¶48 (dissenting) — An instruction on a lesser included offense is available to either the prosecution or the defense under a two-pronged test articulated in State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). The instruction is available when (1) the lesser included offense consists solely of elements that are necessary to convict on the greater, charged offense (the legal prong) and (2) the evidence presented in the case supports an inference that only the lesser offense was committed to the exclusion of the greater, charged offense (the factual prong). State v. Berlin, 133 Wn.2d 541, 546, 947 P.2d 700 (1997) (citing Workman, 90 Wn.2d at 447-48); State v. Fernandez-Medina, 141 Wn.2d 448, 455, 6 P.3d 1150 (2000) (citing State v. Bowerman, 115 Wn.2d 794, 805, 802 P.2d 116 (1990). The legal prong of the Workman test incorporates the constitutional requirement that a defendant must have notice of the offense of which he or she is charged. Berlin, 133 Wn.2d at 546 (citing State v. Ackles, 8 Wash. 462, 464, 36 P. 597 (1894)). If a defendant is charged with offenses in the alternative, the constitutional requirement of notice is satisfied as long as the legal test is met for one of the charged alternatives. Id.; see also State v. Warden, 133 Wn.2d 559, 562-63, 947 P.2d 708 (1997). I disagree with the majority opinion that from this it follows we can ignore the charged alternative when determining whether there is a *328factual basis to offer the lesser included instruction, and so I respectfully dissent.
¶49 Our lesser included statute, which dates back to 1854, was a codification of a common law rule dating back at least to 16th century English common law. RCW 10.61-.006; Laws op 1854, § 123, at 120; State v. Miller, 841 N.W.2d 583, 586 (Iowa 2014) (quoting State v. Jeffries, 430 N.W.2d 728, 730 (Iowa 1988); Janis L. Ettinger, In Search of a Reasoned Approach to the Lesser Included Offense, 50 Brooklyn L. Rev. 191, 195 (1984)); see also Berlin, 133 Wn.2d at 544 (citing Beck v. Alabama, 447 U.S. 625, 633, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980)). The common law rule originally developed “as an aid to the prosecution when the evidence introduced at trial failed to establish an element of the crime charged.” Berlin, 133 Wn.2d at 544 (citing Beck, 447 U.S. at 633); see also Keeble v. United States, 412 U.S. 205, 208, 93 S. Ct. 1993, 36 L. Ed. 2d 844 (1973). The doctrine evolved to play an important role protecting procedural fairness and substantial justice for the accused as well. See, e.g., Berlin, 133 Wn.2d at 544-45. Courts observed that “[w]here one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.” Keeble, 412 U.S. at 212-13 (emphasis omitted). Thus, a defendant must be able to argue an alternative theory of the case that is supported by the evidence to guarantee him or her the full benefit of the reasonable doubt standard. Id.; see also Berlin, 133 Wn.2d at 544-45 (citing Beck, 447 U.S. at 633).
¶50 I would affirm our line of cases where we permitted an instruction only where the evidence presented would permit a rational jury to convict a defendant of the lesser crime and acquit on both charged alternative means of committing a crime. See State v. Ortiz, 119 Wn.2d 294, 314, 831 P.2d 1060 (1992); Bowerman, 115 Wn.2d at 807; Warden, 133 Wn.2d at 564. Workman’s factual prong requires that there is evidence to support an inference that only the *329lesser included offense was committed to the exclusion of the charged offense. Fernandez-Medina, 141 Wn.2d at 455 (citing Bowerman, 115 Wn.2d at 805). Where the State charges the defendant with alternative means of committing an offense, there is simply no factual basis for acquittal on the greater charge and conviction on the lesser if the test is met as to one charged alternative but not the other. Although criminal defendants should be given the benefit of the doubt and all fair inferences should be indulged, “there must be some rational basis for the lesser charge; otherwise it is merely a device for defendant to invoke the mercy-dispensing prerogative of the jury, and that is not by itself a permissible basis to require a lesser-included offense instruction.” United States v. Sinclair, 144 U.S. App. D.C. 13, 444 F.2d 888, 890 (1971) (footnote omitted) (citing Kelly v. United States, 125 U.S. App. D.C. 205, 207, 370 F.2d 227 (1966)); see also Sparf v. United States, 156 U.S. 51, 63-64, 15 S. Ct. 273, 39 L. Ed. 343 (1895). Our lesser included jurisprudence has long emphasized the purpose of offering a lesser included instruction is not to “ ‘invite the jury to find for a lower grade than is made by the evidence.’ ” State v. McPhail, 39 Wash. 199, 205, 81 P. 683 (1905) (quoting State v. Wood, 124 Mo. 412, 27 S.W. 1114, 1114 (1894) and citing State v. Bailey, 31 Wash. 89, 96, 71 P. 715 (1903)). Rather, it is to ensure the defendant receives the full benefit of the reasonable doubt standard where an alternative theory of the case is actually supported by the evidence.
