dissenting.
¶ 46 I dissent from the majority’s opinion. There is no doubt in my mind that Canion should be granted a new trial. This is a record replete with errors that “cast doubt on the integrity of the verdict.” State v. King, 158 Ariz. 419, 424 n. 4, 763 P.2d 239, 244 n. 4 (1988).
¶47 Only two errors need be discussed: The trial court erred by allowing the jury to return verdicts of guilt of both first-degree (felony) murder and second-degree murder as a lesser-included offense of first-degree (premeditated) murder because it concluded that the two convictions would “merge” upon sentencing. The trial court also erred by instructing the jury on aggravated assault as a class 6 felony, although Canion was indicted for aggravated assault as a class 2 felony, the jury was given a verdict form only with regard to a class 2 felony, and Canion was given a consecutive sentence for the commission of a class 2 felony.
A. First-Degree Murder
¶ 48 Canion was indicted for a single first-degree murder in alternative counts: Count I, felony murder, and Count II, premeditated murder. Despite Canion’s objections, the jury was not instructed that these were alternate forms of first-degree murder. Rather, its instructions included those for both felony murder and premeditated murder, and the instructions for premeditated murder included instructions for, inter alia, the lesser-included offense of. second-degree murder. With these instructions, the jury found Can-ion guilty of first-degree (felony) murder (Count I) and of second-degree murder (Count II). Clearly the trial court erred in permitting the case to be sent to the jury in such a way as to permit convictions of two degrees of homicide for the one murder with which Canion was charged. Clearly the convictions for felony murder and second-degree murder do not merge as “double punishment” in sentencing. Clearly this is not an error that can be remedied absent a new trial.
¶ 49 The felony-murder doctrine is an anomaly in the law of homicide because the government is not required to prove that the defendant had the mens rea for murder but only that for the attendant felony. In early common law, murder was simply defined as the unlawful killing of another human being with “malice aforethought;” the intent to kill and the intent to commit a felony were alternative aspects of a single concept of malevolence. Schad v. Arizona, 501 U.S. 624, 640-41, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991). Thus, a person who caused a death while perpetrating a felony was guilty of murder; intent was imputed regardless of the actual intent of the offender, the dangerousness of
*238the felony or the likelihood that death might result. See W. Lafave & A. Scott, Criminal Law 545-46 (1972). The rationale was that, because the defendant committed a felony, he was a “bad person” such that society need not concern itself with the fact that the result accomplished may have been very different from the result intended. Id. at 560. With the evolution of the criminal law, however, it came to be espoused that a person is not criminally liable without the requisite culpable mental state with regard to the result of his action. Id. Accordingly, some United States legislatures and appellate courts have imposed differing requirements from the original common-law doctrine, such as requiring the defendant to have a degree of culpable mental state beyond the intent to commit the underlying felony. See, e.g., Ark.Code Ann. § 41.1501(l)(a) (1977)(defendant must manifest “extreme indifference to the value of human life” in causing the death); Del.Code Ann. tit. 11,
§ 636(a)(6)(Supp.l982)(requiring “criminal negligence”); LaRev.Stat. Ann. 14:30 (West Supp.l983)(requiring “specific intent to kill or to inflict great bodily harm”); State v. Doucette, 143 Vt. 573, 470 A.2d 676, 682 (1983)(malice as essential element of felony murder); People v. Aaron, 409 Mich. 672, 299 N.W.2d 304, 326-27 (1980)(malice not found from intent to commit underlying felony alone); State v. Galloway, 275 N.W.2d 736, 738 (Iowa 1979)(felony murder includes element of malice), overruled on other grounds, State v. Schutz, 579 N.W.2d 317 (Iowa 1998); State v. Harrison, 90 N.M. 439, 564 P.2d 1321, 1324 (1977)(presumption that one who commits any felony has requisite mens rea to commit first-degree murder insupportable legal fiction; killing must be natural and probable consequence of felony), superceded by statute on other grounds, Tafoya v. Baca, 103 N.M. 56, 702 P.2d 1001 (1985); State v. Millette, 112 N.H. 458, 299 A.2d 150, 153 (1972)(malice indispensable aspect of murder and not inference of law from mere act of killing during commission of felony); State v. Noren, 125 Wis.2d 204, 371 N.W.2d 381, 384 (App.1985)(eonstruing “natural and probable consequence” language of felony-murder statute to limit liability to deaths that were foreseeable consequences of felonious acts equal to “depraved mind” murder); see also Model Penal Code § 210.2 (requiring recklessness under circumstances “manifesting an extreme indifference to the value of human life”).
¶50 Arizona’s statutory scheme remains, though, that there are two means of committing first-degree murder, with premeditation or in the course of a designated felony;5 they carry alternative mental states, one being premeditation and the other being the “intent required for murder combined with the commission of an independently culpable felony.” Schad, 501 U.S. at 631-32, 111 S.Ct. 2491, citing State v. Serna, 69 Ariz. 181, 188, 211 P.2d 455 (1949)(“The attempt to perpetrate [any felony] named in the. statute, during which a homicide is committed, takes the place of and amounts to the legal equivalent of such deliberation, premeditation, and design, which were otherwise necessary attributes of murder in the first degree.” (Citation omitted.)).
