Mata-Medina v. People

71 P.3d 973, 2003 WL 21257982

• Court: Supreme Court of Colorado
• Decided: June 30, 2003
• Docket: 01SC702
• Status: Published

Opinions

Justice KOURLIS

delivered the Opinion of the Court.

In this case, a jury convicted Antonio Mata-Medina of the second-degree murder of Mandy Gettler on August 29, 1996. The trial court sentenced Mata-Medina to thirty-two years in the Department of Corrections. Mata-Medina appealed his conviction to the court of appeals, which affirmed. People v. Medina, 51 P.3d 1006 (Colo.App.2001).¹ The defendant sought certiorari before this court on two issues: whether the trial court erred in refusing his tendered instruction on criminally negligent homicide; and whether the evidence was sufficient to support his conviction for second-degree murder. We now determine that the trial court did err in refusing to instruct the jury on criminally negligent homicide; however, because the jury considered but rejected the intermediate offense of reckless manslaughter, we determine that such error was harmless as a matter of law. We also hold that the evidence was sufficient to support the conviction. Accordingly, we affirm the court of appeals and uphold the conviction.

I. Facts

On August 29, Antonio Mata-Medina, Mandy Gettler, Ms. Gettler’s boyfriend, Hector Hernandez, and other friends attended a party. The men were relaxing in the yard and drinking. At some point in the evening, Mandy Gettler, Hector Hernandez, Sabino Hernandez and Mata-Medina went to a park. At the park, Gettler had sex with her boyfriend, while the other two men waited. They flipped a coin to see who would approach her next.

Defendant, Antonio Mata-Medina, won the coin toss and Sabino Hernandez departed. When Mata-Medina attempted to have intercourse with Gettler, he was unable to achieve an erection. She laughed and attempted to excite him; however, he was unresponsive and they abandoned the effort.

Mata-Medina, Hector Hernandez and Gettler then left the park to walk home together. Hernandez testified that he walked with Gettler, and the two were laughing at Mata-Medina. Mata-Medina did not say anything, and appeared “[mjaybe embarrassed a little” but did not seem angry. Hernandez reached his home first and said he left Gettler and Mata-Medina alone. That was the last time Hernandez saw Gett-ler alive.

Later, Mata-Medina returned to his home. His wife noted that he had been drinking but did not appear drunk. He told her to come in the bedroom with him, where he lay down in bed but did not get under the covers.

She awoke the next morning when Mata-Medina’s friends called to see if he was coming to work. At that point, Mata-Medina was gone. He had taken the couple’s van. At about ten o’clock that morning, she received a phone call from her husband asking her to call a taxi for him because the van had become stuck in the mud.

Soon afterwards, the taxi arrived with her husband and she paid the fare. He confessed that “there had been an accident,” and that he had killed Mandy Gettler. Mata-Medina’s wife testified at trial that at that time Mata-Medina said he had been at a party “and the girl was asking for money, and she kept hitting him in the chest and he was trying to walk away, and he told her to get out of his face, and he finally had enough, and then he punched her in the throat, and she fell down, and he left.”

No one called the police. Mata-Medina convinced his wife to rent a chainsaw, and take a cab to where he had abandoned the van. With the chainsaw, they freed the van from barbed wire where it was entangled. A few days later, they returned to that location and Mata-Medina retrieved the body in a wheelbarrow from its initial location. He and his wife placed it in the van, then drove to a bridge. The two threw the body over the side of the bridge, where it landed on dry ground. Mata-Medina went under the bridge and buried the body and then disposed of the victim’s clothing.

Two weeks after August 29, the couple moved to New Mexico. Throughout the course of these events, Mata-Medina’s wife questioned him about what had happened and later testified that he gave her multiple conflicting versions of the events. The defendant’s other versions of what happened each varied slightly from his original story. He stated that the victim had wanted $100 for sex and harassed him because he didn’t have any money, following him, grabbing at his wallet, and hitting him in the chest. He pushed her away, hitting her in the chest and she fell. In another version, he got into a fight with a friend. He said the victim was pushed when she tried to break up the fight and then she hit her head.

Eventually, Mata-Medina and his wife moved back to Colorado, where his wife cooperated with police to recover the body. A team of archaeologists exhumed Gettler’s body seven months after her death.

