(concurring in part and dissenting in part).
i
I agree with the result reached by the majority in People v Heflin. The trial court did not err in refusing to instruct the jury regarding statutory involuntary manslaughter.1 Such an instruction is not required merely because the trial court instructs with regard to voluntary manslaughter. There must be evidence in the record to support a finding of the elements of statutory involuntary manslaughter in order to require the instruction. People v Ora Jones, 395 Mich 379, 390; 236 NW2d 461 (1975).
As defined in MCL 750.329; MSA 28.561, statutory involuntary manslaughter is a very narrow *517criminal offense which is applicable only where it can be shown that the victim died as a result of a wound from a weapon intentionally aimed but accidentally discharged. In the instant case, the evidence clearly indicates that the defendant intended to shoot the decedent, Rick Petersen. There was no evidence that the defendant accidentally or unintentionally killed Mr. Petersen. Accordingly, on the basis of the evidence adduced at trial, there was no requirement that the trial judge present a jury instruction regarding statutory involuntary manslaughter.
ii
In People v Landrum, I respectfully dissent. We granted leave to appeal in this case limited to the issues (1) whether the trial court erred in not giving, sua sponte, an instruction regarding the offense of common-law involuntary manslaughter; (2) if so, whether the error was harmless; and (3) whether the trial court’s instructions adequately presented the defendant’s claim of self-defense to the jury. We expressly determined not to entertain argument regarding the doctrine of imperfect self-defense.2
I would hold that the trial court’s instructions did not adequately present defendant’s theory of the case to the jury. Defendant was entitled to have the jury instructed with regard to involuntary manslaughter. The jury also should have been instructed that the defendant had the right to use the force required to repel the attempted rape. Failure to give the appropriate instructions resulted in prejudice to the defendant. Consequently, the error cannot be deemed harmless.
*518Ill
In Michigan, common-law involuntary manslaughter is defined as the killing of another without malice and unintentionally by:
a. Doing some unlawful act not amounting to a felony nor tending to cause death or great bodily harm; or
b. Negligently doing some act lawful in itself; or
c. Negligent omission to perform a legal duty.
People v Beach, 429 Mich 450, 477; 418 NW2d 861 (1988); People v Townes, 391 Mich 578, 590-591; 218 NW2d 136 (1974); People v Ryczek, 224 Mich 106, 110; 194 NW 609 (1923).
Common-law involuntary manslaughter is a cognate, but not necessarily included, lesser offense of the crime of murder. As the Court stated in People v Townes, supra, 589-590:
Both [voluntary manslaughter and common-law involuntary manslaughter] proscribe the unlawful killing of another without legal justification or excuse and are distinguished from the higher crimes of murder by the absence of malice. . . . Beyond these similar elements, however, voluntary and involuntary manslaughter are distinct and separate offenses.
The elements of involuntary manslaughter, although not completely exclusive of those found in voluntary manslaughter, are distinguishable in several respects. They define a crime that originates out of circumstances often quite different from those found in voluntary manslaughter and apply to a defendant who did not proceed with the intent to cause death or serious bodily injury. [Citations omitted.]
*519Cognate offenses must be analyzed differently than necessarily included lesser offenses. People v Ora Jones, supra, 389-390. Although they share some elements with necessarily included lesser offenses, cognate offenses inherently comprise elements that are not encompassed within the primary offense or its necessarily included lesser offenses. In order to determine whether there is sufficient evidence to present a jury instruction on a cognate offense, a trial court must independently determine whether the unique elements of that offense are present. People v Beach, supra, 463-464.
In the instant case, the majority errs when it merely reviews the evidence to determine if the defendant’s actions constitute lawful self-defense as a justification for homicide.3 Defendant’s primary theory of self-defense did not preclude alternative theories involving cognate lesser offenses. In this case, the defendant’s testimony and theory of the case raised the question whether defendant was, in the alternative, merely guilty of involuntary manslaughter as a result of negligent performance of the lawful act of defense against forcible rape.