¶51 In Bowerman, 115 Wn.2d at 807, we held it was not error for the trial court to decline first and second degree manslaughter instructions where Bowerman was charged with premeditated murder and, in the alternative, felony murder predicated on burglary. Bowerman brought a diminished capacity defense that went to negate her capacity to premeditate on, and form the intent to bring about, the death of the victim. We found that this evidence, which supported an inference that manslaughter was committed *330rather than premeditated murder, “did nothing, however, to negate Bowerman’s alternative charge of first degree felony murder.” Id. We pointed out that “Bowerman’s testimony establishe [d] that she helped Hutcheson commit first degree burglary” and there was no testimony that Bowerman “could not form the intent to . . . plan the illegal entry.” Id.
¶52 We followed the same principle in Ortiz, 119 Wn.2d 294. Ortiz was charged with premeditated murder and, in the alternative, felony murder predicated on rape. We held an instruction on second degree murder was unsupported by the evidence because “[i]t was unrefuted that a rape was committed” and “the same person must have committed the rape and the murder, as evidenced by the footprints sealed in blood.” Id. at 314. We concluded the instruction was not warranted then because “at the very least, the crime committed was felony murder.” Id.
¶53 In this case, an alternative theory that Condon committed the murder, but that he did so without intending to commit a burglary, is not supported by the evidence. Like in Ortiz, the crime committed was first degree felony murder at the very least. Id. The instructions as they were given to the jury permitted Condon to argue that the State failed to meet its burden of proof as to premeditation, an alternative theory that was supported by the evidence. Instead, Condon simply chose to argue that he did not participate in the events that night. Because the factual prong is not met as to both charged alternatives of first degree murder, the trial court properly denied a lesser included instruction.
¶54 The majority acknowledges there is tension in our case law regarding the application of Workman’s factual test in cases where the State charges intentional murder and felony murder in the alternative. But the majority follows a line of cases where we ignored, for whatever reason, a charged alternative and asked only whether the facts supported an inference that the defendant committed *331the lesser crime to the exclusion of the greater, charged offense relevant under Workman's legal prong. See majority at 322 (citing Berlin, 133 Wn.2d at 551-52; State v. Schaffer, 135 Wn.2d 355, 357, 957 P.2d 214 (1998); State v. Grier, 171 Wn.2d 17, 25, 246 P.3d 1260 (2011)). The only reasons the majority provides for its holding is that Ortiz is older and “the reasoning in Berlin ... is significantly more in-depth” since Berlin “came to this court as a request to overrule [precedent].” Majority at 324. In Berlin we were asked to overrule our holding in State v. Lucky, 128 Wn.2d 727, 912 P.2d 483 (1996), that the legal prong of the Workman test could not be met unless the elements of the lesser crime were included in every statutory alternative of the charged crime, regardless of whether any of the alternatives were actually charged. Berlin, 133 Wn.2d at 547-49. We overruled Lucky and returned to an examination of the legal elements of the crime as actually charged and prosecuted. Id. at 548. There was no controversy in Berlin about how to decide whether there was a factual basis to offer the lesser included instruction, and the “in-depth reasoning” in Berlin does not examine the question before us.
¶55 I also dissent because, even if it was error not to give the lesser included instruction, it was harmless. A nonconstitutional error is harmless “ 'unless, within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected.’ ” State v. Gresham, 173 Wn.2d 405, 425, 269 P.3d 207 (2012) (internal quotation marks omitted) (quoting State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986)).
¶56 I recognize that in State v. Parker, 102 Wn.2d 161, 164, 683 P.2d 189 (1984), we noted we have never held that failure to give a warranted lesser included instruction may be harmless. In Parker, the trial court erroneously declined to give a lesser included instruction and the jury was given an all-or-nothing choice to convict of the charged crime or to acquit. Id. at 166. The nature of the error was such that it undermined confidence that the jury followed the instruc*332tions and gave the defendant the full benefit of the reasonable doubt standard, and so we did not employ the general presumption that the jury followed the court’s instructions. Id. at 164 (quoting State v. Young, 22 Wash. 273, 276-77, 60 P. 650 (1900)). Instead, we declined to speculate on the probable results had the instruction been given. Id. (quoting Young, 22 Wash. at 276-77). But Parker is not controlling because in this case, the jury was not given an all-or-nothing choice. Other Washington courts have found the failure to give a lesser included instruction harmless where the jury was not presented with an all-or-nothing choice, and an omitted instruction would have been necessarily rejected because it is logically inconsistent with the verdicts the jury actually reached. State v. Guilliot, 106 Wn. App. 355, 368-69, 22 P.3d 1266 (2001); State v. Hansen, 46 Wn. App. 292, 296, 730 P.2d 706 (1986). We should follow this analytical approach.
