(dissenting) — I agree with the majority that the accomplice liability instruction given in this case was erroneous because it allowed the jury to convict Christine Berube and Kory Nielsen as accomplices to the crime of homicide by abuse without proof that each acted with general knowledge that the other intended to commit that crime. Majority at 506. I also agree an instruction which omits or misstates an element of the crime may be harmless if it appears beyond a reasonable doubt that error did not contribute to the ultimate verdict. Id. at 505-06. But I do not agree the majority applied that stringent standard to the case at hand.
The majority concludes that “the record clearly supports a finding that the jury verdict of conviction would be the same absent the error.” Majority at 509. The majority purports to base this claim on “overwhelming evidence that Berube and Nielsen were active participants in the repetitive beatings of Kyle,” “overwhelming evidence to prove that Berube and Nielsen worked together to assault Kyle,” and “overwhelming evidence that there was a pattern or practice of assault.” Majority at 506, 508.
A constitutional error is harmless if the reviewing court “is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error.” State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986). To determine whether a constitutional error is harmless under the overwhelming evidence test, the court “looks only at the untainted evidence to determine if the untainted evidence is so overwhelming that it necessarily leads to a finding of guilt.” Id. at 426; see also State v. Damon, 144 Wn.2d 686, 694, 25 P.3d 418, 33 P.3d 735 (2001). Furthermore as the United States Supreme Court stated in Neder v. United *516States, 527 U.S. 1, 19, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999), “where the defendant contested the omitted element [of a jury instruction] and raised evidence sufficient to support a contrary finding” a reviewing court “should not find the error harmless.”
Despite the majority’s characterization of the evidence of guilt in this case as “overwhelming,” the State’s evidence is not so overwhelming that it necessarily leads to a verdict of guilty. Here the evidence upon which the majority relies to conclude the jury verdict of conviction would be the same absent the erroneous jury instruction was disputed. Both Berube and Nielsen denied abusing Kyle alone or in concert with each other. Nielsen denied ever abusing Kyle, saying only that he “swatted him on the butt a couple of times.” Verbatim Report of Proceedings at 1598. When asked about certain alleged instances of abuse, Nielsen claimed total ignorance. He claimed Kyle died after hitting his head on the living room couch and then hitting his head on the linoleum floor. When directly asked, “[D]id you kill Kyle Th[ei]s?” Nielsen answered, “No, I did not.” Id. at 1694. When asked if he had any “part of the series of assaults and injuries that [Kyle] suffered?” Nielsen answered “No.” Id. at 1696. And he also denied ever witnessing any abuse by Berube and refused to blame her for Kyle’s death.
Although Berube admitted “popping [Kyle] in the mouth, or smacking him on the hands,” she otherwise laid the blame for Kyle’s injuries on Nielsen. Id. at 1927. When asked why she did not “do everything in [her] power to save Kyle’s life,” Berube claimed, “I had no idea his injuries were what has been shown. I had no idea his spine was that way. I had no idea he had a skull fracture. I had no idea he had retinal hemorrhages. I knew he had bruises.” Id. at 1918. The testimony of both Berube and Nielsen contradicts other evidence that they were active participants in the repetitive beatings, worked together to assault Kyle, and engaged in a pattern of abuse.
The evidence presented in this case would permit a properly instructed jury, for example, to rest its verdict on *517(1) Berube’s testimony but not the State’s or Nielsen’s; (2) Nielsen’s testimony but not the State’s or Berube’s; or (3) the State’s evidence but not Berube’s or Nielsen’s. The evidence in this case does not necessarily lead to only one of those competing results. A properly instructed jury could reasonably have found the evidence presented by Berube and/or Nielsen sufficient to conclude that one did not act with general knowledge that the other intended to commit homicide by abuse. As this court recognized so eloquently almost 70 years ago, the trier of fact has “the peculiar advantage of seeing the witnesses, observing their demeanor, weighing their testimony, and considering it in the light of all the evidence.” Ryckman v. Johnson, 190 Wash. 294, 300-01, 67 P.2d 927 (1937). We cannot substitute our judgment for that of the jury’s where the State’s key evidence of guilt was directly disputed and where we have neither seen nor heard the witnesses testify. Even if we were persuaded a properly instructed jury would probably convict, we cannot determine this “beyond a reasonable doubt” from a cold record. Fact finding is outside our province as an appellate court.
The majority also improperly concludes the erroneous accomplice liability instruction could not have affected the verdict because the defendants were charged with only one crime. Majority at 509. This is inconsistent with State v. Bui, one of two cases consolidated in State v. Cronin, 142 Wn.2d 568, 14 P.3d 752 (2000). 142 Wn.2d at 571-72. Bui concerned the use of an accomplice liability instruction identical to that in the current case. Id. at 572. Even though Bui was charged only with first degree assault we recognized the instruction was harmful because it allowed the jury to convict him as an accomplice even if the jury was only convinced he had general knowledge of the lesser crime of harassment. Id. at 580-81.
The instruction is equally harmful in this case. Berube and Nielsen both claimed Kyle hit his head while running around the couch and this might have caused his death. Majority at 507. If the jury believed this testimony, the jury *518could have concluded that Berube and Nielsen abused Kyle but did not actually kill him, and thus were at most only guilty of assault. Yet the accomplice liability instruction would have allowed the jury to convict Berube and Nielsen as accomplices to homicide by abuse even if the State had proved only general knowledge of assault.
For these reasons I dissent.
Alexander, C.J., and Johnson, J., concur with Sanders, J.