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.

HILL, J.:

Lance L. Miles appeals his conviction for trafficking in illegal drugs in violation of section 44-53-370(e)(3) of the South Carolina Code (Supp. 2016). He argues the trial court erred by: (1) instructing the jury, in reply to a question they posed during deliberation, that the State did not have to prove Miles knew the drugs were oxycodone; (2) denying his directed verdict motion; and (3) admitting three statements he contends were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We affirm.

I—I

While scanning parcels for illegal drugs at the Federal Express office in West Columbia, agents from the Lexington County Sheriffs Office became suspicious of a package. They arranged for a controlled delivery to the listed address, which was within an apartment complex. Surveilling the delivery, they observed the delivery person ring the doorbell and leave the package by the front door. A few moments later, an agent noticed Miles exit a nearby apartment and begin walking around the parking lot. The agent then saw a young female emerge from the delivery address. She looked at the box, got on her phone, quickly hung up and went back inside. Miles then got on his phone while walking towards the box. Miles picked up the box and started back to his apartment. Seeing the agents advancing to intercept him, he tried to ditch the box. The agents apprehended and handcuffed him.

Agent Edmonson immediately questioned Miles about the contents of the box. Miles claimed he did not know what was inside. Edmonson then asked if there were drugs inside the box; Miles responded there probably were, but he did not know what kind. At this point, Edmonson read Miles his Miranda rights and asked Miles again whether there were drugs in the box. Miles again responded the box could contain *158drugs, but he did not know what kind. Upon obtaining a search warrant and Miles’ consent, the agents opened the box and discovered three hundred pills that a chemist later testified contained a total of nine grams of oxycodone. Edmonson next asked Miles to write down everything he knew about the box and the drugs. Edmonson then reread Miles his Miranda rights, and Miles wrote a statement admitting he had been paid one hundred dollars to pick up the box, someone named “Mark” had called him to pick it up, and the “owner” was a “Stacks” from Tennessee.

Edmonson then wrote out two questions. First, “Did you know drugs are in the parcel ‘box’?” Miles wrote, “Yes.” The second question and answer—related to Miles’ admission that he had previously picked up packages for money—were redacted and not presented to the jury.

Miles was indicted for trafficking in illegal drugs, in violation of section 44-53-370(e)(3). He did not testify at his trial and moved unsuccessfully for directed verdict, arguing in part there was insufficient evidence he knew the box contained oxycodone. During the jury charge, the trial court gave the following instruction:

Mr. Miles is charged with trafficking in illegal drugs and in this case we are referring to [ojxycodone. The State must prove beyond a reasonable doubt that the Defendant knowingly delivered, purchased, brought into this state, provided financial assistance or otherwise aided, abetted, attempted or conspired to sell, deliver, purchase, or bring into this state and was knowingly in actual or constructive possession or knowingly attempted to become in actual or constructive possession] of the [o]xyeodone. Possession may be either ... actual or constructive.

The trial court charged that the State bore the burden of proving the amount of oxycodone was more than four grams. The trial court further instructed that the State had to prove criminal intent, which required a “conscious wrongdoing,” and that intent may be inferred from the conduct of the parties and other circumstances. After deliberating for some time, the jury asked the following question: “Does the [S]tate have to prove that the defendant knowingly brought into the state *159four grams or more of [ojxycodone or just any amount of illegal drugs in order to consider this trafficking?”

The trial court, over Miles’ objection, replied to the jury as follows:

[T]he law in South Carolina is the State does not have to prove that the Defendant knew that the drugs in the package were [ojxyeodone, just that he knew that the package contained illegal drugs. However, the State does have to prove beyond a reasonable doubt that the illegal drugs that were in the package w[ere] more than four grams of [ojxycodone.

The jury later returned with a verdict of guilty. Because Miles had at least two prior drug convictions, he was sentenced to the mandatory minimum term of twenty-five years, and ordered to pay a $100,000 fine.

II.

Miles’ primary argument on appeal is the trial court’s supplemental charge misinformed the jury that the State did not need to prove beyond a reasonable doubt that Miles knew the drug he possessed was oxycodone. We review jury instructions to determine whether they, as a whole, adequately communicate the law in light of the issues and evidence presented at trial. State v. Logan, 405 S.C. 83, 90, 747 S.E.2d 444, 448 (2013).

Section 44-53-370(e)(3) provides in part:

Any person who knowingly sells, manufactures, cultivates, delivers, purchases, or brings into this State, or who provides financial assistance or otherwise aids, abets, attempts, or conspires to sell, manufacture, cultivate, deliver, purchase, or bring into this State, or who is knowingly in actual or constructive possession or who knowingly attempts to become in actual or constructive possession of: ... four grams or more of any morphine, opium, salt, isomer, or salt of an isomer thereof, including heroin, as described in Section 44-53-190 or 44-53-210, or four grams or more of any mixture containing any of these substances, is guilty of a felony which is known as “trafficking in illegal drugs”....

(emphases added).

Miles contends the term “knowingly” as used in subsection (e) applies to each element of the trafficking offense, including *160the specific type of drugs listed in (e)(3). The issue of whether trafficking requires proof that the defendant not only knowingly intended to “sell[ ], manufacture[ ], cultivate[ ] ...” or “posses[ ]” illegal drugs, but also had knowledge of the precise identity of the illegal drug being trafficked, has, surprisingly, never been addressed by our appellate courts.

We are mindful that “statutory interpretation begins (and often ends) with the text of the statute in question. Absent an ambiguity, there is nothing for a court to construe, that is, a court should not look beyond the statutory text to discern its meaning.” Smith v. Tiffany, 419 S.C. 548, 555-56, 799 S.E.2d 479, 483 (2017) (citations omitted).

Courts grapple often with that tricky adverb “knowingly.” In United States v. Jones, 471 F.3d 535, 538 (4th Cir. 2006), the court construed a federal statute that punished “[a] person who knowingly transports an individual who has not attained the age of 18 years in interstate or foreign commerce ... with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense.” (quoting 18 U.S.C. § 2423(a) (2000 & Supp. 2003)). Rejecting the argument that the government was required to prove the defendant knew the person transported was a minor, Judge Wilkinson noted:

[Construction of the statute demonstrates that it does not require proof of the defendant’s knowledge of the victim’s minority. It is clear from the grammatical structure of § 2423(a) that the adverb “knowingly” modifies the verb “transports.” Adverbs generally modify verbs, and the thought that they would typically modify the infinite hereafters of statutory sentences would cause grammarians to recoil. We see nothing on the face of this statute to suggest that the modifying force of “knowingly” extends beyond the verb to other components of the offense.

Id. at 539.

The United States Supreme Court has not been so gun-shy about the adverb.1 They ordinarily read a “statute that introduces the elements of a crime with the word ‘knowingly’ as applying that word to each element.” Flores-Figueroa v. Unit*161ed States, 556 U.S. 646, 652, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009). They have also found “the word ‘knowingly’ applies not just to the statute’s verbs but also to the object of those verbs.” McFadden v. United States, — U.S. -, 135 S.Ct. 2298, 2304, 192 L.Ed.2d 260 (2015).

But the Court has not gone so far as to hold that a criminal statute that opens with “knowingly” invariably requires each element be proven by that level of intent. It is commonplace that “different elements of the same offense can require different mental states.” Staples v. United States, 511 U.S. 600, 609, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994). Even in Flores-Figueroa, the Court acknowledged that “knowingly” does not always modify every element, particularly where the statutory sentences at issue “involve special contexts or ... background circumstances that call for such a reading.” 556 U.S. at 652, 129 S.Ct. 1886. The Court emphasized that “the inquiry into a sentence’s meaning is a contextual one.” Id.; see also Avis Rent A Car Sys., Inc. v. Hertz Corp., 782 F.2d 381, 385 (2d Cir. 1986) (“Fundamental to any task of interpretation is the principle that text must yield to context.”) (Friendly, J.).

