dissenting.
A jury convicted Antonio Mata-Medina of second degree murder for Mandy Gettler’s death. At trial, the material facts were undisputed and only the degree of Mata-Medi-na’s culpability was at issue. Mata-Medina’s defense, pertinent to the issue before us today, was that Gettler’s death was an accident because he was not aware that she could die from his injury to her neck. On the contrary, the prosecution argued Mata-Medina was aware that such an injury could cause Gettler’s death.
The trial court instructed the jury on Mata-Medina’s affirmative defense and the offenses of second degree murder and the lesser included offense of reckless manslaughter. However, the court refused to grant an instruction on criminally negligent homicide. For its failure to grant that instruction, the majority concludes that the trial court erred because the “evidence could support a construction of facts that would accord with defendant’s theory of a criminally negligent act.” Maj. op. at 979-980.
I write to express my disagreement with the majority’s further conclusion that the error was harmless. To determine the effect of a harmless error at trial, our jurisprudence dictates that we review the facts for a determination of whether there is a substantial probability that the error affected the verdict. In contrast, the majority assumes, without factual review, that because the jury rejected the lesser included offense of reckless manslaughter in favor of second degree murder, the jury implicitly rejected criminally negligent homicide — notwithstanding its own assertion that the “evidence could support a construction of facts that would accord with defendant’s theory of a criminally negligent act.” Maj. op. at 979-980.
Such perfunctory analysis is simply not harmless error review of this case. A categorical rule that it is always harmless error to fail to instruct on a lower grade lesser included offense whenever a jury rejects an intermediate one is a functional one and usually arrives at a correct result. However, the case before us is an exception to that generality.
A proper harmless error analysis reveals that whether Mata-Medina was aware that his actions entailed a risk of death was the crux of the trial. A fundamental difference in mens rea requirement exists between criminally negligent homicide on the one hand, and both second degree murder and reckless manslaughter, on the other. While criminally negligent homicide does not require awareness of the risk of death, both second degree murder and reckless manslaughter do require awareness of the risk of death.
The jury never considered that distinction because the trial court usurped the jury function. Mata-Medina’s substantial rights were affected when the trial court determined on its own the viability of his theory of defense. The error is a reversible one, and therefore, I respectfully dissent.
*985I. Harmless Error Standard
Based on our century-old jurisprudence that requires reversal when a trial court fails to give an instruction on a lesser included offense supported by some evidence, I would find the error here of constitutional magnitude, subject to the standard of whether the prosecution proves beyond a reasonable doubt that this error did not contribute to the verdict. Blecha v. People, 962 P.2d 931, 942 (Colo.1998). The inquiry is not whether is it possible the jury would have found Mata-Medina guilty of second-degree murder had the error not occurred; rather the inquiry is whether in the absence of the error, the jury would have beyond a reasonable doubt found Mata-Medina guilty of second-degree murder. People v. Harlan, 8 P.3d 448, 491-92 (Colo.2000).
Prior to this case, we had always found reversible error if the evidence supported the giving of a lesser included offense.1 As such, the standard for reversal was whether the lesser included offense that was not submitted to the jury had evidentiary support in the record. That standard is a low one and suggests a constitutional harmless error analysis to protect a defendant’s right to present his theory of defense to the jury. Therefore, the standard of review of harmless error employed by the majority in this case is unprecedented in our case law and in my view unwarranted.
In addition, I disagree with the majority’s conclusion that the failure to instruct on a lesser included offense that was also the defendant’s theory of the case was harmless error under the standard adopted by the majority today. Because I would find the error here reversible under either the constitutional or the lower harmless error standard, I explain below that the error was not harmless under the standard the majority employs.
Harmless error is any error that does not affect a substantial right of a party. Crim. P. 52(a). Assuming that a failure to instruct on a lesser included offense is not of constitutional dimension, an “error will be disregarded if there is not a reasonable probability that the error contributed to the defendant’s conviction.” Salcedo v. People, 999 P.2d 833, 841 (Colo.2000).