In People v Arthur Jones, 419 Mich 577; 358 NW2d 837 (1984), the defendant was convicted by a jury of second-degree murder and possession of a firearm during the commission of a felony. The issue was whether the trial court, having undertaken sua sponte to instruct the jury regarding voluntary manslaughter, was also required to instruct regarding involuntary manslaughter. The defendant had not directly raised the defense of accident at trial. There was testimony, however, that immediately following the shooting the defen*520dant mumbled, "It was an accident. God knows, it was an accident. It just went off.” The Court found that in light of the testimony the defense of accident "was properly within the jury’s contemplation.”4 It affirmed the Court of Appeals reversal of the defendant’s conviction.5
The situation before this Court today is very similar to that in People v Arthur Jones. Although the defendant did not expressly argue accident, the main thrust of her defense was that she had never meant to kill the defendant or even seriously injure him. She was merely trying to avoid being raped.
Defendant testified that she met Henry Thomas at a bar almost a week prior to his death. Thomas told her he would like to have sex with her, but that he did not have any money. The next time they met, Thomas told her that he had money and wanted to go home with her. They left the bar, bought some liquor, and went to his house. They poured drinks, talked, and played records. Thomas drank heavily.
The fatal struggle began when Thomas was ready to go to bed and asked defendant to undress. She asked to be paid the $30 they had agreed upon. The decedent refused and asked her to dance some more. After a while, Thomas pushed her toward the bedroom, and told her that he was not going to pay her, but that they were still going to have sex. Defendant asked to be taken home. Thomas refused, got angry, and ordered her to take off her clothes, saying that they were either going to "fuck or fight.” Scared and afraid, defendant undressed. She was ordered to get into bed and lay on her back. She complied.
*521Thomas took his clothes off. He threatened to hurt her if she did not have sex. As Thomas went to climb on top of her, defendant reached for the phone and hit him with it. She jumped out of bed and tried to get away, but he grabbed her. He knocked her to the floor. She grabbed a table and hit him.
Defendant tried to get away, and they fought throughout the house. She retreated into the bathroom. He tried to force his way in. Defendant stepped aside, and he flew in, falling into the tub. He grabbed her. She tried to fight him off. He kept hitting and kicking her. She grabbed a Pine-Sol bottle and hit him with it. The bottle shattered. Thomas kept coming. She began to hit him with the telephone handle. Finally, he stopped the attack and laid down in the tub. Defendant got dressed and left.
The defendant testified that she was only trying to subdue the decedent enough so that she could escape. She also testified that when she left the decedent’s home he was alive. On that basis, in order to decide whether an instruction on involuntary manslaughter (in this case, negligent performance of a lawful act) was required, this Court must determine whether there is evidence to support a finding that defendant was engaged in a lawful act (attempting to repel a forcible rape) but performed it in a negligent manner (use of excessive force).
Although defendant was arguably grossly negligent in using excessive force while trying to repel the decedent’s unwanted sexual advances, the prosecution does not dispute that the defendant had the right to use the amount of force required to repel these advances. Further, there was no conflicting eyewitness testimony to rebut defendant’s claim that she was merely using the force *522she felt was required to escape. Accordingly, on the basis of the evidence, it was appropriate for the court to instruct the jury regarding involuntary manslaughter. Given the appropriate instruction, it would have been possible for the jury to infer from the testimony that the defendant negligently used excessive force.
IV
HARMLESS ERROR ANALYSIS
The doctrine of "harmless error” is stated in both court rule6 and statute.7 The essence of this doctrine has been stated by this Court as follows: "[A]ppellate courts should not reverse a conviction unless the error was prejudicial.” People v Robinson, 386 Mich 551, 562; 194 NW2d 709 (1972). Thus, the second step of the inquiry is to determine whether the instructional error that occurred below may be deemed prejudicial in light of the jury’s verdict of guilty of a higher offense *523where the option was available to convict of a necessarily included lesser offense.
In People v Beach, this Court set forth the circumstances under which an erroneous failure to instruct a jury regarding a cognate lesser included offense could be deemed harmless, thereby negating the need for a new trial. The Court held that failure to instruct the jury regarding a cognate lesser offense is harmless error "where the jury had the choice of a lesser offense and rejected it in favor of conviction of a higher offense” if rejection by the jury "would necessarily have to indicate a lack of likelihood that the jury would have adopted the lesser requested charge.” People v Beach, supra, 491, 493.
