OPINION
ARMIJO, Judge.
1. Defendant appeals his conviction of aggravated battery with a deadly weapon on five grounds: (1) there was fundamental error in the trial court’s jury instruction for aggravated battery with a deadly weapon because this instruction failed to include an essential element of the offense; (2) there was fundamental error in the trial court’s jury instructions for self-defense and defense of another because these instructions did not clearly place the burden of proof on the State; (3) the failure of Defendant’s trial counsel to tender a jury instruction on the less serious offense of negligent use of a deadly weapon amounted to ineffective assistance of counsel; (4) the prosecutor’s misconduct during closing arguments denied Defendant a fair trial; and (5) the trial court abused its discretion by denying Defendant’s motion for a new trial based on newly discovered evidence. We reverse and remand for a new trial because there was fundamental error in the jury instructions. Because we reverse and remand on issues (1) and (2) relating to instructional error, we do not address the remaining issues raised.
I. BACKGROUND
2. Defendant was tried and convicted of aggravated battery with a deadly weapon. His conviction arose from a late-night confrontation outside the Cadillacs and Wranglers bar in Hobbs, New Mexico, on August 29,1993. Defendant presented evidence that the confrontation arose because a group of people, including the victim, Joe Leal, had chased Defendant and his brother and tried to pick a fight with them. Defendant described Leal’s group as consisting of fifteen to twenty people. Defendant further testified that he heard one of the men in Leal’s group say “go get your gun” and then saw that man hand some car keys to Leal. After Leal walked over to a white car, went inside it and then reemerged, Defendant feared that Leal had retrieved a gun. Panicking because of this fear, Defendant testified that he grabbed his brother’s shotgun and fired one “warning shot” toward the ground to protect himself and his brother. A sheriffs department investigator determined that the shot fired by Defendant travelled level and low to the ground before hitting the white car. Leal was next to the white car and was hit on the arm and neck by birdshot that ricocheted off the car.
3. Defendant was arrested and charged with aggravated battery with a deadly weapon and criminal damage to property. At the close of evidence, the trial court entered a directed verdict of not guilty on the criminal damage to property charge. With regard to the aggravated battery charge, the trial court found that there was sufficient evidence to support a jury instruction on self-defense and defense of another. The trial court gave the jury the uniform jury instruction (UJI) for aggravated battery with a deadly weapon tendered by the prosecutor, SCRA 1986, 14-322, as well as the UJIs for self-defense and defense of another tendered by Defendant. SCRA 1986, 14-5181 & -5182. After the jury was instructed, the prosecutor made closing arguments in which he reiterated the elements in the jury instructions for aggravated battery with a deadly weapon, self-defense and defense of anuther. Defendant’s trial counsel did not object to these arguments or the instructions on which they were premised.
4. The jury found Defendant guilty of aggravated battery with a deadly weapon on May 11, 1994. On July 12, 1994, Defendant filed a motion for a new trial based on newly discovered evidence. On February 9, 1995, Defendant’s motion was denied, and the following day the trial court entered its judgment and sentence. Defendant now appeals from the final judgment and sentence.
II. DISCUSSION
5. Although the trial court followed the applicable uniform jury instructions (UJIs) in this ease, Defendant claims that the jury instructions given for aggravated battery with a deadly weapon, self-defense arid defense of another contain the same defects that amounted to reversible and incurable error in State v. Parish, 118 N.M. 39, 42-46, 878 P.2d 988, 991-95 (1994). Specifically, Defendant claims the aggravated battery instruction was erroneous because it failed to include unlawfulness as a necessary element of that crime when an issue of self-defense was properly raised. See id. at 42-44, 878 P.2d at 991-93 (finding similar error in voluntary manslaughter instruction); State v. Johnson, 122 N.M. 696, 703, 930 P.2d 1148, 1155 (1996) (finding similar error in aggravated assault instruction where issue of citizen’s arrest was properly raised). Defendant also claims the instructions given to the jury regarding self-defense and defense of another were erroneous because the jury was not explicitly told that: (1) if it found credible evidence to support Defendant’s claim that the shooting was in self-defense or defense of another, then the burden shifted to the State to refute this claim; and (2) if the State could not refute Defendant’s claim beyond a reasonable doubt, then the jury was required to find Defendant not guilty. See Parish, 118 N.M. at 44, 878 P.2d at 993 (finding same error in self-defense instruction for justifiable homicide); see also NMUJI 1997, 14-5181 & -5182 (instructions for self-defense and defense of another involving nondeadly force revised to accord with Parish).
