suspension imposed by the Board.

600 P.2d at 581 (citation omitted).

Considering the plain meaning of the words “suffer,” “permit,” and “allow,” we conclude that the use of those words in Rules 4.17 and 4.18 necessarily require that “some level of knowledge by the licensee must be established by the evidence.” Full Moon Saloon, 111 P.3d at 569. As indicated above, the definition of “suffer” expressly states that “[i]t includes knowledge of what is to be done under sufferance.” Black’s Law Dictionary at 1432. The terms “permit” and “allow” also imply knowledge of what is to be permitted or allowed. See First Nat’l Bank & Trust Co. of Port Chester v. New York Title Ins. Co., 171 Misc. 854, 12 N.Y.S.2d 703, 709 (1939) (“It has been said that every definition of ‘suffer’ and ‘permit’ includes knowledge of what is to be done under the sufferance and permission, and intention that what is done is to be done.”).

We are fully cognizant of the strong public policy considerations behind requiring a strict liability standard in the Liquor Board Rules. Unlawful or immoral activities may be associated with places where alcoholic beverages are sold. However, one of the primary purposes of the Liquor Board Rules is to clearly inform licensees of their responsibilities regarding prohibited activities so that they can conform their conduct and the conduct of their businesses to be in compliance with the Rules. Interpreting the words used in the Liquor Board Rules at variance with their plain meaning does not advance the public purpose of achieving compliance with the Rules. Although we are obligated to give deference to the Liquor *331Board’s interpretation of its Rules, see Noland, 386 Md. at 572, 873 A.2d 1145, “[a]n agency conclusion will not be upheld upon review, however, if based upon an error of law,” Hoyle, 115 Md.App. at 129, 692 A.2d 1. Accordingly, we hold that the Liquor Board erred in interpreting the words “suffer,” “permit,” and “allow” in Rules 4.17 and 4.18 to impose a strict liability standard on licensees.6

We also hold that the knowledge requirement implicit in the terms “suffer,” “permit,” and “allow” can be satisfied by proof of either actual or constructive knowledge on the part of the licensee. See Full Moon Saloon, 111 P.3d at 570. Actual knowledge is, of course, actual awareness of the prohibited activity. Actual knowledge also includes the concept of “deliberate ignorance” or “willful blindness.” See Rice v. State, 136 Md.App. 593, 604, 766 A.2d 663 (2001). In State v. McCallum, Judge Chasanow explained the meaning of this form of knowledge in a concurring opinion:

There is more than one mental state that may constitute “knowledge.” The first and highest form of “knowledge” is actual knowledge, that is, an actual awareness or an actual belief that a fact exists. A second form of “knowledge” is what has often been called “deliberate ignorance” or “willful blindness.” R. Perkins, Criminal Law, Ch. 7, § 4 at 687 (1957). The latter form of “knowledge” exists where a person believes that it is probable that something is a fact, but deliberately shuts his or her eyes or avoids making reasonable inquiry with a conscious purpose to avoid learning the truth. See 1 W. LaFave & A. Scott, Substantive Criminal Law, § 3.5 at 307 (1986), and authorities cited therein. In United States v. Jewell, 532 F.2d 697 (9th Cir.), cert. denied, 426 U.S. 951, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976), the 9th Circuit Court of Appeals noted that the *332deliberate ignorance or willful blindness form of knowledge has been accepted by leading commentators in the United States and in England. The opinion quoted from Professor Glanville Williams’ Criminal Law: The General Part, § 57 at 157, 159 (2d ed.1961), as follows:

“To the requirement of actual knowledge there is one strictly limited exception.... [T]he rule is that if a party has his suspicion aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowledge____The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law.”

Id. at 700.