Our duty is to determine legislative intent, and the text of the statute is often the best evidence of that intent. Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000). Yet the text “must be construed in context and in light of the intended purpose of the statute in a manner which harmonizes with its subject matter and accords with its general purpose.” Cabiness v. Town of James Island, 393 S.C. 176, 192, 712 S.E.2d 416, 425 (2011) (citation and internal quotations omitted).

We find that by using “knowingly” in subsection (e), the Legislature did not intend to require the State to prove a defendant knew the specific type of illegal drug he was trafficking. Section 44-53-370 is concerned with criminalizing numerous forms of conduct involving illegal drugs. Thus, subsection (c) decrees “[i]t shall be unlawful for any person knowingly or intentionally to possess a controlled substance,” subject to certain exceptions not relevant here. S.C. Code Ann. § 44-53-370(c) (Supp. 2016). Our supreme court has held the language now codified in subsection (c) requires the State to prove beyond a reasonable doubt that the defendant knew he *162possessed a “controlled substance.” State v. Attardo, 263 S.C. 546, 549, 211 S.E.2d 868, 869 (1975). Subsection (d) then sets forth the penalties for possession based on the type of controlled substance. S.C. Code Ann. § 44-53-370(d) (Supp. 2016).

This brings us to trafficking, subsection (e). Tellingly, our supreme court has explained “[i]t is the amount of [the controlled substance], rather than the criminal act, which triggers the trafficking statute, and distinguishes trafficking from distribution and simple possession.” State v. Raffaldt, 318 S.C. 110, 117, 456 S.E.2d 390, 394 (1995). While the court in Rajfaldt was not confronted with the mental state required for a trafficking conviction, that issue was addressed in State v. Taylor, 323 S.C. 162, 166, 473 S.E.2d 817, 819 (Ct. App. 1996). In Taylor, the defendant was charged with trafficking more than ten grams of crank, in violation of section 44-53-375(C) of the South Carolina Code (Supp. 1995), which contains language nearly identical to section 44-53-370(e), including placement of the adverb “knowingly.” Taylor argued the language required the trial court to charge the jury that “they could not find [her] guilty of trafficking in crank unless she knew there were ten grams or more.” Taylor, 323 S.C. at 167, 473 S.E.2d at 819. Relying on Raffaldt, we disagreed. Id.

Rajfaldt and Taylor illuminate the “special context” revealed by viewing section 44-53-370 as a whole. Because section 44-53-370(c) only requires knowledge that the substance is “controlled,” and because Rajfaldt and Taylor tell us the only difference between the elements of distribution and simple possession and the elements of trafficking is the amount of the controlled substance involved, there is no reason to suspect the Legislature meant to require knowledge of the specific type of controlled substance in trafficking prosecutions. Miles’ interpretation depends upon isolating “knowingly” in subsection (e) and extending its modifying reach not only to “possession,” but to the specific type of drugs listed. Magnifying individual words of a statute and insisting they be interpreted concretely can lead to strange results. One could, for example, myopically diagram subsection (e)(3) and conclude it criminalizes the possession of more than four grams of table salt, or even the conduct of the delivery person in this case. Further, were we to adopt Miles’ version of subsection (e), the State would have to convince the jury *163beyond a reasonable doubt the defendant not only knew the drugs were oxycodone, but also knew that oxycodone is a “morphine, opium, salt, isomer, or salt of an isomer thereof, including heroin, as described in Section 44-63-190 or 44-53-210, or ... any mixture containing any of these substances.” We doubt the Legislature, in passing the drug trafficking laws, meant to create a scenario where a defendant is culpable only if armed with a proficiency in chemistry on par with a pharmacist or Walter White.2 That is why considering the words in their surrounding environment is essential, especially here where the statute runs to nearly five-thousand words and represents the Legislature’s will in the massive field of drug interdiction. Given this background, “[i]f ever we are justified in reading a statute, not narrowly as through a keyhole, but in the broad light of the evils it aimed at and the good it hoped for, it is here.” United States ex rel Marcus v. Hess, 317 U.S. 537, 557, 63 S.Ct. 379, 87 L.Ed. 443 (1943) (Jackson, J., dissenting).3

When a statute can be read in its ordinary sense, courts have no right to engineer an extraordinary one. That the Legislature titled the offense defined by subsection (e)(3) as “trafficking in illegal drugs” affirms our conclusion that a defendant need not know the precise identity of the controlled substance to be guilty. See Univ. of S.C. v. Elliott, 248 S.C. 218, 221, 149 S.E.2d 433, 434 (1966) (“[I]t is proper to consider the title or caption of an act in aid of construction to show the intent of the legislature.”). This sense becomes inescapable when we consider subsection (e)(3)’s reference to sections 44-53-190 and 44-53-210 of the South Carolina Code (Supp. 2016), which set forth Schedules I and II governing classification of controlled substances. While we can interpret statutes by bringing in rules of grammar, logic, and other tools, we must be careful not to construe common sense out.

Courts in many other states share our conclusion that proving the defendant knew the specific type of drug is not required in trafficking and other controlled substance of*164fenses. See, e.g., State v. Stefani, 142 Idaho 698, 132 P.3d 455, 461 (Idaho Ct. App. 2005); People v. Bolden, 62 Ill.App.3d 1009, 20 Ill.Dec. 79, 379 N.E.2d 912, 915 (1978); Com. v. Rodriguez, 415 Mass. 447, 614 N.E.2d 649, 653 (1993); State v. Ali, 775 N.W.2d 914, 919 (Minn. Ct. App. 2009); State v. Edwards, 257 N.J.Super. 1, 607 A.2d 1312, 1313 (App.Div.1992); State v. Engen, 164 Or.App. 591, 993 P.2d 161, 170 (1999); State v. Sartin, 200 Wis.2d 47, 546 N.W.2d 449, 455 (1996).

We cannot leave this issue without discussing the important canon of statutory construction that penal statutes are to be strictly construed. This rule of lenity applies when a criminal statute is ambiguous, and requires any doubt about a statute’s scope be resolved in the defendant’s favor. Berry v. State, 381 S.C. 630, 633, 675 S.E.2d 425, 426 (2009). But the rule of lenity is not a device to create ambiguity, nor should a court invoke it before considering the words of the statute in context. State v. Dawkins, 352 S.C. 162, 166-67, 573 S.E.2d 783, 785 (2002); State v. Firemen’s Ins. Co. of Newark, N.J., 164 S.C. 313, 162 S.E. 334, 338 (1931) (“The rule that a penal statute must be strictly construed does not prevent the courts from calling to their aid all the other rules of construction and giving each its appropriate scope, and is not violated by giving the words of the statute a reasonable meaning according to the sense in which they were intended, and disregarding ... even the demands of exact grammatical propriety.” (citation and internal quotations omitted)); see also United States v. Bass, 404 U.S. 336, 347, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971) (court should rely on lenity only if, “[a]fter ‘seizing] every thing from which aid can be derived,’ ” it is “left with an ambiguous statute” (quoting United States v. Fisher, 6 U.S. (2 Cranch) 358, 386, 2 L.Ed. 304 (1805) (Marshall, C.J.))).

One of the foundations of the rule of lenity is the concept of fair notice—the idea that those trying to walk the straight and narrow are entitled to know where the line is drawn between innocent conduct and illegality. McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 75 L.Ed. 816 (1931) (“[I]t is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. *165To make the warning fair, so far as possible the line should be clear.”). The line for conduct involving contraband is not merely clear but fluorescent. At least since State v. Freeland, 106 S.C. 220, 91 S.E. 3 (1916), we have required a defendant to know or be willfully ignorant that he was dealing with contraband drugs to satisfy criminal intent. This removes innocent activity, inadvertence or accident from the law’s grasp. At any rate, we need not apply the rule of lenity here, as context has convinced us section 44-53-370(e)(3) does not require proof of knowledge of the specific identity of the controlled substance. Carter v. United States, 530 U.S. 255, 269, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000) (courts are required “to read into a statute only that mens rea which is necessary to separate wrongful conduct from ‘otherwise innocent conduct’ ”).

