author: ANDERSON, PAUL H., Justice. ANDERSON, Chief Justice GILDEA, Justice

text:
    STATE of Minnesota, Respondent, v. Michael Neal VANCE, Appellant.
    No. A05-459.
    Supreme Court of Minnesota.
    July 12, 2007.

      John M. Stuart, State Public Defender, Theodore David Sampsell-Jones, Assistant State Public Defender, Minneapolis, MN, for Appellant.
    Lori Swanson, Attorney General, St. Paul, MN, James Backstrom, Dakota County Attorney, Kevin J. Golden, Assistant Dakota County Attorney, Hastings, MN, for Respondent.
   OPINION

ANDERSON, PAUL H., Justice.

A Dakota County jury found Michael Neal Vance guilty of third-degree assault and making terroristic threats. The district court entered convictions for both offenses, and after finding that they were part of the same course of conduct, sentenced Vance to 24 months in prison for the third-degree assault conviction. Vance appealed his convictions claiming, among other things, that the court erred when it failed to instruct the jury on the definition of assault, thereby omitting the element of intent from the instructions. The Minnesota Court of Appeals affirmed Vance’s convictions. Vance petitioned our court for review, citing both the alleged jury instruction error and ineffective assistance of trial counsel. We granted review on the jury instruction issue. We reverse.

Appellant Michael Neal Vance appeals his third-degree assault conviction for an assault on C.S. Vance was living at C.S.’s home when the assault occurred. Vance testified that C.S. was his girlfriend at the time, but C.S. testified that they were no longer romantically involved and she was only allowing Vance to stay at her home because she was afraid of him. C.S. said that in the past, she had called the police to have Vance removed from her home, but he returned numerous times, sometimes breaking down the door to get into the home. C.S. testified that Vance had threatened her on several occasions before the alleged assault and had told her that he would kill her if she called the police.

C.S. testified that on the morning of June 19, 2004, she and Vance began arguing from the time they woke up to go to work. She said that the day was “pretty much a blur” and that she did not remember what they were arguing about. She did remember Vance smashing collectible beer cans and then punching her in the mouth. After Vance hit C.S., he went into the kitchen to get some ice, and C.S. headed for the front door in an effort to get away from Vance because she was afraid of him. C.S. testified that Vance saw her leave the home and came after her. C.S. remembered seeing Vance leap at her from the top of the front steps as she was running across the yard to the neighbors to get help. The next thing she remembered was being in the bathroom of her home, with her shirt off, holding her shoulder, and being in unbearable pain. She also remembered noticing that she had a black eye and a “black mouth.”

After C.S. was injured, her friend B.G. arrived to drive Vance to work. B.G. testified that when she arrived at C.S.’s home, the windows were all covered with sheets or towels and the furniture was in disarray. Upon entering the home, B.G. found C.S. and Vance sitting on C.S.’s bed. B.G. testified that when she asked them what was going on, Vance said “I don’t know what happened to her. I guess she just r[an] outside and ran into the fire hydrant.” B.G. then took C.S. to the hospital, where it was determined that she had a broken collarbone and scratch or bite marks on the back of her shoulder.

At Vance’s trial, the police officer who first responded to the report of domestic assault at C.S.’s home testified that C.S. told him that sometime after the assault, she had received threatening telephone calls from Vance. Another officer testified that C.S. told him that Vance had threatened to kill C.S. if she reported the assault to the police. C.S. testified at trial that Vance had threatened her in the past, but she did not expressly state that he threatened her at any time during or after the assault.

A warrant was issued for Vance’s arrest on June 23, 2004. He was charged by complaint with assault in the third degree and making terroristic threats. At the time the warrant was issued, Vance was in custody in Illinois, and he was ultimately extradited to Minnesota.

Vance testified to a very different version of events than did C.S. He testified that in the five days leading up to the alleged assault, C.S. had been smoking methamphetamine. He stated that in the early morning hours of June 19, he was drawing an eagle head on the ceiling of the bedroom he shared with C.S. and, while he was doing so, C.S. was screaming and yelling at him. He testified that sometime between 3:30 and 4 a.m., C.S. decided to leave to go to a friend’s house. When C.S. decided to leave, Vance told her that she could not drive her car. Vance testified that he would not let C.S. drive because she had been smoking methamphetamine and was also on medication. He told the jury that C.S. was in such bad shape that she needed help getting to the bathroom.

Vance testified that when he heard C.S. leave the home, he ran outside to stop her. He said that as he lunged to grab C.S., she tripped and he fell on top of her. He said that he then picked up C.S., recognized that she was hurt, and told her she needed to go to the hospital emergency room. He said that C.S. resisted his attempt to get medical treatment and that she just wanted to go back into the home. He then carried C.S. into the home and helped her take off her shirt. Vance said that when B.G. arrived, he told B.G., “[C.S.] fell. I fell on top of her.” During his testimony, Vance stated, “I didn’t mean to hurt my girlfriend.”

Before closing arguments, the district court instructed the jury regarding the law of third-degree assault. The court stated:

The statutes of Minnesota provide that whoever assaults another and inflicts substantial bodily harm is guilty of a crime. The elements of assault in the third degree are: First, the defendant assaulted another person; second, the defendant inflicted substantial bodily harm on the other person. Substantial bodily harm means bodily harm that involves a temporary but substantial disfigurement, causes a temporary but substantial loss or impairment of the function of any bodily member or organ, or causes a fracture of any bodily member. It is not necessary for the State to prove that the defendant intended to inflict substantial bodily harm but only that the defendant intended to commit the assault. Third, the defendant’s [sic] took place on or about June 19, 2004, in Dakota County.

(Emphasis added.) Defense counsel did not object to this or any other jury instruction.

The jury found Vance guilty of third-degree assault and making terroristic threats. The district court convicted him of both offenses, and sentenced him to 24 months in prison for the third-degree assault conviction. Vance appealed to the court of appeals, claiming among other things that the district court erred when it failed to instruct the jury on the element of intent, and that he received ineffective assistance of trial counsel. State v. Vance, No. A05-459, 2006 WL 1072996, at *1 (Minn.App. Apr.25, 2006). The court of appeals affirmed the convictions, holding that the jury instructions did not constitute plain error. Id. at *3. The court declined to reach the merits of the ineffective assistance of counsel claim, and rejected Vance’s other claims. Id. at *3-5. Vance then petitioned for review, which we granted on the jury instruction issue.

Vance concedes that his counsel failed to object to the jury instructions given at trial. Failure to object to jury instructions before they are given generally constitutes a forfeiture of the right to an appeal based on those instructions. See State v. White, 684 N.W.2d 500, 508 (Minn. 2004) (citing among other authorities Minn. R.Crim. P. 26.03, subd. 18(3)). But failure to object will not preclude appellate review if the instructions constitute plain error affecting substantial rights or an error of fundamental law. Id. (citing among other authorities Minn. R.Crim. P. 26.03, subd. 18(3)). Vance argued to the court of appeals that the district court’s failure to instruct the jury regarding the element of intent should be analyzed under the plain error standard of review. Vance, 2006 WL 1072996, at *2. The court of appeals agreed and applied that standard. Id. at *2-3. Vance now argues that under State v. Osborne, 715 N.W.2d 436 (Minn.2006), we should apply a harmless error standard of review because the failure to instruct the jury on an element of the offense is tantamount to the denial of the right to a jury trial on that element, which right cannot be forfeited by silence, but only by an affirmative waiver under Minn. R.Crim. P. 26.01, subd. 1(2). Because Vance argued for a plain error standard of review at the court of appeals and that standard may render moot Vance’s arguments under Osborne, we will begin our analysis by applying the plain error standard and then, if necessary, we will consider Vance’s argument under Osborne.

Generally, when there is no argument that an unobjected-to jury instruction violated a defendant’s right to a jury trial, we have reviewed that instruction under the plain error standard. Under this standard, we may review an unobject-ed-to error only if there is (1) error; (2) that is plain; and (3) that affects substantial rights. State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn.2001). Plain error has been described as “clear error affects ing substantial rights that resulted in a miscarriage of justice.” United States v. Pennington, 168 F.3d 1060, 1068 (8th Cir.1999). We have stated that an error affects substantial rights if there is a reasonable likelihood that the error had a significant effect on the jury’s verdict. See State v. Young, 710 N.W.2d 272, 280 (Minn.2006) (quotation marks omitted). If the three prongs of the plain error test are met, we may reverse if we conclude that reversal is required to ensure fairness and the integrity of the judicial proceedings. See State v. Griller, 583 N.W.2d 736, 740 (Minn.1998).

Did the district court err?

We have stated that “[district courts are allowed considerable latitude in the selection of language for jury instructions.” State v. Ihle, 640 N.W.2d 910, 916 (Minn.2002). When we review jury instructions for error, we review the instructions in their entirety to determine whether they fairly and adequately explain the law. Id. An instruction that materially misstates the law is error. State v. Kuhnau, 622 N.W.2d 552, 556 (Minn.2001). It is well settled that jury instructions must define the crime charged and explain the elements of the offense to the jury. See Ihle, 640 N.W.2d at 916.

Vance was tried for, among other things, third-degree assault. Minnesota law provides that “[wjhoever assaults another and inflicts substantial bodily harm” is guilty of assault in the third degree. Minn.Stat. § 609.223, subd. 1 (2006). Assault is defined as

(1) an act done with intent to cause fear in another of immediate bodily harm or death; or
(2) the intentional infliction of or attempt to inflict bodily harm upon another.

