Opinion
DAVIS, Judge:
' 1 Michael Waddell Johnson appeals from a conviction of murder, a first-degree felony, following a jury trial in March 2010. We reverse and remand.
BACKGROUND
{2 The deceased (Decedent) in this case was discovered dead on the night of Monday, January 12, 1998, by her son2 She was found lying on her bed fully clothed and wearing shoes. The medical examiner who performed the autopsy explained that Decedent had high levels of alcohol and cocaine in her system. The medical examiner also found that she had sustained injuries to her face and mouth; two small, bloody puncture marks on her left clavicle; hemorrhaging in several muscles on the left side of her neck; and a fracture in the "cricoid" cartilage below her larynx. He characterized the injuries to the face and mouth as recent and indicative of "a blow or direct trauma to that area," and attributed the hemorrhaging in the neck muscles, the cartilage fracture, and abrasions on Decedent's chin as most likely the result of strangulation. He ultimately assigned the cause of death as "asphyxia by strangulation" and marked the high levels of cocaine and alcohol detected in her blood stream as "significant" and "contributory to her death."
1 3 Johnson was interviewed by authorities during the police investigation following Decedent's death. He told authorities that he and Decedent went to a party and used cocaine on the night of her death-Friday, January 9, 1998. He was not considered a suspect at that time, and the investigation was eventually closed in June 1998 "as a suspicious death."
T4 Several years later, in 2005, the cold case was reopened and assigned to a new homicide detective (Detective). Detective began his investigation by submitting DNA samples from Decedent and Johnson for analysis. The analysis identified the presence of Johnson's DNA on fingernail clippings that were taken from Decedent during the initial investigation. Detective re-interviewed Johnson, at which time Johnson described having had an on-and-off romantic relationship with Decedent. He admitted to Detective that he sometimes "slapped [Decedent] around" when they were drinking but that they were in the process of patching things up and getting back together. Johnson also told Detective that he and Decedent had used cocaine at his daughter's house the night of Decedent's death before going to the party that he had told the police about during the initial investigation. He indicated that Decedent left the party before him, that he was later picked up from the party by two friends, and that he stayed at a friend's apartment for the rest of the weekend. Detective interviewed other individuals who recounted the circumstances surrounding Decedent's death in ways that conflicted with Johnson's account. One individual informed Detective that Johnson had admitted to him that he had strangled Decedent to death.
15 Johnson was ultimately charged with alternative counts of murder, one based on a theory of intentional murder and the other based on a theory of depraved indifference murder, both first-degree felonies. See generally Utah Code Ann. § 76-5-2083(2)(a), (2)(c), (8)(a) (LexisNexis 2012). At trial, the primary controversy was over causation-whether Decedent's physical injuries were caused by a fall, an altercation, or strangulation and whether she died primarily as a result of the mixture of alcohol and cocaine in her system or from strangulation.
T 6 The testimony of the medical examiner, called as a witness for the State, Mlustrates the complexity and closeness of the causation issue. He testified that it was possible that [746]*746Decedent's injuries were caused by a fall, punch, kick, or other "blunt-foree trauma," including the injuries he ultimately attributed to strangulation. He noted that none of Decedent's injuries were, on their own, sufficient to cause death and that it is "possible that an individual could sustain [all of] those injuries and still survive." He further testified that Decedent's blood alcohol level of 0.83 could potentially have caused her death "in and of itself," that 0.83 is "slightly greater than four times the legal limit," and that other physiological indicators suggested that Decedent was likely still absorbing alcohol, i.e., becoming more intoxicated, at the time of her death. Additionally, the medical examiner testified that cocaine, even in "small amount{s]," can be deadly and that Decedent had a "significant amount of cocaine" in her system. The medical examiner also noted that there were track marks on Decedent's body which "most likely" indicated that she had been an intravenous drug user. Furthermore, the medical examiner testified that the human body, in response to the combination of alcohol and cocaine in the system, produces a third substance, cocaethylene, that "is [thought] to be more toxic to the heart than the cocaine itself." The medical examiner testified that the combination of intoxicants in a person's system during an altercation can also "[mJake an individual more susceptible to the injuries sustained," while the physiological response to being in an altercation can "increase the effects of the drugs and alcohol." In other words, the medical examiner testified that Decedent could have died "just from the cocaine intoxication or just from the aleohol or a combination," though he believed strangulation to be the most likely cause.