Another foundation of the rule of lenity is the separation of powers. Our Constitution commits the task of defining criminal offenses solely to the Legislative Branch. Bass, 404 U.S. at 347-48, 92 S.Ct. 515; United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95, 5 L.Ed. 37 (1820). If the Legislature believes our interpretation expands or is otherwise contrary to the scope it intended section 44-53-370(e)(3) and its harsh penalty scheme to have, it can amend the statute.

The trial judge’s instructions—including his initial charge that criminal intent consists of “conscious wrongdoing”—conveyed the pertinent legal standards to the jury. He further correctly charged that the State still bore the burden of proving the drug quantity and identity.

1—1 ⅜—i 1—4

Miles next argues he was entitled to a directed verdict because the State presented insufficient evidence that he knowingly trafficked oxycodone. As we have held, the State needed only to prove Miles knew the item was a controlled substance. Because there was evidence Miles possessed the box, the jury was free to infer he knew what was in it. As the assistant solicitor pointed out, the evidence was literally lying at Miles’ feet. See State v. Gore, 318 S.C. 157, 163, 456 S.E.2d 419, 422 (Ct. App. 1995) (“Possession gives rise to an inference of the possessor’s knowledge of the character of the substance.”). Of course, Miles also admitted he knew the box *166contained drugs. Viewing the evidence in the light most favorable to the State, these circumstances go far beyond mere suspicion. There was ample direct and substantial circumstantial evidence from which Miles’ guilt could be fairly and logically deduced. Rule 19, SCRCrimP; State v. Odems, 395 S.C. 582, 586, 720 S.E.2d 48, 50 (2011).

IV.

Miles contends the series of three statements he gave to law enforcement should have been suppressed because the agents engaged in the “question-first” manipulation of Miranda forbidden by Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), and State v. Navy, 386 S.C. 294, 688 S.E.2d 838 (2010). He asserts Agent Edmonson’s immediate questioning of him upon arrest was a custodial interrogation triggering Miranda. At trial, the State conceded as much and agreed not to present evidence of Miles’ first two statements. But, during a later bench conference, Miles agreed to their admissibility, which is unsurprising as this strategy allowed Miles to get his theory of the case—that he didn’t know what kind of drugs were in the package—before the jury without having to take the stand. See State v. Bryant, 372 S.C. 305, 642 S.E.2d 582 (2007) (stating an issue conceded at trial cannot be argued on appeal).

The issue of whether admission of Miles’ third, written statement violated Seibert and Navy is unpreserved. Miles did not raise these cases or the “question-first” principle to the trial court. See State v. Byers, 392 S.C. 438, 446, 710 S.E.2d 55, 59 (2011) (“For an admissibility error to be preserved, the objection must include a specific ground ‘if the specific ground was not apparent from the context.’ ” (quoting Rule 103(a)(1), SCRE)); In re Michael H., 360 S.C. 540, 546, 602 S.E.2d 729, 732 (2004) (“In order to preserve an issue for appeal, it must be raised to and ruled upon by the trial court. In other words, the trial court must be given an opportunity to resolve the issue before it is presented to the appellate court.” (citation omitted)).

Even if the issue was preserved, any error in admitting the redacted written statement was harmless. The statement was cumulative and could not have reasonably *167contributed to the verdict. It did not contradict Miles’ earlier statements that he did not know the type of drugs in the box, and added he was paid one-hundred dollars to retrieve it. See State v. Martucci, 380 S.C. 232, 261, 669 S.E.2d 598, 614 (Ct. App. 2008) (“The admission of improper evidence is harmless where the evidence is merely cumulative to other evidence.”). We cannot imagine the vague references to others involved packed any punch with the jury.

V.

The trial court did not err in its supplemental instruction to the jury that the State was only required to prove Miles knowingly trafficked in a controlled substance. There was sufficient evidence to carry the case to the jury, and even if the Miranda issue was preserved, we find no prejudice. Miles’ conviction is therefore

AFFIRMED.

GEATHERS and MCDONALD, JJ., concur.

*247Mr. Justice Jackson

delivered the opinion of the Court.

This would have remained a profoundly insignificant case to all except its immediate parties had it not been so tried and submitted to the jury as to raise questions both fundamental and far-reaching in federal criminal law, for which reason we granted certiorari.1

On a large tract of uninhabited and untilled land in a wooded and sparsely populated área of Michigan, the Government established a practice bombing range over which the Air Force dropped simulated bombs at ground targets. These bombs consisted of a metal cylinder about forty inches long and eight inches across, filled with sand and enough black powder to cause a smoke puff by which the strike could be located. At various places about the range signs read “Danger — Keep Out— Bombing Range.” Nevertheless, the range was known as good deer country arid was extensively hunted.

Spent bomb casings were cleared from the targets and thrown into piles “so that they will be out of the way.” They were not stacked or piled in any order but were dumped in heaps, some of which had been accumulating for four years or upwards, were exposed to the weather and rusting away.

Morissette, in December of 1948, went hunting in this area but did not get a deer. He thought to meet expenses of the trip by salvaging some of these casings. He loaded three tons of them on his truck and took them to a nearby farm, where they were flattened by driving a tractor over them. After expending this labor and trucking them to market in Flint, he realized $84.

Morissette, by occupation, is a fruit stand operator in summer and a trucker and scrap iron^ollector in winter. An honorably discharged veteran of-World.War'll, *248he enjoys a good name among his neighbors and has had no blemish on his record more disreputable than a conviction for reckless driving.

The loading, crushing and transporting of these casings were all in broad daylight, in full viéw of passers-by, without the slightest effort at concealment. When an investigation was started, Morissette voluntarily, promptly and candidly told the whole story to the authorities, saying that he had no intention of stealing but thought the property was abandoned, unwanted and considered of no value to the Government. He was indicted, however, on the charge that he “did unlawfully, wilfully and knowingly steal and convert” property of the United States of the value of. $84, in violation of 18 U. S. C. § 641, which provides that “whoever embezzles, steals, purloins, or knowingly converts” government property is punishable by fine and imprisonment.2 Morissette was convicted and sentenced to imprisonment for two months or to pay a fine of $200. The Court of Appeals affirmed, one judge dissenting.3

On his trial, Morissette, as he had at all times told investigating officers, testified that from appearances he believed the casings were cast-off and abandoned, that he did not intend to steal the property; and took it with no *249wrongful or criminal intent. The trial court, however, was unimpressed, and ruled: “{H]e took it because he thought it was abandoned and he knew he was on government property. . . . That is no defense. ... I don’t think anybody can have the defense they thought the property was abandoned on another man’s piece of property.” The court stated: “I will not permit you to show this man thought it was abandoned. ... I hold in this case that there is no question of abandoned property.” The court refused to submit or to allow counsel to argue to the jury whether Morissette acted with innocent intention. It charged: “And I instruct you that if you believe the testimony of the government in this case, he intended to take it. . . . He had no right to take this property. . . . [A]nd it is no defense to claim that it was abandoned, because it was on private property. . . . And I instruct you to this effect: That.if this young man took this property (and he says he did), without any permission (he says he did), that was on the property of the United States Government (he says it was), that it was of the value of one cent or more (and evidently it was), that he is guilty of the offense charged here. If you believe the government, he is guilty. . . . The question on intent is whether or not he intended to take the property. He says he did. Therefore, if you believe either side, he is guilty.” Petitioner’s counsel contended,“But the taking must have been with a felonious intent.” The court ruled, however: “That is presumed by his own act.”