6.Before addressing the applicability of Parish to the jury instructions in the case at bar, we address three preliminary questions: (1) whether Defendant was required to preserve the jury instruction issues below; (2) whether this Court should apply the ruling in Parish retrospectively; and (3) whether this Court has the authority to modify the applicable UJIs in this cáse.
1. Preservation of Error.
7. Unlike the defendant in Parish, Defendant in the case at bar failed to object to the aggravated battery instruction and, in fact, tendered the instructions on self-defense and defense of another. The claim of error in these instructions was not raised in the docketing statement or calendar notices; it appeared for the first time in Defendant’s Brief-in-Chief. Nonetheless, under our rules of criminal procedure, NMRA 1997, 5-608(A) & (D), and the doctrine of fundamental error, the use of a jury instruction that omits an essential element of the offense can be grounds for reversal even when the omission was caused by the defendant’s own actions. See State v. Osborne, 111 N.M. 654, 661-62, 808 P.2d 624, 631-32 (1991) (reversing a conviction for criminal sexual contact of a minor); State v. Kirby, 122 N.M. 609, 611, 930 P.2d 144, 146 (1996) (reversing a conviction for involuntary manslaughter). The rationale behind this ruling is that “it is the duty of the court, not the defendant, to instruct the jury on the essential elements of a crime.” Osborne, 111 N.M. at 662, 808 P.2d at 632.
8. The State acknowledges the holding in Osborne, but argues that the fundamental error doctrine should not apply in this case because the evidence of Defendant’s guilt is not so doubtful as to “shock the conscience.” We are unconvinced by this argument for three reasons.
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OPINION
ARMIJO, Judge.
1. Defendant appeals his conviction of aggravated battery with a deadly weapon on five grounds: (1) there was fundamental error in the trial court’s jury instruction for aggravated battery with a deadly weapon because this instruction failed to include an essential element of the offense; (2) there was fundamental error in the trial court’s jury instructions for self-defense and defense of another because these instructions did not clearly place the burden of proof on the State; (3) the failure of Defendant’s trial counsel to tender a jury instruction on the less serious offense of negligent use of a deadly weapon amounted to ineffective assistance of counsel; (4) the prosecutor’s misconduct during closing arguments denied Defendant a fair trial; and (5) the trial court abused its discretion by denying Defendant’s motion for a new trial based on newly discovered evidence. We reverse and remand for a new trial because there was fundamental error in the jury instructions. Because we reverse and remand on issues (1) and (2) relating to instructional error, we do not address the remaining issues raised.
I. BACKGROUND
2. Defendant was tried and convicted of aggravated battery with a deadly weapon. His conviction arose from a late-night confrontation outside the Cadillacs and Wranglers bar in Hobbs, New Mexico, on August 29,1993. Defendant presented evidence that the confrontation arose because a group of people, including the victim, Joe Leal, had chased Defendant and his brother and tried to pick a fight with them. Defendant described Leal’s group as consisting of fifteen to twenty people. Defendant further testified that he heard one of the men in Leal’s group say “go get your gun” and then saw that man hand some car keys to Leal. After Leal walked over to a white car, went inside it and then reemerged, Defendant feared that Leal had retrieved a gun. Panicking because of this fear, Defendant testified that he grabbed his brother’s shotgun and fired one “warning shot” toward the ground to protect himself and his brother. A sheriffs department investigator determined that the shot fired by Defendant travelled level and low to the ground before hitting the white car. Leal was next to the white car and was hit on the arm and neck by birdshot that ricocheted off the car.
