dissenting.
This case presents the issue of the appropriateness of instructing the jury on criminally negligent homicide in circumstances not previously addressed by any Colorado appellate court. I disagree, on both factual and legal grounds, with Part IV of the majority’s opinion that failure to instruct the jury on the lesser included offense of criminally negligent homicide was not error. Instead, I conclude that because the mens rea for criminally negligent homicide concerns the failure to perceive a risk that harm could occur, it is fundamentally different from the mens reas for second degree murder and reckless manslaughter, and the jury should have been instructed on it as well. Therefore, I respectfully dissent.
The facts of this case are gruesome and tend to implicate the defendant, especially the events that occurred after the victim was killed. The majority opinion details many of those facts.
On appeal, defendant concedes that his actions caused the victim’s death, but he argues that his actions were either justified as self-defense or that he is culpable only of criminally negligent homicide. Relying on testimony of the pathologist, who could not specify the cause of the victim’s death, defendant contends that the victim died accidentally after he hit her in the neck or chest area. He argues that the trial court therefore erred by failing to instruct the jury on criminally negligent homicide, an offense that was consistent with his theory of the case, when there was a rational basis to support this instruction.
A court must give a lesser included offense instruction whenever there is a rational basis for the jury to acquit the defendant of the greater offense, but convict him or her of the lesser offense. People v. Halstead, 881 P.2d 401 (Colo.App.1994). In a homicide case, when there is some evidence, however slight, establishing the lesser included offense, it is reversible error to refuse to instruct the jury on that lesser offense. People v. Shaw, 646 P.2d 375 (Colo.1982).
Here, defendant was entitled to an instruction on criminally negligent homicide, because he presented evidence upon which a jury rationally could have acquitted him of second degree murder and reckless manslaughter, and still convicted him of criminally negligent homicide. See People v. Halstead, supra.
Specifically, criminally negligent homicide was consistent with his defense that he did not knowingly or consciously disregard a known risk that his actions would cause death, but rather, that he failed to perceive the risk that hitting the victim in the throat or chest area could cause death. Defendant never disputed that he hit the victim in the neck or chest area and that such blow caused her death. Rather, he argued that either her death was accidental because he did not know that she could die from such a blow, or that his actions were justified by the affirmative defense of self-defense.
*1019Further, defendant’s request for an instruction on criminally negligent homicide was not inconsistent with his affirmative defense of self-defense. See People v. Castro, 10 P.3d 700 (Colo.App.2000)(jury was properly instructed on both self-defense and criminally negligent homicide, because the self-defense instruction applied only to second degree murder and not to criminally negligent homicide). Here, the self-defense instruction applied to second degree murder, but did not apply to reckless manslaughter and would not have applied to criminally negligent homicide.
On the night of the offense, defendant and the victim attended a party. The prosecution presented conflicting testimony about the events leading up to the victim’s death, and defendant, through the testimony of his ex-wife, presented different accounts as well.
At trial, defendant’s request for an instruction on criminally negligent homicide was supported by the testimony of his ex-wife and the testimony of the forensic pathologist who performed the autopsy of the victim.
Thus, defendant’s ex-wife testified that defendant repeatedly told her that the victim’s death was an accident. According to her, defendant gave four versions of the accident, at least three of which were consistent with criminally negligent homicide. Three or perhaps four of the versions involved defendant hitting the victim in the neck or chest area at the party or in a park. The ex-wife further testified that defendant said he did not realize that he had killed the victim, but rather, thought that she had passed out after he had hit her. In my view, the conflicts in the four versions as to where the victim died are not relevant to the question whether a rational basis exists upon which a jury could acquit defendant of the greater crimes and convict him of criminally negligent homicide. Regardless of where the victim was killed, the jury may have believed that defendant’s actions constituted a failure to perceive a risk that injury could occur.