The Court of Appeals suggested that “greater restraint in expression should have been exercised,” but affirmed .the conviction because, “As we have interpreted the statute, appellant was guilty of its violation beyond a shadow of doubt, as evidenced even by his owii admissions.” Its construction of'the statute is that it creates several separate and distinct offenses, one being knowing - *250conversion of government property. The court ruled that this particular offense requires no element of criminal intent. This conclusion was thought to be required by the failure of Congress to express such a requisite and this Court’s decisions in United States v. Behrman, 258 U. S. 280, and United States v. Balint, 258 U. S. 250.

I.

In those cases this Court did construe mere omission from a criminal enactment of any mention of criminal intent as dispensing with it. If they be deemed precedents for principles of construction generally applicable to federal penal statutes, they authorize this conviction. Indeed, such adoption of the literal reasoning announced in those cases would do this and more — it would sweep out of all federal crimés, except when expressly preserved, the ancient requirement of a culpable state of mind. We think a résumé of their historical background is convincing that an effect has been ascribed to them more comprehensive than was contemplated and one inconsistent with our philosophy of criminal law.

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.4 A relation between some mental element and punishment for a *251harmful act is almost as instinctive as the child’s familiar exculpatory “But I didn’t mean to,” and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public'prosecution.5 Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Black-stoned sweeping statement that to constitute any crime there must first be a “vicious will.” 6 Common-law commentators of the Nineteenth Century early pronounced the same principle,7 although á few exceptions not relevant to. our presént problem came to be recognized.8

Crime,' as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individu*252alism and took deep and early root , in American soil.9 As the states codified the common law of crimes, even if their enactments were silent on the subject, their courts assumed that the omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation: Courts, with little hesitation or division, found an implication of the requirement as to offenses that were taken over from the common law.10 The unanimity with which they have adhered to the central thought that wrongdoing must be conscious to be criminal is emphasized by the variety, disparity and confusion of their definitions of the requisite but elusive mental element. However, courts of various jurisdictions, and for the purposes of different offenses, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as “felonious intent,” “criminal intent,” “malice aforethought,” “guilty knowledge,” “fraudulent intent,” “wilfulness,” “scienter,” to denote guilty knowledge, or “mens^rea” to signify an evil purpose or mental culpability. By use or combination of these various tokens, they have sought to.protect those who were not blameworthy in mind from conviction of infamous common-law crimes.

However, the Balint and Behrman offenses belbng to a category of another character, with very different antecedents and origins. The crimes there involved depend *253on no mental element but consist only of forbidden acts or omissions. This, while not expressed by the Court, is. made clear from examination of a century-old but accelerating tendency, discernible both here11 and in England,12 to call into existence new duties and crimes which disregard any ingredient of intent. The industrial revolution *254multiplied the- number of workmen exposed to injury from increasingly powerful and complex piechanisms, driven b.y freshly discovered sources of energy, requiring higher precautions by employers. Traffic of velocities, volumes, and varieties unheard of came to subject the wayfarer to intolerable casualty risks if owners and driv- - ers were not to obsérve new cares and uniformities of conduct. Congestion of cities and crowding of quarters called for health and welfare regulations undreamed of in simpler times. Wide distribution of goods became an instrument of wide distribution of harm when 'those who dispersed food, drink, drugs, and even securities, did not comply with reasonable standards of quality, integrity, disclosure and care. ' Such dangers have engendered increasingly numerous and detailed regulations which heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or^ welfare.

While many of these duties are sanctioned by a more strict civil liability,13 lawmakers, whether wisely or not,14 *255have sought to make such regulations more effective by invoking criminal sanctions to be applied by the familiar technique of criminal prosecutions and convictions. This has confronted the courts with a multitude of prosecutions, based on statutes or administrative regulations, for what have been aptly called “public welfare offenses.” These cases do not fit neatly into any of such accepted classifications of common-láw offenses, such as those against the state, the person, property, or public morals. Many of these offenses are not in .'the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many *256violations of such/regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law se'eks to minimize. While such.offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for. their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences.are injurious or not according to fortuity. Hence, legislation applicable' to such offenses,- as a matter of policy, does not specify intent as a necessary element. The accused,-if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. Also, penalties commonly are relatively small, and conviction does no grave damage to an offender’s reputation. Under such considerations, courts have turned to construing statutes and regulations which make no mention of intent as dispensing with it and holding that the guilty act alone makes out the crime. This has not, however, been without expressions of misgiving.

The pilot of the movement in this country appears to be a holding that a tavernkeeper could be convicted for selling liquor to an habitual drunkard even if he did not know the buyer to be such. Barnes v. State, 19 Conn. 398 (1849). Later came Massachusetts holdings that convictions for selling adulterated milk in violation of statutes forbidding such sales require no allegation or proof that defendant knew of the adulteration. Commonwealth v. Farren, 9 Allen 489 (1864); Commonwealth v. Nichols, 10 Allen 199 (1865); Commonwealth v. Waite, 11 Allen 264 (1865). Departures from the common-law tradition, *257mainly- of these general classes, were reviewed and their rationale appraised by Chief Justice Cooley, as follows:

“I agree that as a rule there can be no crime without a criminal intent; but this is not by any means a universal rule. . . . Many statutes which arfe in the nature of police regulations, as this is, impose criminal penalties irrespective of any intent to violate them; the purpose being to require a degree of diligence for the protection of the. public which shall render violation impossible.” People v. Roby, 52 Mich. 577, 579, 18 N. W. 365, 366 (1884).

After the turn of the Century, a new use for crimes-without intent appeared when New York enacted numerous and novel regulations of tenement houses, sanctioned by money penalties. Landlords contended that a guilty intent was essential to establish a violation. Judge Cardozo wrote the answer:

"The defendant asks us to test the meaning of this statute by standards applicable to statutes that govern infamous crimes. The analogy, however, is deceptive. The element of conscious wrongdoing, the guilty mind accompanying, the guilty act, is associated with the concept of crimes that are punished as infamohs. . . . Even there it is not an invariable element. . . . But in the prosecution of minor offenses, there is a wider range of practice and of power. Prosecutions for petty penalties have always _ constitutfed in our law a class by themselves. ... That is true though the prosecution is criminal in form.” Tenement House Department v. McDevitt, 215 N. Y. 160, 168, 109 N. E. 88, 90 (1915).

Soon, employers advanced the same contention as to violations of regulations prescribed by a new labor law. Judge Cardozo, again for-the court, pointed out, as a basis *258for penalizing violations whether intentional or not, that they were punishable only by fine “moderate in amount,” but cautiously added that in sustaining the power so to fine unintended violations “we are not to be understood as sustaining to a like length the power to imprison. We leave that question open.” People ex rel. Price v. Sheffield Farms Co., 225 N. Y. 25, 32-33, 121 N. E. 474, 477 (1918).

Thus, for diverse but reconcilable reasons, state courts converged on the same result, discontinuing inquiry into intent in a limited class of offenses against such statutory regulations.

Before long, similar questions growing out of federal legislation reached this Court. Its judgments were in harmony with this consensus of state judicial opinion, the existence of which may have led the Court to overlook the need for full exposition of their rationale in the context of federal law. In overruling a contention that-there can be no conviction on an indictment which,makes no charge of criminal intent but alleges only making of a sale of a narcotic forbidden by law, Chief Justice Taft, wrote:

“While the general rule.at common law was that-the scienter was a necessary element in the indictment and .proof of every crime, and this was followed in regard to statutory crimes even where the statutory definition did not in terms include it ... , there has been a modification of this view in respect to prosecutions under statutes the purpose of which would be obstructed by such a requirement. It is a question of legislative intent to be construed by the court. . . .” United States v. Balint, supra, 251-252.

