dissenting:
{1 I dissent. This was a horrible crime. The opinion devotes the first ten pages to the terrible facts of this case, and repeats the facts often throughout the subsequent pages. I believe the opinion dwells on these facts unnecessarily. I agree they are appalling, but this Court's job is to review the trial record for claimed legal errors. Rather than analyze the legal issues the majority puts forth the horrible facts and then tries to mold the law to satisfy its decision to affirm the case. Were it otherwise, the excruciating factual detail would not be necessary and the absurd length of the opinion could be reduced from 98 pages to something less. I find errors in the first and second stages of trial which deprived Gilson of a fair trial and reliable sentencing procedures.
12 Gilson was convicted in the alternative of child abuse murder by committing or permitting child abuse. The opinion concludes that a conviction for child abuse murder by permitting renders a defendant death-cligi-bie, because "death is the result often enough that the death penalty should be considered as a justifiable deterrent to the felony itself.1 I disagree. I do not believe it is appropriate to apply Enmmund/Tison2 reasoning under these circumstances. The opinion uses Enmund/Tison to conclude that Gil-son's actions showed his participation in Shane Coffman's death was "major" and "substantial", and that Gilson acted with reckless indifference to human life. The majority states that Gilson's "active participation in the abuse" distinguishes his case from the passive circumstances of failure to provide or other criminal omissions. However, this analysis focuses on Cilson's actions which contributed to Shane Coffman's death-that is, whether his actions assisted the co-defendant significantly enough to support a finding that he was responsible for the murder. In other words, this analysis focuses on whether Gilson assisted in committing the crime of murder. This error in analysis renders irrelevant the majority's comparison of permitting child abuse murder to felony murder by a non-triggerman. The majority cites cases in which participants in felony murder were eligible for the death penalty, even though they did not kill, where each defendant participated in crimes which resulted in murders, and each defendant contemplated the use of killing or lethal force. Again, the focus is on a defendant's actions in assisting co-defendants who subsequently killed.
T3 The crime of permitting requires only that the defendant allows another to commit child abuse murder. No action is required-*931all that is necessary is that the defendant knows that child abuse is occurring but does not stop someone else from committing the crime. There can be no Enmund/Tison analysis for a defendant who permits child abuse murder, because that person need neither intend that life be taken, contemplate lethal force would be used, have a substantial personal involvement in the crime, or exhibit reckless indifference to human life. En-mund/[Tison focuses specifically on a defendant's personal culpability for murder. Looked at in the light most favorable to the State, the evidence that Gilson permitted child abuse murder is that he knew his co-defendant was abusing Shane Coffman on August 17, 1995, and he did not stop her. This evidence is wholly insufficient to conduct an Enmund/Tison review, and evidence of permitting can never support the questions raised in such a review.
T4 Child abuse in any form is a heinous crime. I agree with the majority that the legislature may address the specific crime of child abuse murder. However, I do not believe the legislature can constitutionally make a defendant convicted of child abuse murder by permitting abuse death-eligible. A defendant must have some personal culpability, beyond knowing about and failing to stop another from committing a crime, before the State may impose the ultimate punishment. Whatever the merits of the majority's conclusion that Gilson was personally culpable for committing the murder, its conclusion that Gilson was culpable for permilting the murder cannot be legally justified. I cannot affirm the death penalty in this cases.3
T5 It is also clear that Gilson was not convicted of child abuse murder beyond a reasonable doubt. The jury was instructed that the verdict as to guilt for murder must be unanimous, but jurors did not need to agree unanimously as to the theory supporting guilt (referring to committing rather than permitting child abuse murder)4 The verdict form indicates jurors found Gilson guilty of first degree murder but were divided as to the underlying theory.5 The majority finds no error by comparing this to cases where a jury returns a general verdict when a defendant is charged in the alternative with malice and felony murder. In those cases, as long as evidence supports both theories and the question goes merely to the factual basis of the erime, the Court upholds a general verdict. In fact, the majority here goes out of its way to find that child abuse murder will be interpreted as felony murder, apparently to strengthen its analogy to these cases. However, where a defendant is charged in the alternative we treat the conviction as felony murder rather than malice murder (e.g., reversing any conviction for an underlying felony)6 That is, we make a choice between the two alternatives, choosing the one where we are confident the jury was unanimous regarding the underlying theory.
1 6 The opinion also determines that Schad v. Arizona 7, discussing general verdicts in felony-murder cases, supports a conclusion that disagreement as to the factual theory does not invalidate a conviction for murder charged in the alternative. Even assuming the majority correctly treats "committing" and "permitting" as mere factual bases for a single charge of murder, the majority opinion misses the point. We do not have a general verdict here. We know the theories under which jurors determined Gilson's guilt, and we know the jury was not unanimous. At least some jurors had reasonable doubt as to each underlying theory. To interpret "child abuse murder" as "felony murder" does not *932change this fact; jurors were divided as to the basis for guilt-the underlying felonies. Under these cireumstances, the jury's verdict violated Gilson's right to a unanimous verdict "wholly determinative of the guilt or innocence of a defendant." 8 I would remand for a new trial in which a jury, correctly instructed and with the appropriate verdict forms, has the opportunity to return a general verdict of guilt.