3. Defendant was arrested and charged with aggravated battery with a deadly weapon and criminal damage to property. At the close of evidence, the trial court entered a directed verdict of not guilty on the criminal damage to property charge. With regard to the aggravated battery charge, the trial court found that there was sufficient evidence to support a jury instruction on self-defense and defense of another. The trial court gave the jury the uniform jury instruction (UJI) for aggravated battery with a deadly weapon tendered by the prosecutor, SCRA 1986, 14-322, as well as the UJIs for self-defense and defense of another tendered by Defendant. SCRA 1986, 14-5181 & -5182. After the jury was instructed, the prosecutor made closing arguments in which he reiterated the elements in the jury instructions for aggravated battery with a deadly weapon, self-defense and defense of anuther. Defendant’s trial counsel did not object to these arguments or the instructions on which they were premised.
4. The jury found Defendant guilty of aggravated battery with a deadly weapon on May 11, 1994. On July 12, 1994, Defendant filed a motion for a new trial based on newly discovered evidence. On February 9, 1995, Defendant’s motion was denied, and the following day the trial court entered its judgment and sentence. Defendant now appeals from the final judgment and sentence.
II. DISCUSSION
5. Although the trial court followed the applicable uniform jury instructions (UJIs) in this ease, Defendant claims that the jury instructions given for aggravated battery with a deadly weapon, self-defense arid defense of another contain the same defects that amounted to reversible and incurable error in State v. Parish, 118 N.M. 39, 42-46, 878 P.2d 988, 991-95 (1994). Specifically, Defendant claims the aggravated battery instruction was erroneous because it failed to include unlawfulness as a necessary element of that crime when an issue of self-defense was properly raised. See id. at 42-44, 878 P.2d at 991-93 (finding similar error in voluntary manslaughter instruction); State v. Johnson, 122 N.M. 696, 703, 930 P.2d 1148, 1155 (1996) (finding similar error in aggravated assault instruction where issue of citizen’s arrest was properly raised). Defendant also claims the instructions given to the jury regarding self-defense and defense of another were erroneous because the jury was not explicitly told that: (1) if it found credible evidence to support Defendant’s claim that the shooting was in self-defense or defense of another, then the burden shifted to the State to refute this claim; and (2) if the State could not refute Defendant’s claim beyond a reasonable doubt, then the jury was required to find Defendant not guilty. See Parish, 118 N.M. at 44, 878 P.2d at 993 (finding same error in self-defense instruction for justifiable homicide); see also NMUJI 1997, 14-5181 & -5182 (instructions for self-defense and defense of another involving nondeadly force revised to accord with Parish).
6.Before addressing the applicability of Parish to the jury instructions in the case at bar, we address three preliminary questions: (1) whether Defendant was required to preserve the jury instruction issues below; (2) whether this Court should apply the ruling in Parish retrospectively; and (3) whether this Court has the authority to modify the applicable UJIs in this cáse.
1. Preservation of Error.
7. Unlike the defendant in Parish, Defendant in the case at bar failed to object to the aggravated battery instruction and, in fact, tendered the instructions on self-defense and defense of another. The claim of error in these instructions was not raised in the docketing statement or calendar notices; it appeared for the first time in Defendant’s Brief-in-Chief. Nonetheless, under our rules of criminal procedure, NMRA 1997, 5-608(A) & (D), and the doctrine of fundamental error, the use of a jury instruction that omits an essential element of the offense can be grounds for reversal even when the omission was caused by the defendant’s own actions. See State v. Osborne, 111 N.M. 654, 661-62, 808 P.2d 624, 631-32 (1991) (reversing a conviction for criminal sexual contact of a minor); State v. Kirby, 122 N.M. 609, 611, 930 P.2d 144, 146 (1996) (reversing a conviction for involuntary manslaughter). The rationale behind this ruling is that “it is the duty of the court, not the defendant, to instruct the jury on the essential elements of a crime.” Osborne, 111 N.M. at 662, 808 P.2d at 632.
