dissenting:
In my view, the majority has incorrectly concluded that assault with the use of a deadly weapon is a lesser included offense of attempted murder. I also submit that the lesser related offense instruction, even if otherwise proper, should not have been given because it would have been inconsistent with Walker’s theory of defense. I therefore dissent, convinced that Walker’s convictions were justified by the evidence.
Because the majority would have affirmed Walker’s convictions absent the district court’s refusal to instruct the jury on assault with the use of a deadly weapon, I will primarily address the single issue upon which the majority bases its justification for reversal.
The majority declares that
[s]ince an intent to injure is a subset of, and necessarily included in, an intent to kill, and since one cannot intend to *579kill without also intending to injure, we conclude that assault with a deadly weapon is a lesser included offense of attempted murder with the use of a deadly weapon.
The majority’s logic escapes me. Unless the majority has adopted the novel and unsupported interpretation of the term “injury” as an identical synonym for “kill,” it seems irrefutably clear that a person could intend to assault and injure without intending to assault and kill. Life is replete with examples of assaults with deadly weapons where it has been evident that the intent was to injure rather than to kill. Moreover, I suggest that history confirms that far more often, assaults with deadly weapons occur as crimes of passion, intimidation or revenge with an intent to injure but not to murder.
Indeed, the majority observes that “[t]he only difference in this case, then, between attempted murder with the use of a deadly weapon and assault with a deadly weapon is whether at the time of the shooting Walker intended to kill the three victims or whether he intended merely to injure them.” An element of the crime of attempted murder is the specific intent to kill. Graves v. State, 82 Nev. 137, 142, 413 P.2d 503, 506 (1966). If, as the majority writes, Walker “merely” intended to injure, rather than kill the three victims, he could not be convicted of attempted murder. He could, however, be convicted of assault with a deadly weapon. An assault with the intent to injure is an entirely different crime than the crime of attempted murder, which requires the specific intent to kill.
In Crawford v. State, 107 Nev. 345, 811 P.2d 67 (1991), we enunciated the test for determining whether a crime is a lesser included offense as “whether the offense in question cannot be committed without committing the lesser offense.” Id. at 351, 811 P. 2d at 71. It is patently clear that a person may commit attempted murder, with its specifically required element of intent to kill, without committing an assault with a deadly weapon, an offense which requires only the specific intent to injure.
Respectfully, I suggest that the majority’s conclusion that “an intent to injure is a subset of, and necessarily included in, an intent to kill,” is not a defensible proposition. The intent to kill is the intent to kill, not the intent to injure. The two types of intent are distinctly different and the crime for which a defendant may be found guilty will depend upon which of the two forms of intent motivated the actor as proved beyond a reasonable doubt.
Although Ruland v. State, 102 Nev. 529, 728 P.2d 818 (1986), may indeed be read for the proposition that an assault with a deadly weapon is a lesser included offense of attempted murder, I suggest that the point is not in the form of a holding, and that in *580any event, we should clarify the opinion by making it clear that assault with a deadly weapon is not a lesser included offense of attempted murder.
It seems equally clear to me that assault with a deadly weapon would, in most cases, be a lesser related offense to attempted murder. In Lord v. State, 107 Nev. 28, 806 P.2d 548 (1991), we reaffirmed the right of a defendant to have the jury instructed on a lesser related offense when the following conditions are met: “(1) the lesser offense is closely related to the offense charged; (2) defendant’s theory of defense is consistent with a conviction for the [lesser] related offense; and (3) evidence of the lesser offense exists.” Id. at 36, 806 P.2d at 553. We also confirmed in Lord that lesser related offenses are “offenses which are related to the principal offense but are not lesser included offenses of the principal offense.” Id.
Notably, defense counsel recognized that assault with a deadly weapon constituted a lesser related offense, and referred to it as such in the proffered defense instruction rejected by the district court. However, the district court apparently (with some justification) concluded that the lesser related offense was being offered as a lesser included offense, thus prompting the district judge to rule that “there is no lesser included offense for an attempt to kill.” I suggest, however, that the real issue before us is whether the district court erred by not instructing the jury on the lesser related offense of assault with a deadly weapon. In my opinion, the district judge properly refused to give such an instruction.
In evaluating the test for a lesser related offense, stated above, it is clear that the first and third elements of the test are satisfied in the instant case. However, the second element, requiring a defense theory that is consistent with a conviction for the related offense, is absent here. The district court cogently described both defendant’s evidence and theory as one of uninvolvement: Walker was assertedly not at the crime scene. Walker allegedly did not shoot a weapon. There was no case presented by the defendant suggesting that Walker was firing a weapon with an intent other than to kill or any intent at all, since he claimed he was neither present nor firing a weapon.
In Ruland, this court affirmed the district court’s rejection of an assault instruction in an attempted murder case under circumstances far more compelling than here. Ruland involved a defendant who admitted having a weapon, but claimed that it discharged accidentally, and that he was not guilty of any attempt or threat to do bodily harm. This court in Ruland held that “Ruland’s categorical denial of any criminal assault precludes his claiming any error resulting from the jury’s not being instructed as to an assault theory.” Ruland, at 532, 728 P.2d at 819-820.
*581In the instant case, Walker’s defense was that he was not present; he fired no weapon.1 It is therefore clear from our ruling in Ruland that the trial judge did not err in refusing to instruct the jury on the inconsistent theory of assault with a deadly weapon.
For the reasons discussed above, I would have affirmed Walker’s convictions. I therefore dissent.
It is true that defense counsel wanted the option to argue to the jury alternatively that if the jury found Walker present at the scene of the crime, the State nevertheless failed to prove beyond a reasonable doubt that Walker intended to kill the three victims that were being fired upon. Obviously, Walker’s counsel could have argued that the State failed to meet its burden of proof concerning any element of the crime. However, Walker could not insist upon an instruction regarding assault with a deadly weapon when neither the evidence nor the questions presented by the defense related to Walker’s presence at the scene or his lack of intent to kill. Walker’s defense, entirely inconsistent with an assault instruction, was that he was not present and that he did no shooting.