He referred, however, to “regulatory measures in the exercise of what is called the police power where the eni*259phasis of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as in cases of mala in se,” and drew hisi citation of supporting authority chiefly from state court cases dealing with regulatory offenses. Id., at 252.

On the same day, the Court determined that an offense under the Narcotic Drug Act does not require intent, saying, “If the offense be a statutory one, and intent or knowledge is not. made an element of it, the indictment need not charge such knowledge or intent.” United States v. Behrman, supra, at 288.

Of course, the purpose of every statute would be '“obstructed” b;^ requiring a finding of intent, if we assume that it had a purpose to convict without it. Therefore, the obstruction rationale does not. help us to learn the purpose of the omission by Congress. And since no federal crime .can exist except by force of statute, the reasoning of the Behrman opinion, if read literally, would work far-reaching changes in the composition óf all federal crimes. Had such a result been contemplated, it could hardly have escaped mention by a Court which numbered among its members one especially interested and informed concerning the importance of intent in common-law crimes.15 This might be the more expected since the Behrman holding did call forth his dissent, in which Mr. Justice McReynolds and Mr. Justice Brandéis joined, omitting any such mention.

It was not until recently that the Court took occasion inore explicitly to relate abandonment of the ingredient, of intent, not merely with considerations of expediency in obtaining convictions, nor with the malum prohibitum classification of the crime, but with the peculiar nature and quality of the offense. We referred to “. . . a now familiar type of legislation whereby penalties-serve as *260effective means of regulation,” and continued, “such legislation dispenses with the conventional requirement for criminal conduct — awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger.” But we warned: “Hardship there doubtless may be under a statute which thus penalizes the transaction though consciousness of wrongdoing be totally wanting.” United States v. Dotterweich, 320 U. S. 277, 280-281, 284.16

Neither this Court nor, so far as we are aware, any other has undertaken to delineate a precise line or set forth comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not. We attempt no closed definition, for the law on the subject is neither settled nor static. The conclusion reached in the Balint and Behrman cases has our approval and adherence for the circumstances to which it was there applied. A quite different question here is whether we will expand the doctrine of crimes without intent to include those charged here.

Stealing, larceny, and its variants and equivalents, were among the earliest offenses known to the law that existed before legislation;17 they are invasions of rights of property which stir a. sense of insecurity in the whole community and arouse public demand for retribution, the penalty is high and, when a sufficient amount is involved, the infamy is that of a felony, which, says Maitland, is “. . . as bad a word as you can give' to man or thing.” 18 State courts of last resort, on whom fall the heaviest bur*261den of interpreting criminal law in this country, have consistently retained the requirement of intent in larceny-type offenses.19 If any state has deviated, the exception has neither been called to our attention nor disclosed by our research.

Congress, therefore, omitted any express prescription of criminal intent from the enactment before us in the light of an unbroken course of judicial decision in all *262constituent states of the Union holding intent inherent in this class of offense, even when not expressed in a statute. Congressional silence as to mental elements in an Act merely adopting into federal statutory law a concept of crime already so well defined in common law and statutory interpretation by the states may warrant quite contrary inferences than the same silence in creating an offense new to general law, for whope definition the courts have no guidance except the Ac& Because the offenses before this Court in the Balirit and Behrman cases were of this latter class, we cannot accept them as authority for eliminating intent from offenses incorporated from the common law. Nor do "exhaustive studies of state court cases disclose any. well-considered decisions applying the doctrine of crime without intent to such enacted common-law offenses,20 although a few deviations are notable as illustrative of the danger inherent in the Government’s contentions here.21

*263The Government asks us by a feat of construction radically to change the weights and balances in the scales of justice. The purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the prosecution’s path to conviction, to strip the defendant of such benefit as he derived at common law from innocence of evil purpose, and to circumscribe the freedom heretofore allowed juries. Such a manifest impairment of the immunities of the individual should not be extended to common-law crimes on judicial initiative. -

The spirit of the doctrine which denies to the federal judiciary power to create crimes forthrightly22 admonishes that we should not enlarge the reach of enacted crimes by constituting them from anything less than the incriminating components contemplated by the words used in the statute. And where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise, instructed. In such case, absence of. contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.

We hold that mere omission from § 641 of any mention of intent will not be construed as eliminating that element from the crimes denounced.

II.

It is suggested, however, that the history and purposes of § 641 imply something more affirmative as to elimination of intent from at least one of the, offenses charged under it in,, this case. The argument does not contest *264that criminal intent is retained in the offenses.of embezzlement, stealing and purloining, as incorporated into this section. But it is urged that Congress joined with those, as a new, separate and distinct^ offense, knowingly to convert government property, under circumstances which imply that it is an offense in which the mental element of intent is not necessary.

Congress has been alert to what- often is a decisive function of some mental element in crime. It has seen fit to prescribe that an evil state of mind, described variously in one or more such terms as “intentional,” “wilful,” “knowing,” “fraudulent” or “malicious,” will make criminal an otherwise indifferent act,23 or increase the degree of the offense or its punishment.24 Also, it has *265at times required a specific intent or purpose which will require some specialized knowledge or design for some evil beyond the common-law intent to do injury.25 The law under some circumstances recognizes good faith or blameless intent as a defense, partial defense, or as an element to be considered in mitigation of punishment.26 And. treason — the one crime deemed grave enough for definition in our Constitution itself — requires not only the duly witnessed overt act of aid and comfort to the enemy but also the mental element of disloyalty or adherence to the enemy.27 In view of the caré that has been bestowed upon the subject, it is significant that we have not found, nor has our attention been directed to, any instance in which Congress has expressly eliminated the mental element from a crime taken over from the common law.

The section with which we are here concerned was enacted in 1948, as a consolidation of four former sections of Title 18, as adopted in 1940, which in turn were derived from two sections of the Revised Statutes. The pertinent legislative and judicial history of these anteced*266ents, as well as of § 641, is footnoted.28 We find no other purpose in the 1948 re-enactment than to collect from scattered sources crimes so kindred as to belong in *267one category. Not one of these had been interpreted to be a crime without intention and no purpose to differentiate between them in the matter of intent is discloséd. *268No inference that some were and some were not crimes of intention can be drawn from any difference in classification or punishment. Not one fits the congressional classification of the petty offense; each is, at its least, a misdemeanor, and if the amount involved is one hundred *269or more dollars each is a felony.29 If one crime without intent has been smuggled into a section whose dominant offenses do require intent, it was put in ill-fitting and compromising company. The Government apparently did not believe that conversion stood so alone when it *270drew this one-count indictment to charge that Morissette “did unlawfully, wilfully and knowingly steal and convert to his own use.” 30

Congress, by the language of this section, has been at pains to incriminate only “knowing” conversions. But, at common law,, there are unwitting acts which constitute conversions. In the civil tort, except for recovery of exemplary damages, the defendant’s knowledge, intent, motive, mistake, and good faith are generally irrelevant.31 If one takes property which turns out to belong to another, his innocent intent will not shield him from making restitution or indemnity, for. his well-meaning may not be allowed to deprive another of his own.

Had the statute applied to conversions without qualification, it would have made., crimes of all unwitting, inadvertent and unintended conversions. Knowledge, of course, is not identical with intent and may not have been the most apt words of limitation. But knowing conver*271sion requires more than knowledge that defendant was taking the property into his possession. He must have had knowledge of the facts, though not necessarily the law, that made the taking a conversion. In the case before us, whether the mental element that Congress required be spoken of as knowledge or as intent,'would not seem to alter its bearing on guilt. For it is not apparent how Morissette could have knowingly or intentionally converted property that he did not know could be converted, as would be the case if it was in fact abandoned or if he truly believed it to be abandoned and unwanted property.