17 On redirect, however, he also testified that as "a scientist" he never "foreclose[s] possibilities totally" because "anything can happen." He explained that his determination that something is "more likely or probable" means that "the odds are that this is the type of event that took place, as opposed to just some reaching type of hypothetical." He also testified that there is no exact amount of a drug or alcohol that is necessarily deadly because individuals have varying tolerances to intoxicants and that where Decedent was apparently both an intravenous drug user and potentially an alcoholic, she presumably had a higher tolerance of those substances and their combined effects. In other words, the levels that may have been fatal to one person may not necessarily have been fatal to Decedent.3
T8 Johnson's expert witness, a forensic pathologist and a chief medical examiner in Michigan, agreed with the medical examiner's analysis on many points-the general time of death estimate provided; that there was evidence of an altercation; that strangulation was a plausible consideration; and that the combined effects of alcohol, cocaine, and the physiological responses to an altercation could have contributed to Decedent's death. The primary difference between the two experts' analyses was which set of factors each believed more likely caused Decedent's death. Johnson's expert believed that "the primary cause associated with [Decedent's] death [was] the drug and alcohol intoxication." He explained that though "there is evidence of an altercation," it is "not sufficient evidence ... to outright call a strangulation cause of death," particularly in light of the intoxication evidence. He stated that "[the toxicology testing demonstrates a very high level of alcohol and a combination of alcohol and cocaine intoxication" that is "not disputed and can't be disputed." In light of that evidence, Johnson's expert believed that although strangulation could not be entirely exeluded as a possible cause of death or contributing factor, he "would not necessarily associate the [injuries from the] altercation with a specific act of strangulation"; rather, he opined that some of the injuries Decedent sustained only "potentially could have been the result of neck injury associated with a strangulation." Like the medical examiner, Johnson's expert could not be totally certain which was the cause of death, noting that "the evidence in this case does not allow distinct separation between three different [747]*747[cause of death] possibilities" because each possibility was "reasonable ... based on the evidence." 4
T9 The trial court granted Johnson's request for a jury instruction on the lesser included offense of homicide by assault, and the court agreed to prepare the corresponding verdict form. The trial court read the instructions to the jury, including an instruction on the elements of homicide by assault, and later observed that it included the same elements instruction in the jury instruction packet. The jury ultimately found Johnson guilty of intentional murder. The verdict form returned by the jury, however, did not list the homicide by assault option, and a separate verdict form for the lesser included offense is missing from the trial record. Omitting the trial court's heading and eaption-ing, the verdict form the jury received stated,
We, the Jurors empaneled in the above case, find the defendant, MICHAEL WADDELL JOHNSON,
Guilty of Criminal - Homicide, Murder, intentionally and knowingly causing the death of [Decedent] Or
Guilty of Criminal Homicide, Murder, acting under cireumstances evidencing depraved indifference to human life Or
Not guilty of Criminal Homicide, Murder.
DATED this-day of 2010.
FOREPERSON
T 10 Johnson appeals his conviction, arguing that the missing verdict form indicates that the trial court did not actually provide a verdict form for the lesser included offense of homicide by assault and that this omission is reversible error. Upon the filing of Johnson's appeal, this court granted the State's remand request to allow the trial court to supplement the record with any documentation related to the missing verdiet form. On remand, almost one-and-a-half years after the trial, the trial court issued a minute entry, stating, "After carefully combing through the case file, the exhibits, and all other materials associated with the record of the case, the court was unable to locate the lesser-included offense verdict form." Nonetheless, the trial court concluded that, "Although the lesser-included offense verdict form does not now exist, it is the court's recollection that the court created the lesser-included offense verdict form and sent the verdict form with the jury instructions with the jury when it was released to deliberate." The trial court found that because the jury convicted Johnson of murder, the missing verdict form "was not used by the jury and, therefore, not signed by the jury foreperson" and, as a result, "may not have been brought into the courtroom by the foreperson, but was left in the jury room where it was ultimately discarded by court staff." The trial court issued its minute entry on remand without holding a hearing, and Johnson amended his opening brief to include his challenge to the propriety of the trial court's procedure and findings on remand.