Mata-Medina was arrested and charged with second-degree murder. At trial, the judge instructed the jury on the lesser included offense of reckless manslaughter; however, he refused to give an instruction on criminally negligent homicide. After twice informing the court they were deadlocked and being told to continue deliberations, the jury returned a verdict of guilty on the second-degree murder charge.

Mata-Medina appealed, arguing both that he was entitled to an instruction on criminally negligent homicide ■ and that there was insufficient evidence to convict him of second-degree murder. The court of appeals affirmed, finding that the failure to instruct was harmless as a matter of law and that the evidence was sufficient to support the verdict. Mata-Medina appealed to this court and we granted certiorari.² We now conclude that Mata-Medina was entitled to an instruction on criminally negligent homicide; however, because the jury was given the opportunity to consider but rejected the lesser included offense of reckless manslaughter, thereby finding the presence of all the elements of second-degree murder, we determine that the error was harmless as a matter of law.

II. Entitlement to the Instruction

Defendant argues that he was entitled to a criminally negligent homicide instruction because the evidence offered could support an acquittal of knowing and reckless homicide. He maintains that his theory of the case would support a conviction for criminally negligent homicide.

Specifically, the defendant notes .that Dr. Robert Stewart, who performed the autopsy on the remains of the victim testified that she had not been shot or stabbed; however, because of the advanced state of decay, the doctor stated he could not draw any further conclusions with certainty. The doctor did testify that no bones had been broken, and that she did not die from a blow to the head or a severe jerking of the neck.

At trial, in response to questions about whether the victim might have died from a shove to her chest or neck, the doctor reported that some people can suffer a reflex phenomenon from a blow that causes instant death, and leaves no identifiable mark on the body. The blow could come from a closed fist, open palm, or flat of the hand. The doctor explained that there is no way to tell, looking at a person, whether she is susceptible to this condition.

Accordingly, the defendant argues that the evidence could support a conclusion that he did not understand the degree of risk that his behavior courted, because he could have struck Gettler in the chest or neck without realizing that such a blow could cause death.

To the contrary, the People argue that the defendant was not entitled to the instruction because there was no factual evidence that Mata-Medina did not understand that his actions, including an alleged blow to the neck, could cause death; or stated otherwise, no evidence that he failed to perceive a substantial and unjustifiable risk that his actions might cause the death of the victim.

The defendant is entitled to an instruction supported by a reasonable construction of the evidence; therefore, we agree with Petitioner.

A. Distinguishing the Offenses

A person commits criminally negligent homicide when he “causes the death of another person by conduct amounting to criminal negligence.” § 18-3-105, 6 C.R.S. (2002). Criminally negligent homicide is a class 5 felony. Id. Criminal negligence is a state of mind that exists when “through a gross deviation from the standard of care that a reasonable person would exercise, he fails to perceive a substantial and unjustifiable risk that a result will occur or that a circumstance exists.” § 18-1-501(3). By contrast, a person commits reckless manslaughter, a class 4 felony, when he “recklessly causes the death of another person.” § 18-3-104(l)(a). A person acts recklessly in this context “when he consciously disregards a substantial and unjustifiable risk” that his actions will cause death. § 18-1-501(8). Second-degree murder is a class 2 felony,³ which requires a showing that the defendant knowingly caused the death of the victim. § 18-3-103.

We recently explained in detail the statutory elements of reckless manslaughter, which are distinguishable from criminally negligent homicide only by degree of culpability. In People v. Hall, 999 P.2d 207, 215-16 (Colo.2000), we explained that to determine whether a risk was substantial and unjustifiable, the “trier of fact must weigh the likelihood and potential magnitude of harm presented by the conduct and consider whether the conduct constitutes a gross deviation from the reasonable standard of care.” The fact finder must consider the facts and circumstances of the individual case, both to weigh the magnitude of the harm against its likelihood, and to determine whether the risk was “consciously” disi'egarded. Id. at 211. To find the risk unjustifiable, the fact finder must find that the nature of the risk was so substantial as to be unjustified in relation to the nature and purpose of the actor’s conduct. Id. at 217. In considering whether the risk was consciously disregarded, the fact finder may infer the “actor’s subjective knowledge of the risk or [consider] what a reasonable person with the actor’s knowledge and experience would have been aware of in the particular situation.” Id. at 216.