Additionally, the forensic pathologist testified that the victim could have died from a blow to her neck or chest area. He testified that humans have a reflex action, and when hit in the neck or chest area, this reflex action may cause a person to drop dead immediately. He explained that people have bundles of nerves in their necks that control breathing, heartbeat, and the majority of body functions. Trauma to those nerves can cause death quickly. The forensic pathologist further explained that there are multiple causes for this reflex action, including a blow to the neck or chest area with a fist or an open palm. Although he initially testified that the blow must have been hard to be fatal, on cross-examination, the pathologist conceded that such a blow did not have to be hard for it to be fatal.
It is important to note that the forensic pathologist could not determine the exact cause of death; rather, he was only able to rule out various causes of death. He testified that the victim had not been shot or stabbed, had not suffered a stroke, had not broken any bones, and had not been hit in the head.
The forensic pathologist also testified that he had performed over 4,000 autopsies, nearly 1,000 of them forensic, and had never seen a case where blunt trauma to the neck or chest caused death.
Because death occurs so rarely from this type of trauma, the pathologist’s testimony is entirely consistent with defendant’s theory of the case that the victim died as a result of an accident. Indeed, during closing argument the prosecutor asserted, based on the pathologist’s testimony, that the most likely cause of death of the victim was a blow to the neck or chest area.
The forensic pathologist’s testimony and the prosecution’s closing argument thus support giving a jury instruction on criminally negligent homicide, because they demonstrate that defendant could easily have failed to perceive that hitting the victim in the neck or chest area, even intentionally, would have caused her death.
Further, the trial court’s failure to instruct the jury on criminally negligent homicide was particularly prejudicial here, because the prosecution did not have overwhelming evidence supporting a conviction for second degree murder. There was no direct or physical evidence linking defendant to the crime, *1020and the People’s entire case was based on circumstantial evidence of events before and after the crime. Moreover, twice, the jury informed the court that it was “hopelessly deadlocked” and asked for instructions on how to proceed. Both times, the court responded that the jury must continue deliberations. The verdict was eventually returned after 5:00 p.m. on a Friday.
In these circumstances, and notwithstanding the extent of testimony tending to incriminate defendant, the testimony from the pathologist and defendant’s ex-wife, if believed by the jury, was sufficient to present a rational basis for acquitting defendant of second degree murder and reckless manslaughter and convicting him of criminally negligent homicide. In my view, defendant’s degree of culpability was a jury question.
Accordingly, I must consider whether the court’s failure to instruct the jurors on criminally negligent homicide was harmless error.
Harmless error is any error that does not affect a substantial right of a party. Crim. P. 52(a). Thus, when an error affects a substantial right of a party, it cannot be deemed harmless. People v. Pratt, 759 P.2d 676 (Colo.1988).
The majority opinion concludes that either there was no error or that any error was harmless. I conclude, however, that the court erred and that such error was not harmless.
In concluding that the failure to instruct on criminally negligent homicide was not error, the majority analyzes two lines of cases. I disagree with its analysis under the unique circumstances presented here.
The majority asserts that, under one line of cases, a trial court’s failure to instruct a jury on a lesser included offense is reversible error. See People v. Shaw, supra. Under the other line, by convicting a defendant of the greater offense, and rejecting a lesser included offense, the jury impliedly rejects all other lower lesser included offenses as well. Under that line, the failure to give such an instruction is harmless error. See People v. Favors, 192 Colo. 136, 556 P.2d 72 (1976); People v. Mullins, 188 Colo. 23, 532 P.2d 733 (1975).
According to the majority, People v. Gordon, 765 P.2d 633 (Colo.App.1988), reconciles these divergent lines of cases. In Gordon, a division of this court held that, when a jury convicts a defendant of an offense higher than an included offense on which there was an instruction, and there remains an even lesser included offense on which there was no instruction, the error is harmless because the selection of the higher offense constitutes a rejection of all lesser included offenses.
Applying Gordon to the facts presented here, the majority concludes that the jury’s conviction of defendant for the highest offense, second degree murder, and rejection of the lesser included offense of reckless manslaughter, necessarily constituted a rejection of the next lower included offense of criminally negligent homicide, even though the jury was not instructed as to that offense.