Minn.Stat. § 609.02, subd. 10 (2004). The statute further provides that the element of criminal intent is established when “the actor either has a purpose to do the thing or cause the result specified or believes that the act, if successful, will cause that result.” Id., subd. 9(4).

We have stated that assault is a specific intent crime. State v. Edrozo, 578 N.W.2d 719, 723 (Minn.1998). Specific intent means that the defendant acted with the intent to produce a specific result, whereas general intent means only that the defendant intentionally engaged in prohibited conduct. State v. Orsello, 554 N.W.2d 70, 72 (Minn.1996) (superseded by statute on other grounds). Therefore, to prove assault, “[t]he prosecutor must prove beyond a reasonable doubt that the defendant * * * intentionally inflicted or attempted to inflict bodily harm on another.” Edrozo, 578 N.W.2d at 723 (citing Minn.Stat. § 609.02, subd. 10). While the various degrees of assault require proof of different levels of actual harm, the assault statutes do not require a finding by the jury that a defendant intended to cause a specific level of harm. See Johnson v. State, 421 N.W.2d 327, 331 (Minn.App. 1988). Thus, while the state did not have to prove that Vance intentionally inflicted substantial bodily harm, the state did have to prove that he intentionally inflicted bodily harm.

Vance claims that the district court erred when it failed to inform the jury that intentional infliction of bodily harm is an element of the crime of third-degree assault. The state counters that the court properly instructed the jury as to the element of intent by informing the jury that in order to be guilty of third-degree assault, Vance had to intend to commit the assault. While the instructions the court gave to the jury were taken directly from CRIMJIG 13.15 and CRIMJIG 13.16, which are applicable to the crime of third-degree assault, the court did not give CRIMJIG 13.01. See 10 Minn. Dist. Judges Ass’n, Minnesota Practice—Jury Instruction Guides, Criminal, CRIMJIG 13.01, 13.15, 13.16 (5th ed.2006). Criminal Jury Instruction Guide 13.01 instructs the jury that “[t]he statutes of Minnesota provide that whoever * * * intentionally inflicts or attempts to inflict bodily harm upon another, is guilty of a crime.” Thus, if given to the jury, CRIMJIG 13.01 would have provided the underlying definition of assault.

But, as noted above, the jury in Vance’s case never received the instruction contained in CRIMJIG 13.01. Instead, the district court instructed the jury that “[i]t is not necessary for the State to prove that the defendant intended to inflict substantial bodily harm but only that the defendant intended to commit the assault.” We conclude that by omitting CRIMJIG 13.01, the court failed to inform the jury that for Vance to be guilty of third-degree assault, he had to intentionally inflict bodily harm on C.S. In addition, we conclude that by instructing the jury that “it is not necessary for the State to prove that [Vance] intended to inflict substantial bodily harm” (emphasis added), the court gave the jury the opposite impression, namely that intent to harm did not have to be proven, and that intent to commit the act that resulted in the harm was enough.

As stated by the United States Supreme Court in Apprendi v. New Jersey, the Fourteenth Amendment’s guarantee of due process and the Sixth Amendment’s guarantee of a jury trial “entitle a criminal defendant to ‘a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.’ ” 530 U.S. 466, 476-77, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (alteration in original) (quoting United States v. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995)). We have also stated that “[d]ue process requires that every element of the offense charged must be proven beyond a reasonable doubt by the prosecution.” State v. Cross, 577 N.W.2d 721, 726 (Minn.1998). Here, the jury instructions failed to inform the jury that Vance had to intentionally inflict bodily harm on C.S. Therefore, we conclude that the instructions the district court gave to the jury were erroneous because they created the possibility that the jury convicted Vance without finding that he intended to cause bodily harm.

Is the error plain?

Having concluded that the district court committed error, we must next determine whether that error is plain. An error is plain if it is “clear” or “obvious.” State v. Burg, 648 N.W.2d 673, 677 (Minn.2002) (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). In a recent case, we stated that an error is plain “if the error contravenes case law, a rule, or a standard of conduct.” State v. Ramey, 721 N.W.2d 294, 302 (Minn.2006). We have previously held that failure to properly instruct the jury on all elements of the offense charged is plain error. In Ihle, we considered a challenge to jury instructions for the offense of obstructing legal process. 640 N.W.2d at 912. The relevant statute prohibited intentionally obstructing “the lawful execution of any legal process” and obstructing “a peace officer while the officer is engaged in the performance of official duties.” Id. at 915 (quoting Minn.Stat. § 609.50, subd. 1(1), (2) (2000)). But 13 years before we decided Ihle, we had given a narrow construction to the statute in State v. Krawsky, 426 N.W.2d 875, 877 (Minn.1988), concluding that the statute prohibits only acts and words “that have the effect of physically obstructing * * * a police officer.” Ihle, 640 N.W.2d at 915 (emphasis added). We therefore held that the district court in Ihle committed “clear and obvious” error when it gave an instruction that “recited the elements of the obstruction statute” but failed to reflect the narrow construction we had previously given. Id. at 916-17.

Other jurisdictions, both federal and state, have recognized that failure to instruct the jury on an element of an offense constitutes plain error. See, e.g., United States v. Gaither, 440 F.2d 262, 264 (D.C.Cir.1971) (holding that “any omission of an element of a crime in the instructions to the jury is plain error”); People v. Fichtner, 869 P.2d 539, 543 (Colo.1994) (holding that “[a] trial court’s failure to instruct a jury on the essential elements of a crime constitutes plain error”). The Supreme Court has also held that a district court’s failure “to submit to the jury the essential ingredients of the only offense on which the conviction could rest” is fundamental error, of which a reviewing court should take note even in the absence of objection at trial. Screws v. United States, 325 U.S. 91, 107, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945).

The state asserts that any error by the district court in this case is not plain because the law on erroneous jury instructions is not clear. But we conclude that such an argument is more appropriately considered under the third prong of the plain error test, as the legal issue that is arguably unclear is whether jury instructions that omit an element of the crime can ever be harmless. In contrast, the law that informs our decision as to the plainness of the error is well settled — intentional infliction of bodily harm is an element of the crime of assault, and jury instructions must include all elements of the offense. See Minn.Stat. § 609.02, subd. 10; Ihle, 640 N.W.2d at 916; Kuhnau, 622 N.W.2d at 556-58. Therefore, we conclude that the district court committed plain error when it failed to instruct the jury on the intent element of the crime of third-degree assault.

Did the plain error affect substantial rights?

When addressing the third prong of the plain error test — whether the plain error affected substantial rights — we ask whether the error was prejudicial and affected the outcome of the case. Griller, 583 N.W.2d at 741. We have said that the defendant bears the “heavy burden” of showing that any error was prejudicial. Burg, 648 N.W.2d at 677. An erroneous jury instruction “is prejudicial if there is a reasonable likelihood that giving the instruction in question had a significant effect on the jury verdict.” State v. Gomez, 721 N.W.2d 871, 880 (Minn.2006).

Vance acknowledges that case law is inconsistent with respect to whether the failure to instruct the jury on an element of an offense can ever be harmless — that is, whether a reviewing court can ever conclude that the failure to instruct on an element did not have a significant effect on the jury verdict. More particularly, Vance notes that in some cases, courts have indicated that such a failure is prejudicial per se, while in other cases, courts have concluded that the failure to submit an element of the offense to the jury is harmless under particular circumstances. Vance argues that regardless of the approach we take in this case, he should prevail. The state argues that failure to instruct on an element can be harmless under some circumstances, and such circumstances exist here.

As Vance asserts, the Supreme Court, our court, and other courts have at times indicated that the failure to submit an element of the offense to the jury is necessarily prejudicial and therefore leads to reversal. For example, in Connecticut v. Johnson, the Supreme Court held that if a jury may have failed to consider the evidence of intent due to an erroneous jury instruction, a reviewing court cannot hold that the error did not contribute to the verdict. 460 U.S. 73, 85-87, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983). Similarly, in State v. Moore, we held that harmless error analysis is not applicable when the defendant is deprived of the right to have the jury determine that every element of the charged offense has been established. 699 N.W.2d 733, 738 (Minn.2005). The Ninth Circuit reached a similar conclusion in United States v. Gaudin, 28 F.3d 943 (9th Cir.1994) (en banc), aff'd, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). In Gaudin, the court concluded that when an element is removed from the jury’s consideration, a reviewing court cannot evaluate the strength of the evidence on that element because the jury was precluded from considering whether the element existed at all. Id. at 951-52.

Yet the Supreme Court and our court have also concluded that under particular circumstances, the failure to submit an element of the offense to the jury is harmless. For example, in Neder v. United States, the Supreme Court concluded that erroneous jury instructions were harmless when the omitted element was not contested at trial and the record contained overwhelming evidence establishing the omitted element. 527 U.S. 1, 17, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). In Neder, the Court specifically addressed the concern raised by the plurality in Connecticut v. Johnson, explaining that “[i]n a case such as this one, where a defendant did not, and apparently could not, bring forth facts contesting the omitted element, answering the question whether the jury verdict would have been the same absent the error does not fundamentally, undermine the purposes of the jury trial guarantee.” 527 U.S. at 18-19, 119 S.Ct. 1827. The extent of the evidence on intent was also a key factor in the Court’s decision in Yates v. Evatt, though in that case, the Court held that an erroneous jury instruction was not harmless beyond a reasonable doubt because the evidentiary record was inconclusive. 500 U.S. 391, 408-11, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991), overruled on another point by Estelle v. McGuire, 502 U.S. 62, 72 n. 4, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).