In contrast, to constitute murder in the second degree the actor must “knowingly cause[] the death of a person.” § 18-3-103(1). A person acts knowingly when “he is aware that his conduct is practically certain to cause the result.” § 18-1-501(6). Thus there are two elements of second-degree murder, “[fjirst, the death must have been more than merely a probable result of the defendant’s actions. Second, the defendant must have been aware of the circumstances that made death practically certain.” People v. Dist. Ct., 652 P.2d 582, 586 (Colo.1982). The first element is objective; the second is subjective. Id. For the subjective component, “the People need not provide direct evidence of the defendant’s state of mind. .... [T]he defendant’s subjective awareness may be inferred from his conduct and surrounding circumstances.” Id.

In sum, the mens rea with which the defendant acted in relation to the risk determines his degree of culpability. Distinguishing criminally negligent homicide from reckless manslaughter, “[a]n actor is criminally negligent when he should have been aware of the risk but was not, while recklessness requires that the defendant actually be aware of the risk but disregard it.” Hall, 999 P.2d at 219-20. Further, distinguishing manslaughter from second-degree murder, the actor commits murder not by disregarding some risk of death, but by engaging in conduct he knows is practically certain to cause death.

When a defendant’s actions result in death, criminally negligent homicide is the least culpable criminal offense for which he may be held liable. Criminally negligent homicide is a class five offense, on a par with first-degree assault committed in the heat of passion. § 18-8-105; § 18-3-202(2)(a). It is a lesser offense than first-degree assault (class 3),⁴ vehicular homicide (class 4),⁵ or second-degree assault (class 4).⁶

This court has long held that “the refusal to instruct on a lesser included offense in a homicide case is reversible error as long as there is some evidence, however slight, tending to establish the lesser included offense.” People v. Shaw, 646 P.2d 375, 379 (Colo.1982). Various court of appeals’ eases demonstrate circumstances in which courts have required the giving of a criminally negligent homicide instruction when the facts clearly identified the guilty party as the perpetrator, the cause of death was known, and the defendant’s actions suggested a higher degree of culpability than defendant argues here. See, e.g., People v. Castro, 10 P.3d 700 (Colo.App.2000) (finding reversible error when trial court declined to give requested criminally negligent homicide instruction in case where defendant shot victim with a gun but the evidence could have supported a finding that the defendant did not perceive that death would result); People v. Mares, 705 P.2d 1013, 1015 (Colo.App.1985) (finding reversible error for refusal to give instruction on manslaughter or criminally negligent homicide in case where defendant stabbed victim multiple times).

When considering whether a defendant is entitled to his proffered instruction, the trial court must consider the evidence in the light most favorable to the defendant. If there is “any evidence whatever tending to establish a certain statutory grade of criminal homicide” the defendant is entitled to an instruction thereon, regardless of how “incredible or unreasonable” his contention may be, Crawford v. People, 12 Colo. 290, 293, 20 P. 769, 770 (1889), or how “improbable, unreasonable or slight” it might be. People v. Garcia, 826 P.2d 1259, 1262 (Colo. 1992) (quoting Shaw, 646 P.2d at 380 (quoting Read v. People, 119 Colo. 506, 509, 205 P.2d 233, 235 (1949))). This court has declared,

There is nothing in our criminal practice 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 the grade of manslaughter, the defendant is entitled to an instruction thereon upon the hypothesis that the same is true, and that it is for the jury, under proper instructions, and not the trial judge, to weigh and consider the evidence and determine therefrom what grade of crime, if any, was committed; and that the court’s refusal to instruct thereon is reversible error.

Read, 119 Colo. at 509, 205 P.2d at 235. This contention was reaffirmed in Ferrin v. People, 164 Colo. 130, 136, 433 P.2d 108, 111 (1967), wherein the court also observed, “Cases which are ‘all white or all black’— either murder or nothing — are not of frequent occurrence; we need only note the many, many decisions in which we have said the lesser degrees' of the crime must be submitted in the instructions.” Id. (reversing for jury to consider heat of passion manslaughter).