ISSUES AND STANDARDS OF REVIEW
111 As stated, Johnson's primary argument is that the absence in the record of a verdict form on the lesser included offense establishes that the trial court failed to provide the jury with a verdict form on the lesser included offense5 We review the jury [748]*748instructions, including the jury verdict forms, for correctness. Cf. State v. Houskeeper, 2002 UT 118, ¶ 11, 62 P.3d 444.
(12 However, before we reach that issue, we must address the question we posed to the parties in a request for supplemental briefing: whether the lesser included offense jury instruction (Instruction 24) misstated the mens rea element of homicide by assault in a manner that effectively removed the lesser offense from the jury's consideration, rendering resolution of the primary issue on appeal-whether the corresponding verdict form on the lesser included offense was properly provided to the jury-irrelevant. When an appellate court discovers an "astonishingly erroneous but undetected ruling" that if left unaddressed "could subject the losing party, especially a defendant in a criminal case, to 'great and manifest injustice," "(elven if the theory is uncovered after arguments, in the final stages of opinion drafting, the [appellate] court should allow the parties the chance to weigh in on its validity through supplemental briefing." State v. Robison, 2006 UT 65, ¶ 23, 24 n. 4, 147 P.3d 448 (footnote omitted); see also State v. Breckenridge, 688 P.2d 440, 443 (Utah 1983) (vacating the defendant's conviction on grounds first addressed by the defendant on the suggestion of the supreme court during oral argument on appeal). Accordingly, we focus our review on Instruction 24 and review that instruction for correctness. See Houskeeper, 2002 UT 118, ¶ 11, 62 P.3d 444.
ANALYSIS
I. The Homicide By Assault Jury Instruction
113 In response to this court's request, the parties submitted supplemental briefing addressing for the first time the argument that Instruction 24 misstated the mens rea element of the lesser included offense in a manner that effectively removed the lesser offense from the jury's consideration and rendered the question of the missing verdict form inconsequential, Our request for supplemental briefing first instructed the parties to address the propriety of this court's review of Johnson's conviction on alternative grounds under State v. Robison, 2006 UT 65, 147 P.3d 448, and other applicable law.
A. The Facts of this Case Satisfy the Robi-son Standard.
114 The State argues that the invited error doctrine precludes our review of Instruction 24 under a plain error analysis because Johnson's trial counsel provided and approved of the instruction given to the jury. "The doctrine of invited error bars review for plain error when the defendant led the trial court to believe that there was nothing wrong with the instruction," State v. Binkerd, 2013 UT App 216, ¶ 21, 310 P.3d 755 (citation and internal quotation marks omitted), which includes situations in which the defendant proposed the jury instruction he challenges on appeal, see State v. Perdue, 813 P.2d 1201, 1206 (Utah Ct.App.1991) (citing invited error grounds in refusing to consider the defendant's arguments challenging the correctness of a jury instruction that defense counsel submitted to the trial court), aff'd sub nom. Perdue v. Utah Bd. of Pardons, 900 P.2d 1093 (Utah 1995). The State also contends that because Johnson's appellate counsel has not raised an ineffective assistance claim related to the instruction, we are precluded from reviewing the matter under an ineffective assistance framework. See State v. McNeil, 2018 UT App 184, ¶ 25, 302 P.3d 844 ("While invited error precludes a plain error claim, it does not preclude a claim for ineffective assistance of counsel."), cert. granted, 317 P.3d 432 (Utah 2018). Indeed, our case law favors application of the invited error rule even "where invited error butts up against manifest injustice." Perdue, 813 P.2d at 1206. We are also mindful that "(aln appellate court that does the lifting for an appellant distorts [the] fundamental allocation of benefits and burdens" between the parties on appeal. Robison, 2006 UT 65, [749]*7491 21, 147 P.3d 448, While we agree that we cannot review this issue under an ineffective assistance framework and that the doctrine of invited error likely applies here as well,6 our appellate courts have also long recognized that an unpreserved issue may be considered on appeal if exceptional cireum-stances exist. See State v. Archambeau, 820 P.2d 920, 923 n. 5 (Utah Ct.App.1991) (collecting cases); see also State v. Kazda, 545 P.2d 190, 198 (Utah 1976) (explaining that a party's failure to comply with standard preservation rules should be excused "rarely" and only "where there appears to be a substantial likelihood that an injustice has resulted").