Some of our court’s decisions involving the omission of an element from jury instructions reflect the Supreme Court’s approach in Neder and Yates. For example, in State v. Spencer, we declined to reverse a conviction for aggravated assault when the jury was erroneously instructed that the element of intent was not required in order to find the defendant guilty. 298 Minn. 456, 463-64, 216 N.W.2d 131, 136 (1974). We based our decision in Spencer on the fact that the controversy at trial centered on the identity of the shooter, and not on the question of intent. Id. at 464, 216 N.W.2d at 136. We also noted that there was considerable evidence from which the jury could have inferred intent, namely that “the defendant held a loaded gun on the [victim], deliberately cocked the weapon, and then fired a bullet into [the victim’s] back.” Id.

Likewise, in Ihle, we held that jury instructions that omitted an element of the offense did not meet the third prong of the plain error test because there was “no reasonable likelihood that a more accurate instruction would have changed the outcome.” 640 N.W.2d at 917. We based this holding on the fact that a special verdict form required the jury to find the omitted element and on the fact that the jury also found the defendant guilty of another offense which arguably required the finding of the omitted element. Id.

While not citing Ihle, the state relies on similar logic to argue that a different instruction would not have changed the verdict in this case because the jury was instructed that for Vance to be guilty, the assault on C.S. had to be an intentional act. The state also argues that Vance’s testimony was unbelievable and that if the jury had believed Vance’s version of events, they would have acquitted him. Here, the state cites Griller for the proposition that when a defendant’s story is “wholly unbelievable, * * * it is unlikely that any erroneous instruction significantly affected the verdict.” 583 N.W.2d at 742. But in Griller, we refrained from making a determination regarding the third prong of the plain error test, stating that, “[wjhile * * * credibility is an issue for the jury, here the jury clearly rejected Griller’s self-defense argument.” Id. (footnote omitted).

We acknowledge that the law is unclear regarding whether the omission of an element from jury instructions is necessarily prejudicial or may instead be subject to a harmless error analysis. But we conclude that we need not address the lack of clarity in the law because Vance’s case is factually distinguishable from all of the foregoing cases in which a court deemed harmless the failure to submit an element of the offense to the jury. Vance, unlike the defendants in Neder and Spencer, presented some evidence that tended to negate the omitted element of intent. Specifically, Vance testified that while he did lunge at and attempt to grab C.S. in an effort to stop her from driving her car, he never intended to hurt her. Also, unlike in Ihle, the jury’s verdict in this case did not include other verdicts that necessarily encompassed the omitted element. And finally, the evidence of intent in this case is not as strong as it was in Spencer.

We have held that the third prong of the plain error test is met when there is a reasonable likelihood that a properly instructed jury could have accepted the defendant’s version of events. In State v. Baird, for example, we held that a jury instruction that erroneously stated that the defendant, who claimed self defense, had a duty to retreat from his home met the third prong of the plain error test. 654 N.W.2d 105, 113-14 (Minn.2002). We concluded that a properly instructed jury could have found that Baird acted in self defense and that it was “impossible to determine whether the jury rejected Baird’s version of the facts or whether it accepted his version but concluded that he was guilty nevertheless because he failed to retreat.” Id. at 114.

Here, as in Baird, the jury was erroneously instructed on a key element. At Vance’s trial, the jury was told that “[i]t is not necessary for the State to prove that the defendant intended to inflict substantial bodily harm but only that the defendant intended to commit the assault.” Contrary to the state’s contention, instructing the jury that Vance had to intend the act — tackling or restraining C.S.' — is not the same as instructing the jury that Vance had to intend the result — bodily harm to C.S. The jury was never instructed that in order to be guilty of assault, Vance had to intentionally inflict bodily harm on C.S. In other words, the jury was instructed on general intent even though assault is a specific-intent crime. We therefore conclude that, based on the instructions given and on the evidence in the record, it is possible that the jury never considered whether Vance intended to cause bodily harm to C.S. It is even possible that the jury found that Vance did not intend to cause bodily harm to C.S., but believed that the intent to tackle or restrain C.S. was sufficient to satisfy the intent element of the offense. As in Baird, it is impossible in this case to determine whether the jury rejected Vance’s version of the facts or whether it accepted his claim that the injury to C.S. was accidental, but concluded that he was guilty nevertheless because he intended to restrain or tackle C.S.

For all of the foregoing reasons, we conclude that there is a reasonable likelihood that the omission of the element of intent from the jury instructions had a significant effect on the verdict rendered by the jury. Therefore, we conclude that the district court’s omission of the element of intent from the jury instructions constitutes plain error affecting Vance’s substantial rights.

Is reversal required to ensure fairness and the integrity of the judicial proceedings?

Having concluded that the three prongs of the plain error test have been met, we must now determine whether reversal is necessary to ensure fairness and the integrity of the judicial proceedings. See Griller, 583 N.W.2d at 740. In Johnson v. United States, the Supreme Court refrained from determining whether the defendant was prejudiced by plain error and instead held that, because the evidence in support of the omitted element was both overwhelming and uncontroverted at trial, there was no basis on appeal to conclude that the error seriously affected the fairness or integrity of the judicial proceedings. 520 U.S. 461, 469-70, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). We reached the same conclusion in Griller. 583 N.W.2d at 742 (citing Johnson, 520 U.S. at 469-70, 117 S.Ct. 1544).

But in Baird, where the defendant claimed self defense and the court erroneously instructed the jury that the defendant had a duty to retreat from his home, we observed that “the jury may not have considered whether Baird’s conduct was reasonable under the circumstances.” Baird, 654 N.W.2d at 114. In Baird, we affirmed the court of appeals’ reversal of the defendant’s conviction, holding that “[fjairness requires that Baird be given an opportunity to present his account of the facts to a jury under the proper instructions.” Id.

This case is similar to Baird because, as previously noted, the jury may not have considered whether Vance intentionally inflicted bodily harm to C.S. Here, Vance did not have the opportunity to have his account of the facts considered under the proper jury instructions, and the jury may have convicted him under the instructions given even if it believed that he never intentionally inflicted bodily harm on C.S. Therefore, we conclude that the fairness and integrity of the judicial proceedings are called into question by the erroneous instructions and the verdict based on those instructions.

For all of the foregoing reasons, we hold that a reversal of Vance’s conviction for third-degree assault is necessary. Accordingly, we remand to the district court for adjudication and sentencing on the terror-istic threat conviction or, if the state so chooses, a new trial on the third-degree assault charge.

Reversed and remanded.

ANDERSON, Chief Justice

(concurring).

I concur in the result but write separately to emphasize that the district court followed the pattern jury instruction for third-degree assault. It appears that the anomaly in the pattern jury instruction for third-degree assault dates back to changes made in 1990. Prior to that time, the instruction incorporated the meaning of assault into the first element of the offense. The 1990 version of the instruction removed the explanation. The 1999 version added that the state did not have to prove intent to cause the specified degree of harm. And by comment, the 1999 jury instruction guide also added that “[i]n cases in which a defendant is charged with a degree of an assault, the court may wish to incorporate” the definition of assault “directly into the first element of the appropriate elements instruction as a further definition of that element.” 10 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 13.01 cmt. (4th ed.1999) (emphasis supplied).

I do tend to agree that the third-degree assault instruction should explain the assault element, i.e., that defendant assaulted complainant and that this means the defendant intentionally inflicted bodily harm on complainant. While I doubt that the omitted instruction might have prompted a reasonable jury to reach a different result, I have no problem with a remand for an adjudication and sentence on the terroristic threat conviction unless the state chooses to retry Vance on the third-degree assault charge.

GILDEA, Justice

(concurring).

I join in the concurrence of Chief Justice Anderson.

      . The district court concluded that the terror-istic threats were part of the same course of conduct as the assault. Vance was also sentenced at the same time on an unrelated fifth-degree assault offense. The court imposed a 90-day jail sentence for this offense to be served concurrently with the 24-month sentence for third-degree assault.

      . Minn. R.Crim. P. 26.03, subd. 18(3), provides that
      [n]o party may assign as error any portion of the charge or omission therefrom unless the party objects thereto before the jury retires to consider its verdict. * * * An error in the instructions with respect to fundamental law or controlling principle may be assigned in a motion for a new trial though it was not otherwise called to the attention of the court.

      . In order to determine the standard of review applicable to erroneous jury instructions, it is important to understand the interplay of Minn. R.Crim. P. 26.03, subd. 18(3), and Minn. R.Crim. P. 31.02. Rule 26.03, subd. 18(3), provides that unobjected-to jury instructions that contain an error in fundamental law or controlling principle may be assigned in a motion for a new trial. Rule 31.02, on the other hand, provides that plain errors or defects affecting substantial rights may be considered upon a motion for a new trial, post-trial motions, and on appeal although not brought to the attention of the district court. Under Rule 26.03, subd. 18(3), if a defendant challenges an instruction in a new trial motion and the motion is denied, the issue is preserved for appeal and a harmless error standard of review applies. See State v. Glowacki, 630 N.W.2d 392, 398, 402-03 (Minn.2001) (holding that a new trial motion adequately preserves a jury instruction error but stressing that the error "must be one of fundamental law or controlling principle,” and applying the harmless error standard to an erroneous instruction that the defendant had a duty to retreat before defending against an offense in the home); State v. La-Forge, 347 N.W.2d 247, 251, 256 (Minn.1984) (holding that jury instruction error is preserved by new trial motion under Rule 26.03, subd. 18(3), and that unconstitutional instruction allowing jury to presume intent cannot be deemed harmless under Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983)).
      It follows from the foregoing cases that if the error is not one of fundamental law or controlling principle, challenging it in a new trial motion is ineffectual to preserve the error for harmless error review on appeal. Like most errors not objected to at trial, such an error may be considered on appeal only if it meets the plain error test of Rule 31.02. Only Rule 31.02 allows appellate consideration of an error not brought to the attention of the district court. An appellate court's authority under Rule 31.02 is separate from its authority to consider any unobjected-to error in the interests of justice under Minn. R.Crim. P. 28.02, subd. 11 (incorporated by reference in Rules 29.03, subd. 4 and 29.04, subd. 11).