B. Application to this Case

In this case, the trial court erroneously concluded that when a defendant commits an affirmative act such as pushing the victim in the throat or chest, he is not entitled to an instruction on negligence. As these other cases illustrate, the proper focus is not whether the act resulting in death was affirmative in nature, but rather what the defendant’s state of mind was at the time of the incident.

In this case, the defendant’s wife testified that he repeatedly told her that the death was an accident. It is possible, based on the evidence, that the defendant struck the victim in the chest or neck in some fashion, and she experienced an unpredictable and fatal reaction to that blow. Further, the jury-might have believed any of the defendant’s various confessions, for instance, that the victim was hitting him, grabbing for his wallet, and that he merely pushed her away and she fell. Any of these stories were potentially consistent with a failure to perceive a risk of death. The evidence could support a construction of facts that would accord with defendant’s theory of a criminally negligent act.

III. Consequences of Error

Since we hold that the defendant was entitled to an instruction on criminally negligent homicide, we must consider whether the trial court’s failure to instruct the jury on criminally negligent homicide is reversible error. When the trial court errs in failing to give a jury instruction that the defendant requested and to which he was entitled, the appellate court reviews that error under a harmless error standard. People v. Garcia, 28 P.3d 340, 344 (Colo.2001). Pursuant to that standard, the defendant is entitled to have his conviction reversed only if the error affected his substantial rights. Crim. P. 52(a). Where the error is not of constitutional dimension, it will be disregarded if there is not a reasonable probability that it contributed to the defendant’s conviction. Garcia, 28 P.3d at 344.

The United States Supreme Court has held that in capital cases, it is constitutional error to refuse to instruct the jury on any lesser offense, as such refusal forces the jury into an all-or-nothing decision between capital murder and innocence. Beck v. Alabama, 447 U.S. 625, 637, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). However, the Court has reserved judgment on whether defendants in non-capital cases are constitutionally entitled to lesser offense instructions. Id. at 638 n. 14, 100 S.Ct. 2382. Further, in Schad v. Arizona, 501 U.S. 624, 646-47, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991), another death penalty case, the Court determined that when the jury is given a third option, in the form of a noncapital lesser included offense instruction supportable by the evidence, the considerations of Beck are not implicated.

Defendant argues that the harmless error standard should not apply to these facts, because under Colorado law a defendant is constitutionally entitled to have a jury decide all material facts. He therefore argues the jury must consider all warranted lesser offense instructions. In support of this proposition, Petitioner relies chiefly upon Gallegos v. People, in which this court concluded, “The refusal of the trial court to instruct the jury on the lesser degrees of the alleged crime is error, requiring the verdict and sentence to be set aside and a new trial granted.” 136 Colo. 321, 322, 316 P.2d 884, 884 (1957).

In Gallegos, this court reversed a conviction based on a jury’s consideration of first-degree murder, exclusively. The trial court refused to instruct the jury on second-degree murder or any other lesser offense despite the defendant’s testimony that the victim fired the first shot and that he fired in response only in an attempt to frighten him away. This court held that the jury was entitled to consider this testimony and determine its credible weight. Because Galegos did not involve a circumstance in which the jury received an intermediate offense instruction and declined to convict on that charge, it is not instructive.

Here, we address only the circumstance where a jury receives an instruction on an intermediate offense and declines to render a conviction on that offense. In light of Beck and Schad, we find no constitutional error here, as the defendant received an instruction on an intermediate offense, which was rejected by the jury. Since we find no constitutional error, the error in instruction is reversible only if there is a reasonable probability the error contributed to the conviction.

IV. Application

We are thus left to determine whether there is a reasonable probability that the trial court’s failure to instruct the jury on criminally negligent homicide contributed to the jury’s verdict, or whether, as the People argue, the jury’s consideration of the reckless manslaughter instruction cured the error. The jury considered and declined to convict on reckless manslaughter, which was an intermediate offense — not as culpable as second-degree murder, but more culpable than criminally negligent homicide. Instead, the jury entered a conviction on the greater offense, second-degree murder.

