(dissenting) — The majority opinion represents an unwarranted departure from prior precedent, holding an instruction which relieves the State of its burden to prove every essential element of an offense may be subject to harmless error analysis and is not reversible error per se. This holding contradicts ample precedent. See, e.g., State v. Smith, 131 Wn.2d 258, 265, 930 P.2d 917 (1997) (“failure to instruct on an element of an offense is automatic *345reversible error”); State v. Eastmond, 129 Wn.2d 497, 502, 919 P.2d 577 (1996) (“By omitting an element of the crime of assault, the trial court here committed an error of constitutional magnitude.”); State v. Byrd, 125 Wn.2d 707, 713-14, 887 P.2d 396 (1995) (“The State must prove every essential element of a crime beyond a reasonable doubt for a conviction to be upheld. It is reversible error to instruct the jury in a manner that would relieve the State of this burden.” (citations omitted)); State v. Pope, 100 Wn. App. 624, 630, 999 P.2d 51 (“A harmless error analysis is never applicable to the omission of an essential element of the crime in the ‘to convict’ instruction. Reversal is required.”), review denied, 141 Wn.2d 1018 (2000).
We recently affirmed, “when assessing the impact of an instructional error, reversal is automatic unless the error ‘ “is trivial, or formal, or merely academic, and was not prejudicial to the substantial rights of the party assigning it, and in no way affected the final outcome of the case.” ’ ” State v. Townsend, 142 Wn.2d 838, 848, 15 P.3d 145 (2001) (emphasis added) (quoting State v. Golladay, 78 Wn.2d 121, 139, 470 P.2d 191 (1970), overruled on other grounds by State v. Arndt, 87 Wn.2d 374, 553 P.2d 1328 (1976) (quoting State v. Britton, 27 Wn.2d 336, 341, 178 P.2d 341 (1947))). But here the majority does not claim the instructional error in the consolidated cases to be “trivial, or formal, or merely academic,. . . and in no way affect [ing] the final outcome of the case[s].” Britton, 27 Wn.2d at 341. Yet it still refuses to reverse Brown’s convictions for the robbery of Lester Brown and robbery and assault of Jelani Tackett, as well as Baker’s convictions for kidnapping, burglary, and robbery. Majority at 342, 343.
The majority rests this result on the false premise that “not every omission or misstatement in a jury instruction relieves the State of its burden” to prove every element of the crime charged. Majority at 339-40. This claim, used to legitimize the majority’s application of a harmless error analysis, is not only a startling departure from prior precedent, see supra at 344, but is also unsupported by the very *346authority on which the majority relies to justify its approach. See majority at 340 (citing State v. Cronin, 142 Wn.2d 568, 14 P.3d 752 (2000); State v. Bui, 142 Wn.2d 568, 14 P.3d 752 (2000), consolidated on review with Cronin; State v. Stein, 144 Wn.2d 236, 27 P.3d 184 (2001); Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999).
In Cronin, Bui, and Stein this court acknowledged and applied the rule of automatic reversal for failure to instruct on every element of the offense charged. Cronin, 142 Wn.2d at 581 (Cronin), 582 (Bui); Stein, 144 Wn.2d at 247-48. We did not engage in a quantitative evaluation of the untainted evidence.3 Id. Cronin and Bui are particularly germane because they involved the same instructional error of which the defendants in the current cases now complain. Cronin, at 570; majority at 338.
Cronin was convicted of premeditated first degree murder as an accomplice. Cronin, 142 Wn.2d at 577. At trial the jury was erroneously instructed it could find Cronin guilty as an accomplice to first degree murder so long as he was an accomplice to “ ‘a crime’ ” (as opposed to “ ‘the crime’ ”) committed by his confederate. Id. at 579. The State argued even if the instruction was erroneous, it was harmless. Id. We disagreed:
“ ‘[t]he State must prove every essential element of a crime beyond a reasonable doubt for a conviction to be upheld. It is reversible error to instruct the jury in a manner that would relieve the State of this burden.’ ”
Id. at 580 (quoting State v. Jackson, 137 Wn.2d 712, 727, 976 P.2d 1229 (1999) (quoting Byrd, 125 Wn.2d at 713-14)). We observed, “to convict Cronin as an accomplice to pre*347meditated murder, the State had to prove beyond a reasonable doubt that Cronin had general knowledge that he was aiding in the commission of the crime of murder.” Id. at 581-82 (citing State v. Rice, 102 Wn.2d 120, 125, 683 P.2d 199 (1984); State v. Davis, 101 Wn.2d 654, 682 P.2d 883 (1984)). Because the accomplice instruction given permitted the jury “to convict Cronin of premeditated murder merely if it found that he knew he promoted or facilitated ‘the commission of a crime,’ ’’ the error effectively “relieved the State of the burden of having to prove beyond a reasonable doubt that Cronin knew he was facilitating the crime of murder, [and thus] the instructional error cannot be deemed harmless.” Cronin, 142 Wn.2d at 582.
