dissenting: I respectfully dissent from the majority opinion, which concludes that a jury could have reasonably convicted Tahah of second-degree reckless murder or involuntary manslaughter. K.S.A. 22-3414(3) and State v. Berry, 292 Kan. 493, Syl. ¶ 6, 254 P.3d 1276 (2011), provide that “[ijnstructions on the lesser degrees of homicide are proper in felony-murder cases when there is some evidence reasonably justifying a conviction of some *281lesser included crime beyond a reasonable doubt.” Even viewing the evidence in the light most favorable to Tahah, I cannot agree that the evidence would support a conviction of either lesser included crime requested.
This was never a case of an accidental shooting. Tahah was a trained law enforcement officer with the Dodge City Police Department. On the night of the shooting, he declined to assist with the department’s response to the Greensburg tornado because he had been drinking. He continued drinking with friends at several bars. At one bar, Tahah was upset by the sight of his ex-girlfriend, Erin Jones, dancing with another man. After drinking into the early morning hours, Tahah drove past Jones’ house before returning to his apartment where he changed into dark clothing and dark shoes. Tahah then returned to Jones’ residence and lay in wait, hidden in Jones’ backyard and armed with his rifle, before firing the shot that killed her. The dark clothing and shoes were later recovered from his trash by officers searching his apartment. Officers also seized a Winchester .270 rifle and three “Winchester Short Mag” .270 shell casings.
The majority relies on Tahah’s later-recanted statement to police that the rifle discharged when he was lowering it as sufficient evidence to lead a jury to conclude that the shooting was accidental. Tahah’s statement was internally inconsistent with the suggestion that his gun fired accidently. While Tahah said he changed his mind and “when I was lowering the gun a round went off,” he later said “[ajfter I made the shot,” language that is used when a person intentionally fires a gun. Tahah also made a noticeable trigger-action hand gesture when he talked about firing the rifle. The State presented evidence that trained law enforcement officers are taught to keep their trigger finger off the trigger until ready to fire, and Tahah acknowledged that he had been trained to use that precaution. The State also presented testimony that the angle of the shot was inconsistent with a shot fired while the rifle was being lowered. Tahah provided details of his location in the yard and corrected officers who suggested the shot was fired from inside the house.
*282At trial, Tahah took the witness stand and recanted his confession and testified that his statements to law enforcement were untrue. He specifically denied being at Jones’ house that night. He explained that the confessions were merely intended to give Jones’ family closure after her death. In requesting the lesser included instructions, Tahah appears to claim: I wasn’t there and didn’t do it; but if I was there, I accidently shot Jones in the head. This assertion defies Aristotelian logic, which holds that contradictory statements cannot coexist as truth. Imagine Lee Harvey Oswald claiming that he was nowhere near the Texas School Book Depository on the day President Kennedy was shot, but even if he was, his rifle went off quite by accident, and besides, he was too absorbed in the excitement of viewing the presidential motorcade through the scope on his rifle to be clear about what was transpiring. One strains to resist feeling insulted by the putting forward of such a logically impossible defense.
Or consider this scenario: a car salesman confesses that he stole a low-mileage, late-model Mercedes-Benz. In his statement to police, he gives explicit details about the Mercedes location and the means by which he stole it. He also states that he believed it to be worth $500. At trial, he not only recants and denies ever being in possession of the Mercedes, the State puts on evidence independent of tire confession supporting the theft and of the vehicle’s value being at least $35,000. Further, there is testimony that the defendant sold one just like it a month prior for $40,000. The majority would find that it was reversible error for the trial court not to instruct on the lesser included crime of misdemeanor theft. The law has never been that simply saying something in a statement, especially when it is later repudiated by the declarant and unsubstantiated by any evidence, suffices to validate it as “some evidence reasonably justifying a conviction of some lesser crime beyond a reasonable doubt.” In State v. Calderon, 270 Kan. 241, 255-56, 13 P.3d 871 (2000), the defendant requested an instruction on reckless second-degree murder as a lesser included offense of first-degree murder based on the defendant’s testimony that he intended to cut the victim’s arm but accidently stabbed the victim in the abdomen. As we noted in that case:
*283“We have held that a criminal defendant has a right to an instruction on all lesser included offenses supported by the evidence at trial so long as (1) the evidence, when viewed in the light most favorable to the defendant’s theory, would justify a jury verdict in accord with die defendant’s theory and (2) the evidence at trial does not exclude a theory of guilt on die lesser offense.” ’ ” Calderon, 270 Kan. at 256 (quoting State v. Moncla, 262 Kan. 58, 73-74, 936 P.2d 727 [1997]).
In Calderon, this court reviewed the record and concluded that the evidence did not support an instruction for reckless second-degree murder. We noted that there was overwhelming evidence of intent and Calderon’s self-serving statement regarding his lack of intent did not in itself support the lesser included instructions based on recklessness. Calderon, 270 Kan. at 256. The evidence presented in this case demonstrates that Tahah dressed in dark clothing, lay in wait in his ex-girlfriend’s backyard, and intentionally shot and killed her with his Winchester .270 rifle. The only suggestion that his actions were unintentional was disavowed by Tahah himself and thoroughly and convincingly nullified by the evidence produced at trial.
Second-degree reckless murder is the killing of a human being committed unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life, K.S.A. 21-3402(b); and involuntary manslaughter is the unintentional killing of a human being committed recklessly, K.S.A. 21-3404(a). Here, there was no evidence presented at trial that could reasonably justify a conviction that Tahah unintentionally but recklessly discharged his rifle at an occupied dwelling. Based on the evidence presented and consistent with his theory of defense before the jury, Tahah either committed the act and was guilty of felony murder as charged or he was guilty of nothing at all.
Second-degree reckless murder and involuntary manslaughter may now be lesser included offenses of felony murder in some situations in which they were not previous to Berry. However, in this case there was no evidence, when viewed in the light most favorable to Tahah, on which a reasonable jury could convict Tahah of either of the requested lesser included instructions beyond a reasonable doubt. “Where there is no substantial testimony applicable to the lesser degrees of the offense charged and all of the *284evidence taken together shows that the offense, if committed, was clearly of the higher degree, instructions relating to the lesser degrees of the offense are not necessary.” State v. Shortey, 256 Kan. 166, Syl. ¶ 2, 884 P.2d 426 (1994). . .
Accordingly, I conclude it was not error to deny Tahah’s request for second-degree reckless murder and involuntary manslaughter as lesser included offenses of felony murder.