dissenting.
Because I would vacate the judgment below and order a new trial for defendant, I respectfully dissent.
Defendant first argues that the trial court erred by instructing the jury on second-degree murder. I agree, because the evidence would not permit the jury to rationally find defendant guilty of second-degree murder and to acquit him of first-degree murder under the felony murder rule.
The trial court instructed the jury on first-degree murder under the felony murder rule, with felony child abuse as the underlying felony. The trial court also instructed the jury on second-degree murder and involuntary manslaughter as lesser-included offenses. During the charge conference, defense counsel objected to the second-degree murder instruction.
As our Supreme Court has explained, trial courts must not give a lesser-included offense instruction unless the instruction is supported by the evidence:
Principles of due process “require[] that a lesser included offense instruction be given only when the evidence warrants such an instruction.” Hopper v. Evans, 456 U.S. 605, 611, 72 L. Ed. 2d 367, 373 (1982). Underlying this rule is the realization that instructing the jury on a lesser-included offense that is not supported by the evidence improperly invites a compromise verdict whereby the defendant would be found guilty of an offense, which he did not commit, for the sole reason that some of the jurors believe him guilty of the greater offense.
State v. Worsley, 336 N.C. 268, 276-77, 443 S.E.2d 68, 72 (1994) (additional quotations and citations omitted). “An instruction on a lesser-included offense must be given only if the evidence would permit the jury rationally to find defendant guilty of the lesser offense and to acquit him of the greater.” State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767, 771 (2002) (citation omitted; emphasis added), la Millsaps, the Supreme Court set out the following “standard for deciding *449whether the trial court must instruct on and submit second-degree murder as a lesser-included offense of first-degree murder”:
The determinative factor is what the State’s evidence tends to prove. If the evidence is sufficient to fully satisfy the State’s burden of proving each and every element of the offense of murder in the first degree, including premeditation and deliberation, and there is no evidence to negate these elements other than defendant’s denial that he committed the offense, the trial judge should properly exclude from jury consideration the possibility of a conviction of second degree murder.
Id. at 560, 572 S.E.2d at 771 (citation omitted).
The trial court summarized the first-degree murder instruction for the jury as follows:
So I charge that if you find from the evidence beyond a reasonable doubt that on or about the alleged date, the defendant was the parent of Jace Barrow; that Jace Barrow had not yet reached his sixteenth birthday; and that the defendant intentionally inflicted a serious physical injury to the child or intentionally assaulted the child which proximately resulted in a serious physical injury to the child; and that while committing felonious child abuse the defendant killed Jace Barrow; and that the defendant’s act was a proximate cause of Jace Barrow’s death; and that the defendant committed felonious child abuse with the use of a deadly weapon, it would be your duty to return a verdict of guilty of first degree murder.
The trial court instructed the jury that, if it found that defendant had “made an attack by hands alone upon Jace Barrow,” it could “infer that the hands were used as a deadly weapon.”
The trial court summarized the second-degree murder instruction, which the jury was only to consider if it did not find all of the elements of first-degree murder, as follows:
So I charge that if you find from the evidence beyond a reasonable doubt that on or about the alleged date Jace Barrow sustained a fatal injury and that this injury proximately caused the death [of] Jace Barrow and that this injury was inflicted intentionally and not by accident and that it was the defendant who intentionally inflicted this injury and that in so doing the defendant acted with malice, it would be your duty to return a verdict of guilty of second degree murder.
*450The trial court defined proximate cause as
a real cause, a cause without which Jace Barrow’s death would not have occurred. The defendant’s act need not have been the only cause nor the last or nearest cause. It is sufficient if it occurred with some other cause acting at the time which in combination with it caused the death of Jace Barrow.
With respect to malice, the trial court explained that, “[t]o find that the defendant acted with malice, you need not find that he intended to kill Jace Barrow, but you must find beyond a reasonable doubt that his acts were so reckless or wantonly done as to indicate a total disregard of human life.”
Defendant argues that the State’s evidence pointed exclusively to first-degree murder, and his evidence pointed to his not being guilty of any offense; no evidence pointed to defendant being guilty of second-degree murder but not guilty of first-degree murder. In other words, finding defendant guilty of second-degree murder required the same factual findings as finding defendant guilty of first-degree murder with the exception of certain facts that were not at issue, such as whether defendant was Jace’s father and whether Jace was under the age of sixteen. Thus, no jury could rationally find defendant guilty of second-degree murder but not guilty of first-degree murder. I agree with this reasoning.