1 15 In State v. Breckenridge, 688 P.2d 440 (Utah 1983), the defendant addressed an argument challenging the adequacy of his guilty plea for the first time during oral argument on appeal, "/o/n the suggestion of [the] Court." Id. at 448 (emphasis added). The supreme court reasoned that "[t]he general rule that constitutional issues not raised at trial cannot be raised on appeal is exeept-ed to when a person's liberty is at stake" and determined that because the defendant's "felony conviction and sentence rest[ed] on the outcome of his appeal," the court needed to address the otherwise unargued question of the adequacy of the defendant's plea. Id. (citing Pratt v. City Council of the City of Riverton, 639 P.2d 172, 173-74 (Utah 1981)). Subsequent case law has clarified that "[flae-tually, ... Breckenridge is a case in which the 'exceptional cireumstances' exception would have allowed appellate review" and that a defendant's liberty interest is just one factor to be considered in determining whether exceptional circumstances exist. See Archambeau, 820 P.2d at 924-25; see also State v. Lopez, 886 P.2d 1105, 1113 (Utah 1994) (agreeing with the Archambeau court's rejection of a stand-alone "jeopardized liberty exception").
16 Our supreme court revisited Breckenridge in its Robison decision, in which it held that the court of appeals erred by reversing the defendant's conviction on an unargued legal theory. Robison, 2006 UT 65, ¶ 25, 147 P.3d 448. The Robison court identified the exceptional cireumstance relied on in Breckenridge as the court's sua sponte recognition "that the briefing overlooked a compelling argument that, if presented, would likely merit reversal of Mr. Breckenridge's convietion." Id. 124. The Robison court explained that appellate courts could avoid the catch-22 of addressing an unargued issue on the merits or "refusing, out of principle, to reverse an astonishingly erroneous but undetected ruling," that would "subject the losing party, especially a defendant in a eriminal case, to 'great and manifest injustice," by providing the parties an opportunity to address the unargued issue "before using it to justify a reversal." Id. 1128-25 (footnote omitted). Inviting supplemental briefing, or as was the case in Breckenridge, directly questioning the parties during oral argument, provides a forum for the parties to argue the issue and both "honor[s] the adversarial process" and reduces the risk of subjecting a criminal defendant to a " 'great and manifest injustice.'" Id. 11 24-25. The Robi-son court explained that had it "agreed with the court of appeals that a 'great and manifest injustice' would befall Mr. Robison were he not allowed to present the argument [first raised by the court of appeals] ..., it would then be appropriate ... to remand the case for arguments on the merits of the [unargued legal theory]" Id. 125. Because the supreme court determined that the court of appeals' legal theory was erroneous, however, the court held that remand was not neces[750]*750sary; "a 'great and manifest injustice would not "befall Mr. Robison were he not allowed to" address a repudiated legal argument. Id. (internal quotation marks omitted). p 5
117 Robison seeks to balance the sometimes conflicting ideals of procedural regularity and the institutional integrity of the courts with basic notions of fairness and justice. In other words, as has long been recognized by our jurisprudence, Robison effectively reaffirms the notion that "the safeguards of the rights and privileges of the accused should not be overlooked and a loose rein held for the prosecution and a tight, technical, and restricted rein held on the accused." State v. Cobo, 90 Utah 89, 60 P.2d 952, 958 (1936) ("[In cases of grave and serious charged offenses and convictions of long terms of imprisonment, cases involving the life and liberty of the citizen, we think that when palpable error is made to appear on the face of the record and to the manifest prejudice of the accused, the court has the power to notice such error and to correct the same, though no formal exception was taken to the ruling."); see also State v. Bullock, 791 P.2d 155, 164 (Utah 1989) (Stewart, J., dissenting) ("Neither a counsel's nor a judge's error should be the cause of one's going to prison. Although we often refuse to entertain a claim of error because an attorney failed to make proper objections in the trial court or failed to raise an error