In cases where the jury receives an intermediate offense instruction, but still convicts on the greater offense, this court has previously held that the failure to give the lesser instruction is not inherently prejudicial. In People v. Favors, 192 Colo. 136, 556 P.2d 72 (1976), the defendant was convicted of first-degree murder after the jury considered both first and second-degree murder. The trial court refused to instruct the jury on criminally negligent homicide. This court opined, “Failure to instruct on an even less serious offense than second-degree murder, in light of the jury’s verdict for [first-degree murder], does not comport with an inference of prejudice and did not deny the defendant a fair trial.” Id. at 140, 556 P.2d at 75.⁷

The court of appeals later considered the interplay among offered and refused instructions on variations of an offense in People v. Gordon, 765 P.2d 633 (Colo.App.1988) and reached the same conclusion. In Gordon, the defendant was charged with and convicted of second-degree murder. The trial court refused to instruct the jury on reckless manslaughter, but did instruct on heat of passion manslaughter, and criminally negligent homicide. The defendant was charged with chasing the victim in his car and ultimately crushing her between the ear and the outside of her house. The incident occurred after the defendant had allegedly beaten the victim and she had shot a gun at him, but missed. The court of appeals concluded that the failure to give a reckless manslaughter instruction was error, because the evidence could support an inference that the defendant intended only to frighten the victim and disregarded the substantial risk that he might hit her and cause her death. The People argued that the failure to offer the instruction was harmless error because the jury rejected both heat of passion manslaughter and criminally negligent homicide. The court of appeals held that since heat of passion manslaughter was not a lesser included offense of second-degree murder and was equal in grade to reckless manslaughter, the jury’s rejection of heat of passion manslaughter carried no indication of what it would have done with reckless manslaughter.

In short, the jury was not instructed on an intermediate offense between second-degree murder and reckless manslaughter. When the court fails to instruct on an intermediate offense, conviction of a greater offense does not carry the same implicit rejection of lesser offenses. As the court of appeals explained, implicit rejection occurs only:

in a case in which the jury has convicted a defendant of an offense higher than an included offense on which there was an instruction, and there is still a lesser included offense on which there was no instruction. In such a case, the selection by the jury of the highest available grade of the offense constitutes a rejection of the next lower included offense and of all lesser offenses included within the latter.

Id. at 635.

In the case at bar, we have such a circumstance, where the jury rejected reckless manslaughter in favor of second-degree murder, leading to an implication that it would also have rejected the still lesser included offense of criminally negligent homicide.

We recently confirmed that appellate courts can acknowledge implicit jury findings. In People v. Sepulveda, 65 P.3d 1002, 1006 (Colo.2003), we concluded that when “the jury found that [defendant] acted intentionally, or with the conscious objective of causing death, the jury implicitly found that [defendant] acted knowingly.” Following our earlier holding in Crespin v. People, 721 P.2d 688, 692 (Colo.1986), we concluded that while defendant’s conviction of first-degree murder was void, the People could elect either to retry the defendant or to accept a conviction on the lesser offense of second-degree murder, as the jury’s conviction for first-degree murder implicitly carried with it a conviction for second-degree murder. See also People v. Bowers, 187 Colo. 233, 238, 530 P.2d 1282, 1285 (1974) (“The jury, by finding appellant guilty of the greater offenses, necessarily found he was guilty of the lesser offenses. Under these circumstances, as a matter of law the appellant was guilty of the lesser offenses. It is, therefore, unnecessary to have a retrial of the lesser offenses.”).

Courts across the country agree that jury convictions for a certain charged offense inherently constitute a rejection of offered lesser offenses, or findings that the defendant was necessarily guilty of lesser included offenses. Quite recently, the Utah Supreme Court considered the issue in State v. Daniels, 40 P.3d 611 (Utah 2002). In that case, the jury received an instruction on aggravated murder and the lesser included offense of murder, and convicted on aggravated murder. The defendant argued that he was entitled to an instruction on manslaughter as well. The court held it was error not to provide such an instruction, but it was harmless error because the jury considered and rejected the intermediate offense of murder, and therefore the jury “obviously would not have chosen manslaughter.” Id. at 620. Without any reliance upon any factual review of the case, the court stated that:

Where a jury is instructed on, and has the opportunity to convict a defendant of, a lesser included offense, but refuses to do so and instead convicts the defendant of a greater offense, failure to instruct the jury on another lesser included offense, particularly an offense that constitutes a lesser included offense of the lesser included offense that the jury was instructed on, is harmless error.

Id.