T7 I also believe the trial court erred in failing to give lesser included instructions. The majority correctly cites the Shrum 9 test, that all lesser forms of homicide are included and instructions should be given if supported by the evidence. However, the opinion completely fails to apply this test, holding instead that Gilson "has not shown that the greater offense of first degree murder was not committed.10 As this Court has frequently said, this is not the law. The question is not whether evidence supported the greater offense, but whether evidence also supported any lesser offenses.11 Finally, the opinion suggests that Gilson is not entitled to lesser included instructions because he claimed he was innocent of the crimes.12 Any case law supporting this position predated Shrum, which includes no such provision. Shrum is clear, concise, and easy to apply: the jury should be instructed on lesser included offenses supported by the evidence. Evidence here supported those instructions, and the trial court should have given them.13
T8 Finally, I believe the trial court abused its discretion in joining the two child abuse charges with the child abuse murder case. Admission of evidence that Gilson abused Isaac and Tia was tremendously prejudicial and could not have helped but affect the jury's decision on the murder charge. The opinion concludes joinder was proper as the child abuse cases were in part alleged to have occurred "during the same time period" as the abuse leading to Shane Coffman's death.14 However, the opinion also notes that "once Shane died, Isaac and Tia began receiving the brunt of the discipline from Appellant." 15 The child abuse counts were based on actions occurring primarily after Shane died. Under these circumstances I believe any remote connection the child *933abuse cases may have had with the murder case is substantially outweighed by the very real prejudice Gilson faced when the child abuse evidence was admitted. The only logical reason to join these cases was for reasons of judicial economy. While that is an important consideration, judicial economy can never be more important than a defendant's right to receive a fair trial.
. At 923-924.
. Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 LEd.2d 1140 (1982), held the death penalty may be imposed only where the defendant intended life be taken or contemplated that lethal force would be used. Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), required a finding that the defendant had substantial personal involvement in the underlying felony and exhibited reckless disregard or indifference to the value of human life.
. - In addition, I would not uphold the continuing threat aggravating circumstance. Gilson had no previous criminal record, and the majority finds sufficient evidence for this circumstance based on the callous nature of the crime and the pattern of criminal conduct evident in Gilson's abuse of three children. I disagree with the use of circumstances of the crime to support this aggravating circumstance. Hooper v. State, 1997 OK CR 64, 947 P.2d 1090, 1108, n. 58, cert. denied, 118 S.Ct. 2353, 118 S.Ct. 2353, 141 L.Ed.2d 722 (1998).
. Instruction No. 14, CF 96-245 O.R. 954.
. Verdict Form, CF 96-245 O.R. 1016.
. Alverson v. State, 1999 OK CR 21, 983 P.2d 498, 521.
. 501 U.S. 624, 111 S.Ct. 2491, 115 LEd.2d 555 (1991).
. Romano v. State, 1995 OK CR 74, 909 P.2d 92, 125, cert. denied, 519 U.S. 855, 117 S.Ct. 151, 136 L.Ed.2d 96 (1996); Okla. Const. art. 7, § 15. I disagree with the majority's conclusion that the error in form in the verdict forms was harmless. I further disagree with the majority's disingenuous suggestion in footnote 3 that the jury did not wonder whether it should vote for a single option. The verdict form for murder clearly shows the jury was divided as to the underlying theory. The majority notes that jurors sent out a note asking about the verdict form for Count I, charging abuse of Tia Coffman. In answering the jury's question about Count I, the trial court directed jurors to the Instruction dealing with the underlying theory for murder, not child abuse. I interpret this to mean the jury asked about the child abuse verdict form for Count I, were directed to the murder instruction, and took that as an answer to what must have been identical questions about the remaining two counts. Why should they ask the question three times when one response was enough?
. Shrum v. State, 1999 OK CR 41, 991 P.2d 1032. The opinion incorrectly attempts to modify Shrum by citing Tenth Circuit law to suggest we must look at whether evidence would permit a jury to acquit a defendant of the charged offense. This may be the law in the Tenth Circuit, but it is not the law in Oklahoma.
. At 918.
. Le v. State, 1997 OK CR 55, 947 P.2d 535, 546, cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998). The majority cites Fairchild v. State, 1999 OK CR 49, 998 P.2d 611, 627. The analysis of lesser included offenses in Fairchild is an isolated and erroneous statement of law. The majority also again relies on federal law, citing Tenth Circuit cases for this argument.
. At 917.
. It is difficult to reconcile (a) the opinion's conclusion that evidence did not support a finding of culpable negligence sufficient for second degree manslaughter, with (b) the opinion's conclusion that Gilson's actions supported a finding of reckless indifference to life sufficient to render him death-eligible. Regarding the sufficiency of evidence to support the child abuse murder case, I once again disagree with the majority's reliance on the mistaken conclusion that child abuse murder is a general intent crime. See Fairchild, 998 P.2d at 636 (Chapel, J., dissenting).
. At 904. The abuse was alleged to have occurred from July 1995, through February 1996.
. At. 897.