8. The State acknowledges the holding in Osborne, but argues that the fundamental error doctrine should not apply in this case because the evidence of Defendant’s guilt is not so doubtful as to “shock the conscience.” We are unconvinced by this argument for three reasons. First, in determining whether Defendant is required to preserve his • claim of error, the Court need not reach the fundamental error doctrine because this issue “may be resolved simply by resort to our Rules of Criminal Procedure.” Id. at 661, 808 P.2d at 631 (citing Rule 5-608). Second, while it is true that Defendant abandoned the claim that his conviction was not supported by substantial evidence, the presence of such substantial evidence alone does not render the error harmless. See State v. Hennessy, 114 N.M. 283, 289, 837 P.2d 1366, 1372 (Ct.App.1992), overruled in part on other grounds by State v. Lucero, 116 N.M. 450, 453-54, 863 P.2d 1071, 1074-75 (1993). Given that there also was sufficient evidence to instruct the jury on self-defense and defense of another, we do not regard the error in the jury instructions as harmless or “peripheral.” Moreover, because of the emphasis that the prosecutor placed on the jury instructions in his closing argument, there is a reasonable probability that the omission of an essential element in these instructions may have significantly affected the jury’s deliberations. Cf. Hennessy, 114 N.M. at 289, 837 P.2d at 1372. Finally, because “the orderly and equitable administration of justice requires that we correct any such error notwithstanding the defendant’s responsibility for or complicity in the error,” the Court would fail to do “substantial justice” if it allowed Defendant’s conviction for aggravated battery to stand on a jury instruction that omitted the essential element of unlawfulness where self-defense and defense of another were at issue. Osborne, 111 N.M. at 662-63, 808 P.2d at 632-33. For these reasons, we address the claimed error in the jury instruction for aggravated battery with a deadly weapon notwithstanding Defendant’s failure to object to this instruction at trial.
9. If there was not a related error in the aggravated battery instruction, the ambiguous instructions regarding the State’s burden of proof in refuting Defendant’s claims of self-defense and defense of another might not be as grave an error. Cf. State v. Kendall, 90 N.M. 236, 243, 561 P.2d 935, 942 (Ct.App.) (failure to instruct jury on burden of proof required to sustain sentencing enhancement for use of a firearm is not fundamental error), rev’d on other grounds, 90 N.M. 191, 561 P.2d 464 (1977). However, because “ ‘instructions must be considered as a whole, and not singly,’ ” Parish, 118 N.M. at 41, 878 P.2d at 990 (quoting State v. Crosby, 26 N.M. 318, 191 P. 1079 (1920)), our concern about fundamental error in the aggravated battery instruction leads us to review the related instructions for self-defense and defense of another as well.
2. Retrospective Application of Parish.
10. The State points out that the jury instructions in the case at bar were given two months before Parish was decided and argues that Parish should not apply retrospectively. Our Supreme Court recently addressed a similar question in Kirby, 122 N.M. at 610-11, 930 P.2d at 145-46, where the Court held that its ruling on an essential-elements instruction in State v. Yarborough, 122 N.M. 596, 930 P.2d 131 (1996), applied to a subsequent case in which a defendant was tried, convicted, and sentenced prior to the filing of the Court of Appeals’ memorandum opinion in Yarborough, notwithstanding the fact that the defendant in Kirby had failed to raise or preserve the issue at the trial court level. In ruling that Yarborough applied to the jury instructions at issue in Kirby, the Court rejected the State’s characterization of this application as retrospective, noting that cases are not final until there has been a judgment of conviction, sentence, and exhaustion of rights of appeal. Kirby, 122 N.M. at 610-11, 930 P.2d at 145-46 (citing State v. Rogers, 93 N.M. 519, 521, 602 P.2d 616, 618 (1979)); see also Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987) (stating the general principle that new rulings apply to all criminal cases pending on direct appeal at the time the new ruling is issued).
11. The Court’s reasoning in State v. Orosco, 113 N.M. 780, 786, 833 P.2d 1146, 1152 (1992), suggests the same conclusion. Our Supreme Court reasoned that, even though the trial court in State v. Trevino, 113 N.M. 804, 833 P.2d 1170 (Ct.App.1991), followed its duty to use the applicable UJI in a trial that occurred before the Court’s ruling in Osborne, 111 N.M. at 662-63, 808 P.2d at 632-33, rendered that UJI invalid for failure to include an essential element, “[tjhis does not excuse omission of the element; reversal would be required if a defendant had been found guilty under an instruction which did not include an essential element of the crime and that element were in issue.” Orosco, 113 N.M. at 786, 833 P.2d at 1152.