In two near contemporaneous cases in 1998, the Missouri Supreme Court confirmed the same principle. In the first case, State v. Jones, 979 S.W.2d 171 (Mo.1998), the Supreme Court of Missouri held that it was not error for the trial court to fail to give a voluntary manslaughter instruction when the jury was instructed on both first-degree murder and second-degree murder and chose first-degree murder. The court explained that when the jury rejects an intermediate instruction, “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. at 185. In the second case, in which the defendant was also convicted of first-degree murder after the jury was instructed on both first and second-degree murder, the court observed, “We have consistently held that when ‘a jury convicts on first-degree murder after having been instructed on both first degree and second-degree murder, there is no prejudice to the defendant by the refusal to submit a second degree felony murder instruction.’ ” State v. Hall, 982 S.W.2d 675, 682 (Mo.1998) (quoting State v. Kinder, 942 S.W.2d 313, 330 (Mo.1996)).

In two other cases, state supreme courts have recognized in dicta that failure to give a lesser included offense instruction is harmless when the jury receives an instruction on an intermediate offense and chooses instead to convict on the greater offense. In State v. Allen, 69 S.W.3d 181, 191 (Tenn.2002), the Tennessee Supreme Court observed that: “A reviewing court may find the error harmless because the jury, by finding the defendant guilty of the highest offense to the exclusion of the immediately lesser offense, necessarily rejected all other lesser-included offenses.” Similarly, in People v. Cornell, 466 Mich. 335, 646 N.W.2d 127, 144 n. 19 (2002), the Michigan Supreme Court opined that “no intermediate lesser instructions were given in this case. If other lesser instructions had been given and been rejected by the jury, consideration of the entire cause’ would likely lead us to conclude that the error did not undermine the reliability of the verdict.”

Some courts have gone even farther, finding harmless error even when no intermediate instruction was offered.⁸ The Hawaii Supreme Court based its reasoning on the fact that

jurors are presumed to follow the court’s instructions, and, under the standard jury instructions, the jury ‘in reaching a unanimous verdict as to the charged offense [or as to the greater included offense, would] not have reached, much less considered,’ the absent lesser offense on which it should have been instructed.

State v. Pauline, 100 Hawai'i 356, 60 P.3d 306, 331 (2002) (quoting State v. Haanio, 94 Hawaii 405, 16 P.3d 246, 256-57 (2001) (quoting State v. Holbron, 80 Hawai'i 27, 904 P.2d 912, 932 (1995))).⁹

Thus, courts throughout the country that have considered the issue have concluded that a jury’s rejection of an intermediate offense constitutes an implicit rejection of omitted lesser offenses.

We agree. The jury convicted the defendant of second-degree murder, rejecting reckless manslaughter. The jury considered and rejected the argument that the defendant was guilty of reckless manslaughter, but rather found him guilty beyond a reasonable doubt of knowingly committing murder. In considering and declining a reckless manslaughter conviction and choosing the greater offense, the jury implicitly rejected criminally negligent homicide. We conclude as a matter of law that any error resulting from the trial court’s failure to provide an instruction on criminally negligent homicide under these circumstances was harmless.

V. Sufficiency of the Evidence

Mata-Medina argues not only that he was entitled to an instruction on criminally negligent homicide, but also that there was insufficient evidence to support a conviction for second-degree murder. As noted above, second-degree murder requires a finding that the defendant was practically certain that his actions would result in death. Because jury verdicts deserve deference and a presumption of validity, we review the sufficiency of the evidence in the light most favorable to the prosecution in order to evaluate defendant’s contention. The conviction must be upheld “if there is substantial evidence in the record, viewed in the light most favorable to the prosecution, that supports the verdict.” People v. Fuller, 791 P.2d 702, 706 (Colo.1990); see also People v. Madson, 638 P.2d 18, 26 (Colo.1981).

The state offered evidence that the defendant, a medium-sized male, pulled back the hair of a petite female and struck her in the neck with his fist. When she lay helpless on the ground, he did not call for medical assistance or alert her nearby friends and family. Instead, he hid the body under a cover of leaves and branches, went home and lay in bed until his wife fell asleep, then took her van to dispose of the body, and later reburied the body: all with the presumed intent of preventing detection.