on appeal, the law should seek to make a party Hable for his own transgressions, not for the sins of his lawyer."); eof Utah R. Civ. P. 1 advisory committee note ("[A] long-standing but often overlooked directive in Rule lis] that the Rules of Civil Procedure should be construed and applied to achieve the just, speedy and inexpensive determination of every action." (internal quotation marks omitted)); Utah R.Crim. P. 1(b) ("'These rules are intended and shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unnecessary expense and delay."); State v. Eldredge, 773 P.2d 29, 42 (Utah 1989) (Stewart, J., dissenting) (recommending a broad application of the plain error standard so as to permit appellate review of potentially reversible errors "at the earliest possible stage," rather than delay a court's "consideration of reversible error until the case returns on a writ of habeas corpus," at which time the court would address "the question of whether the trial was fundamentally fair, irrespective of whether there were appropriate objections" (citation omitted)).7
118 The facts of this case are similar to Breckenridge because "[o]n the suggestion of this court," the parties have "addressed for the first time" an issue that will implicate Johnson's "felony conviction and sentence." See Breckenridge, 688 P.2d at 443; see also State v. Brown, 853 P.2d 851, 853 (Utah 1992) (construing Breckenridge as presenting "clear plain error and obvious constitutional ramifications"); Archambeau, 820 P.2d at 926 (citing Breckenridge as an example of when "extenuating or unusual cireamstances" justify the application of the exceptional circumstances exception). Further, the issue this court has asked the parties to brief is at the heart of Johnson's primary argument on appeal-that reversal is necessary because the missing verdict form for the lesser included offense indicates that the jury never received the form. It would be anomalous to address the missing verdict form issue without acknowledging the graver issue that Instruction 24 is so fatally defective that any verdict form based on that instruction would have been meaningless. Accordingly, exceptional cireumstances permit our review of the jury instruction issue here. See generally State v. Irwin, 924 P.2d 5, 9-11 (Utah Ct. [751]*751App.1996) (collecting cases applying the exceptional cireumstances exception and cases rejecting the applicability of the exception).
19 For reasons explained infra, we determine that the error in the homicide by assault jury instruction presents the very type of "astonishingly erroneous but undetected ruling" that our jurisprudence and the State, in its supplemental briefing, agree an appellate court should not "refus[e}, out of principle, to reverse." State v. Robison, 2006 UT 65, ¶ 23, 147 P.3d 448. We have accordingly adhered to the Robison requirement that we first seek supplemental briefing from the parties before addressing the merits of this otherwise unargued legal theory. See id. T 24.
B. The Homicide By Assault Instruction Misstates the Law.
120 Here, there is no dispute that Johnson was entitled to a lesser included offense instruction or that the trial court read such an instruction to the jury. See generally State v. Spillers, 2007 UT 13, ¶ 12, 152 P.3d 315 (explaining the two-part test to determine when an instruction on a lesser included offense must be granted). Rather, the issue is whether the instruction provided correctly stated the mens rea element of homicide by assault and, if an error did occur, whether it was harmful. See Crookston v. Fire Ins. Exch., 817 P.2d 789, 796 (Utah 1991) ("[AJn error is harmful only if the likelihood of a different outcome is sufficiently high as to undermine our confidence in the verdict.").
1 21 To determine whether Instruction 24 correctly states the law, "we compare the instruction given with the statutory elements of the offense." See State v. Dunn, 850 P.2d 1201, 1208 (Utah 1998). Instruction 24 states,
Homicide by Assault [requires that the jury] find from all of the evidence, beyond a reasonable doubt each and every one of the following elements ...: 1. That on or about the 10th day of January, 1998, ... [Johnson], . under cirenmstances not amounting to aggravated murder, murder, or manslaughter caused the death of [Decedent];
2, And that he did so intentionally or knowingly while attempting, with unlawful foree or violence, to do bodily injury to [Decedent].
