ATTORNEY FOR APPELLANT:            ATTORNEYS FOR APPELLEE:

KATHERINE A. CORNELIUS             JEFFREY A. MODISETT
Marion County Public Defenders            Attorney General of Indiana
Office, Appellate Division
Indianapolis, Indiana                 KATHRYN JANEWAY                                        Deputy Attorney General
                            Indianapolis, Indiana

 MICHAEL G. ALBRECHT,            )
                                         )
    Appellant-Defendant,                 )
                                         )    Supreme Court Cause Number
        v.                               )    49S00-9901-CR-55
                                         )    
STATE OF INDIANA,                        )
                                         )
    Appellee-Plaintiff.                  )

R. at 491, 544.
Albrecht makes two claims: (1) the Winegeart instruction represents an incorrect statement of the law on reasonable doubt; and (2) giving both instructions confused the jury because the “firmly convinced” language in the Winegeart instruction is inconsistent with the “degree of certainty to act without hesitation” language in his own instruction. Therefore, according to Albrecht, the trial court should have given only one instruction, his own.
As to the first claim, we have approved of the Winegeart instruction on numerous occasions and decline Albrecht’s invitation to revisit the issue here. See McGregor v. State, 725 N.E.2d 840, 842 (Ind. 2000); Turnley v. State, 725 N.E.2d 87, 89 (Ind. 2000); Williams v. State, 724 N.E.2d 1093, 1094-95 (Ind. 2000); Dobbins v. State, 721 N.E.2d 867, 874-75 (Ind. 1999); Ford v. State, 718 N.E.2d 1104, 1105 (Ind. 1999); Barber v. State, 715 N.E.2d 848, 851-52 (Ind. 1999); Williams v. State, 714 N.E.2d 644, 650 (Ind. 1999), cert. denied, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000); Young v. State, 696 N.E.2d 386, 390 (Ind. 1998); Tobias v. State, 666 N.E.2d 68, 69 (Ind. 1996). We therefore reject Albrecht’s claim that the instruction represents an incorrect statement of the law.
As for Albrecht’s second claim, we do not agree that giving both instructions tended to confuse the jury as to the State’s burden of proof. “The Due Process Clause of the Fourteenth Amendment protects an accused ‘against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’” Winegeart, 665 N.E.2d at 896 (quoting In re Winship, 397 U.S. 358, 364 (1970)). The test for determining the constitutionality of a reasonable doubt instruction is whether “‘there is a reasonable likelihood’ that the jury applied the instructions to convict based upon constitutionally insufficient proof of guilt.” Id. at 897-98 (quoting Victor v. Nebraska, 511 U.S. 1, 6 (1994)). Simply because the language of the instructions differs, it does not necessarily follow that the definitions are inconsistent or conflicting. Although we maintain our belief that the first instruction is the better of the two and requires no supplement to fully inform the jury about the concept of reasonable doubt, id. at 902, Albrecht has not convinced us that providing supplementation in the form of the second instruction tended to confuse or mislead the jury. As we observed in Winegeart, “[w]hile the federal constitution requires that juries be instructed ‘on the necessity that the defendant’s guilt be proven beyond a reasonable doubt,’ it does not require the use of ‘any particular form of words.’” Id. at 896 (quoting Victor, 511 U.S. at 5). Rather, the instructions taken as a whole must correctly express “the concept of reasonable doubt to the jury.” Id. (quoting Victor, 511 U.S. at 5). Viewing the court’s instructions as a whole, we conclude that there is not a reasonable likelihood that the jurors applied the instructions to convict Albrecht based upon constitutionally insufficient proof of guilt. The trial court did not abuse its discretion in instructing the jury on reasonable doubt.