This construction of the evidence was sufficient for the jury to find that the defendant was aware that by hitting the victim as and how he did, his conduct was practically certain to cause her death. The evidence supports a conclusion that the defendant was angry, humiliated and violent. Hence, under the .applicable standard of review, we do not find the evidence insufficient to support the verdict.

VI. Conclusion

The defendant was entitled to an instruction on criminally negligent homicide; however, because the jury did consider reckless manslaughter and reject it in favor of second-degree murder, such error is harmless.

Further, the evidence was sufficient to support the conviction for second-degree murder, when viewed in the light most favorable to the prosecution.

Accordingly, we affirm the court of appeals and uphold defendant’s conviction.

Justice MARTINEZ dissents, and Justice BENDER joins in the dissent..

1 . Judge Taubman dissented.

2 . We granted certiorari on the following issues:

1)Whether the court of appeals erred when it affirmed the petitioner's second-degree murder conviction, despite the trial court's failure to instruct the jury on the lesser-included offense of criminally negligent homicide.

2) Assuming it was error, was the failure to instruct the jury on the lesser-included offense of criminally negligent homicide constitutional error.

3) Whether the evidence was insufficient to sustain a verdict of second-degree murder.

3 . Second-degree murder is a class 3 felony where the act causing the death was performed upon a sudden heat of passion: an element not at issue here.

4 . § 18-3-202(l)(b), (2)(b) (intent to disfigure another seriously and permanently).

5 . § 18-3-106(l)(a), (l)(c) (driving in a reckless manner that proximately causes the death of another).

6 .§ 18-3-203(l)(d), (2)(b) (recklessly causing serious bodily injury using a deadly weapon).

7 . For decades, this court has held that when "there is evidence tending to establish a statutory grade of homicide, the court's refusal to instruct thereon is error.” Baker v. People, 114 Colo. 50, 56, 160 P.2d 983, 986 (Colo.1945) (citing earlier precedent). We observed that "when there is any evidence, however improbable, unreasonable or slight, which tends to reduce the homicide to the grade of manslaughter,” it was reversible error not to instruct the jury on the lesser offense. Read v. People, 119 Colo. 506, 509, 205 P.2d 233, 235 (Colo.1949). In those various cases, we did not consider any curative effect that an intermediate offense instruction might have produced. See also People v. Miller, 187 Colo. 239, 529 P.2d 648 (Colo.1974); Sanchez v. People, 172 Colo. 168, 470 P.2d 857 (Colo.1970); Ferrin v. People, 164 Colo. 130, 433 P.2d 108 (Colo.1967). Ultimately, first in People v. Mullins, 188 Colo. 23, 26, 532 P.2d 733, 735 (Colo.1975), and then more dispositively in Favors, 192 Colo. at 140, 556 P.2d at 75, we expressly considered and determined that a jury’s rejection of an intermediate offense in favor of a greater offense carries an implication that it would also reject offenses lesser to the intermediate offense.

8 . Our precedent, as outlined above, would hold otherwise.

9 . In a related line of cases, courts have dealt with the issue of whether the rejection of a comparable lesser included offense by the jury vitiates any prejudice associated with failure to give a requested instruction. In these cases, there is no intermediate offense instruction, but there is rather an instruction on an alternative offense with a lesser degree of culpability than the charged offense. See Commonwealth v. Chase, 433 Mass. 293, 741 N.E.2d 59, 66 (2001) (“The error itself, failure to instruct on involuntary manslaughter, was of little significance because the jury had another comparable option— the motor vehicle homicide charge — that was a lesser charge than the murder indictment.”). The Pennsylvania Supreme Court reached the same conclusion in Commonwealth v. Counterman, 553 Pa. 370, 719 A.2d 284 (1998). In Counterman, a man was convicted of three counts of murder in the first degree after he set his home on fire, killing his three children. Although Pennsylvania law at the time required the court to offer an instruction on voluntary manslaughter based on heat of passion, the supreme court ruled that the trial court's failure to provide such an instruction was reversible only if the defendant suffered prejudice. The court concluded that the defendant could not establish prejudice, since the jury was instructed on the lesser offense of murder in the third degree, unlawful killing with malice. The court observed that there was no reason to believe the jury would have been swayed by sympathy or would have recognized mitigating factors sufficient to reduce the conviction when those same factors did not convince them to find the lesser offense that they were offered. Id. at 304.