However, Gordon is distinguishable because the division there did not compare the mens reas for second degree murder and reckless manslaughter, on the one hand, and criminally negligent homicide, on the other. No Colorado appellate court opinion has examined the need for a lesser included offense instruction based upon the different mens reas involved, but, in my view, that distinction is significant.
The mens reas for the three offenses raised in this situation vary considerably, and given all three options, a jury might well convict defendant of criminally negligent homicide and acquit him of the two greater offenses.
Second degree murder occurs when a defendant “knowingly causes the death of a person.” Section 18-3-103(1), C.R.S.2000. A person acts knowingly with respect to the result of his or her conduct when he or she is aware that the conduct is “practically certain to cause the result.” Section 18-1-501(6), C.R.S.2000.
A defendant commits reckless manslaughter by acting in a manner that involves a substantial and unjustifiable risk of death to the victim, and although the defendant is aware of the risk, he or she nevertheless chooses to engage in the action that causes *1021death to the victim. See Moore v. People, 925 P.2d 264 (Colo.1996).
Both second degree murder and reckless manslaughter thus require that a defendant be aware of the risk associated with his or her actions. However, criminally negligent homicide does not require such awareness; rather, it occurs when a defendant fails to perceive a substantial and unjustifiable risk that an unintentional death will occur as a result. See People v. Castro, supra. Thus, the distinction between the mens reas of the offenses is critical here.
The circumstances presented in both People v. Favors, supra, and People v. Mullins, supra, were different from those here, in that there, each defendant was charged with first degree murder and the jury was instructed only on first and second degree murder. Mullins did not discuss the impact of the mens reas involved, nor did it address a court’s failure to instruct a jury on criminally negligent homicide.
Although the defendant in Favors argued that the trial court erred in not instructing the jury on criminally negligent homicide as a lesser included offense, the supreme court concluded that the defendant’s tendered instruction incorrectly stated the law and that the defendant had not demonstrated prejudice. Therefore, the Favors court did not address the mens rea for criminally negligent homicide, the issue presented here.
Relying upon Gordon, the majority concludes that, because the jury here convicted defendant of second degree murder rather than reckless manslaughter, it would not have acquitted him of second degree murder and convicted him of criminally negligent homicide.
However, as shown above, Gordon is distinguishable, and regardless of the instructions given on greater offenses, defendant here was entitled to an instruction on criminally negligent homicide because there was evidence that could have lead a reasonable jury to convict him of that offense and acquit him on the greater offenses. See People v. Shaw, supra; People v. Palumbo, 192 Colo. 7, 555 P.2d 521 (1976)(where the defendant hit the victim, causing him to fall and fatally strike his head, the trial court did not err in instructing the jury on criminally negligent homicide).
In addition, the trial court’s rationale for rejecting defendant’s request for an instruction on criminally negligent homicide was flawed. The court found that because defendant’s actions were affirmative, and not negligent, criminally negligent homicide did not apply. However, the trial court was mistaken because an affirmative act is not inconsistent with criminally negligent homicide, which involves the failure to perceive a risk. Thus, an affirmative action on the part of defendant would not preclude the court from instructing the jury on criminally negligent homicide. In fact, defendant’s affirmative act of striking the victim here is consistent with the mens rea for criminally negligent homicide, because his contention is that he failed to perceive the risk that the victim might die from such affirmative act.
Thus, I cannot conclude that the trial court’s failure to instruct the jurors on criminally negligent homicide was harmless because defendant’s substantial rights were affected. Had the jury been instructed on criminally negligent homicide, it may well have convicted defendant of that charge and acquitted him of second degree murder and reckless manslaughter. Accordingly, I would reverse defendant’s conviction and remand for a new trial.
In addition, I agree with the majority’s resolution of Parts I and II. Because I disagree with Part IV, I would not reach the issues addressed in Parts III, V, and VI of the majority’s opinion, which would be unlikely to recur on retrial.'