concurring in part and dissenting in part: I agree with the majority’s well-reasoned conclusions affirming Haberlein’s convictions. However, I respectfully dissent from the majority opinion which finds error by concluding that the record demonstrates an obligation to instruct the jury on second-degree murder. K.S.A. 22-3414(3) provides “where there is some evidence which would reasonably justify a conviction of some lesser included crime . . . the judge shall instruct the jury as to the crime charged and any such lesser included crime.” Even viewing the evidence in the light most favorable to Haberlein, I cannot agree that we are required to speculate as to whether the evidence in this case would reasonably justify a conviction of the lesser included crime. As the majority so vividly describes:
“The evidence of premeditation in this case was peculiarly abundant. It is rare for there to be testimony that an armed defendant announced before a planned robbery that ‘something more serious was about to happen.’ A.R. also testified that Bell had been shot and was bleeding by the time she reached the back office. After the safe was emptied, when Bell momentarily escaped, Haberlein and Backus chased after her, caught her, and forced her back inside the store. Bell’s request for help from A.R. was in vain. Instead, Haberlein and Backus subjected Bell to a merciless and prolonged beating, converting several objects to weapons, and then again shot Bell. Finally, she stopped moving. She had 48 separate injuries.” Haberlein, slip op. at 14.
The difference between first-degree murder and second-degree murder is premeditation. As the majority points out, a juiy may reasonably infer premeditation from the circumstances of a case. State v. Morton, 283 Kan. 464, 475, 153 P.3d 532 (2007). And I agree with the majority’s conclusion that tire circumstances of this case could lead the jury to reasonably infer that the crime was premeditated.
I disagree with the majority’s conclusion, however, that an instruction on second-degree murder was required based on the facts of this case. Haberlein did not request nor did he object to the trial *214court’s omission of an instruction on second-degree intentional murder. Here, the majority simply concludes that
“[wjhile the evidence of premeditation in this case was extremely strong, there also was at least some evidence of each of the other elements of first-degree premeditated murder, and these elements are identical to the elements of second-degree intentional murder. Thus, at least in theory, the jury could have chosen to convict Haberlein of second-degree intentional murder without having its verdict subject to reversal for insufficient evidence. This means the instruction was factually supported.” Haberlein, slip op. at 12-13.
The test set forth in K.S.A. 22-3414(3) is not a theoretical one. Instead, it requires the trial judge, who has heard the evidence in the case, to determine whether there is “some evidence which would reasonably justify a conviction‘ of tire lesser included crime. (Emphasis added.) If our test is to find in “theory” whether the facts support a lesser included crime, any scenario limited only by one’s imagination would suffice in making the determination on whether to instruct. It seems to me by employing such a standard we are mandating that in all cases where the facts support a charge of premeditated first-degree murder, the trial court is now required to instruct on all lesser included instructions. In short, the majority position would require the court to give weight to ephemeral evidence—or nonevidence—and to apply it to any speculative scenario that the facts of the case may provide in order to reach the far-fetched conclusion that the crime was not premeditated. That is not the law in this state, and it should not become the law of this state.
I would simply find on this record and consistent with my dissenting opinions in State v. Tahah, 293 Kan. 267, 262 P.3d 1045 (2011), and State v. Scaife, 286 Kan. 614, 186 P.3d 755 (2008), that it was not error for the trial court to not instruct the juiy on second-degree murder.