Evaluating whether a reasonable probability exists that an error substantially influenced the verdict or affected the fairness of the proceeding requires an individualized prejudice assessment, including a review of the evidence presented at trial, the defendant’s theory of the case, and the verdict returned by the jury. Upon conducting the proper review in this case, it becomes apparent that the application of a harmless error analysis that includes a categorical rule results in an erroneous resolution of the issue before us.
IV. The Harmless Error Standard Applied
A. The Evidence at Trial
The cause of Mandy Gettler’s death is unknown. However, the prosecution presented uncontroverted evidence that Mata-Medina affirmatively struck Gettler in the neck, knowing that he was striking her. The prosecution also proffered extensive circumstantial evidence of Mata-Medina’s attempt to avoid detection through his actions to conceal Gettler’s death. He never called the police, but left her covered by leaves and branches in the drizzling rain. He reburied her in a hurried grave, her body in an unnatural position. He fled to New Mexico. Finally, Terri, his ex-wife, testified that Mata-Medina suffered from insomnia and nightmares of ghosts that would “get him like he got her.”
However, Terri also testified that Mata-Medina related to her on numerous occasions that Gettler’s death was an accident. Additionally, nothing in the testimony established the cause of Gettler’s death, including the testimony of Detective Salbato, who witnessed the exhuming of Gettler’s body, or the testimony of an archeologist, who managed *986the excavation of the body, as the body was fully articulated and no weapons were discovered with the body. Finally, a forensic pathologist, Dr. Stewart, similarly testified that the cause of death was uncertain. Gettler had no fractures or any holes or wounds in the skin — which remained intact notwithstanding the badly decomposed nature of the body. Stewart stated that a blow to the neck may cause sudden cardiac arrest, but that it would not be within the knowledge of the ordinary person that such a blow would lead to freakish, instantaneous, and unpredictable death. “What happens is there are bundles of nerves in the neck that control your breathing, your heart beat, majority of body functions called vagal nerves, and you get a reflex action from trauma to those nerves that can cause death very quickly.” Therefore, evidence also supported Mata-Medina’s defense that his actions occurred in an accident due to criminal negligence.
In sum, the presentation of evidence indicates that the central dispute at trial concerned whether Mata-Medina failed to perceive the risk that his actions could cause Gettler’s death, as the defense contended, or whether he was aware of that risk and thus killed Gettler knowingly or recklessly, as the prosecution claimed.
B. The Criminally Negligent Homicide Instruction & The Defendant’s Theory of the Case
The majority agrees that an instruction on criminally negligent homicide was required because it comported with Mata-Medina’s theory of defense. I now proceed to discuss the nature of this offense in comparison to the offenses upon which the jury was instructed to show that the jury here was never permitted to determine the crux of the case — whether Mata-Medina failed to perceive the risk of Gettler’s death, but was nonetheless guilty of a lesser offense.
The jury was instructed on the offenses of second degree murder and reckless manslaughter. “A person commits the crime of murder in the second degree if the person knowingly causes the death of a person.” § 18-3-103, 6 C.R.S. (2002). Presuming Mata-Medina “causefd] the death of’ Gett-ler, the jury evaluated whether he did so “knowingly.” A person acts knowingly “with respect to conduct ... when he is aware that his conduct is practically certain to cause the result.” § 18-1-501(6), 6 C.R.S. (2002) (emphasis added).
An awareness of the risk of death is also required when a person commits reckless manslaughter. “A person commits the crime of manslaughter if such person recklessly causes the death of another person.” § 18-3-104, 6 C.R.S. (2002). Again, assuming that Mata-Medina “cause[d] the death of’ Gett-ler, the death was committed recklessly if he “consciously disregarded] a substantial and unjustifiable risk that a result will occur.” § 18-1-501(8) (emphasis added). Both second degree murder and reckless manslaughter require awareness of the risk of death as a result of conduct.