321 Md. 451, 458-59, 583 A.2d 250 (1991) (Chasanow, J., concurring) (emphasis added).

Constructive knowledge, however, implies knowledge where a licensee should have known of the prohibited activity if reasonable care and diligence had been exercised. See Leake, 358 N.Y.S.2d 749, 315 N.E.2d at 797 (stating that “it must be demonstrated that the licensee had knowledge or the opportunity through reasonable diligence to acquire knowledge of the alleged acts”); Morgan v. Bd. of Water Works of Pueblo, 837 P.2d 300, 303 (Colo.App.1992) (stating that, if in the exercise of ordinary diligence a party should have known a fact, it will be deemed to have knowledge).

The Colorado Court of Appeals explained constructive knowledge as follows:

Constructive knowledge may be inferred if the conduct occurs openly, such that a reasonable person would observe it. If knowledge of the prohibited conduct could have been obtained through the exercise of reasonable care and diligence, constructive knowledge may be inferred.

Applying a constructive knowledge standard does not place an undue burden on the licensee because constructive knowledge requires only reasonable care and diligence and does not require extraordinary vigilance. Constructive *333knowledge means knowledge that one using reasonable care or diligence should have, and therefore that is attributed by law to a given person.

Full Moon Saloon, 111 P.3d at 570 (citations and internal quotation marks omitted).

Nevertheless, the Liquor Board argues that Rule 4.17 is similar to Rule 4.01(a), which we held in Hoyle to impose strict liability. We disagree.

Rule 4.01(a) provides: “No licensee shall sell or furnish alcoholic beverages to any person under twenty-one (21) years of age or to any person with the knowledge that such person is purchasing or acquiring such beverages for consumption by any person under twenty-one (21) years of age.” Hoyle, 115 Md.App. at 130, 692 A.2d 1. In Hoyle, the Liquor Board ruled that Martini’s Bar had violated Rule 4.01(a) when one of its employees served alcohol to a minor. Id. at 128, 692 A.2d 1. Martini’s Bar appealed, arguing that this Court “should read a ‘due caution’ provision into the [R]ule.” Id. at 131, 692 A.2d 1. We declined to do so, and instead held that the Rule “imposes strict liability for the sale on the licensees.” Id. at 133, 692 A.2d 1.

Our holding in Hoyle is clearly distinguishable from our holding in the case sub judice. Rule 4.01(a), unlike Rule 4.17, does not use the words “suffer,” “permit,” or “allow,” which, as explained above, necessarily include an element of knowledge. Instead, Rule 4.01(a) sets forth a simple directive — “No licensee shall sell or furnish ....”, which carries no implication of knowledge.

Finally, because the word “knowingly” appears in the second independent clause (“second clause”), and not in the first independent clause (“first clause”), of Rule 4.17(b), the Liquor Board claims that such sentence construction necessarily implies a strict liability standard in the first clause. Again, we disagree.

To reiterate, Rule 4.17(b) states:

*334No licensee shall permit or suffer any person to appear in any act or other performance with breasts or the lower torso uncovered; nor shall any licensee knowingly permit or suffer his premises to be used for the conduct, exhibition or performance of an obscene act or other performance.

The first clause clearly identifies the prohibited act — any person “appearing] ... with breasts or the lower torso uncovered.” On the other hand, the second clause prohibits the performance of an “obscene act or other performance.” In our view, the word “knowingly” appears in the second clause because an element of knowledge is required to constitutionally regulate obscenity, a class of unprotected speech that is not clearly defined in First Amendment jurisprudence. See generally Miller v. California, 413 U.S. 15, 20, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) (summarizing “the somewhat tortured history of the Court’s obscenity decisions”).

Accordingly, we hold that the Liquor Board erred in finding that Kougl was guilty of violating Rules 4.17(a), 4.17(b), and 4.18, because there was no evidence that Kougl had actual or constructive knowledge of his employee’s prohibited activity.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO ENTER A JUDGMENT REVERSING THE DECISION OF THE LIQUOR BOARD RENDERED ON JULY 17, 2014. COSTS TO BE PAID BY APPELLEE.