Likewise in Bui we held an instructional error required automatic reversal. 142 Wn.2d at 581. Bui was convicted on three counts of first degree assault on the basis of accomplice liability. Id. at 573. Again, the accomplice instruction referred to “a crime” rather than “the crime.” Id. at 572. We found “the jury instruction may have allowed the State to secure a conviction without having to prove beyond a reasonable doubt that Bui knew he was facilitating the commission of the crime of assault. Alleviating the State of this burden cannot be said to be error that is harmless.” Id. at 581.
Finally, Stein is particularly instructive because we not only required an automatic reversal for an instructional error, we also refused to consider whether there was substantial evidence to support an alternative theory of liability on which the jury also had been instructed. Stein, 144 Wn.2d at 247. Stein reversed a conviction because the jury had been instructed it could convict the defendant on either a theory of conspiracy under the Pinkerton [Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 2d 1489 (1946)] doctrine or accomplice liability. Id. at 248. We rejected the Pinkerton doctrine as incompatible with Washington law on complicity.4 Stein, 144 Wn.2d at 238. Thus, *348we held it was error to submit the instruction based on the Pinkerton doctrine because the latter improperly relieved the state of its burden to prove the defendant knew his actions would promote or facilitate the commission of the crime committed by his coconspirators. Id. at 245.
We specifically rejected the State’s argument that the error in the conspiracy instructions was harmless where it arose as one of two theories of liability and the alternative theory was supported by substantial evidence, id. at 246, stating:
When a defendant is convicted under alternative theories, one acceptable and the other based on an erroneous instruction, this court has not been willing to substitute its judgment for that of the jury by inferring that the verdict was reached under the correct instruction. State v. MacMaster, 113 Wn.2d 226, 234, 778 P.2d 1037 (1989) (reversing and remanding when the jury convicted the defendant of vehicular homicide under alternative theories, one of which did not require alcohol intoxication to be the proximate cause). See also State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980) (reversing and remanding where the defendant was convicted of aggravated first degree murder under alternative theories of rape or kidnapping and there was insufficient evidence to support the kidnapping charge).
Id. at 247 (emphasis added).
Here the State tried the defendants under alternative theories as principals or accomplices in the charged crimes.5 The instruction the State submitted on the latter *349theory was legally deficient because it relieved the State of its burden to prove one of the essential elements of the charged crimes. See majority at 338-39 (state not required to prove defendant acted with knowledge that his or her actions will promote the charged crime).
Cronin, Bui, and Stein dictate the path we must follow. When an instructional error relieves the State of its burden to prove every element of the offense charged beyond a reasonable doubt, the error requires a new trial. Cronin, 142 Wn.2d at 582; Stein, 144 Wn.2d at 248. Reversal is required in spite of other evidence against the defendants, when as here, one of the theories on which the state tried its case was legally deficient because we cannot presume “the verdict was reached under the correct instruction.” Stein, 144 Wn.2d at 247.
However even if an erroneous accomplice liability instruction were subject to harmless error analysis, our majority departs from binding Washington precedent which precludes harmless error analysis where, as here, the jury may have reached its verdict on an erroneous theory of *350liability. See supra at 347-49. The majority claims Brown acted as a principal in the crimes of first degree robbery and first degree assault of Jelani Tackett and first degree robbery of Lewis Brown, and Baker acted as a principal in the crimes of first degree burglary, first degree robbery, and first degree kidnapping. Majority at 341, 342, 343. It concludes reversal is not required as to those convictions because the instruction on accomplice liability had no effect. Id. at 342, 343. It justifies its departure by citation to Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999). Majority at 340.
In Neder the defendant was charged with violating a number of federal criminal statutes penalizing fraud. Neder, 527 U.S. at 4. When the district court instructed the jury with respect to those charges involving tax fraud, it erroneously omitted the element of materiality. Id. The issue was submitted to the trial judge, outside the presence of the jury, who concluded on the evidence the element was met. Id. at 6. Neder was convicted and appealed. The Court of Appeals affirmed. Id. at 6-7. Neder again appealed and the Supreme Court granted certiorari to determine “whether, and under what circumstances, the omission of an element from the judge’s charge to the jury can be harmless error.” Id. at 7.
The Supreme Court observed while the harmless error test applies to most errors there are “a limited class of fundamental constitutional errors that ‘defy analysis by “harmless error” standards.’ ” Neder, 527 U.S. at 7 (quoting Arizona v. Fulminante, 499 U.S. 279, 309, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991)). However, in that case the Court concluded, “an instruction that omits an element of the *351offense” is subject to harmless error analysis because it “does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Neder, 527 U.S. at 9. Finding the evidence the government submitted to the trial judge against Neder was overwhelming and uncontroverted, it concluded the error was harmless beyond a reasonable doubt, stating:
In a case such as this one, where a defendant did not, and apparently could not, bring forth facts contesting the omitted element, answering the question whether the jury verdict would have been the same absent the error does not fundamentally undermine the purposes of the jury trial guarantee.
Id. at 19.
