dissenting.
I respectfully dissent from the majority’s holding that the refusal of a warranted lesser included offense instruction is inherently harmless error.1 When the pleadings and the evidence would entitle a criminal defendant to an instruction on one or more lesser included offenses, but the court instructs only as to the charged offense, the jury is given only two choices: to convict for the charged crime or to acquit the defendant entirely. When a justified lesser offense instruction is given, the jurors have a third choice — if they find that the greater offense has not been proven by the State, they may still convict on the lesser offense. Until today, it was settled in this jurisdiction that a trial court’s erroneous failure to allow the jury this third choice may necessitate that a conviction of the greater offense be vacated. State v. Tribe, 123 Idaho 721, 726-27, 852 P.2d 87, 92-93 (1993); State v. Tomes, 118 Idaho 952, 956, 801 P.2d 1303, 1307 (Ct.App.1990).2 The majority holds, however, that *529because of the “acquittal first” rule of I.C. § 19 — 2132(c), when a defendant has been found guilty of the charged offense any error in failing to give a lesser included offense instruction is inevitably harmless.
The majority presumes that juries will invariably adhere to the instructions on the greater offense and will acquit if they entertain a reasonable doubt as to the presence of any element of that offense, even if doing so means freeing a defendant who is plainly guilty of some serious crime. Such reasoning was directly rejected by the United States Supreme Court in Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973), where the defendant who was prosecuted for assault with intent to commit serious bodily injury claimed error in the trial court’s failure to grant his request for a jury instruction on simple assault. After holding that the petitioner was entitled to the requested instruction, the Court continued:
True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction — in this context or any other — precisely because he should not be exposed to the substantial risk that the jury’s, practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.
Id. at 212-13, 93 S.Ct. at 1997-98. The Keeble decision is not constitutionally based and therefore is not mandatory precedent which binds this Court.3 Nonetheless, it is a statement of the highest court of this nation dismissing the rationale embraced by the majority here — that juries, when not given all of the appropriate alternatives, can be counted upon to acquit a defendant who has been proven to be guilty, but only of a crime which the jury was not allowed to consider.
The Idaho Supreme Court’s decision in State v. Raudebaugh, 124 Idaho 758, 864 P.2d 596 (1993), does not support the majority’s harmless error rationale. In that case, lesser offense instructions were given, but Raudebaugh contended that the acquittal first requirement of I.C. § 19-2132(c) violated due process by making coerced verdicts more likely. Raudebaugh relied upon Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), where the United States Supreme Court held that denying lesser included offense instructions when the defendant was charged with a capital crime violated the Due Process Clause of the United States Constitution because it forced the jury to choose between convicting the defendant of a capital offense or acquitting the defendant completely.4 The Beck Court reasoned that such a circumstance impermissibly enhanced the risk of an unwarranted conviction. Id. at 637-38, 100 S.Ct. at 2389-90. The Idaho Supreme Court rejected Raude-baugh’s argument that the effect of an acquittal first instruction is the same as if no lesser included offense instruction had been given. The Idaho Supreme Court stated:
[Raudebaugh’s argument] extends Beck beyond its meaning. The acquittal first requirement of I.C. § 19-2132(e) does not lead to an unconstitutional probability of an unwarranted conviction as was present in Beck, because the requirement does not present the jury with the drastic choice between acquittal and capital murder that was forced upon the jury in Beck.
*530The acquittal first requirement guides the jury as to the order and method of considering the lesser included offenses and does not impermissibly increase the likelihood that the jury will reach an unwarranted verdict. The jury has the opportunity to convict of a lesser included offense, if it first acquits the defendant of each greater offense.
Raudebaugh, 124 Idaho at 762-63, 864 P.2d at 600-01. Hence, the Idaho Supreme Court upheld the acquittal first statute precisely because it does not “present the jury with the drastic choice” between acquittal and conviction of the greater offense but, rather, allows the jury “the opportunity to convict of a lesser included offense, if it first acquits the defendant of each greater offense.” This reasoning of the Idaho Supreme Court intimates that the failure to give the jury the third choice, to convict of a lesser included offense, may indeed lead to an impermissible risk of an unwarranted conviction.
The majority decision leaves Idaho jurisprudence embracing the anomaly that, while a defendant is unquestionably entitled to have the jury instructed on lesser included offenses that are supported by the evidence, I.C. § 19 — 2132(b); Tribe, supra, there will never be a remedy for a denial of that right.
. I intimate no opinion as to whether inattentive driving was, on the facts of this case, a lesser included offense of the charged offense of driving under the influence.
. The “acquittal first” provision of I.C. § 19-2132 was enacted in 1988. See 1988 Idaho Sess. Laws ch. 327. The trial in Tribe occurred before this amendment to Section 19-2132. The Tomes *529case arose after legislative adoption of the acquittal first rule, but the Tomes court did not discuss the effect of the acquittal first provision.
. The Keeble Court commented, however, that an interpretation of the federal statute at issue in the case to preclude such a lesser included offense instruction "would raise difficult constitutional questions.” Keeble, 412 U.S. at 213, 93 S.Ct. at 1998.
. The decision in Beck was restricted to death penalty cases, with the Court expressly declining to decide whether the Due Process clause would require that lesser included offense instructions be given in a noncapital case. Beck, 447 U.S. at 638 n. 14, 100 S.Ct. at 2390 n. 14.