      . The first type of assault was neither argued nor presented to the jury, and the jury instructions made no reference to the first type of assault.

      . While not claimed as error by Vance, we also note that the district court's failure to instruct the jury on the definition of intent compounded the erroneous omission of the element of intentional infliction of bodily harm from the jury instructions. Had the court given CRIMJIG 7.10 in this case, the jury would have been told that
      "intentionally” means that the actor either has a purpose to do the thing or cause the result specified, or believes that the act performed by the actor, if successful, will cause the result. In addition, the actor must have knowledge of those facts that are necessary to make the actor’s conduct criminal and that are set forth after the word "intentionally.”
      10 Minn. Dist. Judges Ass'n, Minnesota Practice— Jury Instruction Guides, Criminal, CRIMJIG 7.10 (5th ed.2006). The court has the "obligation to clearly instruct the jurors on exactly what it is that they must decide.” State v. Peterson, 673 N.W.2d 482, 485 (Minn.2004). See also Minn. R.Crim. P. 26.03, subd. 18(5). By providing CRIMJIG 7.10 in this case, the court would have focused the jury on the salient aspect of the intent element— namely, the purpose to cause bodily injury.

      . See also United States v. Alferahin, 433 F.3d 1148, 1157 (9th Cir.2006); United States v. Plitman, 194 F.3d 59, 65 (2d Cir.1999); United States v. Bordeaux, 121 F.3d 1187, 1189-90 (8th Cir.1997); United States v. Miller, 111 F.3d 747, 750 (10th Cir.1997); United States v. Garza, 42 F.3d 251, 253 (5th Cir.1994); United States v. McLamb, 985 F.2d 1284, 1293 (4th Cir.1993); Government of Virgin Islands v. Brown, 685 F.2d 834, 839 (3d Cir.1982); United States v. Krosky, 418 F.2d 65, 67-68 (6th Cir.1969); United States v. Hutchison, 338 F.2d 991, 991 (4th Cir.1964); United States v. Noble, 155 F.2d 315, 316-18 (3d Cir.1946); State v. Harman, 198 Conn. 124, 502 A.2d 381, 386 (1985); Kolberg v. State, 829 So.2d 29, 47 (Miss.2002); State v. Miller, 184 W.Va. 367, 400 S.E.2d 611, 612-13 (1990).

      . The plurality in Connecticut v. Johnson concluded that an instruction to the jury that "every person is conclusively presumed to intend the natural and necessary consequences of his act” took away the element of intent from the jury and was "the functional equivalent of a directed verdict on that issue.” 460 U.S. at 78, 84, 103 S.Ct. 969. The Johnson plurality went on to explain that
      [i]f the jury may have failed to consider evidence of intent, a reviewing court cannot hold that the error did not contribute to the verdict. The fact that the reviewing court may view the evidence of intent as overwhelming is then simply irrelevant. To allow a reviewing court to perform the jury’s function of evaluating the evidence of intent, when the jury never may have performed that function, would give too much weight to society’s interest in punishing the guilty and too little weight to the method by which decisions of guilt are to be made.

        Id. at 85-86, 103 S.Ct. 969 (footnote omitted). See also State v. Williams, 324 N.W.2d 154, 160 (Minn.1982) (holding that when intent is an element of the offense, the court may not withdraw the issue from the jury by instructing that the law raises a presumption of intent from an act).

      . Although the harmless error standard differs from the plain error standard, both the harmless error standard and the third prong of the plain error test consider whether the error contributed to the verdict. Thus, in determining whether the erroneous jury instructions in this case affected the jury’s verdict, we are informed by erroneous jury instruction cases applying both the harmless error standard and the plain error standard.
      Under harmless error review, a lower court error of constitutional dimensions will be reversed unless the reviewing court is able to “declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). For an error to be harmless beyond a reasonable doubt, the verdict "must be ‘surely unattributable’ to the error.” State v. Shoen, 598 N.W.2d 370, 377 (Minn.1999) (quoting State v. Juarez, 572 N.W.2d 286, 292 (Minn.1997)). A lower court error satisfies the third prong of the plain error test if there is a reasonable likelihood that the error had a significant effect on the jury’s verdict. State v. Young, 710 N.W.2d 272, 280 (Minn.2006).

      . Third-degree assault and making terroristic threats are both classified as severity level four offenses under the Minnesota Sentencing Guidelines. Applying State v. Pflepsen, the district court could formally adjudicate Vance’s terroristic threat conviction and impose the same sentence Vance received for the third-degree assault conviction, with credit for time already served on the assault sentence. 590 N.W.2d 759, 766 (Minn. 1999) (quoting State v. LaTourelie, 343 N.W.2d 277 (Minn.1984)).

      . The pre-1990 jury instruction for third-degree assault provided:
      The elements of assault in the third degree are:
      First, defendant assaulted-This means that defendant intentionally inflicted bodily harm on_
      Second, defendant inflicted substantial bodily harm on_Substantial bodily harm means bodily harm which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily member or organ, or which causes a fracture of any bodily member.
      Third, defendant’s act took place on (or about)_in4_County.
      If you find that each of these three elements has been proved beyond a reasonable doubt, defendant is guilty of assault in the third degree. If you find that any of these elements has not been proved beyond a reasonable doubt, defendant is not guilty of assault in the third degree.
      10 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 13.08 (2d ed.1985).

      . The 1990 jury instruction for third-degree assault provided:
      The elements of assault in the third degree are:
      First, defendant assaulted_
      Second, defendant inflicted substantial bodily harm on_Substantial bodily harm means bodily harm which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily member or organ, or which causes a fracture of any bodily member.
      Third, defendant’s act took place on (or about)_in_County.
      If you find that each of these, three elements has been proved beyond a reasonable doubt, defendant is guilty of assault in the third degree. If you find that any of these elements has not been proved beyond a reasonable doubt, defendant is not guilty of assault in the third degree.
      10 Minn. Dist. Judges Ass'n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 13.08 (3d ed.1990).

      .The 1999 jury instruction for third-degree assault provided:
      The elements of assault in the third degree are:
      First, the defendant assaulted_
      Second, the defendant inflicted substantial bodily harm on_"Substantial bodily harm” means bodily harm that involves a temporary but substantial disfigurement, causes a temporary but substantial loss or impairment of the function of any bodily member or organ, or causes a fracture of any bodily member. It is not necessary for the State to prove that the defendant intended to inflict substantial bodily harm, but only that the defendant intended to commit the assault.
      Third, the defendant’s act took place on (or about)_in_County.
      If you find that each of these elements has been proven beyond a reasonable doubt, the defendant is guilty. If you find that any element has not been proven beyond a reasonable doubt, the defendant is not guilty.
      10 Minn. Dist. Judges Ass'n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 13.16 (4th ed.1999).


source: Caselaw Access Project

author: ANDERSON, PAUL H., Justice.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Kurt Thomas BIRD, Appellant.
    No. A06-888.
    Supreme Court of Minnesota.
    July 12, 2007.

      John M. Stuart, State Public Defender, Steven P. Russett, Assistant State Public Defender, Minneapolis, MN, for Appellant.
    Lori Swanson, Attorney General, St. Paul, MN, Michael 0. Freeman, Hennepin County Attorney, Jean E. Burdorf, Assistant Hennepin County Attorney, Minneapolis, MN, for Respondent.
   OPINION

ANDERSON, PAUL H., Justice.

A Hennepin County jury convicted Kurt Thomas Bird of one count of first-degree premeditated murder and one count of first-degree domestic abuse murder for the shooting death of his wife. The jury declined to find that Bird committed the lesser-included offense of heat-of-passion manslaughter. Before his trial began, Bird moved to introduce expert psychiatric testimony that he was experiencing psychotic symptoms before and immediately after the shooting and that he was “acutely psychotic” at the time of the shooting. Bird proffered the expert testimony in order to explain his mental state at the time he made inculpatory statements to the police and to help the jury understand “[his] circumstances” at the time of the shooting so the jury could determine whether he acted in the heat of passion or with extreme indifference to human life. The court allowed Bird’s expert to testify, but only on the topic of Bird’s psychosis at the time he spoke to the police. On appeal, Bird argues that the district court abused its discretion when it excluded expert psychiatric testimony on his psychosis at the time of the shooting. We affirm.