It is said, and at first blush the claim has plausibility, that, if we construe the statute to require a mental element as part of criminal conversion, it becomes a meaningless duplication of the offense of stealing, and that conversion can be given meaning only by interpreting it to disregard intention. But here again a broader view of the evolution of these crimes throws a different light on the legislation.

It is not surprising if there is considerable overlapping in the embezzlement, stealing, purloining and knowing conversion grouped in this statute. What has concerned codifiers of the larceny-type offense is that gaps or crevices have separated particular crimes of this general class and guilty men have escaped through the breaches. The books contain a surfeit of cases drawing fine distinctions between slightly different circumstances under which one may obtain wrongful advantages from another’s property. The codifiers wanted to reach all such instances. Probably every stealing is a conversion, but certainly not every knowing conversion is a stealing. “To steal means to take away from, one in lawful possession without right with the intention to keep wrongfully.” (Italics added.) Irving Trust Co. v. Leff, 253 N. Y. 359, 364, 171 N. E. 569, 571. Conversion, however, may be consummated without *272any intent to keep and without any wrongful taking, where the initial possession by the converter was entirely lawful. Conversion may include misuse or abuse of property. It may reach use in an unauthorized manner or to an unauthorized extent of property placed in one’s custody for limited use. Money rightfully taken into one’s custody may be converted without any intent to keep or embezzle it merely by commingling it with the custodian’s own, if he was under a duty to keep it separate and intact. It is not difficult to think of intentional and knowing abusés and unauthorized uses of government property, that might be knowing conversions but which could not be reached as embezzlement, stealing or purloining. Knowing' conversion adds significantly to the range of protection of government property without interpreting it to punish unwitting conversions.

The purpose which we here attribute to Congress parallels that of codifiers of common law in England32 and in the States33 and demonstrates that the serious prob*273lexn in drafting such a statute is to avoid gaps and loopholes between offenses. It is significant that the English and State codifiers have, tried to cover the same type of conduct that we are suggesting as the purpose of Congress here, without, however, departing from the common-law ■tradition that these are crimes of intendment.

„We find no grounds for inferring any affirmative instruction from Congress to eliminate intent from any offense with which this defendant was charged.

III.

As we read the record, this case was tried on the theory that even if criminal intent were essential its presence (a) should be decided by.the court (b) as a presumption *274of law, apparently conclusive, (c) predicated upon the isolated act of taking rather than upon all of the circumstances. In each of these respects we believe the trial court was in error.

Where intent of the accused is an ingredient of the crime charged, its existence is a question of fact which must be submitted to the jury. State court authorities cited to the effect that intent is relevant in larcenous crimes are equally emphatic and uniform that it is a jury issue. The settled practice and its reason are well stated by Judge Andrews in People v. Flack, 125 N. Y. 324, 334, 26 N. E. 267, 270:

“It is alike the general rule of law and the dictate of natural justice that to constitute guilt there must be not only a wrongful act, but a criminal intention. Under our system (unless in exceptional cases), both must be found by the jury to justify a conviction.for crime. However clear the proof may be, or however incontrovertible may seem to the judge to be the inference of a criminal intention, the question of intent can never be rulecl as a question of law, but must always be submitted to the jury. Jurors may be perverse; the ends of justice may be defeated by unrighteous verdicts, but so long as the functions of the judge and jury are distinct, the one responding to the law, the other to the facts, neither can invade the province of the other without destroying the significance of trial by court and jury. . . .”

It follows that the trial coürt may not withdraw or prejudge the issue by instruction that the law raises a presumption of intent from an act. It often is tempting to cast in terms of a “presumption” a conclusion which a court thinks probable from given facts. The Supreme Court of Florida, for example, in a larceny case, from .selected circumstances which are present in this case Ras *275declared a presumption of exactly opposite effect from the one announced by the trial court here:

"... But where the taking is open and there is no subsequent attempt to conceal the property, and' no denial, but an avowal, of the taking a strong presumption arises that there was no felonious intent, which must be repelled by clear and convincing evidence before a conviction is authorized. . . Kemp v. State, 146 Fla. 101, 104, 200 So. 368, 369.

We think presumptive intent has no place in this case. A conclusive presumption which- testimony could not overthrow would effectively eliminate intent as an ingredient of the offense. A presumption which would permit but not require the jury to assume intent from an isolated fact would prejudge a conclusion which the jury should reach of its own volition. A presumption which would permit the jury to make an assumption which all the evidence considered together does not logically establish would give to a proven fact an artificial and fictional effect.34 In either case, this presumption would conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the. crime. Such incriminating presumptions are not to be improvised by the judiciary. Even congressional power to facilitate convictions by substituting presumptions for proof is not without limit. Tot v. United States, 319 U. S. 463.

Moreover, the conclusion supplied by presumption in this instance was one of intent to steal the casings, and-it was based on the mere fact that defendant took them. The court thought the only question was, “Did he intend *276to take thé property?” That the removal of them was a conscious and intentional act was admitted. But that isolated fact is not an adequate basis on which the jury should find the criminal intent to steal or knowingly convert, that is, wrongfully to deprive another of possession of property. Whether that intent existed, the jury must determine, not only from the act of taking, but from that together with defendant’s testimony and all of the surrounding circumstances.

Of course, the jury, considering Morissette’s awareness that these casings were on government property, his failure to seek any permission for their removal and his self-interest as a witness, might have disbelieved his profession of innoceht intent and concluded that his assertion of a belief .that the casings were abandoned was an afterthought. Had the jury convicted on proper instructions it would be the end of the matter. But juries are not bound by what seems inescapable logic to judges. They might have concluded that the heaps of spent casings left in the hinterland to rust away presented an appearance of unwanted and abandoned junk, and that lack of any conscious- deprivation of property or intentional injury was indicated by Morissette’s good character, the openness of the taking, crushing and transporting of the casings, and the candor with which it was all admitted. They might have refused to brand Morissette as.a thief. Had they done so, that too would have been the end of the matter.

Reversed.

Mr. Justice Douglas concurs in the result.

Mr. Justice Minton took no part in the considération or decision of this case.

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.

Opinion

DOWDS, J.

Defendant, charged with a violation of Penal Code section 487, subdivision 1, grand theft, appeals his conviction after a jury trial of petty theft, a lesser but necessarily included offense. His contention on appeal is that the jury was improperly instructed. The only facts *Supp. 3set forth in the recprd on appeal are that defendant was charged with stealing four wooden beams from a construction site and that the state of the evidence was such that the jury could have found that the defendant believed either (1) that the beams had been abandoned as worthless and the owner had no objection to his taking them or (2) that they had substantial value, had not been abandoned and he had no right to take them.

The court refused two jury instructions proposed by defendant reading as follows:

Defendant’s A

“If one takes personal property with the good faith belief that the property has been abandoned or discarded by the true owner, he is not guilty of theft. This is the case even if such good faith belief is unreasonable. The prosecutor must prove beyond a reasonable doubt that the defendant did not so believe for you to convict a defendant of theft.”

Defendant’s B

“If one takes personal property with the good faith belief that he has permission to take the property, he is not guilty of theft. This is the case even if such good faith belief is unreasonable.

The prosecutor must prove beyond a reasonable doubt that the defendant did not so believe for you to convict a defendant of theft.”

Instead, the court instructed the jury in the words of the following modified instructions:

Modified-Defendant’s A

“If one takes personal property in the reasonable and good faith belief that the property has been abandoned or discarded by the true owner, he is not guilty of theft.”

Modified-Defendant’s B

“If one takes personal property in the reasonable and good faith belief that he has the consent or permission of the owner to take the property, he is not guilty of theft.

*Supp. 4“If you have a reasonable doubt that the defendant had the required criminal intent as specified in these instructions, the defendant is entitled to an acquittal.”

Accordingly, the question for determination on appeal is whether the defendant should be acquitted if there is a reasonable doubt that he had a good faith belief that the property had been abandoned or that he had the permission of the owner to take the property or whether that belief must be a reasonable one as well as being held in good faith.