In contrast, criminally negligent homicide requires that a person cause the death of another when, through a gross deviation from the standard of reasonable care, he fails to perceive a substantial and unjustifiable risk that death will result from certain conduct. §§ 18-3-105, 18-1-501(3), 6 C.R.S. (2002). The divide in mens rea between reckless manslaughter and second degree murder, on one side, and criminal negligence, on the other, is significant when the issue is awareness, and not a mere variation in degree, as it would be were the issue the extent of the risk. People v. Shaw, 646 P.2d 375, 380 (Colo.1982) (“distinction between acting recklessly and acting with criminal negligence is the difference between, on the one hand, becoming aware yet consciously disregarding a substantial and unjustifiable risk of death from one’s conduct, and, on the other, failing to perceive, through a gross deviation from the reasonable care standard, a substantial and unjustifiable risk that death will result from one’s conduct”); People v. Bettis, 43 Colo.App. 104, 602 P.2d 877, 878 (1979) (between recklessness and criminal negligence “the distinction is between becoming aware of a risk yet consciously choosing to disregard it as opposed to negligently failing to become aware of the risk.”).
In light of the facts of this case, the difference in culpability requirements between the *987offenses is sufficiently different that a jury did not reject the defense theory that the defendant was guilty of criminally negligent homicide. Specifically, the jury never addressed whether Mata-Medina committed a criminally negligent act by failing to perceive a risk of death. Rather, the jury only addressed whether the degree of risk involved would support recklessness or conduct committed knowingly.
Mata-Medina furnished the jury with an evidentiary basis to conclude that he, unaware of the risk of death from a blow to the neck, failed to perceive the risk of death when he hit Gettler in the neck. Thus, in the context of the evidence presented at trial, it was for a jury to determine the material fact whether Mata-Medina was aware of the risk that a strike to the neck could cause immediate and sudden death. A jury should have had the option to convict Mata-Medina on a charge that was consistent with the evidence and with his defense.
Here, however, the trial court gave to the jury two choices: find some degree of awareness of the risk of Gettler’s death from his conduct or acquit him. Given that overwhelming evidence connected Mata-Medina to Gettler’s death, despite any reasonable doubts jurors may have had as to his awareness of the risk entailed by his actions, a jury would have convicted him on some charge. See Keeble v. United States, 412 U.S. 205, 212-13, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973) (discussing the necessity of a lesser-included offense in light of the likelihood that a jury is likely to resolve doubts in favor of a conviction where its only options are to convict or acquit when the jury possesses knowledge that the defendant committed some crime).
In that respect, this case is no different than the numerous other cases in which we found reversible constitutional error for a failure to instruct on a lesser included offense/theory of defense because it is for the jury, under proper circumstances, and not the trial court to weigh and consider the evidence. Crawford v. People, 12 Colo. 290, 20 P. 769 (1889); People v. Nunez, 841 P.2d 261, 265 (Colo.1992) (reversible error to refuse theory of defense as it is for the jury and not the court to determine the credibility of the witnesses, the weight of the testimony, and the adequacy of the defendant’s theory of the defense); Read v. People, 119 Colo. 506, 509, 205 P.2d 233, 235 (1949) (“nothing in our criminal practice is more thoroughly established or definitely settled than the principle that when there is any evidence, however improbable, unreasonable or slight, which tends to reduce the homicide” to a lower grade, a defendant is entitled to an instruction); Shaw, 646 P.2d at 379-80 (citing People v. Watkins, 196 Colo. 377, 586 P.2d 43 (1978) (second degree murder conviction reversed where court refused to instruct jury on criminally negligent homicide); People v. Miller, 187 Colo. 239, 529 P.2d 648 (1974) (first degree murder conviction reversed where court refused to instruct on lesser offenses of voluntary and involuntary manslaughter); Sanchez v. People, 172 Colo. 168, 470 P.2d 857 (1970) (second degree murder conviction reversed due to court’s failure to instruct on involuntary manslaughter); Ferrin v. People, 164 Colo. 130, 433 P.2d 108 (1967) (first degree murder conviction reversed where court refused to instruct on voluntary manslaughter); Gallegos v. People, 136 Colo. 321, 316 P.2d 884 (1957) (first degree murder conviction reversed due to court’s refusal to instruct on voluntary and involuntary manslaughter); Read, 119 Colo. 506, 205 P.2d 233 (second degree murder conviction reversed due to court’s refusal to instruct on voluntary and involuntary manslaughter); Baker v. People, 114 Colo. 50, 160 P.2d 983 (1945) (second degree murder conviction reversed where court refused to instruct on voluntary and involuntary manslaughter)).