At approximately noon on Tuesday, August 2, 2005, the police responded to a 911 call concerning an apparent suicide at an apartment building in Champlin, Minnesota. Outside the building, Sergeant Chris Larrabee encountered appellant Kurt Thomas Bird, who later identified himself as the victim’s husband, and D.B., the brother of Bird’s ex-girlfriend. Larrabee asked Bird if he was the person who had found the victim’s body, and Bird responded that it was not “quite like that.” Bird then told Larrabee that he and his wife had argued at 7 a.m., that his wife had brought out a gun, and that in the course of an ensuing struggle, the gun discharged and she was shot. On entering the Birds’ apartment, Larrabee and two other officers found Laurie Bird’s body face-down on a bed with a gunshot wound to the back of the head. Her head was near the pillows, and she had a .45-caliber semiautomatic gun in her hand above her head. The officers observed no signs of a struggle in the bedroom or elsewhere in the apartment.

Bird’s Interrogation, Arrest, and Pre-Trial Proceedings

The police took Bird to a Brooklyn Park detention facility, where two officers later interviewed him for approximately two hours. During the videotaped interview, Bird told the officers that on the evening of August 1, he and his wife were in their bedroom arguing about whether she had molested his two daughters from a previous relationship. He said that his wife made a remark that indicated that she had sexual relations with one of them. He said that this remark made him angry and caused him to go to the living room to get away from his wife.

In the first part of the interview, Bird told the officers that during the early morning hours on August 2, he and his wife were “bickering back and forth” again regarding Bird’s daughters. He said that when he walked from the living room into the bedroom, he saw his wife sitting on the bed, holding one of his guns. He stated that she “kept fooling at her head with [the gun]” and that he did not think the gun was loaded. Later in the interview, Bird said that when he walked from the living room to the bedroom he initially thought his wife was asleep, but he found her sitting on the bed with the gun. He said his wife told him she wished she were dead and that she was “dead already” because she was HIV-positive. He said that his wife told him she was in love with another man and that she was going to leave Bird. Bird told the officers that he thought his wife was involved in more than one extramarital affair and that he must be HIV-positive because of her.

Bird stated that after seeing his wife with the gun, he worked his way behind her in order to take the gun from her. He said that in his effort to get the gun, he “pushed her down and she had the gun and [he] had the gun and the next thing you know it went off.” At one point in the interview, Bird said that his wife’s hands might have been on the gun when it discharged, but he later told the officers that he was the only person holding the gun at the time of the shooting. He admitted shooting his wife, but said he did not pull the trigger. He said that after the shot was fired, he dropped the gun and it fell onto his wife’s hand. He denied pointing the gun at his wife, and he said he did not remember placing the gun in her hand after she was shot. Bird vehemently denied shooting his wife on purpose and denied shooting her out of anger. But he did acknowledge that he was angry at her, that he felt “a little” betrayed and disappointed by her, and that both he and his wife were mad at the time they struggled over the gun.

Following his interview with the police, Bird was charged with the murder of his wife. A Hennepin County grand jury subsequently indicted him on one count of first-degree premeditated murder in violation of Minn.Stat. § 609.185(a)(1) (2006), one count of first-degree domestic abuse murder in violation of Minn.Stat. § 609.185(a)(6) (2006), and one count of second-degree murder in violation of Minn. Stat. § 609.19, subd. 1(1) (2006).

Bird pleaded not guilty to all three counts and gave notice to the state that he intended to assert a mental illness defense. The court then ordered Bird to undergo a Rule 20 evaluation, which resulted in an opinion by Dr. Kristine Kienlen that Bird was competent to stand trial and that he did not qualify for a mental illness defense. Bird did not challenge Dr. Kienlen’s findings and did not interpose a plea of not guilty by reason of mental illness. But he moved the court to allow expert psychiatric testimony that he was experiencing psychotic symptoms from approximately July 27 through August 3 and that he was “acutely psychotic” at the time of the shooting. The court allowed Bird’s expert to testify, but only about Bird’s mental state at the time of his on-scene statements to the police and the subsequent custodial interview.

Trial Testimony

Forensic and Police Testimony

Bird’s jury trial began on February 2, 2006. One of the state’s first witnesses was Gary Gendron, a crime lab technician for the Hennepin County Sheriffs Department. Gendron testified that the bullet that killed Laurie Bird entered the mattress on which her body was found at approximately a 45-degree angle. He said that the bullet moved on a trajectory from the foot of the bed toward the head of the bed, ultimately lodging in the bottom layer of the mattress. He stated that Laurie Bird’s hand was “kind of folded around the weapon” when he removed the gun from the scene.

Dr. Daniel Davis, a forensic pathologist with the Hennepin County Medical Examiner’s Office, testified that the cause of Laurie Bird’s death was a contact wound to the head. As to the manner of Laurie Bird’s death, Davis testified that in his opinion, the shooting was a homicide. He said that Bird’s assertion that the gun fell into his wife’s hand after accidentally discharging in a struggle was “unbelievable.”

Kurt Moline, a forensic scientist and firearms examiner with the Minnesota Bureau of Criminal Apprehension, told the jury that the gun had three separate safety mechanisms designed to prevent accidental firings and that all three mechanisms were functional when he tested the gun. Moline also stated that based on the tests he conducted, the gun was not capable of discharging as a result of a blow or jar and would only discharge if the trigger were pulled.

Detective Kevin Wagman testified about the events leading up to Bird’s interview with the police. The state then played a videotape of the interview for the jury. After playing the videotape, the state resumed its questioning of Wagman, who testified that after the interview, the police investigated some of Bird’s statements. Based on their investigations, the police determined that Bird’s wife had not molested his daughters, was not having any extramarital affair, and was not HIV-positive. Wagman also testified that Bird had two prior domestic assault-related convictions, including one in 1995 for assaulting his wife.

Marriage Relationship Testimony

L.T., Laurie Bird’s sister, testified that her sister’s seven-year marriage to Bird was not always harmonious. She said that the couple separated in 2003 when Bird was drinking heavily and Laurie Bird was hospitalized following a suicide attempt. L.T. said that the couple reunited in 2004, but that at the time Laurie Bird died, she was in the process of moving out because Bird was drinking again. L.T. told the jury that Laurie Bird spent the weekend immediately before her death with L.T. and other family members at L.T.’s lake home. L.T. said that Bird, who was out of town on Friday, July 29, called Laurie Bird’s cell phone and argued with her that she should not travel to L.T.’s lake home on Saturday but should instead wait until Sunday. L.T. said she saw Bird when she returned from the lake on Sunday evening and that he appeared “normal.”

On cross-examination, L.T. testified that in the early evening of Friday, July 29, Bird telephoned to tell her that she needed to go to the Birds’ apartment because Laurie Bird had overdosed and was having convulsions. L.T. said that she immediately started driving to the apartment and telephoned her sister en route, hoping that a paramedic would answer. L.T. told the jury that her sister answered the telephone and said that there had been no overdose or convulsions. L.T. said that Bird subsequently told her that someone he worked with had given him the information about his wife as a practical joke.

Laurie Bird’s friend A.D. testified that the Birds had a “very rocky” marriage. She said that Bird was verbally abusive to his wife and had accused her of having extramarital affairs. A.D. told the jury that Laurie Bird planned to move in with A.D. on the night of August 2. A.D. also said that Bird left cell phone messages for Laurie Bird earlier in the summer, saying that if she moved out, Bird would divorce or kill her. A.D. said that Laurie Bird was looking forward to attending a motorcycle rally in Sturgis, South Dakota, on August 6, but A.D. told Laurie Bird to tell Bird she was not going. Bird had indicated he was upset about his wife making the trip to Sturgis and A.D. thought Laurie Bird could “buy her[self] some peace” by concealing her plans. Finally, A.D. said that she urged Laurie Bird to stay at AD.’s home the night before she died because A.D. was concerned for her welfare.

Several other witnesses testified about the abusive nature of the Birds’ marriage. One witness told the jury that Laurie Bird called her for help in the summer of 2002 because Bird was choking her. A former community service officer testified that when he was on patrol in 1995, he saw Bird pull Laurie Bird’s hair and punch her “really fast and hard” while the two were seated in a parked car.

Bird’s Testimony

Bird testified on his own behalf. He told the jury that he had worked as a truck driver for approximately 30 years and that he was often away from home for extended periods of time. He said that he met his wife in 1992 and that they moved in together in 1995 and married in 1998. He said that she was taking medication for mental health problems and that she had once tried to commit suicide, which caused him to worry about her while he was on the road. He stated that he had three biological children, including two teenaged daughters with his ex-girlfriend C.B. He said that these daughters lived with C.B. in South Carolina. He told the jury that C.B. and his daughters came to Minnesota during the last week of June 2005 and that he spent time with them in July before heading out on the road.

On Friday morning, July 29, Bird arrived in Texas with a shipment he picked up in California. He said that he thought his boss told him to return home with an empty truck after making the Texas delivery. Bird said that he arrived home on Saturday evening, July 30, and did not see his wife until she returned from L.T.’s lake home on Sunday evening. He said he could only remember engaging in “small talk” with her after she arrived. He said that his wife went to work on Monday and did not return home until 8:30 p.m. He told the jury that he did not argue with his wife on Monday night, but they did talk about Bird’s daughters because he was “under the impression” that something had happened to his daughters during their visit earlier that month. Bird thought that the information about his daughters had come up in conversations with his boss, but he could not really remember how he obtained the information. He said that immediately after confronting his wife about his daughters, he telephoned C.B. in South Carolina, and C.B. told him that they were fíne. Bird said he then apologized to his wife and they went to bed.

