CORRECTION ORDER

 

¶1 The last paragraph in Burdine v. State, 2004 OK CR 7, --- P.3d --- , was inadvertently omitted from Summary Opinion.  Therefore, Burdine v. State, 2004 OK CR 7, --- P.3d ---, handed down on February 11, 2004, is hereby corrected to reflect the following:

¶8 To aid trial courts in future cases, we hereby promulgate the following instruction:

No person may be convicted of Murder in the First Degree of an unborn child unless the State has proved beyond a reasonable doubt that the unborn child was viable at the time of death.

An unborn child is viable when the unborn child has the capability to live outside the mother’s womb even with artificial aid. Because the point of viability may differ with each pregnancy, due to the health of the mother, support locally available or other risks, no single factor such as weight or gestational age should be the deciding factor in determining viability.  Viability must be determined considering all of the evidence presented relating to the pregnancy with reasonable medical certainty.

This instruction shall be used in all future cases where the defendant is charged with either first or second degree Murder of an unborn child and is effective from the date this Opinion is published.

¶2  IT IS SO ORDERED.

¶3  WITNESS OUR HANDS AND THE SEAL OF THIS COURT  this 24th day of February, 2004.

          /s/ Charles A. Johnson
          CHARLES A. JOHNSON, Presiding Judge

          /s/ Steve Lile
          STEVE LILE, Vice Presiding Judge

          /s/ Gary L. Lumpkin
          GARY L. LUMPKIN, Judge

          /s/ Charles S. Chapel
          CHARLES S. CHAPEL, Judge

          /s/ Reta M. Strubhar
          RETA M. STRUBHAR, Judge

 

ATTEST:

/s/Michael S. Richie
Clerk