Because the trial court erred when it refused to instruct the jury on a lesser included offense of criminally negligent homicide; because the jury was effectively instructed that to believe Mata-Medina’s version of events required his acquittal; because the jury was not given an option to convict him on his theory of defense; and because substantial evidence connected Mata-Medina to Gettler’s death, such that a jury would have trouble acquitting him knowing that he was involved somehow in the crime; I would find the error *988here to be of the same type that we have so often found reversible.
C. The Verdict
After twice being deadlocked during deliberations, the jury eventually returned a verdict of second degree murder. Undoubtedly, the verdict, which rejected the intermediate offense of reckless manslaughter, lends some support to the majority’s assertion that Mata-Medina suffered no prejudice. But, its conclusion is too facile. The jury here never considered whether Mata-Medina failed to perceive a risk of death from his actions, but nonetheless committed a crime. Thus, the jury was denied an opportunity to convict him according to his theory of defense. In light of the facts of this case, I would find the verdict unreliable and undermined by the court’s failure to instruct on the lesser included offense of criminally negligent homicide.
Additionally, the majority’s support in case law for the proposition that the rejection of an intermediate offense necessarily rejects all lesser offenses — without a review of the facts — rests on cases that are incomparable to the one before us. Specifically, none of our cases or those of our sister states, addressed the critical distinction in the criminal culpability between criminally negligent homicide, failure to perceive a risk, on the one hand, and on the other, reckless manslaughter and second degree murder, which both require some awareness of a result from an actor’s conduct. This distinction is important because the jury never had the opportunity to convict Mata-Medina consistent with his theory of defense that he was unaware of the risk of death. Furthermore, nothing in our precedent addressed the situation where a reviewing court first finds an error in the trial court’s refusal to give an instruction on a lower grade offense, but nevertheless finds the error harmless.
For example, in People v. Mullins, 188 Colo. 23, 532 P.2d 733 (1975), this court announced that there could be no inference of prejudice for a court’s failure to instruct on manslaughter when a jury instruction for second degree murder was given, but the jury opted to convict Mullins of first degree murder. However, this court reviewed the evidence in detail before finding no inference of prejudice.
The evidence as presented here fails to reveal anything which would support or justify a manslaughter instruction to the jury.... The uncontroverted evidence here is absolutely devoid of any provoking act on the part of the victim, or that any provocation occurred which would excite an irresistible passion in a reasonable person. Rather, the evidence shows that the victim, who was in bed asleep, was awakened by his wife, had just got out of bed, and while standing next to the bed was shot down by the defendant.... This is murder and nothing else.
188 Colo. 23, 25-26, 532 P.2d 733, 734-35.2 Moreover, Mullins only addressed the failure to give an instruction on manslaughter, which like second degree murder, concerns an awareness3 of risk for a criminal act — not the failure to perceive a risk as was the defense and central issue in this case.