A recent decision by the California Supreme Court throws light on this question. In People v. Wetmore (1978) 22 Cal.3d 318 [149 Cal.Rptr. 265, 583 P.2d 1308], defendant was charged with burglary, like theft a specific intent crime.1 The Supreme Court held that the trial court had erroneously refused to consider at the guilt phase of the trial evidence that, because of mental illness, defendant was incapable of forming the specific intent required for conviction of the crime, instead of receiving such evidence only in respect of his plea of not guilty by reason of insanity. The court disapproved dictum in People v. Wells (1949) 33 Cal.2d 330 [202 P.2d 53] that if psychiatric reports described a defendant’s insanity as well as his diminished capacity, the evidence was inadmissible to prove his lack of specific intent, stating, at pages 323-324: “In holding that defendant’s psychiatric evidence could not be utilized to prove that he lacked the specific intent required for the offense of burglary, the trial court followed a dictum laid down in our decision in People v. Wells, supra, 33 Cal.2d 330. Wells, the seminal decision which established the doctrine of diminished capacity in California law, held that ‘evidence of diminished mental capacity, whether caused by intoxication, trauma, or disease, can be used to show that a defendant did not have a specific mental state essential to an offense.’ (People v. Conley (1966) 64 Cal.2d 310, 316 [49 Cal.Rptr. 815, 411 P.2d 911].) In dictum, however, Wells stated that since sanity is conclusively presumed at the guilt trial, ‘evidence tending to show lack of mental capacity to commit the crime because of legal insanity is barred at that stage.’ (33 Cal.2d 330, 350.) The Wells opinion later restated that conclusion in different terms: ‘[I]f the proffered evidence tends to show not merely that he [defendant] did or did not, but rather that because of legal insanity he could not, entertain the specific intent *Supp. 5or other essential mental state, then that evidence is inadmissible under the not guilty plea....’ (P. 351.)

“As we shall explain, the Wells dictum imposes an illogical and unworkable rule which has not been followed in subsequent cases. Wells spoke of excluding evidence which tended to prove ‘lack of mental capacity. ..because of legal insanity.’ (P. 350.) Mental incapacity does not occur ‘because of legal insanity;’ instead both insanity and diminished capacity are legal conclusions derived from evidence of defendant’s mental condition. (See Comment (1971) 18 UCLA L.Rev. 561, 563-564, fn. 11.) Consequently, if the evidence of a defendant’s mental illness indicates that the defendant lacked the specific intent to commit the charged crime such evidence cannot reasonably be ignored at the guilt trial merely because it might (but might not) also persuade the trier of fact that the defendant is insane.

“Wells' distinction between evidence that defendant did not entertain the requisite intent, which is admissible, and evidence that he could not entertain that intent, which is inadmissible, cannot be supported. ‘[A]s a matter of logic, any proof tending to show that a certain mental condition could not exist is relevant and should be admissible to show that it did not exist. And, of course, proof that something could not exist is the best possible evidence that it did not exist.’ (Louisell & Hazard, Insanity as a Defense: The Bifurcated Trial (1961) 49 Cal.L.Rev. 805, 819.) Moreover, as Justice Kaus pointed out in People v. Steele (1965) 237 Cal.App.2d 182, 190-191 [46 Cal.Rptr. 704], evidence which tends to prove that a defendant could not entertain a certain intent may, when subject to cross-examination, convince the trier of fact that defendant was able to entertain the intent but did not do so on the occasion of the crime. Thus, Steele concludes, the trial court cannot refuse to admit such evidence when offered to prove diminished capacity.”

The court concluded, at page 327: “We therefore hold that evidence of diminished capacity is admissible at the guilt phase whether or not that evidence may also be probative of insanity. The trial court erred when, relying on the Wells dictum, it refused to consider evidence of diminished capacity in determining defendant’s guilt.”

The instant case, does not, of course, involve evidence of mental illness. Evidence was presented, however, from which the jury could have concluded that defendant believed that the wooden beams had been abandoned and that the owner had no objection to his taking them, i.e., *Supp. 6that he lacked the specific criminal intent required to commit the crime of theft (intent permanently to deprive an owner of his property). A similar situation existed in People v. Photo (1941) 45 Cal.App.2d 345 [114 P.2d 71], where defendant’s conviction of grand theft for the taking of certain boxes of oranges which he thought he had purchased was reversed, the Court of Appeal stating at page 353: “Felonious intent is an essence of the crime of larceny. The general rule stated in 36 C. J., section 105, page 764, is: ‘If one, in good faith, takes the property of another, believing it to be legally his own, or that he has a legal right to its possession, he is not guilty of larceny, although his claim is based on a misconception of the law or of his rights under it, for although ignorance of law and honest intentions cannot shield a man from civil liability for a trespass committed by him, yet they do protect him from criminal liability, by divesting the act of the felonious intent without which it cannot be a crime. It is necessary, however, in all cases that the claim of right to be a bona fide one, and not a mere cover for a felonious taking, and must be something more than a vague impression; it must amount to an honest conviction. Knowledge of the existence of an adverse claim by another person does not negative the existence of good faith.’

“From the evidence it appears that Photo apparently took the fruit, under a claim of title in himself, and if done in good faith after receiving what he thought was legal advice though it might have been erroneous, a presumption arose in his favor that the taking lacked the elements necessary to constitute larceny.”

Earlier California cases are to the same effect. In People v. Devine (1892) 95 Cal. 227 [30 P. 378], defendant’s conviction of larceny was reversed. He had driven away in a wagon, without any attempt at secrecy, a number of hogs, his own and three bearing another’s mark or brand. The Supreme Court pointed out: “There are cases in which all the knowledge which a person might have acquired by due diligence is to be imputed to him. But. where a felonious intent must be proven, it can be done only by proving what the accused knew. One cannot intend to steal property which he believes to be his own. He may be careless, and omit to make an effort to ascertain that the property which he thinks his own belongs to another; but so long as he believes it to be his own, he cannot feloniously steal it.... ” (Id. at pp. 230-231.)

In re Bayles (1920) 47 Cal.App. 517 [190 P. 1034] concerned the owner and manager of an apartment house who was convicted of lar*Supp. 7ceny based on evidence that she had seized a sewing machine and victrola of" a former tenant under claim of lien to secure certain charges allegedly owed by the tenant. The Court of Appeal declined to decide such fine points relating to the validity of the claim of lien as whether the tenant had left the apartment sufficiently clean, stating at pages 520-521: “[E]ven though the standard of cleanliness exacted by the petitioner should be found by the jury to be an unreasonable standard,' and not the standard contemplated by the agreement between the parties, yet, we think petitioner would not be guilty of grand larceny. The record discloses no evil or felonious intent upon the part of the petitioner; she was merely seeking to enforce her civil rights as she believed them to exist. Larceny is the felonious stealing, taking, carrying, leading, or driving away the personal property of another. (Sec. 484, Pen. Code.) Every taking by one person of the personal property of another, without his consent, is not larceny. Felonious intent is of the essence of the crime of larceny. (People v. Devine, 95 Cal. 227, [30 Pac. 378].) If a jury should determine that the apartment was clean, according to the standard contemplated by the parties at the time they made their agreement, at the time petitioner took possession of the goods, and that, therefore, no money was due petitioner for cleaning the same, Mr. Tucker could be amply compensated in damages for the wrongful detention of his property. (Sec. 667, Code Civ. Proc., and sec. 3336, Civ. Code.) But this question must be tried out in a civil action, and not in a criminal proceeding. (Sec. 3379, Civ. Code; sec. 3380, Civ. Code; secs. 870, 509, 510, 511 and 512, Code Civ. Proc.)”

Defendant was discharged from custody pursuant to a writ of habeas corpus.