Bird testified that he could not fall asleep in the bedroom and that he went into the living room to watch television, ultimately falling asleep on the couch. At some point during the early morning while it was still dark, he walked back into the bedroom and saw his wife sitting on the bed with her back toward him, holding one of his guns. He testified that he had unloaded the same gun when he brought it in from his truck on Saturday and that he had left the bullets on top of a dresser in the bedroom. He stated that he did not believe the gun was loaded when he saw his wife holding it, but he wanted to take the gun away from her because he was afraid she would hurt herself.

Bird testified that he approached his wife from behind in an effort to get the gun. He said that by the time he got hold of the gun, he had pushed his wife such that she ended up face down in front of him, half on and half off the bed. He said that when he took hold of the gun, he believed his wife’s hand was also on it. He also said that he did not recall pulling the trigger, and he believed his wife’s hand was still on the gun when it discharged. Bird told the jury he knew his wife died because he could tell that she was not breathing. He said he did not know why he did not immediately call 911. He remembered leaving the apartment, returning, and leaving again, but he could not remember why he did so. He also remembered telephoning C.B. and C.B.’s brother, and speaking by telephone with his friend T.L.

Testimony Regarding Bird’s Unusual Behavior

C.B. testified that at approximately 1 a.m. on Saturday, July 30, Bird called her in South Carolina and told her that the Hell’s Angels had stabbed and decapitated a mutual friend. Bird told C.B.’s husband, with whom he also spoke, that Bird had seen a videotape of Laurie Bird having sex with the Hell’s Angels. C.B. said that she next spoke with Bird by telephone on the afternoon of Monday, August 1. During this conversation, Bird asked C.B. if their daughters were all right after their visit to Minnesota. Bird told C.B. he was concerned about their daughters because his boss had called him to say that Bird’s wife had molested them. C.B. told the jury that she immediately spoke with their daughters and determined that they had not been molested.

C.B. testified that Bird telephoned again on the morning of August 2, the day of the shooting. Bird asked C.B. if she remembered the previous night when she and their daughters were with him. When C.B. insisted that she and the girls had been in South Carolina, Bird ended the call. Approximately 10 minutes later, Bird telephoned again because “he had to see if it was real that there had been a bad accident.” C.B. then asked where Laurie Bird was. Bird responded that his wife was at home and that he had her car. C.B. asked where Bird was and he said he did not know. He then told her that his wife was dead. On cross-examination, C.B. said that she spoke to Bird by telephone approximately six times on the morning of August 2. She said that during the later conversations, Bird said he had shot his wife when she was face down and that “nobody was going to molest his kids and get away with [it].”

Bird’s friend T.L. testified that Bird telephoned her on the evening of Sunday, July 31, and told her that his boss, using a satellite, Bird’s computer, and a chip in Bird’s head, was telling Bird what to do. T.L. said Bird also telephoned her at 3 a.m. on Monday, August 1, and told her that he had been poisoned by food at his apartment and that if he ate anything from home he would get sick. T.L. described Bird as “dead calm” during the August 1 conversation and not wild or excited as he would “normally sound when he was on drugs.” T.L. said that she and Bird had another telephone conversation early in the morning on the day Laurie Bird died. Sometime later that morning, Bird telephoned T.L. from a payphone saying he thought his wife was dead “by gunshot.” When T.L. asked what had happened, Bird said he did not know. She then asked him whether Laurie Bird had committed suicide, and he said he thought so.

Bird’s boss K.B. testified that on Friday, July 29, Bird arrived in Texas with a truck shipment from California. K.B. said that instead of driving to Arkansas to pick up another shipment as Bird was supposed to do, Bird headed home with an empty truck. KB. said that apparently, Bird thought he had a conversation with K.B. in which K.B. directed him to return with the truck empty, but no such conversation occurred. When K.B. learned of Bird’s mis-perception, he became concerned about Bird’s safety and instructed him by telephone on Saturday, July 30, to pull off the road and get some sleep. K.B. said that Bird’s comments were consistent with previous incidents in which Bird exhibited symptoms of methamphetamine use. K.B. said that Bird sounded “wigged out” during this Saturday call, but less so when they spoke on Sunday and Monday.

Expert Psychiatric Testimony

The district court allowed certain testimony from expert psychiatric witnesses. Bird’s expert witness was Dr. Thomas Gratzer, a psychiatrist whom the defense retained to evaluate his psychiatric condition at the time of the shooting. Immediately before Gratzer took the witness stand, the court told the jury that it could use Gratzer’s testimony only to evaluate Bird’s “demeanor and conduct, as well as the content of what [Bird] said during the [police] interview. You may not use this testimony in deciding [Bird’s] state of mind at the time of the alleged offense.”

Gratzer testified that in his opinion, Bird was suffering from an unspecified psychotic disorder at the time the police interviewed him on August 2. Gratzer explained that psychosis can cause persons to be paranoid, to suffer from disorganized thinking, and to have delusions — ’that is, beliefs that are false, irrational, illogical, and not based in reality. Gratzer said that Bird’s delusions included beliefs that Laurie Bird was molesting Bird’s daughters, was having extramarital affairs, and was HIV-positive, and the belief that Bird’s boss was running computer programs that caused his wife to have a seizure. Gratzer explained that Bird suffered from paranoid psychosis, which caused him to look less ill and more composed in the videotaped interview than other mentally ill persons might appear because, among other reasons, paranoid psychotics do not volunteer information about their thinking.

On cross-examination, the state asked Gratzer about Bird’s history of drug use and its potential impact on Bird’s mental health. Gratzer acknowledged that Bird’s psychiatric history included a methamphetamine-induced psychosis for which Bird was hospitalized in 2001. Gratzer also said that Bird evidenced psychotic symptoms in March 2005, four months before the shooting. Gratzer said he was not aware of any hospitalization for the March 2005 symptoms or any diagnosis of those symptoms as being drug-induced. Further, Gratzer said that two facts were inconsistent with a conclusion that Bird suffered from methamphetamine-induced psychosis at the time he spoke to the police: (1) Bird’s blood did not test positive for methamphetamine at the time he made the statements; and (2) drug-induced psychosis typically follows a person’s use of large amounts of methamphetamine, and it was unlikely that Bird could be using sufficiently large amounts without people around him being aware of his use.

The state called Dr. Karen Bruggemeyer, a forensic psychiatrist, to rebut Grat-zer’s testimony. Bruggemeyer testified that in her opinion, Bird suffered from a methamphetamine-induced psychosis with delusions and hallucinations that “had now fully resolved.” She explained that five days is the maximum length of time that methamphetamine use will be discernable through a blood test, but that methamphetamine-induced psychotic symptoms can continue for days, weeks, and in some cases, months after use ends. Bruggem-eyer explained that despite the psychotic thoughts Bird had at the time of the police interview, it was possible for him to think and act rationally.

Jury Verdict and Bird’s Appeal

The district court instructed the jury on first-degree premeditated murder, first-degree heat-of-passion manslaughter, intentional second-degree murder, and first-degree domestic abuse murder. The jury found Bird guilty of first-degree premeditated murder and first-degree domestic abuse murder. After concluding that the two counts merged for sentencing purposes, the court sentenced Bird to life in prison. Bird appealed his conviction to our court, arguing that the district court abused its discretion when it excluded expert psychiatric testimony regarding the nature of psychosis in general and the fact that Bird was psychotic at the time he shot his wife.

I.

We review a district court’s exclusion of expert testimony for abuse of discretion, State v. Griese, 565 N.W.2d 419, 425 (Minn.1997), and any error in excluding such testimony is subject to harmless error analysis. See State v. Quick, 659 N.W.2d 701, 713 (Minn.2003). When a defendant pleads not guilty by reason of mental illness, expert psychiatric testimony is admissible during the mental illness phase of the defendant’s trial to establish that he “was laboring under such a defect of reason that he lacked the capacity to form the intent that was otherwise manifested.” State v. Bouwman, 328 N.W.2d 703, 705 (Minn.1982); see also Minn.R.Crim. P. 20.02, subd. 6(2) (prescribing a bifurcated trial for defendants pleading not guilty by reason of mental illness). Expert psychiatric testimony is not admissi ble during the guilt phase of a trial to establish that at the time of the alleged offense, a defendant lacked the mental capacity to form specific intent or to premeditate. State v. Brom, 463 N.W.2d 758, 762-63 (Minn.1990); Bouwman, 328 N.W.2d at 704-05. Further, expert psychiatric testimony is not admissible during the guilt phase to show that a defendant did not in fact form the requisite mental state for the offense charged. State v. Provost, 490 N.W.2d 93, 98 (Minn.1992).

Finally, we have also stated that expert testimony is generally not admissible during the guilt phase of a trial to inform the fact-finder about the general effects of a mental illness, but “[tjhere may be a few exceptions.” Id. at 103. Two such exceptions are (1) the “very rare” circumstance in which a defendant’s mental illness is “characterized by the formation of a particular subjective state of mind inconsistent with the pertinent criminal mens rea”; and (2) when a defendant has a past history of mental illness and that history helps “explain ‘the whole man’ as he was before the events of the crime and before the miasma of after-the-erime rationalizations.” Id. at 103-04.

Bird argues that notwithstanding our decisions in Bomvman and subsequent cases, the district court abused its discretion when it excluded Gratzer’s testimony regarding Bird’s psychosis at the time he shot his wife. Bird asserts that Gratzer’s testimony was admissible because it was not offered on the issue of Bird’s mental state and was instead offered to help the jury decide whether Bird acted in the heat of passion and with extreme indifference to human life. Bird also argues that Grat-zer’s testimony is admissible under both of the exceptions we articulated in Provost.