Likewise, in People v. Bartowsheski, 661 P.2d 235 (Colo.1983) we found no inference of prejudice when there was no rational basis in the evidence to support the submission of the charge of reckless manslaughter. In Bar-towsheski, the defendant stabbed an eight-year old girl, cutting her carotid artery and jugular vein in the neck, another stab penetrating the brain, and two deep stabs puncturing the victim’s lungs. Id. at 239-40. The injury was inflicted through a repeated sawing motion. Id. at 240. This court found untenable defendant’s claim of error in the *989trial court’s refusal to instruct on the crime of reckless manslaughter because “[t]o submit reckless manslaughter to the jury would mean that, under this state of the record, the jury could rationally find that the defendant did not inflict these wounds with a practical certainty that death would occur ... but instead did so with a mere conscious disregard of a fatal risk. The record, in other words, would have to provide rational support [for that finding].... There is a total absence, however, of any evidence to support such a finding.” Id. at 243. Because of the lack of evidence in the record for an instruction, it would be inconsistent to find an inference of prejudice for a failure to instruct when the jury rejected second degree murder in favor of conviction of first degree murder. In sum, in both Mullins and Bar-towskeski, before concluding that the defendant suffered no prejudice when the jury had convicted the defendant of the highest grade offense, and rejected the intermediate one, the court reviewed the record. Upon a review of the record, this court first concluded that the evidence did not support the giving of an instruction on a lesser included offense. To find prejudice upon a determination that no evidence supported an instruction would be incongruous. Furthermore, neither case presented the same issue before us here that the defendant failed to perceive the risk of harm as Mata-Medina alleges.
The majority relies upon People v. Favors, 192 Colo. 136, 556 P.2d 72 (1976) for the same proposition that the rejection of an intermediate offense raises no inference of prejudice for a failure to instruct on a lesser included offense. I would also find Favors inapplicable, because again, the court did not first find that it was an error to refuse the instruction. Rather, Favors stated that the instruction tendered by the defense was an erroneous statement of law, and as such it was not error to refuse an instruction for criminally negligent homicide4 to the jury. That this court goes on to say that the defendant suffered no prejudice for failure to give an erroneous instruction, then, is of little significance. Nor did Favors address the issue here — -failure to perceive a risk. In summary, my review of our precedent indicates that it does not encompass nor predict a categorical rule that lacks any factual analysis.
The majority also relies on the court of appeals case, People v. Gordon, 765 P.2d 633 (Colo.App.1988). I agree with the majority’s assessment of the dicta in Gordon that in many instances there is no inference of prejudice for a failure to instruct on a lesser included offense where a jury convicts a defendant “of an offense higher than an included offense on which there was an instruction, and there is a still lesser included offense on which there was no instruction.” Id. at 635.
Distilled to its essence, the court of appeals expressed that when the offered defense is sufficiently addressed by other instructions tendered to the jury and rejected by them, there is no reversible error. While that proposition is generally true, it does not apply here because of the significant difference in the mens rea for criminal negligence and recklessness that is the basis of the defense in this ease.
The cases from our sister states also address the same general proposition that is not applicable to the factual situation in this case. Some are inapplicable because like Mullins and Bartowsheski, the reviewing court found no prejudice in a failure to give an instruction since no evidence supported the giving of the instruction in the first instance. Others are inapplicable because the jury’s consideration of the defense theory upon which the defendant requested an instruction was not precluded by the given instructions, as explained in Gordon. The applicable cases endorse my view that a review of the record is necessary to test the hypothesis that a defendant suffered no prejudice.5
*990In some of the cases from other jurisdictions the reviewing courts found that a defendant suffered no prejudice for failure to give an instruction that had no evidentiary basis. For example, in State v. Jones, 979 S.W.2d 171, 176 (Mo.1998), Defendant Jones killed his grandmother by first hitting her with a butcher block and then repeatedly stabbing her. After killing her, he robbed her and used the proceeds to buy crack cocaine. Id. at 177. At trial, the jury convicted the defendant of first degree murder and rejected second degree murder. Id. at 185. The defendant claimed error for the failure to instruct the jury on voluntary manslaughter. Id. To be sure, upon review, the Missouri Supreme Court stated that “no reasonable basis exists to suggest that the jury would have reduced the conviction had they been presented with” an instruction on an even lesser offense. Id. However, that statement is followed by another that, “the review of the record does not support any instructional inference to sudden passion arising from adequate cause.” Id. Certainly then, no prejudice can be inferred.