■ In the instant case, the jury convicted defendant Landrum of second-degree murder rather than voluntary manslaughter, a necessarily included lesser offense on which the jury had been instructed. If we were to mechanically apply the holding in People v Beach, without engaging in a thorough analysis of its rationale, we would automatically hold that, even if defendant was entitled to an instruction regarding involuntary manslaughter, as found in part in, the failure to give that instruction was harmless error.
Unless Beach is carefully applied, whenever a defendant is convicted of second-degree murder, there can be no reversal and retrial on the basis of failure to give an instruction regarding involuntary manslaughter, as long as the jury was instructed with regard to any necessarily included lesser offense. This result would obscure the distinction between cognate lesser offenses and necessarily included lesser offenses. Due process of law requires that members of the jury be presented with a full range of applicable jury instructions on the basis of the evidence adduced at trial, includ*524ing the unique elements of relevant cognate lesser offenses so that the jury verdict fairly corresponds to the evidence presented by the parties.
There are circumstances where a jury can convict of second-degree murder, implicitly finding malice, where failure to give an instruction regarding involuntary manslaughter is quite prejudicial to the defendant. The requisite prejudice exists in this case where the array of options available to the jury was truncated, so that deliberations were potentially affected by confusion regarding the element of specific intent and the effect of mitigating factors8 as they related to the altercation between the defendant and Mr. Thomas, because of failure to present instruction regarding a relevant cognate offense.
Writing for the Court in Beach, supra, 491, Justice Brickley expressly recognized that rejection by the jury of a necessarily included lesser offense should not automatically result in a finding of harmless error:
The existence of an intermediate charge that was rejected by the jury does not, of course, automatically result in an application of the Ross [People v Herbert Ross, 73 Mich App 588; 252 NW2d 526 (1977)] analysis. For it to apply, the intermediate charge rejected by the jury would necessarily have to indicate a lack of likelihood that the jury would have adopted the lesser requested charge.
We note that our recent cases, which did not adopt or apply the harmless error analysis, are distinguishable. In People v Richardson [409 Mich *525126; 283 NW2d 332 (1980)], the Court declined to apply a harmless error analysis because the refusal to instruct was reasoned to foreclose the jury’s option to convict the defendant consistently with his own testimony, evidence, and theory. Beach differs because the defense theory was alibi, and no evidence to make a theory of larceny essential to the defense was provided, that is, there was no specific denial of the use of force. There was only an alibi defense and an inference built on a possibility that the jury might disbelieve part of Turner’s testimony.
The Beach Court quoted People v Rochowiak, 416 Mich 235, 248-249; 330 NW2d 669 (1982), in which Justice Levin set forth suggested circumstances where harmless error could be found.9
As in Richardson, we do not hold that failure to give lesser offense instructions can never be harmless. The error may indeed be harmless in a case where it is clear that the jury was presented with a lesser offense or offenses consistent with the defendant’s theory which was rejected, and made findings of fact, implicit in the verdict, which would preclude conviction of the charge upon which an instruction was refused, or where the differences between the various offenses concern factual elements, the existence of a weapon (armed or non-armed), the completion of the offense (attempt), the use of force (larceny or robbery) and not the state of mind of the defendant (murder, manslaughter, reckless use; assault with intent to murder, with intent to commit great bodily harm less than murder, felonious assault).