Minnesota Statutes § 609.20(1) (2006) provides that anyone who “intentionally causes the death of another person in the heat of passion provoked by such words or acts of another as would provoke a person of ordinary self-control under like circumstances” is guilty of manslaughter in the first degree. Whether a defendant acted in the heat of passion is a subjective inquiry that focuses on the defendant’s emotional state — that is, whether the defendant was actually provoked. State v. Hannon, 703 N.W.2d 498, 510 (Minn.2005); State v. Buntrock, 560 N.W.2d 383, 386 (Minn.1997). But whether a person of ordinary self-control would be provoked under like circumstances requires an objective analysis. Hannon, 703 N.W.2d at 510. Bird argues that the excluded expert testimony is relevant to both the subjective and objective elements of the provocation defense.

Subjective Element of Provocation

Regarding the subjective element of the provocation defense, Bird asserts that a person in a psychotic state can have delusions and yet appear more rational than he actually is, and that Gratzer’s testimony would have helped the jury understand that Bird’s “dead calm” affect may have masked his true emotional state. In essence, Bird appears to be concerned that his psychosis eliminated or at least obscured key “cues” the jury could consider in determining whether he was actually provoked — cues such as expressions of anger toward Laurie Bird. The state argues that determining a defendant’s emotional state is no different from determining his mental state or mens rea and that accordingly, a jury must evaluate actual provocation based on what the defendant says and does, not on a psychiatrist’s opinion.

We agree that there is no meaningful difference between an emotional state and a mental state with respect to the subjective element of the provocation defense. We do not dispute Bird’s contention that what a psychotic defendant “says and does” may be an imperfect indicator of that defendant’s emotional state. But what a psychotic defendant says and does may be an equally imperfect indictor of what that defendant “has in mind” with respect to intent and premeditation, and Minnesota law unambiguously prohibits expert psychiatric testimony regarding these mental states unless the testimony is offered to establish a mental illness defense. See Provost, 490 N.W.2d at 104 (stating that expert testimony concerning the fact and effects of defendant’s schizophrenia “added nothing” to the jury’s determination of the intent the defendant actually “had in mind”); Brom, 463 N.W.2d at 762-63 (reasoning that expert psychiatric testimony is not helpful in deciding either intent or premeditation because both issues are subjective and must be inferred from the totality of the circumstances). We therefore conclude that like the mental states of intent and premeditation, the emotional state of heat of passion must be inferred from the totality of the circumstances rather than established through expert testimony.

Provost Revisited

Because the foregoing conclusion draws substantial support from but is arguably not mandated by our holding in Provost, it is appropriate for us to revisit and comment on Provost. We do so in the context of Bird’s assertion that expert psychiatric testimony about his alleged psychosis at the time of the shooting is relevant to the jury’s determination of whether he acted in the heat of passion. In Provost, we acknowledged that under some circumstances, an expert’s opinion that a defendant suffered from a particular mental illness could be relevant to determining whether that defendant actually harbored a particular mental state. 490 N.W.2d at 99. We likewise accept Bird’s argument that under some circumstances, psychiatric testimony on the existence and effects of a mental illness may have some tendency to make the existence of an emotional state such as heat of passion “more probable or less probable than it would be without the [testimony].” See Minn. R. Evid. 401. But as we noted in Provost, relevancy is not the only consideration in determining whether evidence — including expert psychiatric testimony — should be admitted:

While Minn. R. Evid. 401 adopts a minimal relevancy approach, this is counterbalanced by Minn. R. Evid. 403, which provides that relevant evidence may be excluded if its probative value is substantially outweighed by other considerations, including prejudice and confusion of the issues. * * * Consequently, to conclude that psychiatric testimony may have some relevance to a guilty mind is only the beginning, not the end, of any inquiry into admissibility of that testimony.

490 N.W.2d at 99.

We ultimately concluded in Provost that any probative value expert psychiatric testimony might have to a jury in determining whether a defendant actually formed a particular mens rea would be substantially outweighed by the risk that “the jury [would] inevitably take the testimony as an invitation to consider whether the defendant could or couldn’t [form] a guilty mind.” Id. at 100. In other words, we concluded that allowing expert psychiatric testimony on the issue of whether a defendant formed a particular mental state would inevitably open the door to jury verdicts influenced by the doctrine of diminished capacity or responsibility — a doctrine not recognized in Minnesota law. Id.; see also Bouwman, 328 N.W.2d at 706 (rejecting doctrine of diminished capacity).

After reexamining the foregoing conclusion in the context of the case before us today, we find no basis for limiting our holding in Provost in order to deem Grat-zer’s testimony admissible. Assuming without deciding that Gratzer’s proposed testimony would have probative value in determining whether Bird acted in the heat of passion, we conclude that such value is substantially outweighed by the risk that the testimony would lead the jury to undertake an impermissible inquiry into Bird’s capacity to form the intent required for first-degree murder. Accordingly, we conclude that Gratzer’s testimony is inadmissible on the question of whether Bird acted in the heat of passion at the time of the shooting.

Objective Element of Provocation

Bird also argues that Gratzer’s testimony is relevant to the objective element of the provocation defense — that is, whether a person of ordinary self-control would have been provoked under like circumstances. In essence, Bird asserts that the “under like circumstances” language of Minn.Stat. § 609.20(1) should be read in conjunction with the “person of ordinary self-control” language to allow the factfin-der to consider whether a delusional person of ordinary self-control would have been provoked by words or acts similar to those that provoked the defendant. The state argues that reading “under like circumstances” to encompass a defendant’s peculiar mental characteristics undermines the objective element of section 609.20(1) because under such a reading, a defendant’s conduct would no longer be measured by that of the “person of ordinary self-control.”

In State v. Thunberg, we held that a district court erred when it used the words “sober person of ordinary self-control” in a jury instruction for heat-of-passion manslaughter. 492 N.W.2d 534, 536-37 (Minn. 1992). Following Thunberg, we stated in Buntrock — another case involving a defendant who was intoxicated at the time of the alleged offenses — that our inquiry focused on whether the victim’s conduct “would be sufficient to provoke an ordinary person under similar intoxicants in similar circumstances.” 560 N.W.2d at 387 (emphasis added). The legislature subsequently amended section 609.20 in 1995 to state that “a ‘person of ordinary self-control’ does not include a person under the influence of intoxicants or a controlled substance.” Act of June 1,1995, ch. 244, § 13, 1995 Minn. Laws 2326, 2334. Nevertheless, Bird argues that Thunberg is still good law to the extent it indicates that “the circumstances a jury may consider generally include the peculiar mental or physical characteristics of the defendant.” Bird does not identify any authority for his argument aside from cases involving intoxication, and the extent to which a jury may otherwise consider a defendant’s “peculiar” mental characteristics in deciding whether his heat of passion was reasonable appears to be a question of first impression for our court.

Given the absence of Minnesota case law on the foregoing question, we find it helpful to consider the law of other jurisdictions, the traditional formulation of the provocation defense, and the Model Penal Code (MPC) approach. Professor Wayne LaFave observes that “it is quite uniformly held that the defendant’s special mental qualities — as where, because of a sunstroke or head injury, he is particularly excitable — are not to be considered” when evaluating the adequacy of provocation in heat-of-passion cases. 2 Wayne R. La-Fave, Substantive Criminal Law § 15.2(b)(10) (2d. ed.2003) (emphasis added) (footnote omitted). The majority approach described by LaFave reflects the traditional formulation of the provocation defense, under which a defendant’s claim that

he reacted [to an external stimulus] because of his behavioral predisposition itself sets him at odds with the reasonable person standard. Thus, under the traditional approach to provocation, the defense operates through consideration of [stimuli] external to the psyche or behavioral propensities of the defendant, rendering his infirmities irrelevant to whether he was actually provoked, and at odds with the reasonableness inquiry that follows.

Nita A. Farahany & James E. Coleman, Jr., Genetics and Responsibility: To Know the Criminal from the Crime, 69 Law & Contemp. Probs., Winter/Spring 2006 at 115, 157.

In contrast to the traditional formulation, the MPC approach, according to some observers, “introduc[es] the actor’s actual state of mind into the previously rigidly applied provocation defense by allowing the trier of fact to evaluate reasonableness from the viewpoint of the actor.” Id. But the language of MPC § 210.3(l)(b) is considerably different from Minn. Stat § 609.20(1). Model Penal Code § 210.3(l)(b) provides that manslaughter is a homicide

committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.

(Emphasis added.) Moreover, we have previously compared section 609.20(1) to the foregoing MPC language and concluded that Minnesota’s manslaughter statute allows for less subjectivity in the reasonableness determination. Thunberg, 492 N.W.2d at 536-537.

In light of the foregoing analysis, we agree with the state’s reasoning that interpreting the phrase “under like circumstances” in section 609.20(1) to encompass the unique mental characteristics of a particular defendant would too greatly infringe on the objective element of section 609.20(1). See Hannon, 703 N.W.2d at 510 (discussing the subjective and objective elements of the provocation defense under section 609.20(1)). Because the reasonableness of a defendant’s provocation is an objective determination, the jury must necessarily ask whether ordinary persons of reasonable self-control — not psychotic persons of reasonable self-control — would be provoked under similar circumstances. We therefore conclude that the district court did not abuse its discretion when it ruled that Gratzer’s testimony is inadmissible on the question of whether Bird was reasonably provoked to a heat of passion by words or acts preceding the shooting.

II.