¶ 51 These being alternative mental states, however, and this is the point significant for the resolution of Canion’s case, first-degree murder remains one offense, not two. Id. at 637-45, 211 P.2d 455. That is why the single homicide was charged in this case in the alternative; Canion was not charged with two murders but with alternative methods of committing a single first-degree murder. See State v. Kelly, 149 Ariz. 115, 116, 716 P.2d 1052, 1053 (App.1986)(first-degree murder charged alternatively in one count).
¶ 52 The majority basically is equating felony murder with second-degree murder as if the crimes were a similar expression of an “extreme indifference to human life” or the *239“reckless engagement in conduct creating a grave risk of death.”6 On this rationale, they are able to uphold a merger of the second-degree murder conviction with the first-degree murder conviction. While in many states, as above noted, the crime of murder committed in the course of the commission of a felony requires a mental state which equates with second-degree murder, under Arizona law, there is no such analysis as that in which the majority engages. According to our statutes, these two forms of homicide are neither one and the same, nor is one a lesser-included offense of another. Not only do the two crimes require differing mental states, which alone negates the lesser-included analysis, no lesser-included homicide offense exists for first-degree (felony) murder. See State v. Lopez, 163 Ariz. 108, 112, 786 P.2d 959, 963 (1990); State v. Celaya, 135 Ariz. 248, 255, 660 P.2d 849, 856 (1983), citing State v. Arias, 131 Ariz. 441, 641 P.2d 1285 (1982). Thus there can be no such “merger.”
¶53 The instructions and the verdicts at the very least signal jury confusion.7 And it is not an appropriate cure to substitute appellate judgment for that of the jury, most particularly when, in a case as factually complex as this, the jury could have decided that Canion was guilty of either form of first-degree murder, of neither form of first-degree murder but a lesser-included offense, e.g., second-degree murder, or of no such resolution of the homicide charge.
¶54 To put this case in its most simple form, there is but one defendant on trial for the death of one person. The jury, however, was permitted to return homicide convictions on both of two alternative theories, which is legally impossible. Without doubt, this error casts doubt on the integrity of the verdict and should be held to be reversible.8
B. Aggravated Assault
¶ 55 The trial court further erred by instructing the jury on aggravated assault as a class 6 felony, although Canion was indicted for aggravated assault as a class 2 felony, the guilty verdict form was for a class 2 felony, and Canion was given a consecutive sentence for that crime as a class 2 felony. This error led to a jury finding Canion guilty of an offense upon which it was never instructed.
¶56 It is the duty of the trial court to “instruct the jury upon the law relating to the facts of the case and upon matters vital to a proper consideration of evidence.” State v. Evans, 109 Ariz. 491, 493, 512 P.2d 1225, 1227 (1973). Indeed, in such matters the court is required to instruct the jury on its own motion even if not requested by the defense: “If the trial court fails to instruct the jury on a matter vital to the rights of the defendant, such an omission creates fundamental error.” Id.
¶57 As all acknowledge, the trial court varied its instruction from the elements set out in the indictment; it omitted the element “use of a deadly weapon during the offense.” However, admittedly, in returning its verdict, the jury specifically found that the crime was “dangerous,” which, as indicated, meant that Canion used a deadly weapon during the offense. Nonetheless, a fact must be found via jury instructions which correctly identify the elements of the offense according to the proper standards. It is rudimentary that the jury be instructed regarding the elements of the crime with which the defendant is charged. The jury may not, as in this case, *240cobble together bits of evidence and reach its verdict of guilt of an offense about which it was not instructed. Thus, when the jury has erroneous or incomplete instructions regarding the law, reversal must be required.
¶ 58 These verdicts were the result of trial court errors that must be deemed reversible and, accordingly, Canion should be granted a new trial.
. Arizona Revised Statutes (“A.R.S.”) section 13-1105 (1997) provides in pertinent part:
A. A person commits first degree murder if:
1. Intending or knowing that the person's conduct will cause death, such person causes the death of another with premeditation.
2. Acting either alone or with one or more other persons such person commits or attempts to commit [designated felonies] and in the course of and in furtherance of such offense or immediate flight from such offense, such person or another person causes the death of any person.
. The second-degree murder statute, A.R.S. § 13-1104(A)(1997), provides that a person commits second-degree murder if, acting without premeditation and
3. Under circumstances manifesting extreme indifference to human life, such person recklessly engages in conduct which creates a grave risk of death and thereby causes the death of another person.
. Indeed, during deliberations, the jury sent a note asking the following question:
Is it necessary to eliminate the most serious charge before we move to a lesser charge: Specifically, first degree premeditated to second degree murder to manslaughter. Should we consider all of count 2 at the same time?
. To quote from State v. Smith, 631 S.W.2d 353, 356 (Mo.App.1982):
The crimes were charged in the alternative. In such cases, the effect of the allegations is that the defendant committed either one or the other of the offenses; therefore, the jury may find the defendant not guilty of both charges, or guilty of one charge, but not guilty of both.