¶57 For example, in State v. Hansen, 46 Wn. App. at 292, the defendant was convicted of first degree kidnapping and rape while armed with a deadly weapon. The jury was instructed on the lesser included crime of second degree kidnapping, but the trial court declined to instruct on the lesser included crime of unlawful imprisonment. Id. at 295-96. The Court of Appeals found it was error for the trial court to refuse the unlawful imprisonment instruction, but found it was harmless because the jury rejected the intermediate offense of second degree kidnapping. Id. at 298. The Hansen court explained:
In the case at bar, the jury was instructed on the intermediate offense of second degree kidnapping. If the jury believed that Hansen was less culpable because of his drug-induced mental disorder, logically it would have returned a conviction on the lesser crime of second degree kidnapping. Second degree kidnapping requires only an intent to abduct. To convict Hansen of first degree kidnapping, the jury had to find he intended to abduct the victim with the intent to facilitate the rape. In our view, the jury’s verdict on the highest offense was *333an implicit rejection of all lesser included offenses that could have been based upon Hansen’s diminished capacity defense.
Id.
¶58 Employing the same logic, the Court of Appeals in Guilliot, 106 Wn. App. at 368-69, found that failing to instruct the jury on first and second degree manslaughter (lesser included crimes of premeditated murder that were warranted) was harmless because the jury was instructed on the intermediate offense of second degree murder. There, Guilliot argued the shooting was accidental. Id. at 369. The appellate court found the jury could have concluded he acted negligently or recklessly by failing to appropriately monitor his blood sugar or not acting with caution when showing the gun, but “[i]f the jury believed Guilliot was less culpable due to accident or hypoglycemia, logically it would have returned a verdict on the lesser offense of second degree murder.” Id.
¶59 The verdicts entered in this case demonstrate the jury would not have convicted Condon of second degree murder had the instruction been given, and thus any error was harmless. In the absence of a reason to conclude otherwise, we presume juries follow the instructions given by courts. State v. Ervin, 158 Wn.2d 746, 756, 147 P.3d 567 (2006) (citing State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001)). The jury was accurately instructed on the elements of premeditated murder, and it entered a guilty verdict without reaching the felony murder alternative. Applying that presumption, it follows that the jury found the State proved premeditation. Even if the jury had rejected premeditation, a verdict on second degree murder to the exclusion of felony murder would have been inconsistent with the jury’s guilty verdict on burglary. That guilty verdict tells us the jury was not in the position of finding Condon guilty of a murder without committing burglary.
¶60 The Court of Appeals erroneously concluded that any error in this case could not be harmless because the *334jury’s attention was not effectively drawn to the difference between intent and premeditation. State v. Condon, noted at 174 Wn. App. 1041, 2013 WL 1628247, at *7-8, 2013 Wash. App. LEXIS 815, at *19. In fact, the jury was instructed on the definitions of “intent” and “premeditation” because both are elements of premeditated murder. RCW 9A.32.030(1)(a). At least one other jurisdiction has found the failure to instruct on a warranted lesser included offense is not harmless where the elements of the charged crime are clearer when they are viewed in contrast with the elements of a lesser included offense. State v. Zolotoff, 354 Or. 711, 719, 320 P.3d 561 (2014). In other words, the error is not harmless where an instruction on a lesser included offense would disclose a legal distinction that is not otherwise patent and would be helpful to the jury in deciding whether the defendant is guilty of the charged offense. For example, in Zolotoff, the defendant was convicted of possession of a weapon by an inmate and the Oregon Supreme Court found that an instruction on the lesser included offense — attempted possession of a weapon — would have illuminated a nuanced distinction that the alleged weapon was not in fact a weapon if it was only partially made into a weapon. Id. at 719-20. Unlike the scenario in Zolotoff, an instruction on second degree murder would not have provided any additional clarity about the distinction between intent and premeditation.
¶61 I would hold Workman’s factual prong must be met as to both charged alternatives and so the lesser included instruction was not warranted. Moreover, even if there was instructional error here, it was harmless. Thus, I respectfully dissent.
Johnson and Fairhurst, JJ, concur with González, J.