Similarly, in Commonwealth v. Counterman, 553 Pa. 370, 719 A.2d 284 (1998) a jury found the defendant had set fire to his own home, killing his three children, and convicted him of first degree murder. Counterman alleged that the trial court erred in refusing an instruction on reckless manslaughter. Id. at 303. However, the court found that since the jury had rejected the intermediate defense of second degree murder, there could be no inference of prejudice for a refusal of an instruction on reckless manslaughter. Id. at 304. The Pennsylvania Supreme Court stated “[t]here is not the slightest reason to believe that the jury would have returned a verdict of voluntary manslaughter out of sympathy or in recognition of the factors that they may have deemed mitigating where those factors were not sufficiently compelling to cause them to elect a lesser alternative that was offered.” Id. This proposition cannot be disputed when there is no error in refusing an instruction. Under a separate review of the same instructional error, the Pennsylvania Supreme Court stated that there was no evidence in support of a sudden or intense passion or serious provocation by the victims of the offense. Id. at 303-04.
In neither of these cases did the reviewing court find an error to instruct on a lesser included offense; therefore that the reviewing court also found no prejudice is of little import.6
State v. Hall, 982 S.W.2d 675, 679, 682 (Mo.1998), supports the principle involved in the dicta in Gordon, that where the rejected instruction does not preclude a jury’s consideration of the defendant’s theory of the case — upon which a jury could find the defendant not guilty of the greater offenses for *991which instructions are given — a defendant suffers no prejudice.
Without any review of the facts, the Missouri Supreme Court found in Hall, that the defendant suffered no prejudice for a failure to a give a second degree felony murder instruction in a case where the defendant robbed the victim by “putfting the gun] straight — close to his head.” 982 S.W.2d at 679, 682. At trial, the jury convicted defendant of first degree murder and rejected the charge of second degree murder. Under Missouri law, a person commits first degree murder if he “knowingly causes the death of another person after deliberation upon the matter.” Mo. Ann. Stat. § 566.020 (2002). A person commits second degree murder if he “knowingly causes the death of another person or, with the purpose of causing serious physical injury to another person, causes the death of another person.” Mo. Ann. Stat § 565.021. Second degree felony murder, on the other hand, simply requires that a victim is killed during the perpetration of a felony, without any jury determination of culpability. Id. As such, felony murder is not a lesser included offense in that a jury could convict of both murder and felony murder; a conviction of felony murder may be consistent with an additional conviction upon either first or second degree murder. In that sense, Hall is not applicable because the failure to give a felony murder instruction did not deprive Hall of any defense to first or second degree murder. Thus, Hall does not support the use of categorical rule that denies a defendant his theory of defense.
I cannot agree that it is always harmless error to fail to give an instruction on criminally negligent homicide whenever a jury rejects reckless manslaughter without regard to the nature of the defense in the case. The question a reviewing court must address is whether it was necessary for the jury to be given the option to consider whether a defendant did not perceive a risk of harm when a jury has before it only the greater offenses of reckless manslaughter and second degree murder. Both of the greater offenses require an awareness of the risk of harm, and allow no room to convict a defendant for failure to perceive a risk of harm.
III. The Record Indicates the Error is Reversible
I do not assert that it is always reversible error when a court fails to give an instruction on a lower grade lesser included offense. Rather, I contend that there is no support for the application of a categorical rule to the circumstances of this case. Here, the testimony adduced at trial suggested that Mata-Medina was criminally negligent. I find untenable the proposition that reversible error was not committed in this case on the mere basis that the jury did not, out of sympathy, convict Mata-Medina of the intermediate offense of reckless manslaughter. The jury had only two options: to convict on the basis that Mata-Medina had some awareness that his actions could result in death or to acquit. That awareness of risk is precisely the factor that separates reckless manslaughter and second degree murder, on one hand, and criminally negligent homicide, on the other. Whether Mata-Medina was consciously aware of the risk of his actions was never presented to the jury. Because the trial court decided this issue before the jury could consider it, the trial court foreclosed the jury’s option of convicting him in accordance with the evidence and with the theory of his defense.
