dissenting.
I join in the dissent by Newman, J.
I also disagree with the majority’s rejection of defendant’s argument that the trial court erred by refusing to give *730his requested manslaughter instruction. If the underlying question were an open one, my answer might differ from the Supreme Court’s conclusion that a criminal defendant’s request for a lesser included offense instruction may be refused unless there is evidence from which “the jury could rationally and consistently find the defendant guilty of the lesser offense and innocent of the greater.” State v. Washington, 273 Or 829, 836, 543 P2d 1058 (1975). It seems to me to be a strange rule, in a system that requires the state to prove every element of every crime charged beyond a reasonable doubt, that a defendant may have the factfinder consider a lesser included as well as a greater offense only if he can point to evidence that disproves the elements of the greater offense that are not also elements of the lesser one.
The Supreme Court said in State v. Palaia, 289 Or 463, 614 P2d 1120 (1980):
“It is correct that the jury could disregard the uncontradicted evidence [of the greater offense], irrational as such a result might be. However, the trial court has no obligation to assist the jury in reaching an irrational result by instructing them, in effect, that they can disregard the evidence * * 289 Or at 475.
In my view, that statement turns the analysis hindside to. A properly phrased lesser included offense instruction does not tell the jury to disregard evidence of the greater offense, any more than instructions on the presumption of innocence and the state’s burden of proof tell the jury that it must acquit the defendant no matter what the evidence shows. The practical import of the statement in Palaia is that, to protect the jury from making an irrational finding, the trial court must in effect direct a verdict against the defendant on the elements of the more serious offense that are not common to the lesser included offense.1 I think that it is alien to our system of criminal justice to hold, as Palaia and Washington appear to do, that the jury must find any fact against the defendant that the state is required to prove, or that it can find only the most aggravated degree of guilt that the state’s proof supports.
*731Even given the rule of Palaia, Washington and similar cases, I think the requested manslaughter instruction should have been given here. The majority states:
“Defendant does not contend that there was no intent to kill the victim; the theory of his defense was solely that he was insufficiently involved in the plot or its execution to be criminally responsible for the victim’s death at all. He argues that his testimony that he was aware of preparations made in the killing of the victim and failed to notify the police supports a theory of manslaughter committed recklessly under circumstances manifesting extreme indifference to the value of human life. It does not. If the jury accepted that evidence it would have to have found him not guilty. It could not have rationally and consistently found him guilty of manslaughter in the first degree but not guilty of murder if it found him (as it must have) to have been involved in the intentional bombing of the victim’s vehicle.” 75 Or App at 727.
It is undoubtedly correct that defendant’s first choice would have been an acquittal rather than a manslaughter or any conviction. It is also correct, as the majority indicates, that the jury did not believe defendant’s testimony insofar as it was completely exculpatory. However, I do not think it follows that there was no evidentiary basis from which guilt of manslaughter rather than murder could be inferred. Defendant’s claim was not that he was absolutely unconnected with the events; his theory was that his involvement was so peripheral that it did not give rise to the highest level of criminal accountability. This is not a case like State v. Miller, 53 Or App 493, 632 P2d 493 (1981), where the defendant’s only defense— that he was not at the scene of the crime — had no bearing on what the crime was. The factfinder here, unlike the factfinder in Miller, could have inferred that the truth about the nature and extent of defendant’s involvement in the crime lay somewhere between defendant’s testimony and the state’s theory. The majority applies a rigid test, under which a defendant’s testimony is insufficient to require the giving of a requested lesser included offense instruction unless the defendant all but says that he did exactly what the requested instruction describes. I do not read Washington or its progeny as requiring that a defendant confess to a lesser included offense in order to have the jury instructed on it.
It is of particular importance here that the difference *732between the state’s theory and defendant’s bears not only on what events transpired but on what defendant’s mental state was. The principal basis for defendant’s argument that the jury should have been given the manslaughter instruction is that it could have found that he acted recklessly rather than intentionally. The mental state of a criminal defendant is a uniquely factual question and, whatever logic the PalaiaWashington rule might have in other contexts, I strongly question whether the rule can properly be applied to refuse a requested lesser included offense instruction when the dispute over the degree of the defendant’s guilt turns on the mental state with which he acted.
Newman, J., joins in this dissenting opinion.The jury of course retains the option to acquit outright. Nevertheless, because a conviction of a lesser included offense serves as an acquittal of the greater crime charged, Palaia and Washington effectively allow a directed verdict against the defendant as between the greater and lesser offenses.