We next address Bird’s claim that expert psychiatric testimony is admissible on a particular element of domestic abuse murder as defined by Minn.Stat. § 609.185(a)(6). Section 609.185(a)(6) provides that a person is guilty of murder in the first degree if he

causes the death of a human being while committing domestic abuse, when [he] has engaged in a past pattern of domestic abuse upon the victim or upon another family or household member and the death occurs under circumstances manifesting an extreme indifference to human life.

(Emphasis added.) Bird argues that in determining whether he shot his wife under circumstances manifesting extreme indifference, the jury would have been helped by Gratzer’s testimony that Bird suffered from a condition causing hallucinations, delusions, and disorganized thinking. More specifically, Bird asserts that Gratzer’s testimony would have illuminated whether Bird “knew of and consciously disregarded the risk of causing his wife’s death.” The state argues that extreme indifference is a state of mind that the jury must infer from the circumstances surrounding the crime and that expert psychiatric testimony should not be admissible on the issue of extreme indifference when it is inadmissible on other states of mind, such as premeditation and intent.

We conclude that the phrase “circumstances manifesting an extreme indifference to human life” in section 609.185(a)(6) denotes recklessness or at minimum, gross negligence—both of which are mental states. See State v. Schmitz, 559 N.W.2d 701, 704 (Minn.App.1997) (reasoning that the use of “indifference” in the state’s domestic abuse murder provision “suggests a lack of concern and is related to negligence or recklessness”), rev. denied (Minn. Apr. 15, 1997); see also Margaret C. Hobday, Note, A Constitutional Response to the Realities of Intimate Violence: Minnesota’s Domestic Homicide Statute, 78 Minn. L.Rev. 1285, 1292-93 (1994) (“Although the meaning of [the extreme indifference clause] invites some confusion, it appears to signify an aggravated form of recklessness.” (footnote omitted)).

Furthermore, we can identify no basis for admitting expert testimony as to the effects of psychosis on a defendant’s capacity for negligence or recklessness when we categorically exclude such testimony as to the effects of psychosis on a defendant’s capacity for specific intent or premeditation. Bird contends that a person responding to psychotic stimuli cannot be acting with the extreme indifference required for a domestic abuse homicide, but he fails to explain why this is so, particularly in light of the well-settled principle that a psychotic person can act with specific intent. See State v. Wilson, 539 N.W.2d 241, 245 (Minn.1995) (“[T]his court has only reversed one murder conviction where a defendant suffered from both paranoid schizophrenia and delusions.”). Absent a principled basis for treating some states of mind differently from others when determining the admissibility of expert psychiatric testimony, we conclude that the district court did not abuse its discretion when it excluded Gratzer’s testimony on the issue of whether Bird acted with extreme indifference to human life under Minn.Stat. § 609.185(a)(6).

III.

As previously noted, we have identified two exceptions to the rule that expert psychiatric testimony on the general effects of a mental illness is inadmissible. Provost, 490 N.W.2d at 103-04. We stated in Provost that such testimony may be admitted: (1) under the “very rare” circumstance when the defendant’s mental illness is “characterized by the formation of a particular subjective state of mind inconsistent with the pertinent mens rea”; or (2) when the defendant has a past history of mental illness and that history helps to explain “the whole man” as he was before he committed the alleged offense. Id. Bird argues that Gratzer should have been allowed to testify regarding the general effects of his psychosis under both of the foregoing exceptions.

As to the first exception, Bird asserts that psychosis — which is characterized by the formation of a mental state that includes hallucinations and delusions — is inconsistent with the mental state of “extreme indifference” that the state must prove to secure a conviction for domestic abuse murder. In its simplest terms, Bird’s argument appears to be that a person who is psychotic is incapable of acting negligently or recklessly. We disagree because Bird’s argument is not supported by our case law. We have long accepted that a psychotic mental state is not inconsistent with specific intent, see, e.g., Wilson, 539 N.W.2d at 245, and Bird provides no authority for the proposition that a psychotic mental state is per se inconsistent with negligence or recklessness. More specifically, the fact that Bird suffered from hallucinations, delusions, and disorganized thinking would not appear to prevent him from committing a range of potentially negligent or reckless acts that could have culminated in the shooting of his wife.

As to the second Provost exception, Bird asserts that (1) his clinical mental health history includes a diagnosis of and treatment for psychosis; and (2) Gratzer’s testimony as to the general effects of psychosis would have helped the jury to put Bird’s bizarre conduct in context and thereby understand and appreciate him as he was before the shooting. The state argues that the second Provost exception does not apply because, among other reasons, Grat-zer’s opinions were inconsistent with Bird’s pre-indictment clinical record and were therefore inadmissible under Griese, 565 N.W.2d 419, and State v. Persitz, 518 N.W.2d 843 (Minn.1994).

In Griese and Persitz, we concluded that the second Provost exception does not include the testimony of an expert psychiatric witness whose evaluation of a defendant is based only on post-indictment clinical records. Griese, 565 N.W.2d at 426; Persitz, 518 N.W.2d at 848. But Gratzer’s evaluation of Bird was based partly on a clinical record, including a 2001 diagnosis of substance-induced psychosis, which preceded the offense. The state asserts that Griese and Persitz nonetheless prohibit Gratzer’s testimony because Gratzer diagnosed Bird as having, in the days before the shooting and at the time Bird gave his statements to the police, an unspecified psychotic disorder rather than a substance-induced psychosis. More specifically, the state asserts that because Gratzer’s testimony would have conflicted with the diagnosis in Bird’s pre-indictment mental health record, the testimony would not have helped to explain “the whole man.”

We conclude that Bird’s argument on the second Provost exception misses the mark because the expert psychiatric testimony that may be admitted under this exception concerns the defendant’s past history of mental illness as evidenced by a clinical mental health record. Therefore, to the extent that Bird cites Provost as a basis for Gratzer to testify about Bird’s psychosis at the time of the shooting, he overstates what Provost allows. See Griese, 565 N.W.2d at 426 (discussing Provost, 490 N.W.2d at 108-04).

Having concluded that Bird’s proffered expert psychiatric testimony is inadmissible under the second Provost exception for the reason set forth above, we need not and do not address the state’s argument that Gratzer’s testimony is inadmissible because it is inconsistent with Bird’s pre-indictment clinical record.

For all of the foregoing reasons, we hold that the district court did not abuse its discretion when it excluded some of Dr. Gratzer’s proposed testimony.

Affirmed.

      . See Minn. R.Crim. P. 20.01, 20.02 (setting forth procedures for court-ordered examinations to determine whether a defendant is competent to stand trial and whether he qualifies for a mental illness defense).

      . Diane Nelson, a latent print examiner with the Hennepin County Sheriff's Office crime lab, testified that there were no ''useable” fingerprints on the gun taken from Laurie Bird's hand or on the spent or live rounds in evidence.

      . Bird was an over-the-road truck driver, and he left Fargo, North Dakota, on approximately Friday, July 22, to make deliveries in California and Texas.

      . Provost sought to introduce expert psychiatric testimony on the general effects of schizophrenia and the fact that he suffered from the disease. 490 N.W.2d at 104.

      . Bird told police and testified at trial that the shooting was an accident. But the fact that Bird's theory of the case appears logically inconsistent with a heat-of-passion scenario does not necessarily undermine his argument about the excluded testimony. In State v. Leinweber, we held that a district court committed prejudicial error when it refused to give a heat-of-passion manslaughter instruction to the jury, despite the fact that the defendant maintained that he shot his wife by accident while dislodging jammed shells from his rifle. 303 Minn. 414, 415-17, 228 N.W.2d 120, 122-23 (1975). We stated that the refusal to give the heat-of-passion instruction reflected the court's failure “to properly recognize, in this unwitnessed shooting, the jury’s task of reconstructing what actually occurred * ⅜ * [anci liberty to credit or reject * * * any part of defendant's testimony." Id. at 417, 228 N.W.2d at 123.

      . Bird cites a single California case as authority for the proposition that Gratzer’s testimony is admissible on the subjective element of the provocation defense. In People v. Steele, the California Supreme Court stated that a defendant could introduce evidence of his "various mental deficiencies” and his psychological dysfunction to prove that he was in fact in the heat of passion when he committed the charged offenses. 27 Cal.4th 1230, 120 Cal.Rptr.2d 432, 47 P.3d 225, 240 (2002) (noting that although diminished capacity has been abolished in California, “diminished actuality” survives). California law permits the introduction of evidence through expert testimony on the issue of whether a defendant formed a requisite mental state, but an expert may not offer an ultimate opinion on whether the defendant actually formed such a mental state, leaving such an inference to the factfinder. People v. Vieira, 35 Cal.4th 264, 25 Cal. Rptr.3d 337, 106 P.3d 990, 1007 (2005) (emphasis added). Unlike California, Minnesota does not recognize the doctrine of "diminished actuality” with respect to mental states. See Provost, 490 N.W.2d at 98. Consequently, Steele offers little support for Bird's contention that we should differentiate between expert psychiatric testimony on emotional states such as heat of passion and mental states such as intent or premeditation.

      . While we affirm Provost's holding in the context of the case now before us, we acknowledge that in retrospect, some of our statements in Provost are not especially persuasive. For example, we stated rather unequivocally in Provost that “jurors understand and accept that mental illness is a real illness.'' 490 N.W.2d at 99. Given the challenges our criminal justice system continues to confront in fairly addressing mental health issues, we believe this statement was more optimistic than circumstances warrant.