Cases in other jurisdictions also hold that where the law requires a specific criminal intent, it is not enough merely to prove that a reasonable man would have had that intent, without meeting the burden of proof that the defendant himself also entertained it. For example, in State v. Ebbeller (1920) 283 Mo. 57. [222 S.W. 396], a conviction of knowingly receiving a stolen automobile was reversed because the court gave the following erroneous jury instruction: “‘Éy the term “knowing” that the property was stolen is not meant absolute personal and certain knowledge on the part of the defendant that the property mentioned in the indictment had been stolen, but such knowledge and information in his possession at the time he received the same, if you believe he did receive it, as would put a reasonably prudent man, exercising ordinary caution, on his guard, and would cause such a man exercising such cau*Supp. 8tion, and under circumstances which you believe defendant received the property, to believe and be satisfied that the property had been stolen.’” (222 S.W. at p. 397.)

In reversing, the court pointed out the error in the instruction as follows: “It will be noticed that the instruction does permit a conviction if the facts were such as (in the opinion of the jury) would have caused a reasonably prudent person, exercising ordinary caution, to have believed that the property had been stolen at the time received.

“We are inclined to the view ... that the learned attorney representing the appellant is correct in stating that—“‘The question is not what some other person would have believed and known from the circumstances attending the receipt of the property, but what did this defendant believe and know.’” (Id.)

Similarly, in Kasle v. United States (6th Cir. 1916) 233 Fed. 878 a conviction of receiving stolen goods was reversed because of error in jury instructions which the appellate court read as informing the jury that the defendant could be convicted if a reasonable and honest man of average intelligence would have known the goods were stolen under the facts existing at the time, the court stating: “The effect of such tests was to charge the accused with guilty knowledge or not upon what the jury might find would have induced belief in the mind of a man such as they were told to consider, rather than the belief that was actually created in the mind of the accused; or, at last, the accused might be condemned even if his only fault consisted in being less cautious or suspicious than honest men of average intelligence are of the acts of others. The result of the rule of the charge would be to convict a man, not because guilty, but because stupid. The issue was whether the accused had knowledge—not whether some other person would have obtained knowledge—that the goods had been stolen.” (Id. at p. 887)

In State v. Aschenbrenner (1943) 171 Ore. 664 [138 P.2d 911] the following instruction in a larceny case was held to be erroneous: “You are instructed that in order to convict the defendants of the crime charged, it is necessary for the state to prove beyond a reasonable doubt that the defendants had knowledge, or notice of such facts and circumstances as would have convinced a reasonable man of ordinary intelligence and observation, that estray sheep were in the Aschenbrenner flock, and if upon the whole evidence in this case you have a reasonable doubt that the facts and circumstances known to the defen*Supp. 9dants (if you find any were known to them), were such that a reasonable man of ordinary intelligence and observation would have known that estray sheep were in the Aschenbrenner flock, then you should find the defendants not guilty of the crime charged.

“On the other hand, if you find from the evidence beyond a reasonable doubt that the circumstances were such as to lead a rational man, a man of ordinary intelligence and observation, to know that estray sheep were in the Aschenbrenner flock, such circumstances would be sufficient to justify you in finding that the defendants knew estray sheep were in the Aschenbrenner flock.” (171 Ore. at pp. 668-669.) The Supreme Court of Oregon said: “We are of the opinion that the circuit court erred in instructing the jury that circumstances which would lead a man of ordinary intelligence and observation to know that estray sheep were in the Aschenbrenner flock ‘would be sufficient to justify’ it ‘in finding that the defendants knew’ that fact. It seldom happens that direct evidence can be produced that the accused had actual knowledge of a fact. And in the absence of direct evidence knowledge may be inferred from circumstances. The issue, however, was whether the defendants had knowledge that estray sheep were in the flock, not whether some other person would or could have obtained that knowledge under the circumstances disclosed by the evidence. It might have appeared to the jury that the defendants, or some of them, did not possess the intelligence or observation of an ordinary man, or that in a given instance they, or some of them, acted unwisely, unreasonably, imprudently or carelessly, but not with criminal intent. The instruction complained of was not only erroneous, but highly prejudicial to the defendants’ rights.” (Id. at p. 674) The Supreme Court of Arizona, in Reser v. State (1924) 27 Ariz. 43 [229 P. 936] held erroneous a jury instruction in a receiving stolen property case setting forth a test of whether the defendant received the property “under such circumstances that a man of ordinary prudence and caution would be satisfied that it was stolen property,” the court stating: “It is contended that these instructions are erroneous, because they authorize a conviction even though appellant may not have had guilty knowledge that the property was stolen. It will be observed that they do permit a verdict of guilty whether defendant’s knowledge of the theft was actual or merely imputed. Under the statement that, if the facts under which the property was received by the accused were such that a man of ordinary prudence and caution would have been satisfied that it was stolen, the law imputed to the defendant knowledge of this fact, the jury’s only duty on the question of guilty knowledge was to decide what an ordinarily pru*Supp. 10dent and cautious person would have done under the circumstances. This was equivalent to advising the jury that, if it concluded such a man would have been satisfied the property was stolen, the law would attribute the same knowledge to the accused. It relieved the jury from the necessity of considering whether the circumstances under which the defendant received the property were such as to cause him to realize individually it was stolen, and permitted his conviction upon the jury’s determination of what an ordinarily prudent and cautious man would have done under the circumstances, without taking cognizance of the fact that there was nothing to show whether the accused possessed the prudence and caution of the one by whose actions his were tested. The question for the jury was not whether the facts would have given the ordinary person knowledge of the theft, but whether they had such effect upon the defendant himself with his understanding of their significance. Many people are not as cautious and prudent as the ordinary person, hence the circumstances might have meant knowledge to him, and nothing to the accused.” (229 P. at p. 937.) Other cases from other jurisdictions setting forth the same rule could be cited and we appreciate that other cases can be found in which its application is not so clear, The proper rule, it seems to us, is set forth in Perkins on Criminal Law (2d ed. 1969) at pages 940-941: “If no specific intent or other special mental element is required for guilt of the offense charged, a mistake of fact will not be recognized as an excuse unless it was based upon reasonable grounds... .[On the other hand, bjecause of the requirement of a specific intent to steal there is no such thing as larceny by negligence. One does not commit this offense by carrying away the chattel of another in the mistaken belief that it is his own, no matter how great may have been the fault leading to this belief, if the belief itself is genuine.”

La Fave and Scott, Handbook on Criminal Law (1972) sets forth at page 357 what the authors call the “. . .rather simple rule that an honest mistake of fact or law is a defense when it negates a required mental element of the crime . . . . ” As an example they refer to the crime of receiving stolen property, stating “... if the defendant by a mistake of either fact or law did not know the goods were stolen, even though the circumstances would have led a prudent man to believe they were stolen, he does not have the required mental state and thus may not be convicted of the crime.”

In the instant case the trial court in effect instructed the jury that even though defendant in good faith believed he had the right to *Supp. 11take the beams, and thus lacked the specific intent required for the crime of theft, he should be convicted unless such belief was reasonable. In doing so it erred.2 It is true that if the jury thought the defendant’s belief to be unreasonable, it might infer that he did not in good faith hold such belief. If, however, it concluded that defendant in good faith believed that he had the right to take the beams, even though such belief was unreasonable as measured by the objective standard of a hypothetical reasonable man, defendant was entitled to an acquittal since the specific intent required to be proved as an element of the offense had not been established.3

The People’s reliance on People v. Mayberry (1975) 15 Cal.3d 143 [125 Cal.Rptr. 745, 542 P.2d 1337] is misplaced. The discussion in that case involved the propriety of an instruction on mistake of fact in respect of charges of rape and kidnaping, general intent crimes, a different question from that here presented.

The judgment is reversed.

Cole, P. J., and Saeta, J., concurred.