¶29 (dissenting) — I agree with much of what the majority says about the right of a criminal defendant to control his or her defense. However, I disagree with the majority’s discussion and resolution of harmless error. Although Justice González’s dissent correctly concludes that the error is harmless, I am reluctant to adopt a framework for harmless error for which neither of the parties advocates. Thus, I write separately to affirm.
Discussion
¶30 As Justice González’s dissent correctly notes, we follow the United States Supreme Court’s precedent in *384reviewing federal constitutional error in criminal trials. Dissent (González, J.) at 390. Applying that precedent, it is clear that “most constitutional errors can be harmless.” Arizona v. Fulminante, 499 U.S. 279, 306, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991). There is a very limited class of cases — cases involving structural error — in which a harmless error analysis is inappropriate. See Neder v. United States, 527 U.S. 1, 7-8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (collecting cases involving structural error). The error in this case does not fit within this small class of cases. Rather, as the majority correctly notes, the error here, in the broadest sense, is a violation of Brandon Coristine’s right to control his defense. See generally State v. Jones, 99 Wn.2d 735, 664 P.2d 1216 (1983). More specifically, however, the error was giving an affirmative defense jury instruction over Coristine’s objection. It is the effect of that error that we must evaluate.
¶31 In Jones, this court held that interposing a plea of not guilty by reason of insanity over the defendant’s objection violated the defendant’s right “to plead guilty and/or control his own defense.” Id. at 740. In deciding whether the defendant was entitled to a new trial, the court reviewed the evidence and the defense theories that were argued. The court first observed that the most “obvious” prejudice to the defendant was that “the jury was faced with two defense attorneys arguing conflicting defense theories.” Id. at 748.3 The court went on to review all of the evidence that would have been excluded had the insanity plea not been entered and the jury not been instructed on the defense, including the testimony of the defense psychiatrist. Although the Jones court was unclear regarding its harmless error test, it concluded that “[i]n light of these evidentiary consider*385ations, it is impossible for us to conclude that Mr. Jones was not prejudiced by the trial court’s error.” Id. at 750.
¶32 Since Jones was decided, this court has clarified that in the case of constitutional error, “we must ‘conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error.’ ” State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002) (quoting Neder, 527 U.S. at 19). Applying this test, I would hold the error in this case was harmless.4
¶33 Considering the nature of the error, the first question is whether, by instructing the jury on the affirmative defense, the defendant was saddled with inconsistent defenses. The answer is no. Coristine was charged with second degree rape under RCW 9A.44.050(l)(b). In order to convict Coristine under that statute, the State was required to prove that Coristine engaged in sexual intercourse with another person who was incapable of consent by reason of being mentally incapacitated or physically helpless. Coristine’s theory of defense was that the complaining witness consented to sex and that she was competent to consent. Coristine intended to make the State prove its case by proving incompetency to consent. The “to convict instruction” did exactly that, and nothing about the affirmative defense instruction contradicted that defense theory. Indeed, Coristine’s evidence, if believed, proved both that the complaining witness was competent to consent and that Coristine reasonably believed she was competent.
¶34 Coristine also complains that by instructing the jury on the “reasonable belief” affirmative defense, the trial court shifted the burden of proof to the defense. However, the State was required to prove mental incapability before the jury could even consider the affirmative defense in*386struction to which Coristine objected. As the Court of Appeals recently said in State v. Powell, 150 Wn. App. 139, 157 n.12, 206 P.3d 703 (2009), “[t]his affirmative defense was relevant only once the State proved the elements of the offense. Thus, a ‘reasonable belief’ instruction would not have shifted the initial burden of proof” to the defendant. Even without the instruction, the jury could have believed the victim’s testimony and found Coristine guilty.
¶35 Finally, in Jones, the court also considered whether any evidence was admitted that would otherwise have been omitted absent the error. Unlike in Jones, where the trial court entered a plea of not guilty by reason of insanity, appointed a second attorney to argue insanity, and permitted psychiatric testimony during the trial, the trial court here did not give the offending instruction until after the parties had rested and Coristine points to no evidence that was improperly admitted due to the court’s error.5
¶36 Using the test adopted by this court, I would hold that the error was harmless and that the conviction must be affirmed.
The trial court appointed amicus counsel to argue the insanity defense. “While one attorney was arguing that the defendant was acting as ‘a reasonable and ordinarily cautious and prudent person’ (Clerk’s Papers, at 22 (self-defense instruction)), the other was arguing that he was acting under the influence of paranoid delusions.” Jones, 99 Wn.2d at 748.
The majority criticizes my reliance on Jones for the factors to consider in making a harmless error determination. Majority at 382 n.2. However, Jones is the only case from this court that has recognized a constitutional right of a defendant to control his or her defense or to apply a harmless error analysis to the violation of this right. Thus, a comparison with Jones is very instructive.
The majority criticizes my harmless error analysis but offers scant analysis of its own. Boiled down, the majority reverses this conviction because it says the affirmative defense instruction “risked confusion” by “interfering” with Coristine’s “sole” defense that L.F. was not incapacitated. Majority at 381. Yet, the majority does not argue that the instruction shifted the State’s burden to prove L.F.’s incapacity or explain why the jury would even reach the affirmative defense instruction unless it had determined that the State had met its burden to show L.F. was incapacitated. The only other point upon which the majority relies — that the case involved the credibility of a handful of witnesses — is left completely unexplained.