22 The Utah Code defines homicide by assault, stating, "A person commits homicide by assault if, under cireumstances not amounting to aggravated murder, murder, or manslaughter, a person causes the death of another while intentionally or knowingly attempting, with unlawful force or violence, to do bodily injury to another." Utah Code Ann. § 76-5-209(1) (LexisNexis 2012) (emphasis added)8 The statute defines the mens rea element of homicide by assault as the intent to assault. Unlike the statute, Instruction 24 places the "while" after the mens rea language, separating the "intentionally and knowingly" elements from the act of assault. As a result of this difference, Instruction 24 instructed the jury that for Johnson to be convicted of the lesser included offense, it must find that Johnson "intentionally and knowingly" "caus[ed] the death of" Decedent, whereas the statute actually requires a finding that a defendant "intentionally or knowingly attempt[ed], with unlawful foree or violence, to do bodily injury to another." Not only does Instruction 24 misapply the mens rea element for homicide by assault, the mens rea that it does describe is the same as that required for a conviction on the greater offense of criminal homicide. See generally id. § 76-5-208. By defining homicide by assault as requiring the same mens rea as criminal homicide, Instruction 24 essentially removed from the jury the ability to meaningfully consider the lesser included offense.
123 The differences between Instruction 24 and the criminal homicide instruction (Instruction 21) do not remedy this error. See generally State v. Lawson, 688 P.2d 479, 481 (Utah 1984) (explaining that "a reviewing court must consider all of the jury instructions read together in light of the total evidence before the jury" in "determining whether the jury was properly instructed"). Instruction 21 states,
[752]*752Before you can convict [Johnson] ... of the crime of Criminal Homicide, Murder as charged in the Alternative Count I of the Information, you must find from all of the evidence and beyond a reasonable doubt each and every one of the following elements of that offense:
1. That on or about the 10th day of January, 1998, ... [Johnson], ... caused the death of [Decedent]; and
2. That he did so intentionally and knowingly.
(Emphases added.) With the exception of the phrases "under cirenmstances not amounting to aggravated murder, murder, or manslaughter" and "while attempting, with unlawful foree or violence, to do bodily injury to [Decedent]" (the assault language), the two instructions are identical. The first phrase merely asserts that homicide by assault is not the same as murder, but the effect of this on a jury could easily have been negated by the fact that Instruction 24 then duplicates the elements given in Instruction 21 on criminal homicide. Likewise, to a jury, the inclusion of the assault language in Instruction 24 may appear as little more than stylistic.9 And the assault language is not contrary to the notion that murder, in its simplest definition, necessarily involves the use of "unlawful force or violence[] to do bodily injury." Indeed, a finding by the jury that Johnson intended to place his hands on Decedent's neck and squeeze her throat supports a conviction of either criminal homicide or homicide by assault, with the distinguishing factor being whether Johnson intended only to assault Decedent or whether he intended to kill her. Cf. State v. Fisher, 680 P.2d 35, 37 (Utah 1984). In essence, the jury was erroneously provided with two semantically different but substantively identical instructions outlining the elements of criminal homicide and no instruction accurately outlining the elements of homicide by assault.
C. - The Error Is Harmful.
124 For the error in Instruction 24 to warrant reversal, it must be prejudicial, ie., absent the error "the likelihood of 2 different outcome [must be] sufficiently high as to undermine our confidence in the verdict." Crookston, 817 P.2d at 796. "[Where proof of an element of the erime is in dispute, the availability of the 'third option'-the choice of conviction of a lesser offense rather than conviction of the greater or acquittal-gives the defendant the benefit of the reasonable doubt standard." See State v. Baker, 671 P.2d 152, 157 (Utah 1983); see also Beck v. Alabama, 447 U.S. 625, 644-45, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) (describing lesser included offense instructions as "pro-vid[ing] a necessary additional measure of protection for the defendant," especially "in a case in which the jury agrees that the defendant is guilty of some offense, though not the offense charged").
(25 The State argues that any error in Instruction 24, and for that matter any error in providing the jury with the proper homicide-by-assault verdiet form, is harmless because Johnson's conviction of the greater offense "necessarily forecloses" the jury from having convicted him of the lesser offense.10 In other words, although the State acknowledges that an appellate court should not "refuse 'to reverse an astonishingly erroneous but undetected ruling," it contends that Johnson's conviction of the greater offense undermines any harm that may have been caused by the error in Instruction 24 and the now-missing verdict form.11(Quoting State [753]*753v. Robison, 2006 UT 65, ¶ 23, 147 P.3d 448). We disagree.
