concurring in result:
I agree with the majority in affirming this conviction. However, I disagree with a part of the majority’s reasoning in regards to the third assignment of error that the trial court erred in failing to give a verdict form for the lesser included offense. The majority is correct in finding that the record indicates that such a form was given to the jury and that the guilty verdict form executed by the jury was indeed their verdict. I would stop my analysis at this point. I think it is not necessary and incorrect to include the statement that the appellant is required to show prejudice.
I believe that prejudice is automatic if a jury is deprived of the necessary form to return a verdict finding an option upon which they have been instructed. In Dean v. State, 502 P.2d 358 (Okl.Cr.1972), Dean was prosecuted for the commission of a crime after the former conviction of a felony. The trial court failed to include a verdict form allowing the jury to assess the punishment as if it were a first conviction. This Court stated: “This is error. A jury should be provided with sufficient verdict forms covering all possible verdicts that the jury might reach.” (Emphasis added.)
Therefore, I concur in the results reached by the majority without agreeing with all of the opinion.