dissenting.
¶31 I dissent.
¶32 I agree that the District Court’s instruction to first consider the charge of deliberate homicide before considering the lesser offenses is wrong. Such a stair-step approach is not a correct application of the law. The court should have given the instructions offered by the State thereby instructing the jury to consider all of the evidence relating to the lesser and greater charges before considering a verdict on the greater charge.
¶33 I disagree, however, with this Court’s conclusion that Demontiney was prejudiced by this error. In State v. Scarborough, 2000 MT 301, 302 Mont. 350, 14 P.3d 1202, we addressed jury instructions essentially the same as those given in the present case. We concluded that, under the “acquittal first” approach, “whether the jury found sufficient evidence to convict on deliberate homicide or not, the instruction effectively precluded consideration of Scarborough’s affirmative defense [mitigated deliberate homicide].” Scarborough, ¶ 50. This legal prejudice was held to be harmless since, in any event, Scarborough did not meet his burden of proof to support a finding of mitigated deliberate homicide. Demontiney, however, did not offer the mitigated deliberate homicide instruction as an affirmative defense. Rather, it was offered by the State over Demontiney’s objection. Demontiney did not suffer the same prejudice as Scarborough because Demontiney’s jury, despite having considered deliberate homicide first, went on to consider the lesser offense of mitigated deliberate homicide.
¶34 The Court concludes that the jury instructions and verdict form resulted in an inconsistent verdict which cannot stand because, as the Court reads Scarborough, “a finding of guilt on deliberate homicide is *414a precondition to a finding of guilt on mitigated deliberate homicide.” The Court, however, misconstrues the import of the Scarborough decision.
¶35 Mitigated deliberate homicide requires proof of every element of deliberate homicide plus an additional finding of extreme mental or emotional stress. Here, the jury found Demontiney guilty of mitigated deliberate homicide. Thus, in finding him not guilty of the offense of deliberate homicide, it was not finding that Demontiney had not committed the elements of deliberate homicide. Rather, it found that not only had he committed the elements of deliberate homicide, but also the additional element of extreme mental or emotional stress. In other words, if a defendant commits all the elements of the offense of deliberate homicide and does so under extreme mental or emotional stress, he is not guilty of deliberate homicide but is guilty of mitigated deliberate homicide.
¶36 The verdict form offered by the State would have correctly advised the jury to only enter a verdict on one of the charges. The verdict form given by the District Court did not contain this admonition. Demontiney, however, did not object to this oversight by the court. Clearly, if the jury had been properly instructed on the verdict form, it would have avoided the present confusion by entering a verdict on mitigated deliberate homicide but not on deliberate homicide.
¶37 Although I agree that the District Court’s jury instructions were plagued with an illogical stair-step progression, this jury, unlike the Scarborough jury, defied the illogic and not only considered mitigated deliberate homicide, but considered it favorably to Demontiney. I conclude that Demontiney was not prejudiced by the court’s erroneous instructions.
¶38 I would affirm the conviction for mitigated deliberate homicide.
JUSTICE RICE joins in the dissent of JUSTICE LEAPHART.