In the instant matter, although defendant’s first line of defense was self-defense, there was also *526evidence presented that would support an inference of a killing by negligent use of excessive force to perform the lawful act of defending against a forcible rape. Failure to instruct with regard to involuntary manslaughter precluded the jury from selecting a verdict consistent with an unintentional killing. Where the defendant’s state of mind is at issue, mere shadings of meaning in the testimony and the instructions given to interpret the evidence may have great influence on individual jurors. Where, as here, there is no conflicting eyewitness testimony to rebut the defendant’s claim that she merely used the force she felt was required to escape, the prejudice may be extreme. In People v Lenkevich, 394 Mich 117, 124; 229 NW2d 298 (1975), this Court stated:
If in the presence of conflicting testimony the defendant had a right to rely on the defense of self-defense and its proper presentation to the jury, there is even more reason in the absence of conflicting testimony to afford the defendant such a right. A choice facing the jury in the absence of conflicting testimony is somewhat weighted and less flexible than one with conflicting testimony presenting in most cases a choice between two reasonable alternatives. If a defendant is prejudiced by erroneous instruction when a jury is faced with reasonable alternatives, he or she is certainly prejudiced by an erroneous instruction when a jury faces a weighted choice.
As the Court of Appeals below noted, if the jury in this case had been properly instructed, "the probability is high that at least one juror would have voted to convict on involuntary manslaughter, thereby making conviction of second-degree murder or voluntary manslaughter impossible.”10 *527The issue is not whether the jury was in the mood for leniency or whether the jury would have sought a compromise verdict, but, rather, whether an objective examination of the record reveals evidence of the unique elements of common-law involuntary manslaughter as distinguished from the elements of the other charged offenses, so that given the proper instructions, the jury might reasonably have convicted the defendant of the cognate offense to the exclusion of the primary offense or its necessarily included lesser offenses.
v
DEADLY FORCE TO REPEL AN ATTEMPTED RAPE
The majority correctly acknowledges that the trial judge erred in not specifically instructing the jury that rape equates with serious bodily injury and that defendant had the right to use the force required to repel the attack. The majority nevertheless errs when it refuses to find that the error prevented the jury from fully understanding the applicable law. Given the erroneous instruction, the jury may have been confused regarding a woman’s right to defend herself against sexual assault. The jury reasonably could have believed that defendant did not have the right to use deadly force, if necessary, to repel the sexual assault because, although in fear of sexual assault, she was not in fear of death or serious bodily harm.
Neither voir dire11 nor closing arguments12 were *528sufficient to obviate the need for a specific instruction from the judge on the right to use deadly force to repel forcible rape. The trial judge never clarified that defendant would have been justified in using self-defense to prevent an attempted rape, but could not have properly assaulted decedent after intercourse for mere refusal to pay. This lack *529of clarification takes on added significance because the prosecutor, in voir dire and in his closing arguments, obscured the distinction between these two situations.13 Defense counsel attempted to counter the prosecutor’s tactics by telling the jury in closing argument that the trial judge would instruct them that defendant had the right to use deadly force to repel the attack.14 However, the trial court’s failure to corroborate that portion of defense counsel’s closing argument may have made the entire argument suspect in the minds of the jury. Further, it becomes apparent that on the particular facts of this case, the lack of clarity in *530the jury instructions severely prejudiced the defendant. Her primary line of defense, i.e., reasonable force to repel a forcible sexual assault, was not clearly presented to the jury. Also, the defendant’s secondary line of defense, viz., negligent use of excessive force, was made less credible because it was not sufficiently emphasized that the defendant had the right to use the force necessary to repel the sexual assault. See People v Rochowiak, supra, 247-248.
CONCLUSION
The majority errs in holding that none of the jury instruction errors and omissions complained of require a new trial for the defendant. Further, the accumulation of these errors resulted in a synergistic prejudicial effect upon the jury deliberations. Accordingly, we should affirm the Court of Appeals judgment reversing defendant Landrum’s conviction and remanding for a new trial.
MCL 750.329; MSA 28.561.
People v Landrum, 431 Mich 906 (1988).
See ante, pp 508-509.
419 Mich 580.
Id.
MCR 2.613(A) provides:
Harmless Error. An error in the admission or the exclusion of evidence, an error in a ruling or order, or an error or defect in anything done or omitted by the court or by the parties is not ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take this action appears to the court inconsistent with substantial justice.
The Code of Criminal Procedure provides:
No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice. [MCL 769.26; MSA 28.1096.]
In this context, "mitigating factors” may be a misnomer in that mitigation is not an element of common-law involuntary manslaughter. Actually, it is the defendant’s right to defend herself against forcible rape that roughly corresponds to a mitigating factor as it would relate to the necessarily included lesser offense of voluntary manslaughter.