1 26 Both the convicted offense of criminal homicide and the lesser included offense of homicide by assault are intent-based offenses. The cases the State relies on in support of its argument involve challenges to the omission of instructions on lesser included offenses that have lower mens rea requirements than the convicted offenses and are therefore not helpful to our analysis. See, e.g., State v. Pearson, 943 P.2d 1347, 1351 (Utah 1997) (determining that the trial "court's refusal to give an instruction on manslaughter, an offense requiring recklessness, constituted ... harmless error" where the jury convicted the defendant of "aggravated murder, which requires knowing or intentional killing"); State v. Gotschall, 782 P.2d 459, 464 (Utah 1989) (concluding that it was harmless error "for the trial court not to instruct the jury on negligent homicide" where the defendant was convicted of see-ond-degree depraved indifference murder); State v. Standiford, 769 P.2d 254, 267 (Utah 1988) ("[Slinee the jury convicted of second degree murder despite the fact that an instruction was given on the lesser included offense of manslaughter, failure to give a negligent homicide instruction was, at the very best, harmless error.").
127 Given how close the causation evidence is, as discussed swpro 11 6-8, and the fact that both the lesser and greater offenses here involve an "intentionally and knowingly" mens rea, we cannot agree that Johnson's conviction of the greater offense indicates that any error in Instruction 24 or in providing the homicide-by-assault verdict form was harmless. We agree with Johnson that because Instruction 24 effectively mirrored the elements of the eriminal homicide instruction, the jury may have believed that the two instructions required it to make "essentially the same factual determinations and that it did not matter which offense was selected." As Johnson put it, "[the choice is not a choice when," as instructed, "there is no real difference between" criminal homicide and homicide by assault. The error in Instruetion 24 left the jury with the option of either "convicting the defendant of [the charged offense], or acquitting him outright." See Keeble v. United States, 412 U.S. 205, 213, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973). And "Iwle cannot say that the availability of a third option-convicting the defendant of [homicide by assault)-could not have resulted in a different verdict." See id.; cf. Beck, 447 U.S. at 642, 100 S.Ct. 2382 (explaining the importance of lesser included offense instructions and stating that .to "expect a jury to ... find a defendant innocent and thereby set him free when the evidence establishes beyond doubt that he is guilty of some violent crime" is to "require[ ] of our juries clinical detachment from the reality of human experience" (citation and internal quotation marks omitted)). Accordingly, the judgment must be reversed and the case remanded to the trial court. Cf. State v. Oldroyd, 685 P.2d 551, 555-56 (Utah 1984) (reversing the defendant's conviction because he was improperly denied a jury instruction on a lesser included offense).
II. Whether the Verdict Form Was Properly Provided to the Jury Is Immaterial.
128 Johnson's primary argument on appeal is that the absence of a lesser-included-offense verdict form in the record indicates that the trial court failed to provide one. Cf. People v. Nguyen, 4 Cal.Rptr.3d 211, 232 (Cal.Ct.App.2003) (stating that instructions on lesser included offenses must be accompanied by corresponding verdict forms). The evidence before us indicates that the verdict form is missing from the official record, as well as from the files retained by the State's and Johnson's trial attorneys and any extra-record files maintained by the court, such as personal files of the trial judge and court staff. But as we have stated before, even assuming that the verdict form was properly sent to the jury, it would have reflected a verdiet option that was not properly defined for the jury and, indeed, was defined in a manner equating it with the greater offense on which the jury was properly instructed.
[754]*754CONCLUSION
129 The "astonishingly erroneous" placement of the mens rea element in Instruction 24 effectively removed the lesser included offense from the jury's consideration by equating the lesser offense with the greater offense. This error renders the question of whether the verdict form on the lesser included offense was ever provided to the jury irrelevant. Accordingly, the jury did not have a meaningful opportunity to consider the lesser included offense. That the jury convicted Johnson of the greater offense does not demonstrate that a proper instruction on the lesser offense would not have resulted in a different outcome for Johnson, particularly in light of the closeness of the causation issue. Our confidence in the verdict is therefore undermined. We reverse Johnson's conviction and remand the case to the trial court.