concurring: I agree with the majority’s decision to affirm the judgment of the district court. I agree that Cheffen failed to preserve for appellate review the issue of whether the district court complied with K.S.A. 22-3421. I also agree drat the phrase “in the commission of, attempt to commit, or flight from an in-herendy dangerous felony” found in K.S.A. 21-3401(b) does not establish alternative means of committing felony murder. Finally, I agree that Cheffen is not entitled to a new trial based on the district court judge’s failure to instruct the jury on second-degree murder. However, consistent with my dissenting opinions in State v. Qualls, 297 Kan. 61, 73-75, 298 P.3d 311, (2013); State v. Haberlein, 296 Kan. 195, 213-14, 290 P.3d 640 (2012), State v. Tahah, 293 Kan. 267, 280-84, 262 P.3d 1045 (2011), and State v. Scaife, 286 Kan. 614, 627-31, 186 P.3d 755 (2008), I do not agree with the analysis the majority employs to reach this final conclusion— namely, its conclusion that though the district court judge erred when he failed to instruct the jury on the lesser included offense of second-degree murder, this failure does not constitute reversible error.
In contrast to the majority’s analysis, I would simply find that due to the overwhelming evidence presented at trial establishing Cheffen’s guilt for felony murder based on his act of committing child abuse resulting in the death of Kawliga, an instruction on second-degree murder would not have been factually appropriate in this case. This analysis is consistent with the test set forth in K.S.A. 22-3414(3), which requires a district court judge who has heard, seen, and evaluated all of the evidence in a criminal case to *706determine whether there is “some evidence which would reasonably justify a conviction“ of the lesser included crime. (Emphasis added.) Because the State presented overwhelming evidence that Cheffen committed felony murder, a conviction for second-degree murder—based solely on inferences taken from the injuries Kaw-liga sustained from being abused—would not have been reasonably justified. The majority’s opinion in this case and its opinions in the cases cited above establish a standard where in reality a district court judge has no option but to automatically instruct the jury on all lesser included offenses, regardless of whether the instructions are requested and in spite of the actual evidence. As I have opined in my previous dissents on this issue, that has never been the law and should not become the law of this state.
Moritz, J., joins the foregoing concurring opinion.