To find defendant guilty of second-degree murder, the jury had to reach the following conclusions: (1) “Jace Barrow received a fatal injury”; (2) that “injury was a proximate cause of Jace Barrow’s death”; (3) that the “injury was inflicted intentionally and not by accident or misadventure[,]” meaning that “the person who caused it intended to apply the force by which it was caused”; (4) that the person who inflicted this injury was defendant; and (5) that defendant acted with malice, meaning “his acts were so reckless or wantonly done as to indicate a total disregard of human life.”
To find defendant guilty of first-degree murder, the jury had to reach the following conclusions: (1) defendant committed felonious child abuse; (2) while committing felonious child abuse, defendant killed Jace; (3) defendant’s act was the proximate cause of Jace’s death; and (4) the felonious child abuse was committed with the use of a deadly weapon. To conclude that defendant had committed felonious child abuse, the jury had to find that (1) defendant was Jace’s parent; (2) at the time of the abuse, Jace was not yet sixteen years old; and (3) “defendant intentionally inflicted a serious physical *451injury to the child or intentionally assaulted the child which proximately resulted in serious physical injury to the child,” a serious physical injury being “such physical injury as causes great pain and suffering.” The State’s evidence suggested that if defendant hit or shook Jace, he did so using his hands. The State offered no evidence that defendant used any other weapon or that Jace sustained his injuries by any means other than defendant’s hands.
A jury could not rationally conclude that defendant had committed second-degree murder while also concluding that defendant had not committed first-degree murder. The legal findings required for first-degree murder are identical to the findings required for second-degree murder, with the exception of Jace’s parentage and age, which were not at issue. This is similar to felony murder cases involving a felonious assault on a single victim. State v. Jones, 353 N.C. 159, 170 n.3, 538 S.E.2d 917, 926 n.3 (2000).
In such cases, the assault on the victim cannot be used as an underlying felony for purposes of the felony murder rule. Otherwise, virtually all felonious assaults on a single victim that result in his or her death would be first-degree murders via felony murder, thereby negating lesser homicide charges such as second-degree murder and manslaughter.
Id. Accordingly, I would hold that the trial court erred by instructing the jury on the lesser-included offense of second-degree murder.
I would also hold that the error was not harmless and, as a result, defendant is entitled to a new trial.
“[S]ome errors of this type are not prejudicial to the defendant because had the jury not had the option of convicting on the lesser offense, it would likely have convicted on the greater offense, subjecting the defendant to harsher penalties.” State v. Arnold, 329 N.C. 128, 140, 404 S.E.2d 822, 829 (1991) (citation omitted). In Arnold, our Supreme Court explained that submitting a lesser-included offense for which there is insufficient evidence violates a defendant’s federal due process rights, which we review under N.C. Gen. Stat. § 15A-1443(b). Id. Subsection 15A-1443(b) states, in relevant part, that
[a] violation of the defendant’s rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless.
*452N.C. Gen. Stat. § 15A-1443(b) (2009). “The State must therefore prove that the error was harmless beyond a reasonable doubt. Overwhelming evidence of defendant’s guilt may render constitutional error harmless beyond a reasonable doubt.” Arnold, 329 N.C. at 140, 404 S.E.2d at 829-30 (citation omitted).
Here, the evidence of defendant’s guilt of first-degree murder was not overwhelming. Defendant’s experts all opined that Jace died of natural causes and was not killed as a result of abusive head trauma. Even the State’s experts agreed that Jace’s brain injuries could have been caused by seizure-induced hypoxia rather than abusive head trauma. Finally, as the Supreme Court in Arnold stated,
Our conclusion is further demonstrated by the fact that the jury found defendant guilty of murder in the second degree, a charge which was not supported by the evidence. This verdict was also tantamount to a verdict of not guilty as to the [first-degree murder] charge. Had not the inviting verdict of murder in the second degree been available to the jury, and its choice limited to guilty of murder in the first degree or not guilty, the verdict may well have been one of not guilty.
Id. at 141, 404 S.E.2d at 830. The State having failed to prove that the error was harmless beyond a reasonable doubt, I would hold that defendant was prejudiced by the trial court’s error and reverse his conviction for murder in the second degree.
Accordingly, I believe that defendant is entitled to a new trial. I would add that, as in Arnold, “defendant may not now be retried for first degree murder. Conviction of second degree murder acts as acquittal of first degree murder, and thus retrial would place the defendant in double jeopardy in violation of h[is] rights under the Fifth and Fourteenth Amendments to the Federal Constitution.” State v. Arnold, 98 N.C. App. 518, 533, 392 S.E.2d 140, 150 (1990), affirmed by 329 N.C. 128, 404 S.E.2d 822 (1991), (citing Price v. Georgia, 398 U.S. 323, 26 L. Ed. 2d 300 (1970); additional citations omitted).