“We [cannot] say that ... the jury would have found differently had they been properly instructed. What we do say is that there was not an entire absence of evidence tending to establish the crime of [criminally negligent homicide], and that defendant was entitled to an instruction .... It is obviously impossible for us to hold that the error thus committed was without prejudice.” Crawford v. People, 12 Colo. 290, 294, 20 P. 769, 771 (1889). We have adhered to this principle for over a century. Given a choice, on the facts of this case, a jury may well have convicted Mata-Medina of criminally negligent homicide while acquitting him of the two greater offenses. It is for the jury to decide whether to accept Mata-Medina’s version of the events. Further, a review of whether the error is reversible must be based on the entirety of the record.
*992IY. Conclusion
I do not agree with the majority’s adoption of harmless error review including the categorical rule that it applies to this case. Moreover, a thorough overview of the record supports my finding that the prosecution has not proven beyond a reasonable doubt that in the absence of the error, the jury would have nevertheless convicted Mata-Medina of murder in the second degree. Additionally, a thorough overview of the record supports my finding that a reasonable probability exists that the trial court’s error affected the verdict and Mata-Medina’s substantial rights to have a jury determination on the central' issue — his failure to perceive the risk of harm. I would reverse the judgment of the court of appeals. Accordingly, I respectfully dissent.
I am authorized to say that Justice BENDER joins in this dissent.
. In section II.B, I cite to numerous cases in which the failure to give a lesser included offense constituted reversible error. These include People v. Shaw, 646 P.2d 375 (Colo.1982), Read v. People, 119 Colo. 506, 205 P.2d 233 (1949) and Crawford v. People, 12 Colo. 290, 20 P. 769 (1889).
. A later Tenth Circuit case, Mullins v. Evans, 622 F.2d 504 (10th Cir.1980) labeled Mullins' trial in state court a sham in which the defense made every possible attempt to ensure the jury convicted him of first-degree murder.
. Section 18-3-104(l)(c), C.R.S. (1973), the manslaughter statute which Mullins cites stated: "With intent to cause the death of a person other than himself, under circumstances where the act causing the death was performed, not after deliberation, upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the person killing sufficiently to excite an irresistible passion in a reasonable person .... ” (emphasis added).
. When Favors was decided, the offense of criminally negligent homicide could be committed either by conduct amounting to criminal negligence or by intentionally causing the death of a person in a good faith but unreasonable belief that justification existed under section 18-3-105(1), C.R.S. (1973.). Defendant Favors sought an instruction on an intentional act, and this is not the same instruction that Mata-Medina requested.
. People v. Cornell, 466 Mich. 335, 646 N.W.2d 127, 144 n. 19 (2002) calls for a "consideration *990of the 'entire cause' ” to determine whether an error is reversible, citing People v. Beach, 429 Mich. 450, 418 N.W.2d 861 (1988). Thus, although it may be harmless error when a jury rejects an intermediate offense and convicts of a greater one, that conclusion should only be reached after a review of the record. Indeed, Michigan supports my view of harmless error analysis. In People v. Beach, 429 Mich. 450, 418 N.W.2d 861, 879 (1988), the court explains that generally, the rejection of an intermediate offense suggests that the jury’s verdict is sound, but that is not a forgone conclusion. Rather, for this rule 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.” Id.
The majority also cites State v. Allen, 69 S.W.3d 181, 191 (Tenn.2002) for the same proposition. However, that case states that under a harmless error inquiry "a reviewing court should conduct a thorough examination of the record, including the evidence presented at trial, the defendant’s theory of defense, and the verdict returned by the jury. A reviewing court may find the error harmless because the jury, by finding the defendant guilty of the highest offense, to the exclusion of immediately lesser offense, necessarily rejected all other lesser-included offenses.” Id. at 191 (emphasis added). Thus, Tennessee does not support a categorical harmless error rule, but supports thorough review. Such review is especially appropriate in this factually close case.
. The majority also relies on State v. Daniels, 40 P.3d 611, 620-21 (Utah 2002). But, I would find that case factually distinguishable. The defendant participated in the murder of a fellow inmate in prison where he held the legs of the victim, while another repeatedly stabbed the victim with a shank, and the defendant bragged about the sound and feel of the shank entering and exiting the victim’s body. Id. at 615. I do not believe that this evidence supports the giving of an instruction on manslaughter.