The Beach majority expressly declined to adopt the qualifications set forth in People v Rochowiak for finding of harmless error. The Court did, however, note that the facts in the case before it complied with the qualifications in Rochowiak. 429 Mich 491.
People v Landrum (On Remand), 171 Mich App 148, 152; 429 NW2d 818 (1988).
During voir dire defense counsel told the prospective jurors that rape or attempted rape can be an act of great bodily harm. The trial court specifically asked jurors if they had heard what defense counsel said and if they were willing to follow it if convinced of the facts supporting defendant’s claim. Each of the jurors answered in the affirmative. Each also answered affirmatively when asked whether a prostitute has the right to protect herself against great bodily harm as a result of attempted rape.
Defense counsel stated the following in closing argument:
Let’s get to the meat of this thing, and I certainly don’t *528intend to take a great deal of time in my talking with you. There is no question but that Henry Green Thomas died and is a probability that he, himself, fell in the tub and there is also that reasonable possibility that the acts of Celestine Landrum, what she did, may have caused or contributed to the death of Henry Green Thomas. What she did, did she have a right to do? There again, I stated to you that defending herself against a rape or an attempted rape is an absolute right and if she did so in order to prevent that rape or in order to prevent great bodily harm, the Court will instruct you that then she had a right to do anything that she could do even to the point of taking a life. Mr. Ray is of the opinion that Mr. Thomas didn’t do anything really, didn’t try and rape this young lady, but the facts just don’t warrant justifying his contention.
[S]he kept trying to get her clothes and each time he would try and get out of that bathtub and he already told her — and excuse the language, ladies and gentlemen, but sometimes in this case you must use the language that was used at that time, and I wouldn’t normally use it, of course, but he told her, "You are going to fuck or fight.” He told her, "Bitch, I am going to kill you.” He kept after her and she was merely trying to prevent him from getting to her and she wanted to get her clothes. She felt that if she could keep him in that bathtub that she could go. Now, even if she were mistaken and if it appeared to her that this is the thing that she had to do, then she is not guilty and the Court will instruct you along those lines.
I submit to you that she wasn’t mistaken. She finally did get her clothes only when Henry Green Thomas said in so many words, "I have had enough. I am going to sleep. I am giving up this fight now. I can’t take what I wanted from you so I am going to sleep.” That is when she got her clothes and to show you, ladies and gentlemen, that these were the facts and this is what she was doing, these were her intentions, she stood at that bathroom door and she could hear him and she frantically got on her clothes, and on several occasions he questioned her and asked her if she were there. [Emphasis added.]
In the relevant portion of his closing argument the prosecutor stated the following:
The Judge will instruct you that at the time of the act the Defendant must honestly believe that she is in danger of being killed or receiving serious bodily harm. What did she say on cross-examination? "He told me to take my clothes off. Were you in fear for your life? No, told me to get into bed. Were you in fear for your life? No, told me he wasn’t going to pay me. Were you in fear for your life? No. When you hit him with the phone were you in fear for your life? No.” For self-defense, at the time of the act the Defendant must honestly believe that she is in danger of being killed or receiving serious bodily harm. The Defendant said she was not. The degree of danger must be serious bodily harm or death. The Defendant said that she did not have that fear and said she was not afraid. In fact, the Defendant said, "Up until the point at which I hit him with the phone, had he produced the money, we would have continued with the sexual intercourse that the money was supposed to have been paid for.” That is what she said on cross-examination. She was not afraid. That fear wasn’t necessary for there to be present a defense of self-defense.
The Judge is going to give you that instruction. Listen to that carefully and see if it says she has to have had that requisite fear in order for there to be the defense of self-defense. Remember her testimony. The Judge will indicate that in order for self-defense to be present that fear must be present, and that in order for there to be a defense of self-defense, she must have it, and consider the testimony. You will see she didn’t have it, not fright. That is what she said. I wasn’t afraid. If he would have produced the money, we would have continued the sex act. [Emphasis added.]
See n 12.