Our majority’s reliance on Neder is misplaced. First, the defendant in Neder was convicted in federal court for committing federal crimes (mail and wire fraud) and was therefore subject to the federal harmless error rule. Neder, 527 U.S. at 7. Brown and Baker have been convicted of committing crimes against the State of Washington and our cases have long held an instruction which relieves the state of its burden to prove every element of the offense is not harmless error.6 See, e.g., McClaine v. Territory of Wash., 1 Wash. 345, 355, 25 P. 453 (1890). Moreover, Neder itself concluded the error was harmless only because it was based on overwhelming and uncontroverted evidence, Neder, 527 U.S. at 19, which is not the situation here.
*352Our majority does not claim there is overwhelming and uncontroverted evidence of the omitted element with respect to the convictions it affirms,7 nor can it. The requirement of uncontroverted evidence presumes an opportunity to present evidence to contradict the government’s evidence on a particular issue. The defendant in Neder had such an opportunity but failed to produce contrary evidence. Id. at 6.
However, here Brown and Baker were prosecuted before we published State v. Roberts, 142 Wn.2d 471, 14 P.3d 713 (2000), holding to convict on an accomplice liability theory requires proof that for each of the charged crimes the alleged accomplice had knowledge that his or her actions would promote or facilitate the commission of the charged crime. In their trials the state neither argued nor presented evidence to support this element. See State v. Brown Verbatim Report of Proceedings (VRP) (July 31, 1997) at 30-71 (state’s closing argument); Baker VRP (July 9, 1997) at 38-85 (same). It would be senseless to call the evidence incidentally bearing on this issue “overwhelming and uncontroverted” when the issue was not even before the court and the defendants had neither opportunity nor cause to contest it.
Thus, even under Neder, we cannot conclude beyond a reasonable doubt the jury would have convicted Baker and Brown had the trial court properly instructed it on the law.
For these reasons, the majority’s application of harmless error analysis is improper. I dissent.
*353Alexander, C.J., and Smith, J., concur with Sanders, J.
Reconsideration denied November 26, 2002.
Our majority also appears to be overruling sub silentio State v. Easter, 130 Wn.2d 228, 242, 922 P.2d 1285 (1996), holding the presumption of harm resulting from an error of constitutional magnitude can be overcome only if the court is “convinced beyond a reasonable doubt any reasonable jury would reach the same result absent the error, and where the untainted evidence is so overwhelming it necessarily leads to a finding of guilt.” (Emphasis added.) (Citations omitted.) Here our majority abandons the first prong of the harmless error test, focusing exclusively on the evidence in the record that could sustain a guilty verdict. See majority at 341-43.
Under the Pinkerton doctrine a defendant is responsible for reasonably foreseeable acts committed by coconspirators. State v. Stein, 144 Wn.2d 236, 243, *34827 P.3d 184 (2001). In Washington conspiracy is predicated on accomplice liability. Id. at 248. “Knowledge of the particular crime committed is an essential element of accomplice liability.” Id. Because the Pinkerton doctrine allows for a conviction based on the foreseeability of the crimes, rather than knowledge of the particular crime charged, “the Pinkerton doctrine is inapplicable to Washington law.” Id.
We have previously held accomplice liability does not constitute an alternative means of committing a crime because anyone who participates in the commission of a crime is guilty of the crime and should be charged as a principal. State v. McDonald, 138 Wn.2d 680, 687-88, 981 P.2d 443 (1999). However, it is indisputable that accomplice liability is an alternative theory of liability requiring a jury to reach different findings than it would if it were determining liability as a principal. ROW 9A.08.020(3) (defining elements of accomplice liability); see also State v. Jackson, 137 Wn.2d 712, 727, 976 P.2d 1229 (1999) (granting automatic reversal where the trial court improperly instructed the jury on accomplice *349liability, reasoning “we do not know . .. for certain [whether the jury found one or both of the defendants guilty as a principal] because the special interrogatory forms that were used by the jury in rendering its verdict do not indicate whether the jury found the defendant guilty as a principal or as an accomplice.”).
The petitioner in McDonald claimed the trial court erred in instructing the jury it could convict him as a principal or an accomplice, when allegedly there was not substantial evidence he acted as a principal. McDonald, 138 Wn.2d at 687-88. We held even if there were not substantial evidence the petitioner acted as a principal, there was no error because “principal and accomplice liability are not alternative means of committing a single offense.” Id. at 687. McDonald is distinguishable from the current cases, however, because McDonald admitted to participating in the charged crime. Id. at 685. Here the defendants did not admit to any participation in the charged crimes; yet the jury instructions allowed the jury to convict the defendants on an erroneous theory of accomplice liability. Because we cannot know whether the jury convicted them as principals or under a legally deficient accomplice liability theory, reversal is required. Stein, 144 Wn.2d at 247; Jackson, 137 Wn.2d at 727.
We would not be the first court to distinguish Neder on this basis. See Johnson v. State, 768 So. 2d 934, 938 (Miss. Ct. App. 2000) (“Additionally, Neder addressed this issue under federal law and the Federal Rule of Criminal Procedure Rule 52 which is not the situation in the case at bar.”), cert. denied, 532 U.S. 930 (2001).
The majority affirms Jacob Brown’s conviction for first degree robbery against Lewis Brown and first degree robbery and first degree assault against Jelani Tackett and Baker’s conviction for first degree robbery, first degree burglary, and first degree kidnapping.