12. The jury instructions in the case at bar were given approximately two months before Parish was decided, but Parish was decided approximately six months before the trial court entered its final judgment and Defendant filed a direct appeal. We hold that under these circumstances, our Supreme Court’s ruling in Parish applies to the case at bar.
3. Authority to Modify UJIs.
13. The trial court in this case was required to use the applicable UJIs for aggravated battery with a deadly weapon, self-defense and defense of another. See SCRA 1986, General Use Note for Criminal UJIs, Judicial Pamp. 14, at 3 (“[WJhen a uniform instruction is provided for the elements of a crime, a defense or a general explanatory instruction on evidence or trial procedure, the uniform instruction must be used without substantive modification or substitution.”). The trial court carefully followed this requirement, and the New Mexico Supreme Court has recognized the irony of reversing a conviction because a trial court used UJIs that the higher court itself had approved. Parish, 118 N.M. at 47, 878 P.2d at 996.
14. Nonetheless, the adoption of a UJI “does not preclude this Court from insuring that the rights of individuals are protected^]” and this Court is free to amend, modify or abolish UJIs that have not been specifically addressed by the Supreme Court on appeal. Id. (citing State v. Wilson, 116 N.M. 793, 867 P.2d 1175 (1994)); see also State v. Rosaire, 123 N.M. 250, 252, 939 P.2d 597, 599 (N.M.Ct.App.1996), cert. granted, 122 N.M. 578, 929 P.2d 269 (1996). We find that the New Mexico Supreme Court has not specifically addressed Defendant’s claim of error in the UJI for aggravated battery with a deadly weapon, SCRA 14-322. Cf. NMUJI 1997, 14-322 (instruction remains the same in 1997). But cf. NMUJI 14-5181 & -5182, Use Note 1 (when self-defense or defense of another is at issue, add to essential elements instructions for the offense charged, “The defendant did not act in self defense” or “The defendant did not act in defense of_”). Hence, we can consider these claims even if there is no departure from the applicable UJI.
15. The same conclusion does not follow for the UJIs regarding self-defense justifying nondeadly force, SCRA 14-5181, or defense of another justifying nondeadly force, SCRA 14-5182. Although our Supreme Court did not directly address these instructions in Parish, the UJIs for self-defense justifying nondeadly force and defense of another have been revised to accord with Parish, and our Supreme Court has approved those revisions. See NMUJI 1997, 14-5181 & -5182. Hence, while we are free to depart from the old UJIs contained at SCRA 14-5181 and -5182, we are bound to follow the language regarding the burden of proof contained in NMUJI 1997, 14-5181 and -5182, because this language is the same as that required by our Supreme Court in Parish, 118 N.M. at 44, 878 P.2d at 993.
4. Merits of Defendant’s Jury Instruction Claims.
16. The Parish Court found reversible error in both the UJI for voluntary manslaughter, SCRA 1986, 14-220, and the UJI for self-defense justifying a homicide, SCRA 1986, 14-5171. The voluntary manslaughter instruction was erroneous because it failed to include unlawfulness as a necessary element of that crime when an issue of self-defense was properly raised. Parish, 118 N.M. at 44, 878 P.2d at 993. This error was not cured by giving a separate instruction for self-defense. Id. Indeed, the instruction given for self-defense justifying a homicide also was erroneous because “[t]he jury was not explicitly told that if it found credible evidence to support Parish’s claim that the killing was in self-defense, the burden shifted to the State to refute this claim [and] if the State could not refute self-defense beyond a reasonable doubt, [the jury] was required to find Parish not guilty.” Id.
17. More recently, the Court found reversible error in an essential-elements instruction for aggravated assault with a deadly weapon because that instruction did not include the requirement that the State prove beyond a reasonable doubt that the defendant was not attempting to make a citizen’s arrest. Johnson, 122 N.M. at 703, 930 P.2d at 1155 (citing Parish, 118 N.M. at 44-45, 878 P.2d at 993-94). The Court construed the defendant’s claim that an assault was justified because of his right to make a citizen’s arrest as a challenge to the essential element of unlawfulness, thus necessitating an instruction on this essential element. Id.
18. The same defects are present in the jury instructions given in the case at bar. First, “unlawfulness” is an element of aggravated battery with a deadly weapon, see NMSA 1978, § 30-3-5 (Repl.Pamp.1994), yet the jury instruction upon which Defendant’s conviction was premised did not include as an essential element a finding that Defendant’s act was unlawful. Because unlawfulness also is an essential element of the crime of aggravated battery when an issue of self-defense is properly raised, the jury instruction for aggravated battery used in the case at bar was erroneous under the reasoning adopted in Parish and Johnson. Because this error in the essential-elements instruction was clear and unambiguous, it could not be cured by the presence of separate instructions for self-defense and defense of another. See Parish, 118 N.M. at 44, 878 P.2d at 993 (where omission of essential element from voluntary manslaughter instruction was not ambiguous, this error could not be cured by separate instruction on self-defense).
19. There are two recognized exceptions to the rule requiring the trial court to instruct the jury on the essential element of unlawfulness. The first exception applies to an essential-elements instruction containing language that is obviously synonymous with the element of unlawfulness, such as where the instruction uses the words, “did not act in defense of himself or others,” in place of the words “acted unlawfully.” See State v. Loera, 122 N.M. 641, 645, 930 P.2d 176, 180 (1996); NMUJI 1997, 14-5181 & - 5182 Use Note 1. The second exception is “where an element omitted from the instructions was not factually in issue.” Orosco, 113 N.M. at 783, 833 P.2d at 1149.
20. Neither of these exceptions applies to Defendant’s case. The jury instruction regarding aggravated battery did not contain any language that could be construed as synonymous with the element of unlawfulness. Moreover, the trial court specifically found that there was sufficient evidence to support the jury instructions on self-defense and defense of another after considering the State’s objections. The issue of the sufficiency of the evidence supporting the defense instructions was not raised by the State on appeal. Hence, self-defense and defense of another were at issue in Defendant’s trial, and the jury should have been instructed regarding the element of unlawfulness needed to sustain a conviction for aggravated battery with a deadly weapon. We disagree with the dissent’s characterization of the defenses of self-defense and defense of another, under the facts of this case, as “side issues.”
21. A second, related error appears in the last sentences of the jury instructions for self-defense and defense of another used in the case at bar. These sentences contain language that is identical to the language that was found to be ambiguous in Parish. The allocation of proof regarding the issues of self-defense and defense of another is the same in both justifiable homicide and nondeadly force cases. Compare Parish, 118 N.M. at 44-45, 878 P.2d at 993-94 (in justifiable homicide case, defendant does not have burden of proving that killing was exercise of right of self-defense; burden of proof is on state) with SCRA 14-5181 committee commentary (if defendant produces evidence of self-defense which raises a reasonable doubt in minds of jurors, then burden is on state to prove beyond a reasonable doubt that assault or battery was not justifiable) and SCRA 14-5182 (1981 amendments made defense of another instruction consistent with self-defense instructions); see also NMUJI 1997, 14-5181 & -5182 (instructions for self-defense justifying nondeadly force and defense of others justifying nondeadly force revised to accord with Parish). In this case, as in Parish, 118 N.M. at 45-46, 878 P.2d at 994-95, the ambiguity was not cured by another instruction. Hence, the jury instructions for self-defense and defense of another used in the case at bar are erroneous under Parish.
III. CONCLUSION
22. For the foregoing reasons, we reverse and remand for a new trial at which the jury instructions for aggravated battery with a deadly weapon, self-defense and defense of another must be corrected to accord with our Supreme Court’s instructions in Parish and NMUJI 1997, 1445181 and -5182.
23. IT IS SO ORDERED.
WECHSLER, J., concurs. HARTZ, C.J., dissents.